Date: 20000719
Docket: IMM-2131-99
BETWEEN:
KATHIRESU THAMOTHAMPILLAI and SETHUPILLAI KATHIRESU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Kathiresu Thamothampillai is a 74 year old Tamil from the North of Sri Lanka. Sethupillai Kathiresu is his 65 year old Tamil wife. Together they claimed status as Convention refugees, stating they had a well-founded fear of persecution by the Sri Lankan security forces and the Liberation Tigers of Tamil Eelam.
[2] In a decision dated March 29, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") determined that the claimants were not Convention refugees. The CRDD concluded that the claimants could not establish their identity and that they were not credible.
[3] In this application for judicial review, the applicants seek an order setting aside the decision of the CRDD, and referring the matter to a different panel of the CRDD for redetermination.
[4] The CRDD"s finding of lack of credibility was based in large part upon concerns which arose out of the documents tendered by the applicants to prove their identities (copies of registers of birth and marriage) and the applicants" explanation of the circumstances which surrounded the loss of their documents and their subsequent travel, without documents, from the North of Sri Lanka to Colombo.
[5] I accept counsel for the applicants" submission that if the CRDD had not impugned the applicants" identity, the balance of its concerns may well not have been sufficient to impugn generally the applicants" credibility.
[6] There is no doubt that the CRDD"s finding that the applicants could not establish their respective identities was central to its conclusion on credibility and to the disposition of the claims.
[7] The CRDD in its reasons devoted extensive consideration to the quality of the documentary evidence before it. However, the CRDD only mentioned in passing that the applicants" son, Dillirajah Kathiresu, was called as a witness in support of their identities.
[8] The transcript of the proceeding before the CRDD shows that Mr. Dillirajah Kathiresu testified under oath that in 1995 he had been determined to be a Convention refugee, he was currently awaiting his landed immigrant status in Canada, the applicants were his parents, they were the individuals they claimed to be, and they lived with him in Toronto. This testimony was not dealt with in the analysis of the CRDD.
[9] The applicants" son provided what the CRDD described as a "badly faded Register of Births that lists the claimants as his father and mother". The CRDD found what it called "this alleged" Register of Birth provided to be unusual, in that it listed the male applicant"s date of birth as "1926, month and date unknown". The CRDD concluded that it was not reasonable to accept that the male applicant, the informant on his son"s Register of Birth, would not have known his own birth date when registering his son"s birth.
[10] However, this Register of Birth was provided after the hearing. In consequence, the CRDD directed no questions to the male applicant about the month and date of his birth being missing from the Register of Birth. The male applicant swore, in an affidavit filed in support of this application for judicial review, that the month and date of his birth were written on the Register of Birth in an ancient script, which the translator was unable to interpret. Thus, the month and date of his birth were only missing from the translated version of the document.
[11] Despite the very able argument of counsel for the Minister, I conclude that in failing to take into account in its analysis of the evidence the sworn testimony of their son, the CRDD erred. In consequence, the CRDD came to its conclusion on identity without regard to the material before it.
[12] I find the CRDD also erred in its analysis of the son"s birth register. Its conclusions were based upon an inaccuracy in the translation of the document.
[13] In view of the importance of the CRDD"s conclusion on the applicants" identity, the application for judicial review must be allowed.
[14] A similar conclusion, in similar circumstances, was reached by Pinard, J. in Tshimbombo c. Canada (Ministre de la Citoyenneté et de l"Immigration), [1999] A.C.F. No. 1918.
[15] Counsel were agreed that no serious question of general importance is raised by this application. No question is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 19, 2000