Date: 20001219
Docket: IMM-5455-99
BETWEEN:
KARALASINGAM SANDIRASEGARAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
Background
[1] This is a judicial review application in which Karalasingam Sandirasegaram (the "applicant") seeks to quash a decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") dated October 20, 1999, which found him not to be a Convention refugee.
[2] The applicant was born in Sri Lanka; he is a Tamil male. He, his wife and daughter fled Sri Lanka in 1992, came to Canada and made claims for refugee status.
[3] The Refugee Division refused their claims on August 3, 1993, but this decision was quashed by Mr. Justice McKeown of this Court on August 4, 1994. Their claims were referred back for reconsideration by a differently constituted tribunal.
[4] The applicant's refugee claim was deemed abandoned on January 17, 1995, after he failed twice to appear before it at scheduled hearing dates.
[5] As it turned out, the applicant, who had become estranged from his wife and child, had returned alone to Sri Lanka on June 14, 1994 in order to preside at his uncle's funeral, had stayed there until September 1998 when he returned to Canada and made a second refugee claim. His Personal Information Form ("PIF") indicates in November 1995, he travelled to India and Thailand but he returned to Sri Lanka. Throughout his stay in Sri Lanka, his estranged wife had not advised him of their success before Mr. Justice McKeown and the new hearing which had been ordered.
The applicant's Personal Information Form
[6] In his PIF dated September 23, 1998, the applicant indicates he was born in Sri Lanka in October 1958 and is a Tamil.
[7] He recites in July 1983, both he and his father fled Colombo during attacks on Tamils by the Sinhalese. He started a business in Nelliady and became quite active with the Tamil United Liberation Front which advocates a Tamil state but to be achieved through non-violent means.
[8] The applicant then describes the 1987 agreement between the Sri Lankan government and the Indian government and the coming to Sri Lanka of the Indian Peacekeeping Force ("IPKF"). He asserts ordinary Tamils in the North began to have terrible problems with the IPKF and in 1989, he was taken prisoner by them but released through payment of a bribe and was told to report.
[9] After the IPKF left, he said the LTTE (the Tigers) became more powerful and fighting between the Sri Lankan Army (the "Army") and the LTTE began once again in 1990. In August of that year, he says the LTTE took him to their camp to question him about his contacts with the IPKF; after detention, he was released upon the payment of a bribe.
[10] In 1991, he was married and during the month of September of that year, his area was attacked by air by the Sinhalese Forces and his father was killed. In August of 1992, the LTTE took him to their camp and demanded payment of a large sum of money telling him he would be shot if he did not comply. They agreed to gradual payments and he was released later that month; his wife and child were threatened if payments were not made. This is when he and his family fled to Colombo.
[11] In October 1992, he was taken into custody by the Sinhalese police; he alleges he was abused by them but released two weeks later by the payment of a bribe and told to report. He says he was assaulted when he went to report and his wife was insulted and humiliated. What precipitated his flight to Canada was his being taken in a roundup of Tamils in November of 1992 after a Sri Lankan naval commander had been murdered. He had released in early December by the payment of a bribe but told to report every day. He said he was assaulted during his arrest. He and his family sought refuge in this country.
[12] As noted he returned to Sri Lanka on June 14, 1994. He said when he arrived at the airport in Colombo he was taken into custody, questioned on whether he had claimed refugee status in Canada to which he answered "No" but he was detained in prison where he was ridiculed by Sinhalese officers and was beaten at their pleasure. He was released, the month later, on July 20, 1994, missing his uncle's funeral.
[13] He went to the Vanni but the LTTE took him, interrogated and kept him for two days before releasing him.
[14] Then, in January 1995, he started a business with a truck which was damaged during an attack from the Sri Lankan forces.
[15] At the end of October 1995, "we" were told, he writes, by the LTTE to leave Jaffna because of the Army's advance. By March 1996, he arrived in Vavunya and worked as a driver. It was here that the PLOTE demanded payments sometime in August 1996 and would also demand free transportation of their property; he received similar demands from the LTTE.
[16] In December 1996, he recites the Army took him in custody "on suspicion of helping the LTTE", beat him and let him go after a week on condition he report three times a week.
[17] In July 1997, he left Vavunya because he was told by the PLOTE to leave that city. He went to Trincomalee. In September 1997, and then in October of that year, two Tamil men close to his age living in Trincomalee were taken into custody by the Army in a roundup of Tamils. He was told in June of 1998 that one of the two was still missing.
[18] There were difficulties from the LTTE and in August 1998 he tried to get a pass from the Army to leave the area. However, instead of giving him a pass, the Army took him into custody, beat him and questioned him being suspicious he might be involved in militant activities. A week after, the Sinhalese soldiers gave him a pass, he fled to Colombo and escaped to Canada.
The tribunal's decision
[19] The tribunal began and focussedits analysis on the applicant's claim he had a well-founded fear of persecution in Sri Lanka if he were to return noting he had returned there in 1994, and stayed there four years, a behaviour which would not appear to be consistent with a person having a well-founded fear of persecution in his country.
[20] The tribunal examined the applicant's explanation for his return to Sri Lanka which he claimed was under duress: (1) the need to arrange his uncle's last rites because his uncle's immediate family had all been killed in an earlier bombing; and (2) his ignorance of the Federal Court decision quashing the Refugee Division's negative finding because he and his wife were separated and his wife did not forward any correspondence to him. The tribunal concluded:
| The panel considered the claimant's failure to prosecute his claim and his return to Sri Lanka in the context of his marriage breakdown and his psychological duress upon hearing of his uncle's suicide. Nevertheless, the panel is puzzled by the claimant's four year residence in Sri Lanka from 1994 to 1998. The claimant alleges that the army arrested him for one month when he returned and that thereafter he suffered from extortion, detentions and was robbed by the Army, the LTTE and the PLOTE. In light of the allegations made by the claimant, the panel finds it difficult to believe that, after re-availing himself of the protection of his country, he did not depart again until 1998. The claimant testified that he made two unsuccessful attempts to leave the country before returning to Canada in 1998. However, neither of these attempts is mentioned in the PIF casting doubt of the veracity of the allegation. |
| The panel questions the claimant's subjective fearof persecution in Sri Lanka today, based on his return and four year residence in his country from 1994 to 1998. [Emphasis mine.] |
[21] The tribunal then entered into another aspect of its analysis finding the applicant's oral testimony regarding allegations following his return to Sri Lanka in 1994"was extremely evasive and fraught with contradictions" (underlining added) and his testimony with regards to his movements in Sri Lanka after 1994 and his departure from the North to Colombo in 1998 were"inconsistent with the narrative contained in his Personal Information Form (PIF)" (underlining added). It cited an inconsistency as to the date he arrived in Trincomalee.
[22] The tribunal then described the changes in the applicant's testimonyon the circumstances connected to obtaining a pass to travel to Colombo in 1998. It said in his PIF he wrote he had obtained the pass from the Sri Lankan Army after being arrested and beaten. During his testimony, he first indicated to the Refugee Claim Officer ("RCO") the pass had been obtained through his agent, failing to mention what had been written in his PIF. The applicant then, according to the tribunal, mentioned his friend's intervention. After recess, the tribunal said he altered his testimony and asserted he had been arrested by the Army and had been told by the soldiers to leave the area and this is why they gave him a pass. The tribunal found:
| It is notable that the claimant, although asked many pointed questions by Counsel, did not mention being detained or beaten by the army due to his attempt to obtain a pass as stated in his PIF. He also stated that it was Ravindran [his friend], not he, who obtained the pass from the army. It was only after the recess that the claimant mentioned being detained by the army. However, this response did not come until Counsel asked him directly if he encountered any problems with the army in obtaining the pass. |
[23] The tribunal went on to discuss the issue of the arrest of his two Tamil friends in September and October 1997. The tribunal said he could not remember when or how his first Tamil friend was arrested and testified he learned of the arrest in August 1998. The tribunal also referred to his failure to mention in his testimony the roundups of Tamils in reference to the disappearance of his two friends.
[24] The tribunal noted at the close of the hearing, his counsel requested an adjournment to enable him to provide a psychological expertise to explain the applicant's difficulty in testifying; the adjournment was granted to obtain that expertise. A report was filed which stated the applicant "presents a very severe Post-traumatic Stress Disorder" and the "presence of such a psychological syndrome may interfere with an individual's capacity to testify concerning traumatic events which were experienced." The tribunal then observed the applicant was able to testify without difficulty and without discrepancy between his oral and written testimony in respect of events which occurred prior to 1992which would be as traumatic and violent as those which he alleged to have occurred after 1994about which he testified with great difficulty and with contradictions.
[25] The tribunal said "these events were in the panel's opinion as traumatic as the post-1994 allegations. The psychological expertise does not explain the disparity in the quality of the testimony." Then, the tribunal cited Mr. Justice Noël's decision in Bula v. S.S.C., (A-794-92, June 16, 1994), for the proposition it has discretion to evaluate expert testimony and to decide how much weight should be given. It further cited Justice MacKay's decision in Al-Kahtani v. M.C.I., (IMM-2879-94, March 13, 1996) for the proposition a tribunal's determination not to give a psychiatric report relating to post-traumatic stress syndrome any weight on the grounds that the report was based on events which the tribunal found not to be credible was not unreasonable.
[26] The tribunal concluded as follows:
| The claimant did not present credible or trustworthy evidence in support of his claim that he returned to Sri Lanka in 1994 where he suffered persecution. The psychological report, which was requested at the end of the hearing, was evaluated by the panel. While the expert witness has diagnosed the claimant with post-traumatic stress disorder, the panel has found the events alleged by the claimant notto be crediblenotwithstanding the psychological evaluation. |
| The claimant did not establish that there is a reasonable possibility that he would be persecuted were he to return to his country. [Emphasis mine.] |
The position of the parties
| a) the applicant's case |
[27] In his oral argument, counsel for the applicant urged, that the applicant's right to be heard had not been respected for the following reasons.
[28] First, there was last minute disclosure on the day of the hearing that the circumstances behind and the fact of his prior refugee claim abandonment would be a factor in the tribunal's deliberations. The applicant says the last minute disclosure of this issue impacted on the tribunal's credibility finding surrounding the post-1994 events when he was in Sri Lanka.
[29] Second, the tribunal substituted its opinion for that of the psychologist who assessed the applicant with a post-traumatic stress disorder. Counsel for the applicant argued the tribunal reversed the expert on the issue of what was traumatic and what was not traumatic.
[30] Third, the tribunal misconstrued the evidence surrounding his return in 1994 to Sri Lanka and, in particular, why he was obligated (duress) to go back to preside at his uncle's funeral. As well, the applicant says the record shows he disclosed in its PIF his two attempts to flee Sri Lanka after his return in 1994.
[31] Fourth, there were substantial errors in the translation which were noted several times during the hearing.
[32] Fifth, the post-hearing communications between the RCO and the tribunal leading to an extension of time decision by the tribunal without participation from the applicant's side was improper and evidences an appearance of partiality. These post-hearing communications between the RCO and the tribunal concerned to a request by the RCO for an extension of time to provide submissions responding to the applicant's expertise evaluation of his troubles at the hearing.
b) the respondent's answer
[33] On a point by point basis, counsel for the respondent replied.
[34] First, the partiality argument was misconceived because rule 40 of the Convention Refugee Determination Division Rules allows for informal communications between the RCO and the tribunal where there is no prejudice. There was no prejudice in this case because the applicant was offered an opportunity to comment upon the inclination of the tribunal to grant the RCO an extension of time to make submissions in the response to the post-hearing psychologist's report. The applicant did not then object.
[35] Second, as to the disclosure issue, counsel for the respondent argued that appropriate issue disclosure took place looking to page 400 of the certified record. However, as a fall back, counsel submitted there was nothing in the Rules which compelled disclosure of the type argued for by the applicant - an issue disclosure as contrasted to evidentiary disclosure. In any event, counsel for the respondent adds the applicant knew what the issues were and what the law required him to demonstrate, that is, a well-founded fear of persecution should he return to Sri Lanka. In any event, counsel for the respondent argues the tribunal did not base its decision on the abandonment issue.
[36] Third, as to his attempts to flee Sri Lanka in November of 1995, the respondent points to the applicant's PIF and says that while his PIF contains a notation "11/95 India, Thailand (By land from India), there is no indication of the purpose for the travel unlike the notation immediately above, which said "from 12/92 to 6/94 Canada - purpose of travel refugee claim".
[37] Finally, on the issue of defective translation, counsel for the respondent said an examination of the record reveals that, at the outset, the tribunal verified the two translators (there was a different translator on each of the two separate hearing days) and the applicant could understand one another. Moreover, during the hearing, in response to a question by the tribunal whether he understood the translator, the applicant said he did: the tribunal then indicated to the applicant, if he add any trouble understanding the translator, he should say so.
[38] As to the errors in translation identified by the applicant who had the tapes of the hearing examined by a different translator after the hearing, counsel for the respondent argued none of those differences noted constituted errors in substance which affected the applicant's right to a fair hearing.
Analysis
[39] In my view, the applicant cannot succeed in this judicial review application because he has not been able to substantiate the errors he alleges the tribunal committed.
[40] Counsel for the applicant complained of the late disclosure of a new issue i.e., the abandonment of his previous refugee claim. The certified record, at page 400, simply does not support this contention. Prior refugee claim abandonment was not an issue identified by the presiding member who framed the central issue being why the applicant feared going back to Sri Lanka in the circumstance of his return there in 1994. Furthermore, his prior claim abandonment played no part in the rejection of his second refugee claim.
[41] The allegation of partiality arising from post-hearing communications between the RCO and the tribunal on the extension of time is not substantiated. Yes, there were communications but these communications were disclosed to counsel for the applicant who was invited, should there be prejudice, to make submissions as to why the extension which had been granted should be reversed. The applicant made no submissions. In my view, the tribunal's disclosure and its invitation to the applicant to make submissions shows the tribunal had an open-minded on the issue. In the circumstances, I do not see any breach of natural justice in terms of an appearance of partiality albeit these may have been a technical breach of the Rules but it was repaired.
[42] I agree with counsel for the respondent there is no substance to the point made by the applicant that the tribunal substituted its views for that of the psychologist. The reason the tribunal gave no weight to the psychologist's report was because it did not give credence to the factual underpinning to the report which had been provided to the psychologist by the applicant himself.
[43] As to the mistakes in translation, after examining the entire transcript as well as the discrepancies cited by the translator who conducted a post-hearing evaluation, I am not convinced by the applicant's arguments that he was not accorded a fair hearing. I note that most of the hearing was taken up by direct questioning of the applicant by his counsel who knew his case and who was not alerted by any answers from him she did not expect. Furthermore, the transcript reveals several instances where the applicant was asked to clarify answers which did not seem clear to those participating in the hearing. He did so.
[44] My review of the transcript satisfies me there was evidence before the tribunal upon which they could reasonably conclude the applicant's testimony was evasive and in places contradictory namely when he left Jaffna, how his truck was stolen and the circumstances on how he obtained his pass.
[45] I am satisfied that the applicant knew the fundamental issue he had to meet: how could he explain his return to Sri Lanka and his remaining there for four years when he feared persecution at the hands of the Army and the LTTE. He did not convince the tribunal who could lawfully come to the conclusion the applicant had not made out the subjective component of a well-founded fear of persecution. He did succeed in fleeing Sri Lanka in early 1996 making it to India and Thailand. However, he came back to Sri Lanka after his agent failed to follow through in finding him a country of refuge.
Disposition
[46] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
Judge
OTTAWA, Ontario
December 19, 2000