Date: 19990716
Docket: IMM-3308-98
BETWEEN:
ARULTHAS CHELLAIYAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] Arulthas Chellaiyah, 38, is a Sri Lankan national of Tamil ethnicity. He worked as a self-employed carpenter. He is married and the father of four children, the eldest of whom was born in 1986.
[2] In April 1997, he left Mankulam in northern Sri Lanka, where he resided with his family, to seek refuge in Canada. His fear at the time was that the Liberation Tigers of Tamil Eelam ("LTTE") arrested married men for forced conscription. At the same time, his wife, children and parents moved to nearby Odduchuddan, an apparently safer location.
[3] The Convention Refugee Determination Division concluded that Mr. Chellaiyah was not a credible witness and, for that reason, determined that he failed to establish that he is a Convention refugee. In this application for judicial review, counsel for Mr. Chellaiyah argues that the tribunal decision discloses reviewable errors and should be set aside. I agree.
[4] The tribunal"s relatively short reasons raise five issues. The fifth issue concerns the applicant"s three-week stay in Thailand, two-week stay in Brazil and two days in the United States before claiming refugee status in Canada. Mr. Chellaiyah testified that it was always his intention to make his claim in Canada. His itinerary was determined by his agent with whom he travelled. While another panel may easily have accepted this explanation, it was open to this tribunal to note that "someone who fears for his life would be expected to ask for Refugee status at the first possible opportunity". However, the tribunal"s decision concerning the four credibility issues necessitates this Court"s intervention.
The applicant"s birth and school certificates
[5] First, the tribunal noted the different dates of birth of the applicant"s parents on his personal information form, on that of his sister"s (who was previously determined to be a Convention refugee) and on his birth certificate. His sister"s personal information form was prepared in 1991 and his own some six years later. The tribunal summarized its analysis in these terms:
| In his PIF the claimant stated his parents" dates of birth as being the same as in his sister"s PIF. The dates of birth of the claimant"s parents written in the claimant"s birth certificate are different and the claimant corrected them at the beginning of the hearing according to his birth certificate. When asked why he wrote in his PIF different dates, the claimant answered that he thought that the initial birth dates were the correct ones and that he never realized that they were mistaken because he never celebrated his parents" birthdays in Sri Lanka. |
| The panel is of the opinion that the claimant noticed the mistake and invented the reason on the spot. |
[6] The tribunal"s first sentence is inaccurate and incomplete. The two personal information forms do not provide the same information on the parents concerning the parents" birth dates. The applicant provided the day, month and year of his parents" birthdays. His sister gave a different day of the month for her father"s birth and provided only the year of her mother"s birth date.
[7] The tribunal"s opinion that "the claimant noticed the mistake and invented the reason on the spot" is even more problematic. Mr. Chellaiyah changed his parents" birth dates on his personal information form immediately prior to the hearing to coincide with the corresponding information on his birth certificate. The changes were not substantial. The tribunal"s conclusion that the applicant "noticed the mistake", presumably in the context of his sister"s personal information form, and "invented the reason on the spot" is not justified by the record, including the hearing transcript.
[8] In the same vein, the tribunal criticized the applicant for not having given plausible answers concerning his school leaving certificate. He explained that he obtained the certificate in 1989, some fifteen years after completing his education to prove "my having studied in that school". He also acknowledged that the space on the certificate to indicate his date of birth was left in blank. Even if the tribunal could describe the response for obtaining the certificate in 1989 as not plausible, there is no justification, in my view, to question the applicant"s credibility for the absence of his date of birth on the same document. Nowhere in its reasons does the tribunal raise the applicant"s identity as an issue. The fact that the school certificate did not disclose his date of birth is unrelated to the crux of the applicant"s claim and to any other issue identified by the tribunal. The matter is simply irrelevant. On the face of this record, it has nothing to do with the applicant"s credibility.
The personal information form of the applicant"s sister
[9] Second, the tribunal"s lengthiest analysis concerns a detailed comparison of the different data on the applicant"s and his sister"s personal information forms, concerning the number of their siblings and whether their parents were alive. The applicant"s sister had noted that her parents "may be deceased". The tribunal concluded:
| The claimant was not able to explain these discrepancies and said that he does not know anything about his sister"s story. |
| The claimant affirmed that he had seen his sister many times since he came to Canada. Consequently, the panel finds it implausible that he does not know his sister"s story. |
[10] The tribunal"s requirement that the applicant explain these discrepancies necessarily implies, in my opinion, an improper assumption that the sister"s information was correct. At the time of the hearing, the applicant and his sister lived in separate premises in Toronto. He would visit her weekly. Counsel for the respondent argued that it was open to the tribunal to question why the applicant would not know his sister"s story. Even this argument, however, assumes that the sister"s data on her personal information form was correct. The applicant was confronted with his sister"s personal information form during the hearing. She was not called as a witness. It was wrong in law, even in an environment with less stringent rules of evidence, to assume in these circumstances that the sister"s data was correct and to impose on the applicant the burden to explain the alleged discrepancies. That could only be properly done upon an assessment of his sister"s credibility and the circumstances surrounding the disclosure of her information in 1991.
The applicant"s four-month delay in leaving Sri Lanka
[11] Third, the tribunal found that the claimant was not able to explain why he left Sri Lanka only in April 1997, some four months after his "forcible recruitment" in November and December 1996. The record discloses one possible error and a significant oversight by the tribunal on this issue. The tribunal may have confused the applicant"s forced labour in late 1996 and his fear of his conscription to fight for the LTTE in April 1997. In any event, the applicant did respond to the question he was asked concerning his fleeing Sri Lanka in April 1997 and not four months earlier: "It was that time the LTTE arrested people who are married. ... They would forcibly take the married people, that is how I came to know in April. ... [In late 1996], we didn"t have that problem." This was a response whose veracity the tribunal could assess. It was wrong to simply state in its reasons that the applicant was unable to explain the delay. If it was not satisfied with the response, the tribunal had to so state with clear and unmistakable reasons.
The applicant"s decision to leave Sri Lanka
[12] Fourth, the tribunal criticized Mr. Chellaiyah for not being able to give a plausible answer when asked why he left Sri Lanka instead of moving with his family to Odduchaddan. In fact, the applicant did answer the question in these terms: "... they usually go after young men, married men, not women and children". Again, if the tribunal decided not to accept the credibility of this response, it had to do so with reasons stated in clear and unmistakable terms. It failed to do so. In the circumstances, their credibility findings, as expressed in the third and fourth issues, ignore relevant material adduced by the applicant.
Conclusion
[13] It is not common for this Court to interfere with the credibility findings of the Convention Refugee Determination Division. The decision under review, however, on each of the four credibility findings made by the tribunal, discloses reviewable errors. The decision will be quashed and the matter referred to a differently constituted panel for rehearing and redetermination. Neither party suggested the certification of a serious question.
"Allan Lutfy"
J.F.C.C.
Toronto, Ontario
July 16, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3308-98
| STYLE OF CAUSE: ARULTHAS CHELLAIYAH |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, JULY 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY J.
DATED: FRIDAY, JULY 16, 1999
APPEARANCES: Ms. Helen P. Luzius
For the Applicant
Mr. Michael Beggs
For the Respondent
SOLICITORS OF RECORD: Helen P. Luzius
Barrister & Solicitor
1610-372 Bay Street
North York, Ontario
M5H 2W9
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990716
Docket: IMM-3308-98
Between:
| ARULTHAS CHELLAIYAH |
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER