Date: 19991103
Docket: IMM-1940-98
OTTAWA, ONTARIO, NOVEMBER 3, 1999
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
RAMACHANDRAN NISHANTHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons given, this application for judicial review is granted, the decision of the Refugee Division is set aside, and the matter is remitted to the Refugee Division for reconsideration by a differently constituted panel.
"François Lemieux"
J U D G E
Date: 19991103
Docket: IMM-1940-98
BETWEEN:
RAMACHANDRAN NISHANTHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] Ramachandran Nishanthan (the applicant) in this judicial review proceeding says he is a 21-year old Tamil male, a citizen of Sri Lanka. On March 27, 1998, he was found by the Refugee Division of the Immigration and Refugee Board (Refugee Division) not to be a Convention refugee. The next several paragraphs reflect the applicant's basis for his refugee claim as expressed in his written Personal Information Form (PIF).
[2] In his PIF, the applicant said he feared the Liberation Tigers of Tamil Eelam (LTTE or Tigers) in the North and the Sri Lanka security forces in Colombo and in the other government controlled areas in Sri Lanka. The appellant tells of residing with his parents in Nallur and Kilinochchi in the North and, beginning in 1991, of extortion money being paid on several occasions by his family to the LTTE. He mentions he and fourteen other members of his school (Jaffna Hindu College) being detained for three days at a LTTE camp in June 1995 and forced to work.
[3] He states in October of 1995, his family, as well as many other residents of Nallur were forced by the LTTE to leave. The family moved to Kilinochchi. He enrolled in a two-year course at Universal Commerce Institute successfully completing the first year before the February 1997 events which precipitated his flight.
[4] The applicant writes his flight was caused when on February 9, 1997, armed Tigers came to the family home to recruit he and his brother who were both absent. His brother was away from home working and was not expected to be back for three or four days. The Tigers told his parents both must report to a Tiger camp within twenty-four hours. When the applicant returned home that night it was decided he and his brother should flee. The applicant recites his father had arranged for a business man to escort him to Vavuniya where arrangements would be made for an agent to escort him to Colombo and out of the country.
[5] The applicant recites he and his father's friend leaving early the next day, February 10, arriving in Vavuniya where he was required to stay at two Sri Lankan army camps for a number of days before being permitted to board a train for Colombo with his agent; they arrived in the capital on February 16, 1997.
[6] The applicant says the Inn Manager in Colombo registered him with the police and the next day he received a visit from them at the hotel. He alleges he was forcibly detained at the police station for two days. He was accused of being a member of the Tigers and being in Colombo for terrorist purposes; he asserts being physically abused, interrogated, fingerprinted and photographed. He writes when he was released, he was given a stern warning to leave Colombo within three days and was threatened with serious consequences if he did not abide by this deadline. He says his release was achieved through bribery. He fled Sri Lanka and arrived in Canada on March 27, 1997.
THE FINDINGS OF THE REFUGEE DIVISION
[7] The Refugee Division panel (the panel) focussed on two issues: the applicant's identity and his credibility characterized by the panel as interrelated issues.
(a) The identity finding
[8] The panel at page 5 of its decision said this:
| Given the foregoing negative credibility findings with respect to the claimant's identity documents and how they were obtained, the panel concludes that the claimant has not established that he is who he claims to be. The panel does not accept that the identity documents presented were obtained in the manner the claimant alleges or that they are, in fact, conclusive of the claimant's identity as a Jaffna Tamil. |
| [emphasis mine] |
[9] What led the panel to this conclusion were a series of specific findings on three of the applicant's identity documents listed in his PIF: a birth certificate dated October 29, 1992, a photocopy of his postal identity card and a national identity card (NIC).
(i) The birth certificates
[10] The panel said it had two problems: the existence of two birth certificates and why he had two. The first birth certificate was issued on October 29, 1992 (the first birth certificate); the second was issued on March 29, 1996 (the second birth certificate). Both birth certificates indicate the claimant is a Tamil male.
[11] Citizenship and Immigration Canada (CIC) filed with the panel the second birth certificate. The applicant had not mentioned a second birth certificate in his PIF yet he had provided this second birth certificate to CIC along with other information. The panel did not accept his forgetfulness as a reasonable explanation for why he would not mention the second birth certificate in his PIF. The panel said it was not reasonable to accept he would have forgotten he had this document and, if he had forgotten, why he, in fact, mailed it to CIC. The panel concluded "that the claimant was not forthright in his presentation of his evidence respecting his two birth certificates".
[12] The applicant was asked why he had two birth certificates of different issue dates. The panel reasoning centered on his first birth certificate. The applicant said it was needed to obtain his postal identity card. The panel observed the issue date of the postal identity card was July 27, 1992, some three months before his first birth certificate was issued on October 29, 1992. The panel stated the applicant could not provide any explanation for "this obvious discrepancy" in his oral testimony. The panel added that when the applicant was questioned further about how and when the first birth certificate was obtained, the applicant stated he did not know. The panel found "that the claimant gave inconsistent and contradictory testimony on why and how he obtained the alleged certificate of birth issued on October 29, 1992".
(ii) The postal identity card
[13] The panel gave no probative value to the postal identity card. The panel said it was only a photocopy and did not accept the applicant's testimony that he lost the original in Canada (but kept a photocopy). The panel said the applicant could not provide any explanation for how he managed to obtain his alleged postal identity document in Sri Lanka and found "that this further undermines the claimant's overall credibility and, in particular, the documents he presented to establish his identity.
(iii) The national identity card
[14] The panel noted the claimant testified his NIC was issued in 1994 "when I had to sit for 'A' level exam". The panel observed the claimant in his PIF indicated he completed his "A" level in August of 1995 not in 1994 as stated in his oral testimony. The panel found the claimant's oral testimony for why he allegedly obtained his NIC in 1994 to be inconsistent with the evidence presented in his PIF.
(iv) The Sri Lankan passport
[15] The panel noted the claimant in his PIF indicated he had applied for and was issued a Sri Lankan passport; he did not have it because he said he gave it to his agent. The panel said this:
| The panel does not accept the claimant's testimony with respect to his Sri Lankan passport. It is not reasonable to accept that the claimant would have given the agent his passport. After all, the claimant testified that he mailed all the identity documents in his possession to his friend in Canada. It is evident he understood the importance of having proper identification documents in Canada yet, at the same time, the claimant alleges that he gave his own passport to the agent. |
(b) The credibility issue
[16] The panel, at page 5 of its written decision, said the negative findings with respect to the claimant's identity were reinforced by "the following credibility concerns about his residence and travel to Colombo".
(i) The residence at Kilinochchi
[17] The panel said the applicant, in his PIF, had indicated he was a resident in Kilinochchi from October 1995 to February 1997 where the claimant says he was studying. The panel observed the documentary evidence showed Kilinochchi was captured by the Sri Lankan Army (SLA) in September 1996 as a result of a fierce battle between the LTTE and the SLA that commenced in the summer of 1996 and resulted in thousands of people fleeing the Kilinochchi area during this period. The panel noted nothing was said regarding this battle and observed that "[I]ndeed, when the claimant was asked when Kilinochchi had been taken by the SLA, the claimant answered, 'I do not know when it was taken'." The panel concluded as follows:
| It is evident that the claimant was unaware of this battle and that Kilinochchi had been captured from the LTTE by the government. Hence, the panel finds that the claimant was not in Kilinochchi at the time that he claims that he was. If he was not in Kilinochchi when he claims that he was, then, the panel cannot accept his story that the LTTE attempted to recruit him there. |
| [emphasis mine] |
(ii) The travel to Colombo
[18] The panel examined the applicant on his travel route to Colombo. The panel said the applicant testified the Tiger checkpoint was at Thandikulam and that he had no trouble passing it there. The panel noted the documentary evidence indicates the LTTE checkpoint is at Omanthia. It appears that the SLA manned the checkpoint at Thandikulam. The panel did not accept the applicant's explanations for why he did not know that the LTTE checkpoint was at Omanthia and that the SLA checkpoint was at Thandikulam. The applicant explained that he used a jungle route to travel to Vavuniya and no one had told him where the Tiger camp was located and that people were talking about Thandikulam. The panel found as follows:
| The panel finds that the claimant's evidence about the LTTE checkpoint located near Vavuniya is inconsistent with the documentary evidence before the panel. The panel concludes, therefore, that the claimant never travelled through this area en route to Colombo, as he alleges. |
(iii) His mother's letter
[19] The panel was critical about a letter dated April 28, 1997 his mother sent to him postmarked Nallur, Jaffna. In this letter, his mother describes conditions there. The applicant was asked when his parents moved from Kilinochchi to Nallur and he answered he did not know but he knew they had moved because he had received a previous letter which was not produced in evidence. The hearing was adjourned to allow counsel to provide written submissions and to allow the applicant an opportunity to submit other documents, including the first letter from his parents. The panel noted no such documents were received from the applicant at the time it wrote its reasons. The panel stated at pages 7-8:
| Given the serious negative credibility findings with respect to the claimant's evidence regarding his evidence in the North and his alleged travel to Colombo, the panel does not accept his testimony about a letter he allegedly received from his parents prior to his PIF being submitted to the Board. |
| The panel also finds Exhibit C-3, the letter allegedly from the claimant's mother in Nallur, to be entirely self-serving and accordingly assigns it no weight. |
[20] At page 8 of its reasons, the panel concluded:
| It is evident from these negative credibility findings and conclusions, that the panel can only make one ineluctable conclusion with respect to the claimant's evidence, the claimant's evidence was neither credible nor trustworthy. |
| The panel's overall conclusions are that the claimant's identity documents are not reliable and, therefore, do not establish that he is who he claims to be, and more importantly, that he is, in fact, a Jaffna Tamil. Likewise, the claimant's evidence was inconsistent with the documentary evidence before the panel. Consequently, the panel concludes that the claimant was never in the north of Sri Lanka at the time that he claims or that he experienced problems upon his arrival in Colombo. [emphasis mine] |
ANALYSIS
[21] As noted, the two principal issues identified by the panel were identity and credibility.
(a) The claimant's identity
[22] For the reasons expressed in its decision, the panel did not accept the identity documents.
[23] When the applicant fled Sri Lanka, he had his identity papers with him (two birth certificates, a postal identity card, a national identity card and a Sri Lankan passport). He travelled to Canada via Cambodia and China. In his testimony, which the panel did not refer to, the applicant says he split his identity documents in two packets and mailed them separately from Cambodia to a friend in Canada. He then travelled on his Sri Lankan passport and was accompanied to Canada by an agent. His PIF form was completed with assistance. Moreover, at the hearing, he testified through an interpreter in Tamil.
[24] As I see it, the following errors were made by the panel. First, in my view, there is no inconsistency or contradiction between the issue date of the first birth certificate and the issue date of the claimant's postal identity card of July 27, 1992. The panel interpreted the applicant's testimony as saying he needed the first birth certificate to apply for the postal identity card. However, this is not what the applicant said. He testified his postal identity card was received by postal authorities who advised him that before they would release that document to him, he needed a birth certificate which the applicant says he did not have; he requested a copy of the birth certificate from his school and that is what accounted for the delay. In other words, the issue date of the postal certificate was before the issue date of the first birth certificate. The panel misconstrued the applicant's evidence.
[25] Second, the panel concluded the applicant was not forthright in his presentation respecting his two birth certificates. Yet, in coming to this conclusion, the panel failed to consider (it ignored the evidence) as to the circumstances why the second birth certificate was necessary. The applicant clearly testified this second birth certificate was needed by school officials at the Universal Commerce Institute. As I see it, there was no evidence on the record to impeach this second birth certificate which, as noted, identifies the applicant as a Tamil.
[26] Third, while it is true the claimant did not mention his second birth certificate in his PIF, the panel did not refer in its reasons nor come to any assessment on the explanation the applicant gave as to why he did not mention this second birth certificate in his PIF. In my view, the panel did not, as required by law, make specific reference to that explanation and make a finding of credibility in clear and unmistakable terms (Sebaratnam v. Canada (M.C.I.) (1991), 131 N.R. 158 (F.C.A.)). In any event, in my view, it would be an unreasonable inference to conclude the claimant had not made out his identity as a Jaffna Tamil based on his failure to mention a document in his PIF. Such an omission or, even if there was an inconsistency, would not be essential to his claim (Mahathmasseelan v. Minister of Employment and Immigration (1991), 137 N.R. 1 (F.C.A.)).
[27] Fourth, the panel impugned the claimant's national identity card on an apparent contradiction as to the purpose for which it was issued and the date on which it was issued. The panel said the applicant testified he obtained his NIC in June 1994 in order to sit "A" level exams. The panel refers to his PIF which indicates he completed his level "A" in 1995 and not in 1994 as in his oral testimony. This finding misconstrues the evidence. Nowhere in his testimony did the applicant say he completed his "A" level in 1994. What the applicant said was that when he had to sit for his "A" levels, he obtained his card. The applicant was not further questioned on this point. The applicant says in his affidavit in support of his leave application that if he had been asked by the panel to further explain, he would have told it the exams for the "A" level were delayed because Nallur/Jaffna was in a war zone. In my view, the panel had an obligation to press the applicant further on the point if it had any concerns. It could not simply assume a state of facts as it did and then draw an adverse inference.
[28] Fifth, the panel drew a negative inference because the applicant turned over his Sri Lankan passport to his agent. Such an inference was not reasonable (see Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.)).
(b) The credibility concerns
[29] The panel, as noted, said that the negative findings with respect to the claimant's identity were reinforced by "the following credibility concerns about his residence and travel to Colombo".
[30] The panel's concerns about the claimant's residence relate to when he was residing in Kilinochchi with his parents. The applicant, in his PIF, had indicated he was a resident there from October 1995 to February 1997. He did not know, the panel noted, when Kilinochchi had been taken by the SLA after a major battle. It concluded that the applicant was not in Kilinochchi at the time he claims he was and, if so, the panel did not accept his story that the LTTE attempted to recruit him there. He was questioned by the panel member on the point.
[31] What the transcript discloses and what the panel did not analyze but misconstrued is that Kilinochchi is not simply a town or city but an area where both the LTTE and the SLA could operate.
[32] The second credibility concern expressed by the panel related to the correct identity of the checkpoints the applicant passed through on his way to Colombo. The panel says he got it wrong. The panel said the applicant testified the LTTE checkpoint was at Thandikulam. The panel noted the documentary evidence indicated the Tiger checkpoint was at Omanthia. The panel did not accept the applicant's explanations for why he did not know that the LTTE checkpoint was at Omanthia and that the SLA checkpoint was at Thandikulam. In my view, there was no basis in the evidence upon which such an inference could be reasonably drawn. The applicant testified he was travelling through the jungle in an area in which he had not been before. He further testified Thandikulam was an area and that the people who were with him told him Thandikulam was the Tiger checkpoint. He further testified that the SLA checkpoint was beyond Thandikulam, close to it; it took half an hour to walk to the SLA checkpoint. The panel member questions the applicant on this question. The questions and answers are as follows:
| SIMEON You were describing your travel route and you were describing the travel route from Kilinochchi to Colombo. You said that you crossed a Tiger checkpoint and you were told it was Thandikulam. Are you certain of that? |
| CLAIMANT I don't know. They did not tell me that but from Tamils who were talking I heard that to be Thandikulam. |
| SIMEON The documentary evidence before us indicates that the Tiger checkpoint is at Omandi (phoen). Do you recall crossing Omandi? |
| CLAIMANT I am unable to say whether that was Omandi or not, it was one camp that I had to come to. |
[33] Again, the panel misconstrued or ignored the evidence. The applicant's explanation is perfectly reasonable. The panel drew an unwarranted inference.
CONCLUSIONS
[34] For all these reasons, this application for judicial review is granted, the decision of the Refugee Division is set aside, and the matter is remitted to the Refugee Division for reconsideration by a differently constituted panel.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
NOVEMBER 3, 1999