Date: 20021002
Docket: IMM-4465-01
Neutral citation: 2002 FCT 1033
Montreal, Quebec, October 2, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
SHARMALEE RAJMOHAN MANOHARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated August 23, 2001, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant is a citizen of Sri Lanka who claims refugee status by reason of race, membership in a particular social group (young Tamils from the north), and imputed political opinion. She alleges a fear of persecution at the hands of the Liberation Tigers of Tamil Eelam (LTTE), the army and the police.
[3] The applicant came to Canada in January 2000. Her first claim for refugee status was dismissed on July 7, 2001. The decision under review is that of the applicant's second claim.
[4] The applicant alleges that in May 2000, the LTTE forcibly recruited her husband to serve as a bodyguard. In December 2000, he disappeared. The applicant believes that the army is responsible for this disappearance. The grama sevaka reported the disappearance to the divisional secretary as well as to the LTTE. Both the army and the LTTE reported that they had no knowledge concerning this disappearance. In April 2001, the applicant was informed that the same month, the army had released her husband in Colombo. By May 2001, because of transportation difficulties, he still had been unable to get back home in Mallakam.
[5] The Board denied the applicant's second claim and concluded that the applicant had not demonstrated with credible evidence that the army took her husband and that she would be at risk of persecution if she returned to Sri Lanka. The Board stated that other "more official sources should have been approached".
[6] The applicant argues that the Board imposed too onerous a burden on her with regard to the production of documentary evidence. The evidence provided in support of her allegation, more particularly Exhibit P-11 which was signed by both the grama sevaka and the divisional secretary, should have been more than enough to prove that her husband had disappeared. Moreover, if the Board needed additional documents from more official sources, it should not have refused at the end of the hearing, her request for an extension of time to inquire about such documents. I agree with the applicant.
[7] In the present case, in light of Exhibit P-11, it was reasonable for the applicant to assume that the evidence that she produced was enough to satisfy the Board that her husband had disappeared. In my opinion, the applicant could not reasonably foresee that more evidence would be warranted. In such a case, the denial to grant an extension of time to the applicant in order for her to attempt to obtain more official documents (which are not within her control) constitutes a denial of procedural fairness.
[8] As for the Board's conclusion on the possibility of an Internal Flight Alternative (IFA), I do not believe that this question could be properly decided until the question of the whereabouts of the applicant's husband is properly determined.
[9] For these reasons, this application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
Danièle Tremblay-Lamer
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021002
Docket: IMM-4465-01
BETWEEN:
SHARMALEE RAJMOHAN MANOHARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4465-01
STYLE OF CAUSE:
SHARMALEE RAJMOHAN MANOHARAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 1, 2002
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: October 2, 2002
APPEARANCES:
|
Ms. Eleanor K. Comeau |
FOR THE APPLICANT |
|
Mr. Daniel Latulippe |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Ms. Eleanor K. Comeau Montreal, Quebec |
FOR THE APPLICANT |
|
Morris Rosenberg Deputy Attorney General of Canada Montreal, Quebec |
FOR THE RESPONDENT |