Date: 20010426
Docket: IMM-2789-99
Neutral Citation: 2001 FCT 401
BETWEEN:
PARARAJASINGAM VAITHILINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
Introduction
[1] This is an application for judicial review of a negative decision of the Convention Refugee Determination Division ("CRDD"), dated May 12, 1999, which found Pararajasingam Vaithilingam ("applicant") was not a Convention refugee.
Background
[2] The applicant is a 54 year old citizen of Sri Lanka, who claims Convention refugee status on the basis of his perceived political opinion, race, and membership in a particular social group: a Tamil from the north of Sri Lanka.
[3] The claimant states he has a long history of political activism in Sri Lanka. He supported the Tamil United Liberation front ("TULF") party from the 1970's. He was involved with a Tamil literary association, and headed it from 1960 to 1976, after which he remained involved in an advisory capacity until 1990. In this context, he was associated in a non official capacity with TULF, but he severed this relationship in 1983, and from that time, confined his activism to the literary group.
[4] The applicant states he declined an opportunity to immigrate to Canada in 1989, when his parents were sponsored to come here. Although he had been included in the sponsorship, he preferred to stay in his own country, particularly since it seemed the situation in Sri Lanka was improving at that time. His father died just prior to their departure, and after his mother and brother left for Canada, war broke out again between the Liberation Tigers of Tamil Eelam ("LTTE") and the government in June 1990.
[5] Members of the LTTE realized he had been a TULF supporter and he had never endorsed the LTTE. As a consequence, he says they were especially hostile to him, and demanded increasingly large amounts of money which he could not afford to pay.
[6] As a result, the applicant fled to India in 1991. On route, he was apprehended, beaten, and detained by the Sri Lankan Army ("SLA") on suspicion of spying for the LTTE. He was also arrested by the police in Colombo, where he was detained for three days and beaten each evening. When he was finally released, he fled to India, where he remained until a Mrs. Yogeswaran, came to visit him. Mrs. Yogeswaran intended to run for mayor of Jaffna, as a candidate for the TULF party and she sought the applicant's assistance. She especially trusted him since he had been a friend of her deceased husband prior to his murder by the LTTE in July 1989.
[7] The applicant returned to Sri Lanka in July 1997 to assist Mrs. Yogeswaran, on the understanding the Sri Lankan army was a presence in Jaffna and would protect him from the LTTE.
[8] The LTTE opposed the participation of Tamils in the election. However, the applicant spoke at public meetings and became known as Mrs. Yogeswaran's confidant, which gave him the appearance of being more influential than his post might belie.
[9] He states that in March 1998, just after Mrs. Yogeswaran won the election, he received two death threats from the LTTE on two successive days. He indicates members of the LTTE approached him and told him to convince Mrs. Yogeswaran to resign. He was told the LTTE considered him a traitor, and posters began appearing saying all such traitors would be executed. Fearing for his life, he fled Sri Lanka. Mrs. Yogeswaran had also been threatened, but had elected to stay in Jaffna.
[10] After his arrival in Canada, the applicant learned Mrs. Yogeswaran had been murdered. As well, her replacement had been murdered and the replacement after that had also been murdered.
[11] If he returns to Sri Lanka, the applicant fears he too will be killed, or detained and abused.
CRDD Decision
[12] The CRDD found that the applicant had not established his claim on a balance of probabilities for three reasons. First, the panel found that "... While there is no question that the LTTE is present in Jaffna and is responsible for terrorist acts from time to time (for example, the murder of Mrs. Yogeswaran), these acts appear to be directed at people with a high public profile, such as the mayor..." The applicant was neither a candidate nor a person with a high public profile and the CRDD found no evidence that the applicant himself was a target of LTTE threats. Even if the threats had occurred as the applicant had testified, the panel found there was no evidence that he "... attempted to obtain state protection by going either to the SLA or the police ...".
[13] The panel stated it believed that the SLA would have an interest in protecting the applicant as the election was government-sponsored. The applicant testified that by March 1998, SLA members were afraid to leave their sentry posts to investigate LTTE activity. The panel referred to documentary evidence and the specialized knowledge of the panel members and held that the army had a very active presence in Jaffna. The applicant, therefore "... embellished his testimony on this point to further his claim."
[14] Second, as Mrs. Yogeswaran was no longer the mayor of Jaffna (and, indeed is deceased), the panel found there was not more than a mere possibility that the LTTE would be interested in the applicant.
[15] Third, with respect to the applicant's profile, the panel held that, given the applicant is 54 years old, he is not one "... of those Tamils who is at greatest risk" from either the army or the LTTE.
[16] While the panel acknowledged that living conditions in Sri Lanka "... may be difficult because of the continuing hostilities...", the panel found that had the applicant sought state protection, the army could have protected him.
[17] The panel also noted "in passing" they had concerns regarding the applicant's credibility. The members noted inconsistencies and contradictions in the applicant's testimony, and a "lack of responsiveness centered around the circumstances under which he obtained and used his passport...".
[18] In the result, the CRDD concluded that "The claim fails on the issue of well-foundedness because state protection is available."
Issues
[19] The applicant submits the CRDD erred in law by ignoring evidence that contradicted its assumptions, ignoring expert evidence, and arriving at perverse conclusions, which radically contradict the totality of the evidence before it. The applicant notes that in its reasons, the panel's footnotes are difficult to follow and appear to be incorrect. The applicant further submits the panel's decision is capricious and inconsistent with its members' decisions in other cases.
Analysis
[20] Counsel for the applicant in this case submitted current and relevant documentary evidence by way of two letters prior to the hearing dated January 26, 1999 and January 31, 1999. At Exhibit D of his affidavit sworn July 2, 1999, the applicant lists 16 documents submitted by his counsel for consideration by the CRDD.
[21] Among these is the affidavit of R. Cheran, sworn November 2, 1998. Mr. Cheran is a PhD candidate at York University who travels regularly to Colombo. He is the editor-in-chief of Sarinihar, a Tamil-language newspaper published fortnightly by the Movement for Inter-Racial Justice and Equality in Colombo, Sri Lanka and a council member of INFORM, a human rights monitor in Sri Lanka. He provided documentary evidence with respect to the Tamils' situation in Jaffna. He states "The LTTE can easily murder any Tamil civilian in Jaffna if they so choose. So far LTTE members who have carried out killings in Jaffna while it has been under Army governance have not been apprehended. ...disappearance of Tamil citizens continues to be a severe problem. ...the Army continues to "disappear individuals when it wishes."
[22] Counsel for the applicant also submitted a June 19, 1998 news article which speaks to the report of United Nations special rapporteur Bacre Waly Ndiaye after his visit to Jaffna, which states "The perpetrators themselves are the armed forces and police themselves, who kill suspected insurgents and civilians perceived as supporting them; LTTE (Liberation Tigers of Tamil Eelam) members who kill members of the security forces, members of opposing factions, those who refuse to continue the armed insurgency or to continue to support the LTTE, including civilians; ...the pervasive violence generated by armed LTTE members and their increasing attacks on armed forces personnel and civilians are further indicators of the general deterioration of the situation and the prevalent insecurity in certain parts of Sri Lanka.
[23] In addition, Counsel for the applicant submitted a number of current news articles and a letter which corroborates the applicant's activism in Jaffna's mayoral elections.
[24] The respondent argues that despite the existence of contradictory documentary evidence, the CRDD is entitled to assess the evidence as a whole and to weigh its value. The fact that the written reasons do not summarize all of the evidence does not constitute a reviewable error of law.
[25] The general principles put forward by the respondent are well established in the jurisprudence. In Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 at paragraph 1, Linden J.A. held that "[t]he Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely." As stated in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), the fact that some of the evidence is not mentioned in the panel's reasons is not fatal to its decision.
[26] In Iqbal v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 568, Rouleau J. elaborated further stating "[a] Board need not refer to all documentary evidence in summarizing their reasons; this is well established in law. However, when expert affidavit evidence is before the Board as well as other documentary evidence raising some doubt or contradicting the documentary evidence put forth by the refugee claims officer, the Board should provide some explanation in its reasons as to why they preferred the expertise upon which they relied and should at least comment as to why they are discounting that provided by the applicants' counsel, which they failed to do."
[27] In the present case, the applicant's documentary evidence speaks directly to issues at the heart of his claim, and contradicts some of the documentary evidence on which the reasons rely, yet the CRDD makes no mention of the applicant's documentary evidence, nor does it explain its preference for the refugee claims officer's documentary evidence.
[28] Further, the applicant's allegation that the panel's footnotes are difficult to follow is correct. For example, footnotes 15 and 18 at page 6 of the reasons appear to be references to the documentary evidence regarding the fact that older Tamils are not targeted by the army and that the Jaffna area is generally peaceful. Those footnotes refer the reader to footnote 11, which is a case from the Federal Court of Appeal in 1991. Clearly, this is a clerical error of some sort, but a critical one, in that does not allow the Court to assess the reasonableness of the conclusions.
[29] In Cai v. Canada (Minister of Citizenship and Immigration), [19970 F.C.J. No. 690, Teitelbaum J. states at paragraph 20:
The Court is generally reluctant to interfere in the Board's consideration of the documentary evidence, but judicial review is warranted if it is clear that the Board failed to address, weigh and consider contrary evidence: Mahanandan v. Canada (Minister of Employment & Immigration) (August 24, 1994), Doc. No. A-608-91 (F.C.A), [1994] F.C.J. No. 1228 (Q.L.). In Mahanandan, the Board acknowledged having received the applicant's documentary evidence that his fear of persecution was well-founded. However, the Board did not indicate in its reasons the impact, if any, that such evidence had upon the applicant's claim. In the case at bar, the Board has not even made the "bare acknowledgement" cited by the Federal Court of Appeal at page 3 in Mahanandan. In line with my decision in Kraitman v. Canada (Secretary of State) (1994), 81 F.T.R. 64, the Board should have recognized that not all documentary evidence is equally reliable. In Kraitman, I wrote at page 72, "The Board itself admits that there is a history of both discrimination and persecution in the Ukraine directed at Jews but believes that because the official policy of the country is alleged to be non-racist, the applicants (Jews) have nothing to fear for the future. How naive" (my emphasis). It is, perhaps, equally naive for the Board in the case at bar not to consider and weigh the preface of Mr. Kamm's report in which he describes his lobbying efforts and "testifying in favour of retaining most favoured nation status...". I believe the Board committed a reviewable error in failing to pay due heed to the documentary evidence contradicting the Kamm Report.
[30] In my view, having regard to the nature of the applicant's documentary evidence, in these circumstances the CRDD's failure to acknowledge this evidence or explain their reliance on the Refugee Claims Officer's documentary evidence over that of the applicant warrants the Court's intervention. Having reached this conclusion it is not necessary to consider the second issue raised by the applicant.
[31] For these reasons, the application for judicial review is allowed, the May 12, 1999 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
April 26, 2001