Date: 20021129
Docket: IMM-94-02
Neutral citation: 2002 FCT 1232
BETWEEN:
ELAYATHAMBY RATHEESKUMAR,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), now the Refugee Protection Division (the RPD), in its decision dated December 20, 2001, determined that the applicant is not a Convention refugee. The conclusion was based on its finding that the applicant's evidence was neither trustworthy nor credible with respect to his assertions that he was from Sri Lanka and more particularly that he was recently a resident in the north of Sri Lanka. The applicant seeks judicial review of the decision on the basis that the CRDD, having misconstrued and misapprehended the evidence, made a perverse and capricious determination.
[2] The applicant, a twenty-six year old Sri Lankan Tamil, claims a well-founded fear of persecution at the hands of the Sri Lankan authorities (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) on the basis of his race, imputed political opinion and membership in a particular social group (Tamil from northern Sri Lanka).
[3] The applicant states that he and his family lived in Jaffna and in 1990, they began experiencing problems with the LTTE. They were forced to make payments to the LTTE and he and his siblings had to do work for the LTTE. In 1995, when the SLA advanced to Jaffna, the family moved to Mulankavil in the Vanni region where again, the applicant was often forced to do work for the LTTE. In October, 2000, he was given an ultimatum to join the LTTE within two weeks. Rather than join, he fled the area with a guide. He claims that in pursuing his efforts to leave the country, he was arrested and beaten by the SLA in Mannar and was threatened with arrest by the SLA in Colombo if he did not leave upon expiration of his two-week pass. He left Sri Lanka on November 4, 2000, arrived in Canada on November 6th and made a refugee claim.
[4] The CRDD identified two determinative issues: credibility and identity. In the end, the panel concluded:
From our review of the evidence, the panel was only able to conclude that the claimant is not credible and that we do not know his identity. We are therefore unable to assess his claim either subjectively or objectively, since he has failed to provide credible evidence which would speak to his identity. As mentioned earlier, we cannot even be sure that the claimant is from Sri Lanka or that he was in the North.
[5] The CRDD, a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. It is in the best position to gauge credibility and to draw necessary inferences. As long as the inferences are not so unreasonable as to warrant intervention, the Court will not intervene: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The CRDD is entitled to decide adversely with respect to a claimant's credibility on the basis of inconsistencies in the evidence including inconsistencies within the oral testimony, between the oral testimony and the written narrative and regarding the oral testimony, the written narrative and other evidence before it: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Leung v. Canada (Minister of Employment and Immigration) (1990), 120 N.R. 391 (F.C.A.). A negative decision regarding credibility must be stated in clear and unmistakable terms: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), but the panel is entitled to rely on criteria such as rationality and common sense: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No 415 (C.A.). The CRDD cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). If the panel makes a finding of fact having misconstrued or ignored relevant evidence before it and relies on those findings when making an adverse finding as to credibility, the decision is unreasonable and warrants intervention: Lai v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 906 (C.A.).
[6] Here, the CRDD identified five areas that, taken collectively, led to its conclusion. The applicant contests the findings in relation to each. I will address each of the areas although not necessarily in the order argued by counsel.
The National Identity Card (the NIC)
[7] The CRDD found it "troubling" that the applicant did not produce his NIC, which would serve to establish the fact that "he is a citizen of Sri Lanka". The applicant explained that the agent had taken his NIC when he boarded the plane and told him that it could not be mailed but would be forwarded to him by someone coming to Canada. When the applicant, after arriving in Canada spoke with the agent, he was told that people coming to Canada were afraid to bring the NIC so he [the agent] would mail it. The applicant stated that he has never received the NIC. The panel did not accept the applicant's "reason for failure to produce such a significant piece of evidence that could definitely confirm him as a Sri Lankan citizen".
[8] The applicant concedes that the agent was being contradictory. However, he submits that the contradictory behaviour of a third party cannot rationally be used to impugn a claimant's evidence. The applicant submits that the Court of Appeal has addressed this precise situation in Owusu-Ansah, supra, that the comments contained therein are dispositive and the panel's finding is therefore patently unreasonable.
[9] The respondent argues that the CRDD did not require corroborative evidence. There is a distinction between a situation where a panel does not accept an applicant's testimony without corroboration and a situation, such as here, where it draws a negative inference from a lack of proof. This is especially so, says the respondent, when it is questionable whether the proof actually exists. It cannot be said that the panel would have accepted the applicant's testimony but for a lack of corroborative evidence.
[10] I have not been persuaded that the approach taken by the CRDD regarding the NIC is, as alleged by the applicant, sufficient to vitiate its decision. Owusu-Ansah, supra, while similar to this situation, is distinguishable. Here, the document in question had previously been within the applicant's control. The adverse inference drawn by the panel with respect to the applicant's failure to produce his NIC, while questionable, was not pivotal to its decision and cannot, in and of itself, constitute grounds for setting aside the decision.
The Passport
[11] The CRDD determined that it was not reasonable that the applicant would have used two passports, a Malaysian passport to leave Sri Lanka and a second passport when he got off the plane. Replacing a false passport with a false passport was simply not reasonable.
[12] The applicant argues that the CRDD misconstrued the evidence in this respect and that he stated no such thing. The personal information form (PIF) indicated that one false passport (issued by Malaysia) was used and his evidence was consistent in this regard. The panel, submits the applicant, misconstrued the phrase, "When I got off the plane, I travelled on a different passport, a different name" to mean that there were two passports. When viewed in the context of the hearing, it is apparent that he was responding to questions regarding the NIC and was not referring to a second passport. Moreover, says the applicant, if there was ambiguity, the CRDD was obliged to put any discrepancy to him to ensure that he had a meaningful opportunity to participate in the hearing.
[13] The respondent argues that the applicant and his counsel were in as good a position as the CRDD to identify any problems in his evidence regarding the passport issue and specifically with respect to the applicant's explanation of how he came to be without a NIC, an issue that concerned the CRDD and of which the applicant was aware. The applicant's evidence is open to the interpretation that there was a second passport. The respondent notes that the panel has no obligation to point to all of the unconvincing aspects of the applicant's evidence when the onus is on the applicant to establish a well-founded fear of persecution for reasons related to Convention refugee grounds. Even if the CRDD erred with respect to its finding of two passports, or if it was unfair not to raise this with the applicant, neither of these issues, submits the respondent, is of consequence to the ultimate determination.
[14] Having reviewed the transcript of the hearing, I agree with the applicant that the CRDD misconstrued the evidence in this respect. There exists no evidentiary basis upon which to find that there was a second passport. The applicant, in responding to questions regarding his NIC, used the word "different" to distinguish between the documents, i.e., the NIC and the passport. The transcript does not support the interpretation advanced by the panel. However, as with the NIC, the CRDD's determination did not turn on this finding and it is not sufficient, on its own, to set aside the decision.
The Shellings
[15] The CRDD, in its decision, states:
In another area of testimony, the claimant said the LTTE/Tigers were in control of Mulankavil when he arrived there with his family in late 1995. Asked if there was fighting in Mulankavil he said, "No, from Mulankavil the army was shelling this place". (He later named the place being shelled as Natchekudah) [the panel's emphasis]. Reminded that he had said that the Tigers controlled Mulankavil, he tried to cover this gaffe by saying that the shelling took place prior to their (his family's) arrival. He could not recollect, however, when the Tigers took control. His PIF, however, tells a different story. It is stated therein that he was taken to dig bunkers in dangerous areas that were bombed and shelled and that people were killed in these areas. The claimant seems unable to keep his stories straight and the panel finds that he lacks credibility.
[16] The applicant again submits that the CRDD misconstrued the applicant's testimony. The applicant refers to the transcript and notes that he was discussing conditions in Mulankavil and was asked when the damage occurred in Mulankavil. The applicant responded that the damage resulted from shelling from Mullaitivu (a different place and in any event, in the past, before the applicant arrived in Mulankavil). The CRDD then, submits the applicant, used its misconstruction of the evidence to destroy his credibility in devastating terms. The "gaffe" was not the purported statement of the applicant; it was the panel's misconstruction of the evidence. Further, argues the applicant, the CRDD contradicted itself by finding that the applicant could not recollect when the LTTE took control of Mulankavil after previously recording that the Tigers were in control when he arrived there.
[17] The respondent submits that the applicant initially testified that the LTTE was in control of Mulankavil when he arrived with his family. He later stated that the army was in control of Mulankavil when he said "from Mulatavil (ph)", the army was shelling districts. When confronted with this contradiction, the applicant then contended that the shelling took place before he got there. The respondent argues that by "Mulatavil (ph)", the applicant was referring to Mulankavil, not Mullaitivu, and therefore his statements were contradictory. The respondent argues that the panel's finding was not made capriciously or perversely; its findings were not inconsistent; the applicant's evidence was inconsistent, and even if the applicant is correct, this does not demonstrate a reviewable error in the underlying finding that the applicant had not demonstrated that he was in Mulankavil. Having found that the applicant had not established his whereabouts at the material times, the respondent contends that the CRDD could not conclude that he was in Mulankavil at all, let alone there doing forced labour at the hands of the LTTE.
[18] The finding regarding the "shellings" was significant in that it was accorded substantial weight by the panel. A review of the transcript reveals that there is neither contradiction nor inconsistency in the applicant's evidence. The misapprehension of the evidence occurred as a result of the panel's perception that Mulankavil and Mulatavil were the same place. In fact, the applicant was referring to Mulankavil and Mullaitivu, which are two different areas. The transcript and the documentation contained in the tribunal record support the applicant's position. When the misapprehension is rectified, it is apparent that the applicant answered the questions, as presented, in a forthright manner and without contradiction.
[19] The NIC and passport findings referred to earlier, which standing individually could not vitiate the decision, when combined with the error regarding the "shelling" may well be sufficient to set aside the CRDD's decision. However, in view of my conclusions regarding the remaining allegations of error, I need not make that determination.
School Documents
[20] The applicant, in support of his "identity", presented a student registration form/student record dated at Avarangal on August 10, 1991. The CRDD found the document to be of no probative value. It found that the applicant gave contradictory testimony, which gave rise to credibility concerns. The problems identified by the CRDD were the applicant's evidence with respect to the address of the school and the dates of his attendance. The panel concluded that the applicant never attended the school, that the document was fraudulent, that the panel had no means of verifying the document and even if it were genuine, it did not place him in the north beyond 1991.
[21] The applicant submits that the CRDD erred in impugning the applicant's credibility and in rejecting the school certificate. It was microscopic in its examination and erred in its determination. The findings were secondary in nature and irrelevant to the issues before the panel.
[22] The respondent argues that all of the contradictions raised in the applicant's evidence regarding the school certificate, taken together, are relevant and go to the heart of the CRDD's finding that the applicant had not established his identity as a Tamil recently from the north of Sri Lanka. A comparison of his PIF, his oral testimony and the school document, demonstrates that the applicant gave inconsistent dates as to when he started school, when he left school, where the school was located and its address. It was, submits the respondent, the applicant who produced this document, allegedly as proof of his identity. His failure to answer questions about his schooling does not mean that the CRDD committed a reviewable error. This is not a case where the applicant made one mistake. Rather, says the respondent, his evidence reveals many problems. The CRDD had regard to the applicant's explanations but they do not account for so many inconsistencies. The CRDD had no obligation to mention all of the evidence proffered by the applicant.
[23] The inconsistencies and contradictions relied upon by the CRDD relate to the location of the school and the applicant's years of attendance. The applicant testified that he went to school in Avarangal but the school document referred to Puttar. The applicant, in response to questions in this respect, testified that, "Avarangal is a small place in the larger village of Puttar". He further testified that the school was on Avarangal Road while the school register stated "Avarangal Sawothaya Road". Finally, the applicant in his PIF indicated that he attended the school from January, 1982 until December, 1991. At the hearing, he testified in response to questioning by the RCO, that he started school in 1980 and finished in 1993. He then corrected his evidence and testified that he left that particular school in 1991 after his 0 level exam. The RCO, in final submissions to the panel, submitted that the applicant's evidence regarding the school was consistent regarding departure but was inconsistent regarding entry: Transcript, pages 206, 207.
[24] In my view, the CRDD's rejection of the school document as fraudulent, on the basis of the noted inconsistencies or contradictions, was patently unreasonable. The panel appears to be reaching for inconsistencies in the applicant's evidence to support findings of lack of credibility. The only true inconsistency is with respect to when the applicant started school. The panel exhibited a fixation on minutia and embarked upon a microscopic examination of the applicant's responses that was not warranted.
The Birth Certificate
[25] The applicant presented a copy of a Register of Births dated at Colombo on March 8, 2001. The CRDD determined that it was of no probative value. It makes no further reference to the birth certificate.
[26] The applicant argues that the panel erred in rejecting the birth certificate in general terms and specifically in rejecting it on the basis that it could not corroborate recent residence in the north. The applicant queries when a birth certificate could ever corroborate residence. The birth certificate, submits the applicant, was proof positive of identity and the CRDD erred in finding that the applicant's identity was in question, without further evidence or analysis. The applicant argues that the CRDD has no expertise in assessing foreign documents and in particular, birth certificates. He refers to and relies upon Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (T.D.) and Nika v. Canada (Minister of Citizenship and Immigration) 2001 FCT 656, [2001] F.C.J. No. 977 wherein it was held that an apparently valid birth certificate issued by the state cannot be rejected without evidence, external to the document, upon which the CRDD could determine that the document was false.
[27] The respondent submits that the CRDD did not make a general finding that the applicant's identity could not be established nor did it reject the applicant's birth certificate (and school certificate) because it could not prove recent residence in the north of Sri Lanka. The issue, with which the CRDD was concerned, was the applicant's identity as a Tamil recently from the north of Sri Lanka. Thus, in the panel's view, being a Tamil is insufficient to found a claim to refugee status, without satisfaction of the actual place of residence at the times material to the claim. In particular, argues the respondent, the CRDD noted that the proffered birth certificate only came into existence four months after the applicant had arrived in Canada and was obtained by a lodge manager in Colombo. It cannot be said that this birth certificate is probative of the applicant's whereabouts and the CRDD made no error in making such an observation. Moreover, says the respondent, the existence of this birth certificate is not necessarily demonstrative of citizenship or permanent residence.
[28] The applicant testified that when he did not receive his NIC, he attempted to obtain other documents to establish his identity. He contacted his father and requested that he forward his school records and he wrote to the manager of the lodge (where he stayed in Colombo) to obtain the birth certificate. The CRDD took exception to the fact that the birth certificate was obtained four months after the applicant's arrival in Canada. Notwithstanding the production of the birth certificate, the CRDD stated:
We have no persuasive evidence before us that the claimant is even from Sri Lanka: Tribunal Record, page 7.
. . . [T]he panel was only able to conclude that the claimant is not credible and that we do not know his identity: Tribunal Record, page 8.
As mentioned earlier, we cannot even be sure that the claimant is from Sir Lanka (or that he was even in the North): Tribunal Record, page 8.
[29] In the face of the authority cited by the applicant, I am at a loss to understand how the CRDD could have summarily concluded that the applicant had not established his identity. Despite the eloquent and valiant efforts of counsel for the respondent, I conclude that the finding with respect to identity was patently unreasonable. The panel did not qualify its comments regarding identity to "identity as a Tamil recently from the north of Sri Lanka" as contended by counsel for the respondent Minister. It did, however, record that the applicant's testimony evidenced familiarity with and knowledge of the areas in the north of Sri Lanka.
[30] The reasons of the CRDD in relation to this claim are perfunctory and inadequate. They are based on credibility and implausibility, areas generally insulated from judicial review. However, of the five areas canvassed by the panel, each is seriously flawed. When viewed individually, one area might not result in a successful application for judicial review. However, when each and every area discussed and relied upon by the panel is found to be either questionable or in error, there exists no doubt that the final determination, based upon those areas, is perverse and patently unreasonable.
[31] The application for judicial review is therefore allowed and the decision of the CRDD is quashed. The application is remitted back to the RPD for redetermination by a differently constituted panel.
[32] Counsel for the applicant suggested a question for certification in his written submission but withdrew the question at the oral hearing. Respondent's counsel did not suggest a question. This case raises no serious question of general importance and no question is certified.
__________________________________
Judge
Ottawa, Ontario
November 29, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-94-02
STYLE OF CAUSE:ELAYATHAMBY RATHEESKUMAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 30, 2002
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: NOVEMBER 29, 2002
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Mr. Micheal Crane
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent