Date: 19990730
Docket No.: IMM-5216-98
IN THE MATTER OF the Immigration Act, R.S.C. 1985, C. I-2 as amended;
AND IN THE MATTER OF a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board respecting the claim to be recognized as a Convention refugee by Thurkatharan Sivamayam
Ottawa, Ontario, the 30th day of July, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THURKATHARAN SIVAMAYAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
PELLETIER J.:
[1] Mr. Sivamayam is a refugee from Sri Lanka. He is a young Tamil male and claims to fear persecution in Sri Lanka because each of the Sri Lankan Army ("SLA ") and the Tamil Tigers ("LTTE") believe that he has connections with the other. At the conclusion of his hearing before the Convention Refugee Determination Division ("CCRD"), the presiding member asked for written submissions rather than oral argument from Mr. Sivamayam"s counsel on a limited number of points. The Presiding Member then decided the case against Mr. Sivamayam on a ground other than those on which representations had been solicited. Mr. Sivamayam seeks judicial review of that decision.
[2] At the beginning of the hearing of this claim on July 8, 1998, counsel for Mr. Sivamayam asked the presiding member Ms. Julie Taub to recuse herself on the ground of reasonable apprehension of bias. The basis of the application was the fact that Mr. Sivamayam was represented by an associate of a lawyer who had sued Ms. Taub in the Ontario Superior Court alleging disreputable conduct in the course of her duties as a member of the CCRD. Ms. Taub declined to recuse herself on the basis that counsel was not even a member of the firm when the claim was commenced, and the present applicant had nothing to do with the Plaintiff in the lawsuit. After the Presiding Member"s ruling, the hearing proceeded in the ordinary course.
[3] The substance of Mr. Sivamayam"s evidence is that he was originally from the north of Sri Lanka where the LTTE attempted to coerce him to join them on a number of occasions. He decided to move to the south, in the process of which he became separated from his family whom he has not seen since. In order to get to the south, he was required to pass through the Vavunia camps where he stayed for a month. He then obtained a pass to move to Colombo where, as a young Tamil male, he was the object of considerable suspicion by the police. He was arrested and beaten on two occasions. He decided to leave Sri Lanka and managed to do so within 10 days of the last police raid on his house. The Presiding Member questioned Mr Sivamayam about his decision to leave the country rather than simply moving back to Jaffna. The following exchange took place between Mr. Sivamayam and Ms. Taub:
| TAUB Who is in control of your town in Jaffna now? |
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| CLAIMANT My area is under the control of the army. |
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| TAUB Why would you not return to your hometown? |
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| CLAIMANT We moved from our place in June of "90, because that place was closed to the army camp, because they made that area a security zone, and they did not allow anybody to stay there, and we were asked to go and live in other areas like Jaffna Town. |
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| TAUB So did you go to Jaffna Town? |
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| CLAIMANT In 1990 June we moved to Jaffna and then to Chavakatcherri. Up to "95 we were at Katcherni (phoen), and in "96 we went to Chavakatcherri. As they advanced, they were arresting the young boys, and they were using them as a human shield for advancing, because they wanted to protect themselves from the land mines. That is how they treated them. That is why we moved from there as the army advanced. And (inaudible) I moved. |
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| TAUB I"m asking, today could you return to Jaffna? |
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| CLAIMANT From the news every day I am hearing of many young people disappearing in Jaffna, and the movement -- boys are attacking the army sentry (phoen) points and sometimes their camps. Whenever that happened, they arrested innocent boys around that area, young boys, and most of the boys disappeared. And even when their relatives went and enquired about them they did not tell anything, because they treat Jaffna boys without any sympathy. |
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| COUNSEL I"m done, thank you. |
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[4] The Refugee Control Officer also asked Mr. Sivamayam about the possibility of return to Jaffna when Mr. Sivamayam decided to flee Colombo:
| RCO I just want to go back to, why is it that you think that you could not return to Jaffna, particularly those areas under army control? |
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| CLAIMANT It is not fully under the control of the army. The movement people are also located in some areas. So the movement people carry out sudden attacks, and they vanish, so they arrest the innocent boys who are at home. |
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| And also, they would make use of us in order to protect themselves against the LTTE attack. Whenever there was some bomb attacks, the boys were arrested, and nobody could get any information about them -- |
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| RCO I"m sorry, I just want to interrupt you for a minute. |
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| There"s a lot of people from Jaffna that have gone back to Jaffna from the south. |
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| COUNSEL Actually, I wanted him to finish the anwer. |
