Date: 20041115
Docket: IMM-4553-04
Ottawa, Ontario, November 15th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
SUTHARSAN KANDIAHPILLAI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated April 21, 2004 in which the applicant was found not to be a Convention refugee or a person in need of protection.
FACTS
Background
[2] The applicant is a 29 year-old citizen of Sri Lanka. He claims a well-founded fear of persecution based on his ethnicity, perceived political opinion and membership in a particular social group, namely a young Tamil male from the north of Sri Lanka.
[3] The applicant arrived in Canada on January 11, 2003 and immediately claimed protection as a Convention refugee.
[4] In support of his refugee claim, the applicant made the following allegations in his personal information form ("PIF"). In 1994, the militant group Liberation Tigers of Tamil Eeale (LTTE) approached him to join their organization. The applicant feared that if he did not assist the LTTE in some fashion, he would be severely punished. Consequently, he performed administrative tasks and chores for the group until late 1995. In May 1996, the Sri Lankan Army (SRA) took control of the applicant's home town of Varany in the north of Sri Lanka and the surrounding area from the LTTE. The LTTE, however, continued to conduct attacks against the SRA and civilians. The applicant states that he was detained and questioned by the SRA on many occasions because he was suspected of being an LTTE supporter. In October 1998, the SRA arrested the applicant and released him on the condition that he report to them on a daily basis. In December 1998, the applicant moved to Vavuniya where he remained for nearly three years. In July 2001, he left Vavuniya because the SLA was arresting young Tamils whom it suspected of assisting the LTTE. The applicant alleges that he then moved to Colombo and stayed with an agent who arranged for him to come to Canada. He left Colombo for Canada in December 2002.
[5] As a result of the foregoing, the applicant claims that he fears persecution by both the LTTE and SRA should he return to Sri Lanka.
The Decision
[6] The Board rejected the applicant's claim on the basis that he was not credible. It found that there were serious discrepancies as to where the applicant had lived in the years prior to coming to Canada and, that as a result, his evidence was not trustworthy.
ISSUES
[7] This application raises two issues:
1. Did the Board err by using evidence from the port of entry interview to impugn the applicant's credibility after having stated that it would not consider evidence from the interview?
2. Did the Board err by failing to consider the risk to the applicant as a young Tamil male from the north of Sri Lanka, given that it accepted his identity?
ANALYSIS
Issue No. 1
Did the Board err by using evidence from the port of entry interview to impugn the applicant's credibility after having stated that it would not consider evidence from the interview?
[8] The Board found that the most crucial inconsistency in the applicant's evidence related to his residency in Sri Lanka. Specifically, it was not satisfied that the applicant had left Varany when he claimed to or that he had ever lived in Colombo. In coming to this conclusion, the Board relied, in part, on a contradiction in the information provided by the applicant at the port of entry. The Board noted that in his entry form completed on January 12, 2003, the applicant indicated that he had lived in Varany until December 2002, whereas he told an immigration officer on January 11, 2003 that he had moved from Varany to Vavuniya some time after 1998.
[9] Ordinarily, the Board would be entitled to consider such a discrepancy in assessing the applicant's credibility. However, in the present case, the applicant admitted to the Board that he had lied to the immigration officer at the port of entry about helping the LTTE because he was frightened and because he had been counselled to do so by the agent who helped him come to Canada. The Board accepted the reasons given by the applicant for lying at the port of entry and stated that it would "not make any comparison between the interview the claimant gave to the I.O. [Immigration Officer], his handwritten statement and the content of his narrative [PIF]". The Board indicated that it would rely on the PIF and testimony at the hearing to make its determination since the applicant claimed that information to be truthful.
[10] In my view, having accepted the applicant's reasons for lying to the immigration officer at the port of entry, and having explicitly stated that it would not make comparisons with statements given to the immigration officer, it was not open to the Board to use the evidence from that interview about the LTTE to undermine the credibility of the applicant. I am satisfied that the Board did not rely upon the port of entry evidence about the LTTE. The Board did refer to this evidence about place of residence, which is not the evidence which the applicant admitted to being a lie.
[11] Accordingly, the Board committed no reviewable error with respect to the port of entry evidence about place of residence.
Issue No. 2
Did the Board err by failing to consider the risk to the applicant as a young Tamil male from the north of Sri Lanka, given that it accepted his identity?
[12] The Board found at pages 4 and 5 of its Reasons that the LTTE would not be interested in the applicant for two reasons:
(i) it was "almost ten years" since the applicant's last contact with the LTTE; and,
(ii) "the LTTE never bothered with him when he was younger and fit the profile of those people the LTTE were interested in".
In this passage I find that the Board did assess the risk to the applicant as a Tamil from the north, and found that the LTTE would not be interested in him, i.e. he is not at risk under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27. Implicitly the Board found that he was no longer young and that he no longer fit the profile.
Credibility
[13] The applicant's claim was dismissed for lack of credibility. The applicant's story was inconsistent and unclear. The Board could not believe the applicant about where he resided in Sri Lanka over the past 10 years, if in fact he did reside in Sri Lanka.
[14] For these reasons, the applicant failed to establish an error upon which this Court will intervene.
[15] Neither party proposed a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4553-04
STYLE OF CAUSE: SUTHARSAN KANDIAHPILLAI v. MCI
DATE OF HEARING: Tuesday, November 9, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: Monday, November 15, 2004
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD:
Michael Crane
166 Pearl St
Suite # 100
Toronto, Ontario
M5H 1L3
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT
Date: 20041115
Docket: IMM-4553-04
BETWEEN:
SUTHARSAN KANDIAHPILLAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER