Date: 20030716
Docket: IMM-4224-02
Citation: 2003 FC 885
Ottawa, Ontario, Wednesday, the 16th day of July 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ARUMAINATHAN ARUNASALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Arunasalam is a citizen of Sri Lanka. He claims status as a Convention refugee by virtue of his membership in the particular social group, described to be Tamil males from Jaffna. He brings this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (ACRDD@) dismissing his application.
THE DECISION OF THE CRDD
[2] Mr. Arunasalam owned a pharmacy/grocery store in Sri Lanka. He alleges that the Sri Lankan Army (ASLA@) detained and beat him due to its concerns that he was supplying medicine to the Liberation Tigers of Tamil Eelam (ALTTE@). Mr. Arunasalam also asserts that the SLA accused him of breaking into his own shop in order to cover for the fact that he was giving medicine to the LTTE. Mr. Arunasalam believes that it was the SLA that broke into his shop. Mr. Arunasalam also says that in addition to being robbed by the SLA, the LTTE extorted money and stole medical supplies from him.
[3] The CRDD found Mr. Arunasalam not to be a credible or reliable witness. The CRDD enumerated the following difficulties with his testimony:
$ there was a significant omission from Mr. Arunasalam=s Personal Information Form (APIF@), in that he failed to include any mention of the fact that the LTTE wanted him to go to Vavuniya and he did not go;
$ in oral testimony, Mr. Arunasalam said that he was taken by the SLA on six or seven occasions and questioned. In his PIF he only mentioned that he was taken many times;
$ he failed to mention in his PIF that the LTTE and the Eelam Peoples Democratic Party (AEPDP@) will search for him in order to extort money from him, no matter where he goes into Sri Lanka;
$ he testified that the LTTE could come and go in Trincomalee in the same fashion as they do in Jaffna. The CRDD found this to be incredible given that Trincomalee is a major seaport that has been controlled by the government since 1983, whereas control of Jaffna has alternated between the government and the LTTE;
$ but for the most recent arrest, Mr. Arunasalam was not specific with respect to the dates of his arrests. He gave details with respect to two occasions on which he was beaten, but could not give details regarding the other times he was arrested. The CRDD expected that a person who had been arrested and detained would have some idea with respect to the dates these events occurred. As a result of his inability to remember the dates, the CRDD did not believe that he was arrested by the army as many times as he claimed;
$ Mr. Arunasalam was said to be vague in his testimony; and
$ Mr. Arunasalam agreed that providing medicine to the LTTE would be a very serious offense. The CRDD did not believe that the SLA would, if it believed that Mr. Arunasalam was supplying medicine to the LTTE, release him with only a beating and payment of a bribe.
[4] The CRDD did not note any inconsistencies in Mr. Arunasalam=s testimony.
[5] Given these credibility findings, the CRDD did not find that Mr. Arunasalam suffered past persecution at the hands of the army as he stated, and did not suffer detentions and beatings at the hands of the army.
[6] In the alternative, the CRDD found that Mr. Arunasalam has an internal flight alternative (AIFA@) in Vavuniya or Trincomalee. The CRDD observed that in Vavuniya Mr. Arunasalam stayed with a friend for over a month and a half without difficulty. In the view of the CRDD he could also go to Trincomalee with little fear of persecution. Mr. Arunasalam is a businessman who has already re-established himself once in business, and he could restart his business and reside safely there.
THE ADMITTED ERRORS
[7] Counsel for the Minister fairly conceded that:
i) The CRDD=s finding regarding the Acontradiction@ between the statement in the PIF that Mr. Arunasalam was taken Amany times@ by the SLA and his oral testimony that he was taken by the SLA on Asix or seven occasions@ is not really a contradiction or inconsistency.
ii) The CRDD erred in concluding that Mr. Arunasalam omitted from his PIF the fact that the LTTE and the EPDP will search for him in order to extort money from him no matter where he goes into Sri Lanka.
iii) The finding of an IFA in Vavuniya is flawed, in view of the remarks of the presiding member of the CRDD at the commencement of the hearing to the effect that an IFA in Vavuniya was not in issue.
ADDITIONAL ERRORS
[8] While not conceded by the Minister, I am satisfied that the following findings by the CRDD are also flawed:
i) Mr. Arunasalam did not testify that the LTTE wanted him to go to Vavuniya as stated by the CRDD. He testified that the LTTE wanted him to go to Vanni. No explanation was provided by the CRDD as to why this fact was sufficiently important to Mr. Arunasalam=s claim that any negative inference could be drawn from the fact it was not mentioned in his PIF.
ii) A careful review of the entire transcript does not support the conclusion that Mr. Arunasalam was vague in his testimony. His inability to remember the dates of his arrests was the only example the Minister could point to as being vague, and this was already the subject of a negative inference by the CRDD.
THE EFFECT OF THE ERRORS
[9] Findings of credibility are to be accorded great deference by this Court. The CRDD, as a specialized tribunal, has the benefit of observing witnesses as they testify. Accordingly, it is best placed to assess credibility and to determine the plausibility of testimony.
[10] Notwithstanding, in the case at bar, there were no inconsistencies in Mr. Arunasalam=s testimony, on the whole it was not vague, and the CRDD was wrong when it found there to be significant omissions from his PIF. The CRDD found there to be an IFA in Vavuniya after specifically advising Mr. Arunasalam=s counsel that this was not in issue.
[11] The effect of these errors when taken as a whole is such that I am not satisfied that the reasons of the CRDD reflect a grasp of the issues and the evidence addressed to those issues. It follows that the application for judicial review must be allowed.
THE IFA IN TRINCOMALEE
[12] In determining that this decision should be set aside, I have considered the alternate finding of an IFA Trincomalee. In my view, this finding is flawed as well for the following reasons.
[13] At the outset of the hearing, when the issues to be canvassed at the hearing were listed, the presiding member said this about the issue of an IFA:
Counsel, I don=t think we need to hear a lot about IFA, but I would be interested if there would be a place that he could be safe in Sri Lanka, other than in Vavuniya or in Jaffna, and if he has any connections to Colombo by way of family members. I guess it would be cousins or aunts or uncles.
[14] At the conclusion of the hearing, when counsel for Mr. Arunasalam was making his submissions, the presiding member said:
COUNSEL: [...]
(inaudible) issue with internal flight alternative. As the claimant testified (inaudible) as far as (inaudible). The only other place he could establish is in Colombo. On that I would submit that you have to consider that (inaudible).
PRESIDING MEMBER: You know what, Counsel? I don=t think that he has IFA. As a Tamil from the north, IFA in Colombo to start a business would be difficult.
COUNSEL: Thank you.
PRESIDING MEMBER: So, I don=t need to hear about Colombo.
COUNSEL: So, having established his identity as a person who came (inaudible) from Jaffna as a person (inaudible) from Jaffna, having established he has been deprived of his livelihood at the age of 48, I think that the claimant reasonably fits into the definition (inaudible) where he could be deemed to be a Convention Refugee.
Those are my submissions. [underlining added]
[15] A fair reading of this exchange, in my view, is that the CRDD did not consider Mr. Arunasalam to have any IFA. Counsel was in the course of discussing that the only other place where Mr. Arunasalam might safely reside is Colombo, but that an IFA in Colombo would not be reasonable. In this context, when the presiding member said in his second remark that the presiding member did not have to hear about an IFA in Colombo, the apparent effect was to affirm the bald statement made in his first remark that Mr. Arunasalam does not have an IFA at all. This is particularly so where at the commencement of the hearing the presiding member had said that he did not need to hear Aa lot@ about an IFA.
[16] Moreover, it is not sufficient for the CRDD to identify the existence of an IFA generally as an issue. As Mr. Justice Noël, then of this Court, wrote in Rabbani v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141 at paragraph 16:
The conclusion of the Board as to the existence of an IFA is equally flawed. The Board in its decision fails to identify exactly, where in Afghanistan the Applicant could reasonably be expected to find a safe haven. Rather, the Board refers to Athe area controlled by General Dostam@, the Aarea outside Kabul@ and Athe areas outside the control of the Jamiat-e-Islami@ as the general areas where the Applicant could be expected to flee. The conclusion as to the existence of an IFA requires more than the identification of the approximate area where the agent of persecution is thought to be in control and a general conclusion that the claimant is free to flee elsewhere. A specified geographic location must be identified where the conditions are such as to make it a realistic and attainable safe haven. That in turn requires some discussion as to the prevailing conditions within the identified location. [footnotes omitted and underlining added]
[17] See also: Ahmed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 390 (T.D.).
[18] The CRDD is obliged to give notice of the geographic regions which will be considered as potential IFAs so that an applicant is afforded a fair opportunity to adduce evidence to establish that he or she does not have an IFA there.
[19] The effect of this jurisprudence is that even if there was doubt as to what the presiding member meant when he advised counsel during the course of counsel=s submissions that the presiding member did not think that Mr. Arunasalam had an IFA, the only geographic area properly identified by the presiding member as a potential IFA was Colombo. It follows that the finding of an IFA in Trincomalee is flawed.
[20] Counsel posed no question for certification and no question arises on this record.
ORDER
[21] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed, and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated August 7, 2002 is hereby set aside.
2. The matter is remitted to the Refugee Protection Division for re-determination by a differently constituted panel.
AEleanor R. Dawson@
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4224-02
STYLE OF CAUSE: Arumainathan Arunasalam v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 2, 2003
REASONS FOR ORDER:
AND ORDER: Hon. Madam Justice Dawson
DATED: July 16, 2003
APPEARANCES:
Mr. Kumar Sriskanda FOR THE APPLICANT
Mr. Jeremiah Eastman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Kumar Sriskanda
Barrister and Solicitor
Scarborough, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT
of Canada