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| You said boys arrested by whom? You were about to finish before you were interrupted. |
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| If you could just finish his answer. |
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| CLAIMANT Army would arrest the boys. And furthermore, my own place where I stayed, I cannot return at all because now it is a security zone. And the most important part of it is, I don"t know where my parents are now. So where should I go and live? |
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| RCO Well, do you have relatives in Jaffna? Aunts, uncles, cousins, grandparents? |
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| CLAIMANT I don"t have much relatives. Even if they are relatives, even a person is arrested, only the parents have the right to go and enquire about them. I am certain that if I had to return, something might happen to me. They would arrest me and do something to me. Why I should return to a place like that? |
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| TAUB I"m sorry, you said that only parents can intervene if you are arrested, but your very own experience didn"t involve your parents, it involved a stranger who was a friend of your father. |
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| CLAIMANT As soon as he approached, he couldn"t get the release. After giving money only that was done. So since he"s a businessman he was able to give the money, but every time they give the money I become indebted to him more and more. |
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| RCO Okay. Just let me say that my understanding is that there"s airline flights and boat transportation up to Jaffna from the south, that the government is encouraging people to return to Jaffna from -- those who have fled the fighting in the past, that their banking system is up and running again, that hospitals and schools are open, that people that are being -- |
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| CLAIMANT I don"t know about that. |
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| RCO Okay. And when you say they arrest people as a result of LTTE attacks, do you mean arrest and charged with offences or do you mean detained for questioning? Or do you know? |
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| CLAIMANT I don"t know exactly the reason. It is very difficult for them to find out the people who are -- the people who are in the movement, so they arrest the young Tamil boys. They normally arrest students, and then make the propaganda that they have arrested the Tigers. |
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| RCO Sir, in two places in Sri Lanka, both with the army and with the police in Colombo, you have been photographed, fingerprinted, and identified as not a member of the LTTE. |
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| RCO So why do you think that would change if you went up to Jaffna? |
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| CLAIMANT Even in Colombo, after I was considered a student and released for the first time, I was arrested a second time. So in order to get money, or for some other reason, they are arresting like that. |
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[5] A good deal of the evidence before the Board consisted of Mr. Sivamayam explaining to the CCRD the experiences which he had in the Vavunia camp on his way from northern Sri Lanka to the south.
[6] At the conclusion of the evidence, the following exchange took place:
| RCO Your personal information form says that you wanted to leave Sri Landa. |
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| CLAIMANT I wanted to leave the country, but I thought there was no way, because I did not know anybody who was going to send me. |
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| NAQVI [2nd CCRD panel member] Okay. Thanks. |
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| TAUB Okay. I"m going to make a suggestion. |
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| Ms. MacLeod, can you make a very abbreviated observation? |
| TAUB Counsel, can I ask you this one time to make written submissions? It"s up to you. |
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| COUNSEL No, that"s fine. If submissions are required in a case like this, I don"t mind doing it written. |
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| TAUB Just because of the time constraints we are under. |
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| RCO Yes. Well, I"m not going to comment on the identity documents the claimant has produced. |
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| TAUB I think we"re satisfied as to (inaudible). I don"t think identity is an issue. |
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| TAUB I think the panel would be briefly interested in his plausibility (phoen) regarding Vavunia. |
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| TAUB (Inaudible) Jaffna. We"re not looking at an IFA in Colombo. |
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| RCO Well, with respect to the -- |
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| TAUB I"m sorry, unless my colleague has other areas -- |
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| TAUB -- with respect to that. |
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[7] In her concluding remarks, the RCO focussed primarily on Mr. Sivamayam"s experiences in Vavunia and concluded by referring to some of the documentary evidence to argue that if Mr. Sivamayam were returned to Sri Lanka, there should be no reason why he could not return to the North, which is now controlled by the SLA.
[8] As he had agreed to do, counsel for Mr. Sivamayam submitted written argument on August 5, 1998 which contained introductory comments, a statement of the issues in the claim, an overview of the test for convention refugee status, a review of the documentary evidence, a discussion of credibility and then the following paragraph appeared:
| As the Members directed myself and the RCO to restrict observations/submissions to the issue of the "plausibility" of this claimant"s experiences in Vavunia, I will restrict the remainder of my comments to that issue. I also wish to confirm that the Members" stated, at the end of the hearing, that IFA in Colombo was not an issue and that the claimant"s personal identity was also not an issue. |
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[9] The CCRD"s decision dated September 8, 1998 was issued on September 18, 1998. The CCRD found against Mr. Sivamayam on the basis that he had no well founded fear of persecution in the north. The CCRD held that:
| The panel is not satisfied that he has good grounds for fearing persecution were he to return to Sri Lanka. |
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| The panel believes that the claimant could return to the Jaffna area, where he is from, which is under Sri Lankan Army control. [There follows a discussion of the applicant"s experience in Vanuniya] ... |
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| According to reliable documentary evidence, southbound civilians arriving in Vavuniya usually have to wait several days, weeks or months, while the security forces perform of Vavuniya to contact family or friends in the south who might be willing to sponsor them. After a further screening process, they are shifted to another camp near the railway station where they are again scrutinized. Further, those in the 15-35 age group are kept at Thandikulam for special screening for security reasons. This was not the experience of the claimant, so the panel is satisfied that the SLA has no interest in this young man and he could, therefore, return to Jaffna which is under SLA control. |
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| According to reliable documentary evidence, thousands of people have returned to Jaffna since December 1995 due to government efforts to repopulate the peninsula. Free transportation is provided and about 1,000 people per week have returned since the beginning of 1997. People are generally able to go about their business unless they have special requirements. Although cordon-and-search operations are frequent, perhaps every other week, they are generally peaceful. Stores are well stocked but the prices are higher than in Jaffna; 80% of schools are functioning and enrollment at Jaffna University is at approximately 70% of its pre-1995 enrollment. |
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| In a recent UNHCR release dated March 1, 1997, it is noted that: |
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| 5. Rejected asylum seekers who arrive with national travel documents should have no problems when arriving at Colombo airport ... |
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| 6. In general, rejected asylum-seekers are not singled out, either at the airport or at a later stage. On the other hand, due to the ongoing conflict and security concerns, identity verification of individuals does take place in the course of general security checks and in principle the persons concerned are treated in a fair and humane manner by the authorities. Detentions for security checks are monitored by human rights institutions. Citizens, including rejected asylum-seekers who have been deported, can avail themselves of the services and support of national human rights bodies and institutions. |
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| The claimant has the necessary identity document, his birth certificate. |
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| The panel accepts, that if the claimant returns to Jaffna, it is likely that he will be subject to routine security checks, but the Trial Division of the Federal Court has said that short detentions for the purpose of preventing disruptions or dealing with terrorism do not constitute persecution. |
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| For the above reasons and after careful consideration of all the evidence adduced at this hearing, the panel is not satisfied that the evidence has established that the claimant has good grounds for fearing persecution by reason of any of the grounds set out in the definition of Convention refugee contained in the Immigration Act. |
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| The Refugee Division finds the claimant, Thurkatharan Sivamayam, not to be a Convention Refugee. (Footnotes omitted) |
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[10] Upon receipt of this decision, Mr. Sivamayam launched an application for leave and judicial review of the CCRD"s decision. The major ground of the application was the reasonable apprehension of bias arising from the failure of Ms. Taub to recuse herself at the request of counsel. An alternative ground was the denial of natural justice arising from the CCRD"s request of counsel to limit his submissions and then deciding the case on the basis of grounds on which counsel did not address in his submissions. In light of the conclusion which I have come to on the latter ground, it is not necessary for me to deal with the allegations of reasonable apprehension of bias.
[11] It is not necessary to cite authority for the proposition that the CCRD cannot decide a case against an applicant without giving the applicant an opportunity to speak to the questions which give rise to the CCRD"s views of the case. This case is a variation upon the general theme in that the CCRD invited submissions upon particular points and then decided the case on a point on which submissions were not invited. I accept that a tribunal does not necessarily have to put every step of its reasoning process before an applicant before it can find against him. This is particularly true where an applicant is represented by counsel. It is counsel"s function to be persuasive, to respond to indications given by Board as to the issues on which it requires persuasion. But where a tribunal indicates to counsel that it wishes to hear from him/her on certain issues, it is implicit that other issues will not be determinative of the claim. This does not preclude the tribunal from considering other issues, but if it wishes to decide the case on the basis of those other issues, fairness and natural justice require that the applicant be allowed to speak to those issues, given the prior indication that the tribunal did not consider those issues to be conclusive of the claim.
[12] If one assumes that counsel misunderstood what the CCRD was expecting by way of representations, the result is the same. When counsel gave a specific indication in his brief that he was withholding comment on other issues (including one which the CCRD considered was determinative of the issue) at the request of the CCRD, it was incumbent on the CCRD to correct the misunderstanding if it wished to decide the case as it did. The problem was created by the request for limited representations; it was not a problem created by counsel. If counsel misunderstood the CCRD"s instructions, it was incumbent upon the CCRD to clarify the instructions when the misunderstanding became apparent.
[13] In the end result, Mr. Sivamayam was denied a fair hearing. The decision of the CCRD dated September 8, 1998 is set aside and the matter remitted to the Convention Refugee Determination Division for reconsideration by a differently constituted panel.
[14] Counsel agreed that no serious question of general application arose out of this issue and none is certified.
[15] The applicant is entitled to his costs.
Judge