Date: 19990203
Docket: IMM-1224-98
BETWEEN:
SAKUNTALA THAMBIRASA
AND
SUJAAN THAMBIRASA and SUBA THAMBIRASA
(BY THEIR LITIGATION GUARDIAN SAKUNTALA HAMBIRASA)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario,
on Wednesday, February 3, 1999)
REED J..
[1] I am persuaded that the application should be allowed.
[2] The Board clearly misconstrued the evidence in stating that the applicant's reason for leaving Sri Lanka was her experience in Colombo. The record discloses that her reason for leaving was her experience in the north. She had decided before she left the north that she would leave Sri Lanka and seek international protection elsewhere. Indeed, she thought she was going to India. Thus, it is not correct to say that the sexual assault and related events in Colombo were the "impetus" for her leaving. This undercuts the Board's whole finding of lack of credibility.
[3] In addition, the reliance on the failure to find in the port of entry notes any reference to the events in Colombo as a reason for a finding of lack of credibility is a capricious finding:
| (1) There is a complete absence of any consideration being given to the reasons a Tamil woman (indeed many women) would be reluctant to disclose a sexual assault to a stranger, a male, who speaks a different language and is in a country with a culture different from her own; evidence of Dr. Baruch is simply ignored; (2) the port of entry notes completely fill the space provided for them; (3) what is written then is chosen by the officer, not the applicant; (4) there is no expectation that the brief few lines of notes are meant to tell the whole story. |
[4] The reliance on the failure of Dr. Baruch to mention in her report that the assault took place in Colombo is also capricious. The geographical location of the events would not be important for the purposes of her report - why should she mention it?
[5] The failure of the applicant to mention in her p.i.f. that her children, as well as the shopkeeper, her uncle and herself were arrested is an omission (not a contradiction to her oral testimony). It is not in itself, given the other errors in the decision, sufficient to support a finding of lack of credibility.
[6] For the reasons given the decision under review will be set aside and the matter referred back for reconsideration by a differently constituted panel.
"B. Reed"
Judge
Toronto, Ontario
February 3, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1224-98
| STYLE OF CAUSE: SAKUNTALA THAMBIRASA |
| AND |
| SUJAAN THAMBIRASA and SUBA THAMBIRASA |
| (BY THEIR LITIGATION GUARDIAN SAKUNTALA HAMBIRASA) |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, FEBRUARY 3, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: WEDNESDAY, FEBRUARY 3, 1999
APPEARANCES: Ms. M. Chen
For the Applicants
Ms. A. Horton
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman and Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
| For the Applicants |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990203
Docket: IMM-1224-98
Between:
| SAKUNTALA THAMBIRASA |
| AND |
| SUJAAN THAMBIRASA and SUBA THAMBIRASA |
| (BY THEIR LITIGATION GUARDIAN SAKUNTALA HAMBIRASA) |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER