Date: 20050516
Docket: IMM-6276-04
Citation: 2005 FC 696
Ottawa, Ontario, this 16th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
JEYAMOHAN GOBALASINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Jeyamohan Gobalasingam gained refugee status in Canada in 1988 after fleeing civil war in Sri Lanka. He decided to return to Sri Lanka in 1989, thinking that the Indian Peace Keeping Force had restored order.
[2] Mr. Gobalasingam was forced to work for the Liberation Tigers of Tamil Eelam (LTTE) at various points during the 1990s, as were his brother and father. He was also arrested and beaten by the Sri Lankan army on suspicion of being an LTTE member. In 2003, Mr. Gobalasingam decided to return to Canada after the LTTE pressured him to join their ranks. He refused, and feared that the LTTE would harm him for doing so. He hid in Colombo for three weeks before leaving the country.
[3] A panel of the Immigration and Refugee Board dismissed Mr. Gobalasingam's re-application for refugee protection. It disbelieved part of Mr. Gobalasingam's account of events and concluded that he could have lived safely in Colombo. Mr. Gobalasingam argues that the Board treated him unfairly and erred in its finding that he had an internal flight alternative (IFA) in Colombo. He asks me to order a new hearing.
[4] I agree with Mr. Gobalasingam's arguments and must, therefore, allow this application for judicial review.
I. Issues
1. Did the Board treat Mr. Gobalasingam unfairly by relying on its specialized knowledge about Sri Lanka, without giving him notice or an opportunity to respond?
2. Was the Board's analysis of the IFA affected by its credibility finding?
II. Analysis
1. Did the Board treat Mr. Gobalasingam unfairly by relying on its specialized knowledge about Sri Lanka, without giving him notice or an opportunity to respond?
[5] Mr. Gobalasingam testified that he was asked to join the LTTE in 2003. The Board doubted that Mr. Gobalasingam could have lived in the north of Sri Lanka during the previous 14 years without being recruited. It stated that "the claimant's allegation would defy belief to any reader of these reasons who has dealt with claims from Tamil males from the north of Sri Lanka". It seems clear that the Board was relying on its own expertise in finding that Mr. Gobalasingam was not to be believed on this point.
[6] The Refugee Protection Division Rules, SOR/2002-228 provide the following in Rule 18:
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Refugee Protection Division Rules,SOR/2002-228
Notices to the Parties
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information; and (b) give evidence in support of their representations.
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Règles de la Section de la protection des réfugiés, DORS/2002-228
Avis aux parties
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre -- si celui-ci est présent à l'audience -- et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion; b) fournir des éléments de preuve à l'appui de leurs observations.
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[7] Failure to observe this rule is a breach of natural justice and will usually require a new hearing: Gramshi v. Canada (Minister of Citizenship and Immigration), 2004 FC 878, [2004] F.C.J. No. 1072 (F.C.) (QL); Tariq v. Canada (Minister of Citizenship and Immigration), 2005 FC 404, [2005] F.C.J. No. 502 (F.C.) (QL).
[8] While not conceding this point entirely, the respondent argues that any error on the Board's part was immaterial given its independent finding that Mr. Gobalasingam could have lived safely in Colombo. Since this was a completely separate basis for denying Mr. Gobalasingam's claim, the respondent argues that any error on the Board's part regarding use of its specialized knowledge can be ignored: Yassine v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 949 (C.A.) (QL).
[9] The question that must be asked, therefore, is whether the Board's breach of Rule 18 had any effect on its analysis of the IFA. If so, the Board's decision cannot stand. If not, it must be upheld.
2. Was the Board's analysis of the IFA affected by its credibility finding?
[10] The Board found that there was very little risk of persecution of Tamils in Colombo. In particular, it concluded that there was no more than a mere possibility that Mr. Gobalasingam would be recruited by the LTTE in Colombo.
[11] However, the Board did not address Mr. Gobalasingam's fear that the LTTE would find him and punish him for failing to join them in 2003. Nor did the Board consider Mr. Gobalasingam's testimony that he had lived in hiding in Colombo for three weeks in 2003 out of fear of retribution by the LTTE.
[12] Presumably, the Board did not consider this evidence because of its previous finding that Mr. Gobalasingam had not been recruited by the LTTE. However, as mentioned, that finding was arrived at in violation of Rule 18.
[13] Therefore, I cannot say that the Board's analysis of the IFA was completely independent of its credibility finding. Accordingly, the Board's failure to observe Rule 18 must result in a new hearing before a different panel of the Board. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and a new hearing is ordered;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6276-04
STYLE OF CAUSE: JEYAMOHAN GOBALASINGAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: May 10, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: May 16, 2005
APPEARANCES BY:
Ms. Leigh Salsberg FOR THE APPLICANT
Ms. Sharon Stewart Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN & ASSOCIATES
281 Eglinton Avenue East
Toronto, On. FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT