Ottawa, Ontario, December 20, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Rajeethan Manickan’s claim for refugee protection was dismissed by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it did not believe his testimony about the persecution he had suffered at the hands of the Liberation Tigers of Tamil Eelam (LTTE), the police, the army, the Eelam People’s Democratic Party and the People’s Liberation Organisation of Tamil Eelam. The Board did, however, believe that Mr. Manickan had established his identity as a 29-year-old citizen of Sri Lanka who was Hindu, Tamil, male, and a farmer from northern Sri Lanka.
[2] While Mr. Manickan raises a number of issues with respect to the Board's decision, in my view only one issue has merit and it is determinative of this application. The application is allowed because, notwithstanding that the Board did not believe Mr. Manickan's testimony, the evidence of his age, nationality, ethnicity and place of usual residence linked Mr. Manickan to the documentary evidence before the Board. The documentary evidence included country condition reports to the effect, for example, that Tamil males who, like Mr. Manickan, bear scars are more prone to adverse identification by the security forces and to be taken for rigorous questioning and potential ill-treatment.
[3] The jurisprudence of the Federal Court of Appeal establishes that a finding of incredibility does not prevent a person from being a refugee if other evidence establishes both the subjective and objective branches of the test for refugee status. See: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168.
[4] Having accepted Mr. Manickan's identity, the Board was obliged to assess the documentary evidence before it that dealt with the risk a Tamil male such as Mr. Manickan might be subject to, if he were required to return to Sri Lanka. By failing to do so, the Board reached its decision without regard to all of the evidence before it. For a recent review of Federal Court jurisprudence on this point, please see the reasons of my colleague Madam Justice Mactavish in Sivalingam v. Canada (Minister of Citizenship and Immigration), 2006 FC 773.
[5] Counsel for the Minister argued that the jurisprudence of the Court is divided on this point. I respectfully disagree because the decision of the Federal Court of Appeal in Attakora is, of course, binding upon this Court. As my colleague Mr. Justice Blais noted in Fernando v. Canada (Minister of Citizenship and Immigration), 2006 FC 1349, at paragraph 31, where a claimant is found not to be credible, whether an assessment of the documentary evidence is then required depends upon the nature of the evidence and its relationship to the claim. Each case will turn on its own facts.
[6] Documentary evidence need not be consulted where the only evidence that links an applicant to the documents is the applicant’s discredited testimony. For example, there will be instances where country condition reports may shed no light on a particular applicant's claim. In other cases, the country condition reports may potentially establish a well-founded objective basis for a fear of persecution. In the latter case the Board must have regard to that evidence.
[7] Counsel posed no question for certification, and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board dated April 27, 2005 is hereby set aside.
2. The matter is remitted for redetermination before a differently constituted panel of the Refugee Protection Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3013-05
STYLE OF CAUSE: RAJEETHAN MANICKAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 13, 2006
APPEARANCES:
PAUL VANDERVENNEN FOR THE APPLICANT
CATHERINE VASILAROS FOR THE RESPONDENT
SOLICITORS OF RECORD:
VANDERNENNEN LEHRER FOR THE APPLICANT
BARRISTERS AND SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA