BETWEEN:
KAJENTHIRAKUMAR SIVARAJATHURAI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] Mr. Sivarajathurai is a Tamil from the Jaffna Peninsula, Sri Lanka. Because of the treatment he received at the hands of both the Tamil Tigers and the police, including torture, he sought refuge in Canada as a United Nations refugee and as a person in need of international protection because he would be subjected to torture or to a risk to his life or at least cruel and unusual treatment or punishment should he be returned to Sri Lanka. This is a judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board which determined that he was neither a Convention refugee nor a person in need of Canada's protection.
ISSUES
[2] Mr. Sivarajathurai submits that there are two issues; denial of natural justice and whether the finding that he was not credible was patently unreasonable. The natural justice issue in turn breaks down into two parts.
[3] The Panel applied the reverse order questioning procedure set out in sections 19 to 23 of Guideline 7 issued by the Chairman of the Board. In this case Mr. Sivarajathurai was first questioned at his hearing by the Refugee Protection Officer followed by the Panel member, and finally by his own lawyer. It is to be noted that no complaint had been made prior to or during the hearing about this order of questioning.
[4] The second argument is that the Panel was looking for reasons to disbelieve, and did not give him a fair and impartial hearing. An impartial observer could only come to the view that there was a reasonable apprehension of bias.
[5] In any event, the finding that he was not credible was based on a series of patently unreasonable findings of fact.
ANALYSIS
[6] I am satisfied that the Panel made a number of patently unreasonable findings of fact, any one of which was so germane to the application that the decision must be set aside and referred back to the Refugee Protection Division for a new hearing before a differently-constituted panel.
[7] In the words of the Panel, while Mr. Sivarajathurai was in police custody:
He described how after being chained and having his clothes removed, a pipe was introduced into his body and when he regained consciousness, his jeans were soaked with blood. He could not explain how his jeans were soaked with blood, if they had been removed before the rape. Consequently, the Panel doubts that he was abused, as alleged.
Does the Panel think that a person sodomized with a pipe would not bleed? Does he think that the perpetrators of this outrage would not have then put Mr. Sivarajathurai's jeans back on, while thankfully he was unconscious, in an effort to hide their crime?
[8] The Panel doubts the Sri Lankan medical report which was obtained following the intervention of Mr. Sivarajathurai's lawyer, which report is consistent with the abuse alleged. Since he was not sodomized, the report must be false.
[9] The International Committee of the Red Cross' delegation in Sri Lanka issued a report that it had visited Mr. Sivarajathurai on several occasions at "CDB Police Station", Colombo between 5 December 1996 and 25 February 1997. Later, he was transferred to New Magazine Prison where he was visited on 28 May 1997 and later to Kalutharia Prison, where he was visited 5 December 1997, at which time Mr. Sivarajathurai stated he was "released on bail".
[10] The Panel says there is an inconsistency as to the number of prisons he was in. The Red Cross mentions three but Mr. Sivarajathurai mentions four. The difference is that he was first kept 15 days in the Borella Police Station. "As a result of the above inconsistencies, the Panel gives no probative value to the attestation." Is the Board saying that the letter from the Red Cross is a forgery? There is nothing inconsistent between Mr. Sivarajathurai's testimony and the letter from the Red Cross. The letter did not purport to be a recital of all the prisons in which Mr. Sivarajathurai was held. The time frame clearly shows that that sojourn at Borella Prison was before his detention at CDB Police Station commencing 5 December 1996.
[11] The Red Cross letter says that he told them that he was released on bail. His testimony at the hearing was that he was released without paying money. Faced with this inconsistency, he said that he had given money to a Sri Lankan lawyer and did not know what he had done with it. There is nothing inconsistent about this. There may have been some misunderstanding. The Panel did not go into differences between cash bail, a bail bond, bribery or a release on one's own recognizance. The record simply did not justify the Board's conclusions.
[12] Another document in relation to Mr. Sivarajathurai's arrest was a "[R]eceipt in respect of arrested person" given to his brother 13 November 1996. Yet Mr. Sivarajathurai's brother only visited him on the 17th. The only inconsistency is in the Panel's mind. The explanation is perfectly clear. The brother came off a ship, visited the police, got the receipt but was only able to visit the prisoner four days later. Yet this led the Panel to believe that the claimant was not arrested at all.
[13] These findings do not stand up to the slightest scrutiny.
CONDUCT OF THE HEARING
[14] The Panel was quarrelsome and aggressive, without any cause whatsoever. Although it is not necessary to reach a decision on this point, I doubt that the hearing met the objectives of section 3 of the Immigration and Refugee Protection Act which include the granting "as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution."
[15] Consider the following exchange:
BY COUNSEL (to presiding member)
- If I may, sir, he first said he was not sure, and then he was...
A. You are answering, counsel. You do that in your submissions. Now, if you continue to testify like that.
- But, okay.
A. You just tell me and I'll ask you questions and you will have other people listening to you. He said four or five days after his arrest, which is 17th of November 96. Why do you intervene like that all the time. Do you think you're helping your client?
BY THE PERSON CONCERNED
- Yes.
GUIDELINE 7
[16] There has been a great deal of case law in this Court this year on the reverse order of questioning, and if the applicant has the right to have his or her counsel proceed first with questioning, whether that right can be waived (Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (Blanchard J.); Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (Mosley J.). As these matters are now before the Court of Appeal, and as judicial review has been granted on other grounds, it is not necessary for me to comment.
[17] As judicial review is granted on the basis of patently unreasonable findings of fact, there should be no question of general importance to certify. However, the Minister has until 25 July 2006 to make representations and the applicant until 27 July 2006 to respond.
"Sean Harrington"
Judge
Ottawa, Ontario
July 20, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7238-05
STYLE OF CAUSE: KAJENTHIRAKUMAR SIVARAJATHURAI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
| Me Joyce Yedid
|
|
| Me François Joyal
|
SOLICITORS OF RECORD:
| Joyce Yedid Montreal, Quebec |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|