Date: 20050307
Toronto, Ontario, March 7th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
RAJANIKANTH CHITRAVELU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant is a Tamil citizen of Sri Lanka who fears persecution from the Sri Lanka security forces. The Applicant's father was determined to be a Convention refugee in Canada in 1999, and he then sponsored the applicant's mother, brother and sister in 2001. The applicant remained in Sri Lanka, but claimed numerous instances of detention and physical abuse by the Sri Lankan Army (SLA) and the police, between December 1994 and July 2001.
[2] The main argument presented by the Applicant is that the Refugee Protection Division ("RPD") rendered it's decision in denial of natural justice. This argument results from a statement made by the RPD during the hearing which is fundamentally contradicted in the decision rendered.
[3] During the hearing the RPD said as follows:
PRESIDING MEMBER: We are back on the record; the same persons are present with the exception of the RPO who has left us. We are about to hear the submissions from counsel. Counsel, I don't think we need to make lengthy submissions on credibility. I found the claimant to be credible and the one omission, the fish business, is both in the father's PIF and in the claimant's so I don't think you need to touch on credibility. (Tribunal Record, p. 296)
However, in it's reasons for decision, the RPD stated as follows:
In November 2002, in what he described as his most horrific incident, the claimant acknowledged that he was swept up in a riot where he was not targeted but was in the wrong place at the wrong time and he went to the police because of his experiences and because he lost his scooter in the melee. I find that if the claimant had a well founded fear of the police, he would not be likely to go to the same police for protection on two occasions.
[Emphasis added]
(RPD Decision, p. 5)
[4] In my opinion, there is no ambiguity in the RPD's reasons; the Applicant's claim of subjective fear of the police was rejected on a negative credibility finding. In my opinion, this conclusion is a denial of natural justice given the fact that the RPD stated that credibility was not in issue in the claim made. Therefore, I find the decision was rendered in reviewable error.
ORDER
Accordingly, the RPD's decision is set aside and the matter is referred back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3012-04
STYLE OF CAUSE: RAJANIKANTH CHITRAVELU
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 7, 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES:
Micheal Crane For the Applicant
Marcel Larouche For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent