Date: 20010508
Docket: IMM-3238-00
Neutral citation: 2001 FCT 444
BETWEEN:
RAJAH NADARAJALINGAM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning given that expression in subsection 2(1) of the Immigration Act[1]. The decision of the CRDD is dated the 5th of April, 2000.
[2] The applicant, at the time of the decision under review, was almost 56 years of age. He is a male Tamil who alleges that he is from the north of Sri Lanka. He based his claim to Convention refugee status on the ground of his membership in a particular social group and on the additional ground of the political opinion that he fears is attributed to him both by the authorities in Sri Lanka and by the Tamil Tigers.
[3] In its reasons for decision, the CRDD wrote:
The panel is aware that current country conditions in Jaffna are such that even those not normally at risk of persecution (i.e. because of their age and profile) may have a well-founded fear of persecution.
After briefly reciting the applicant's testimony regarding destruction of his National Identity Card (his "N.I.C."), his detention by security authorities while he and members of his family were en route from the north of Sri Lanka to Colombo, and his detention and beating by those authorities, testimony that the CRDD found to be implausible, the CRDD continued:
We find, on a balance of probabilities, that the claimant was not treated by the army in the manner described by him.
Given the importance of the NIC to persons living in Sri Lanka, the claimant was asked why, if his NIC was burnt, did he not get another one. He replied that he wanted to but could not because he was in an LTTE-controlled area (after being released by the army). He also said that the application has to be made to Colombo.
The panel advised the claimant that, from its specialized knowledge of claims from Sri Lanka, it is aware that NIC's can be applied for from the gramasevaka (government agent) even in LTTE-controlled areas. To this, the claimant made several responses:
"I didn't need one," "I was separated from my wife," "I was not thinking about it."
We note that from the time his NIC was allegedly destroyed by the army, the claimant stayed on in Sri Lanka for three years, i.e., until May 1997. The panel also notes the following information contained in the documentary evidence about the importance of NIC's in Sri Lanka. For anyone over the age of 18, it is obligatory to have one. It has elaborate security features to prevent fraudulent use and also has several identifying features. For example, it reflects not only the birthplace of the holder but also the place of last residence. A number in the top right hand corner indicates the district where the card was issued. The card is security laminated.
Given the claimant's testimony first that he wanted to get one but was in LTTE territory and second, only after he was informed of our specialized knowledge that rendered his statement untrue, that he did not need one, that he was separated from his wife and that he did not think about it, we find his testimony not credible. Given the documentary evidence about the importance of the NIC in security conscious Sri Lanka and the benefits to claimants making refugee claims if they can show from the NIC that they are from Jaffna, we find, on a balance of probabilities, that the claimant had no NIC placing him in Jaffna. It is more likely that he is a Colombo Tamil.
The claimant has not provided trustworthy or credible evidence in the most material aspects of his claim, i.e. that he is a Jaffna Tamil and that the army suspects him of being an LTTE supporter. We have found his testimony riddled with a combination of internal inconsistencies and running counter to reliable documentary evidence.
[citation to documentary evidence omitted]
[4] In the result, the CRDD determined that there was not a serious possibility that the claimant would be persecuted if he were to return to Sri Lanka.
[5] I am satisfied that the CRDD's conclusion was reasonably open to it. Central to that conclusion was the CRDD's finding that the applicant had failed to establish that he was a "Jaffna Tamil". While the applicant adduced certain documentary evidence which connected him to Jaffna, that is to say his birth certificate, his marriage certificate and birth certificates for his children, I am satisfied that it was reasonably open for the CRDD to conclude that such documentary evidence did not establish the applicant's recent residency in the Jaffna region or any other portion of Sri Lanka that was under the control of the Tamil Tigers. Unlike the documentation provided by the applicant, a N.I.C. would have provided evidence of place of residence, in a secure form, rather than simply evidence of identity and citizenship and of the place where a birth or marriage was recorded.
[6] Further, documentary evidence that was before the CRDD, while not specifically referred to by the CRDD in its reasons, tended to support the "specialized knowledge" on which the CRDD relied in the portions of its reasons cited above to the effect that the applicant could have, if he had so wished, obtained a replacement N.I.C. regardless of the circumstances in which his earlier N.I.C. was destroyed or lost and regardless of where he was living in Sri Lanka.
[7] In reasons for his order in Nallanathan v. Minister of Citizienship and Immigration[2], in a fact situation not dissimilar to that in this matter, Mr. Justice Lemieux quoted from the reasons of the CRDD that were before him to the following effect:
It is up to the claimant to make her case and if she is without critical identity documents, she must provide other credible or trustworthy evidence to support her claim. She has not done this. Since I do not know where the claimant is recently from, I cannot make a positive decision on her behalf. I find that there is not a serious possibility that the claimant would be persecuted if she were to return to Sri Lanka.
Precisely the same could be said on the facts that were before the CRDD in this matter.
[8] For the foregoing reasons, this application for judicial review will be dismissed.
[9] Counsel for the applicant urged that I certify a question that would provide guidance from the Court of Appeal as to who is a "Colombo Tamil". While on the facts of this matter, the CRDD found the applicant, on a balance of probabilities, to be a Colombo Tamil, it went on to make the following alternative finding:
Even if he is not from Colombo, we conclude that he is not recently from the north of Sri Lanka.
Given the CRDD's alternative finding, guidance as to the definition of a "Colombo Tamil" and the application of that guidance to the facts of this matter would not be determinative of an appeal of my decision herein. Accordingly, the question proposed by counsel for the applicant will not be certified. Indeed, no question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
May 8, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3238-00
STYLE OF CAUSE: RAJAH NADARAJALINGAM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, MARCH 15, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: TUESDAY, MAY 8, 2001
APPEARANCES BY: Mr. I. Francis Xavier
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: I. Francis Xavier
Barrister & Solicitor
2401 Eglinton Avenue East
Scarborough, Ontario
M1K 2M5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010507
Docket: IMM-3238-00
Between:
RAJAH NADARAJALINGAM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER