Date: 19990506
Docket: IMM-2316-98
BETWEEN:
MYLVAGANAM RAWINDRARAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. Introduction |
[1] The applicant, Mylvaganam Rawindraraj, is a Tamil from Batticaloa which is in the eastern part of Sri Lanka. He owned and operated a welding business there. On arrival in Canada he made a refugee claim based on a well-founded fear of persecution by reason of his political opinion and membership of a particular social group, Tamils from Batticaloa.
[2] His evidence was that he had been the subject of exploitation and a death threat by Tamil Tigers in Batticaloa because he had refused to comply with their demands that he produce weapons for them at his welding works. He also alleged that he had been arrested, detained and beaten by the Sri Lankan army on suspicion of providing weapons to the terrorists. The Refugee Division rejected the claim on the ground of credibility. It found implausible aspects of his evidence that were central to his claim to be a refugee.
| B. Issues and Analysis |
[3] In this application for judicial review counsel for the applicant sought to impugn the Refugee Division"s finding that the applicant was not credible. It is trite to say that fact-finding is at the heart of the specialized jurisdiction of the Refugee Division and that on review the Court must be satisfied that the tribunal"s findings are irrational, made without regard to the evidence before it or otherwise unlawful before it may intervene. Moreover, since the Refugee Division divides its caseload among the members geographically, the panel that dismissed the applicant"s claim would have a particular expertise in Sri Lankan refugee claims.
[4] I shall deal with the four bases of the Refugee Division"s conclusion that the applicant"s evidence was a fabrication and that his refugee claim was groundless.
| (i) persecution by the Tamil Tigers |
[5] First, the Refugee Division did not believe the applicant"s allegation that Tamil Tigers had come to visit him on two occasions in order to enlist him and his welding equipment in the production of weapons for them, and that when he refused their demands they left, saying that they would kill him if he persisted in refusing their demands when they paid their next visit. The panel reasoned as follows:
| Tigers are far more brutal than that. [Ex.-1, Bulletin 12] |
| They have engaged in public executions and massacres, |
| forced conscription of children and kidnapping. |
[6] Counsel made two submissions on this finding. First, he said, the Refugee Division did not have before it Bulletin 12 on which it purported to rely for its finding that the Tigers are too brutal to make it plausible that they would leave empty handed on two occasions with no more than a warning to the applicant that he would be killed if he continued to refuse to comply with their demands. Therefore, he argued, the finding was made without regard to the evidence before the panel, or in breach of the duty of fairness because the applicant had no opportunity to attempt to rebut the evidence.
[7] Nor, he submitted, was the extreme brutality of the Tamil Tigers a matter within judicial notice. And, since the Refugee Division had not given prior notice under subsection 68(5) of the Immigration Act R.S.C. 1985, c. I-2 of its intention to rely on the content of Bulletin 12, it could not invoke subsection 68(4) in order to assert that it could take the brutal nature of the Tamil Tigers into account as information within its specialized knowledge.
[8] In my opinion, even if the applicant is correct in these submissions, any error thereby committed by the Refugee Division was immaterial to its finding of credibility because the extreme brutality of the Tamil Tigers was an inference that could be reasonably drawn by the Refugee Division from the material before it of massacres, public executions, kidnapping and the conscription of children by the Tigers.
[9] Counsel for the applicant sought to meet this argument by maintaining that these incidents did not take place in the eastern part of Sri Lanka, where the fighting had not been so intense, and were not directed against Tamils, other then those regarded as traitors. The panel had only evidence of a general kind before it; it had no evidence of occasions in the east when the Tigers had killed without any warning Tamils who did not comply with their demands. On the contrary, the documentary evidence included examples when the Tigers had given prior warning before an attack.
[10] I am not persuaded by this submission because it invites me to subject the evidence before the Refugee Division to much closer scrutiny that is appropriate, given the residual role of the Court with respect to findings of credibility by the panel. In a word, the applicant has not satisfied me that the implausibility finding made by the Refugee Division on the basis of the evidence before it about the general conduct of the Tigers lacks a rational foundation.
| (ii) detention by the army |
[11] Second, the Refugee Division regarded as implausible the applicant"s allegation that he and his employees were arrested, detained and beaten by the Sri Lankan army after the Tamil Tigers" second visit to him, on suspicion that they were manufacturing weapons for the terrorists. The applicant testified that he was released two days after his arrest, but his employees continued to be held in detention.
[12] The panel found it implausible that the army would release the applicant who, as the owner of the welding business, would have been the principal suspect, while keeping his employees in custody. When the panel put its difficulty with the evidence to the applicant he was unable to provide any explanation.
[13] Counsel for the applicant made two submissions on this finding. First, since the applicant was in no position to know why the army acted as it did, the Refugee Division erred in law when it drew an adverse inference about his credibility from his inability to provide an answer to its question.
[14] I am not persuaded by this argument because, in putting this question to the applicant, the panel was merely giving him an opportunity to clear up an aspect of his evidence that seemed implausible to the panel. The negative credibility finding was based on the applicant"s account of his earlier release and of his employees" prolonged detention, not on his inability to give a satisfactory explanation of the implausibility. I would have thought that the panel would have been more open to criticism if it had kept its view of the evidence to itself, without giving the applicant a chance to dispel the impression of implausibility that his evidence had created in the minds of the panel members.
[15] Counsel for the applicant also suggested that there might be other reasons for the fact that the employees were kept in detention long after the applicant was released. For example, as young male Tamils they were more likely than the applicant, a businessman in his mid-40s, to be the subject of the army"s suspicion that they were complicit with the Tigers. However, this is no more than speculation, into which I cannot enter.
[16] On the evidence before it the Refugee Division"s finding of implausibility with respect to the evidence about the arrest and detention of the applicant and his employees was not unreasonable. Whether or not it was correct is, of course, another matter, and not one that is within the province of the Court on an application for judicial review.
| (iii) national identity card |
[17] Third, the Refugee Division found it implausible that the applicant had been able to travel through Sri Lankan army checkpoints from Batticaloa to Colombo in possession of national identity card that had been issued in 1974, and without a pass issued by the army.
[18] The Refugee Division made its finding on the basis of evidence before it that Sri Lankan national identity cards expire after 10 years, and that the applicant would therefore not have been permitted by the army to travel to Colombo in 1996 on a national identity card that had expired in 1984.
[19] Documentary evidence to this effect came from the Sri Lankan government and the Refugee Council, a non-governmental organization based in the United Kingdom. Other evidence, however, indicated that the validity of the applicant"s card would not have had any time limit imposed on it. This was the evidence of a community worker in Montréal who had experience with refugees from Sri Lanka, and of the Canadian High Commission in Colombo.
[20] I am not satisfied that the Refugee Division erred in law in preferring the evidence that it did, nor in failing to give an explanation of its conclusion, given the sources of the evidence in question and the fact that it related to only one of several bases of the Refugee Division"s finding of non-credibility.
[21] Counsel for the applicant also relied on the fact that, after the hearing had ended, the Refugee Division made a request for information on the expiry of national identity cards, but when no information was forthcoming within the stipulated time, it made its decision on the material before it.
[22] Counsel for the applicant argued that this resulted in unfairness to the applicant because he was denied the opportunity of responding to whatever information the Refugee Division would have obtained if it had waited longer for the information to arrive.
[23] There is nothing to this point. The Refugee Division made its decision on the evidence before it, to which the applicant had, of course, been given every opportunity to respond. If the panel was satisfied that the potential benefit to be derived from further elucidation of the national identity card issue was outweighted by the cost of the additional delay in making its decision, this was a matter for it to decide as the master of its own process.
[24] Finally, counsel submitted that the panel erred in law when it based its implausibility finding in part upon the fact that the applicant alleged that he had been allowed through the army checkpoints although not in possession of a pass issued by the army authorizing him to travel. The only evidence before the Refugee Division on the necessity of an army pass related to travel from the north of Sri Lanka to Colombo, not from the east. In my opinion, in the absence of any evidence specifically on point, I do not think that the inference drawn by the panel from the evidence, namely that passes were also required for those travelling from Batticaloa, was unreasonable.
| (iv) sale of the properties and business |
[25] Fourth, the Refugee Division found it implausible that the applicant had sold properties and his welding business in Batticaloa while he was in Colombo, almost immediately after he had instructed his wife to sell. The Refugee Division found that several aspects of the applicant"s account of this transaction cast serious doubt on its veracity.
[26] For example, at one point the applicant stated that the sale had been made three days after he gave the instruction to sell, while at another point the sale seemed to have occurred on the day after the instruction. When the Refugee Division asked how the sale had been effected without the presence of the applicant to sign the transfer documents, the applicant stated, when the hearing was resumed after an adjournment, that the property was owned by his wife, a fact that he had not mentioned previously.
[27] The applicant stated that he was only the registered owner of the business, which he sold as "a going concern" without any formal document. The panel was also puzzled by the rapidity of the sale of a business that had attracted the attention of the Tamil Tigers. The applicant"s explanation that the properties were purchased for residential purposes at a bargain basement price was never clearly demonstrated by the evidence.
[28] As I listened to the attempts of counsel for the applicant to explain away these and other unsatisfactory features of the evidence surrounding the transaction, I was satisfied that, whether the Refugee Division"s finding of implausibility was correct, it was undoubtedly open to it on the evidence before it.
| C. Conclusion |
[29] The Refugee Division"s finding that the applicant"s evidence, considered either item by item or, even more, as a whole, was not credible on account of the implausibilities considered above was reasonably open to it. The decision dismissing the applicant"s refugee claim was therefore not erroneous in law.
[30] For these reasons the application for judicial review is dismissed.
OTTAWA, ONTARIO John M. Evans
May 6, 1999. J.F.C.C.