Docket: IMM-2466-03
Citation: 2004 FC 1305
Toronto, Ontario, September 22nd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
LALITHADEVI LOGANATHAN
ANUSHA LOGANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently
written for precision and clarification)
[1] The Applicants (Lalithadevi Loganathan) and her daughter (Anusha Loganathan), respectively 50 years old and 11 years old, are both citizens of Sri Lanka who claim to have a well-founded fear of persecution at the hands of police, army and members of the Tamil group EPDP (no long form provided), by reason of imputed political opinion and gender. They also claim to be persons in need of protection as persons in danger of being tortured or at risk of losing their lives or being subjected to cruel and unusual treatment or punishment in Sri Lanka.
[2] The Applicants alleges that in 1990, her son Sajiv joined the Liberation Tigers of Tamil Eelam (LTTE). In early 1998, the Applicants' family moved to Vavuniya. Later, the family went to Colombo and stayed in the annexe of a house owned by Tamils. The Applicants claim the Police and EPDP members extorted money from them. In February 1999, police arrested the Applicant's husband. She began to fear staying alone in Colombo as she had bad experiences at the hands of the police there. On September 15, 2001, the Applicant and her daughter left Sri Lanka. They arrived in Canada on November 3, 2001 and claimed refugee status.
[3] The Board found that the Applicant was neither a Convention Refugee nor a person in need of protection. The Board also found that there were no substantial grounds that the Applicant's (and her daughter's) return to Sri Lanka would subject them personally to torture, or to a risk to their life, or to a risk of cruel and unusual treatment or punishment.
[4] In its decision the Board referred to the officer's port of entry notes four times i.e. paragraphs 2, 5, and twice in paragraph 9.
[5] However, given a dispute regarding the timing of providing counsel with these documents, the Board had stated (Tribunal Record p. 42) that it did not intend to rely on these records. In addition, paragraph 10 of the decision of the Board states: "In any case the tribunal has no intention to refer to the port of entry notes."
[6] It is a clear cut violation of the rules of procedural fairness to take into account documents that have been previously excluded and to impugn the credibility of an applicant on that basis. It is presumed that the Board considered all the evidence presented to it, unless the opposite is shown (See Canada (M.C.I.) v. Soltesz, [2002] F.C.J. No. 606). Here we have more than a presumption, the Board in its reasons admits having considered the excluded evidence several times.
[7] While there were other elements of the Applicants' story that could lead the Board to question the credibility of the Applicants, the excluded evidence was used four times to strengthen the case for impugning the credibility of the Applicants. It is impossible to ascertain from the reasons to what extent the Board relied on the port of entry notes and to what extent it was influenced by other evidence. The use and reference to the excluded port of entry notes thus cannot be considered an immaterial error.
[8] Accordingly, the Court has no choice but to allow this application.
ORDER
THIS COURT ORDERS that the decision of the Immigration and Refugee Board of March 20, 2003 is hereby set aside and the matter is referred back to the board for consideration by a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-2466-03
STYLE OF CAUSE: LALITHADEVI LOGANATHAN
ANUSHA LOGANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 22, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: SEPTEMBER 22, 2004
APPEARANCES BY:
Mr. Kumar Sriskanda
FOR THE APPLICANTS
Mr. Robert Bafaro
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Kumar Sriskanda
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040922
Docket: IMM-2466-03
BETWEEN:
LALITHADEVI LOGANATHAN
ANUSHA LOGANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER