| Date: 19990730 |
Dockett: IMM-5170-98
Ottawa, Ontario, this 30th day of July, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
SITHAMPARANATHAN SELLIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Sithamparnanathan Selliah a young Tamil male resident of northern Sri Lanka decided to flee to the south because of threats from the Tamil Tigers that he would come to harm unless he joined them. He testified before the Convention Refugee Determination Division ("CCRD") that he crossed the military lines at Thandikulum checkpoint on September 30, 1997. The CCRD dismissed his application for refugee status on the basis of lack of credibility, relying largely on a finding of fact that the Thandikulum checkpoint was closed on September 30, 1997. The applicant brings this application for judicial review on the basis that there was no evidence to support the CCRD"s determination that the checkpoint was closed.
[2] The hearing before the CCRD was remarkable for its brevity, as are the CCRD"s reasons. The applicant"s evidence was that two hours after the last threatening visit from the Tigers, he left Mallavi (where he was then residing) in the company of three others in a van. They stopped approximately a kilometre and a half from the Thandikulum checkpoint and proceeded to the checkpoint on foot. His identity card was checked and he was observed by a hooded person. He was then sent to the Gamini Welfare Centre.
[3] The Refugee Hearing Officer confronted the applicant with the assertion that the Thandikulum checkpoint was closed in the following terms:
| RCO I see and sir, we all -- we have documentation concerning the checkpoint at Thandikulam; it says that checkpoint was closed in May of 1997 and the people leaving the north to go to, either back to Jaffna or to try to go to Colombo, had to cross at a checkpoint near Manar (ph). Do you wish to make any comment on your story about stopping at the Thandikulam checkpoint for three hours? |
| Claimant I was told that it was Thandikulam. |
| Macadam Who were you told by? |
| Claimant And bus persons who brought me over there. |
| RCO Is that all you wish to say |
| Claimant Yes. |
| RCO Those were my questions. |
[4] This issue was also the subject of inquiry by the sole member of the panel:
| Macadam What was going on, sir, as you were driving to Thandikulam? Generally, what was going on in the area as you were driving to Thandikulam? |
| Claimant You mean along the pathway, or ... |
| Macadam Yeah. |
| Claimant And travelling along the path and we never had -- nobody stopped. |
| Macadam Okay. The only reason I ask, sir, is that according to our documents -- you travelled when? |
| Claimant September 30th. |
| Macadam Yeah. |
| Claimant "97. |
| Macadam Right. The only reason I ask, sir, is that according to our documents the government launched the military offensive in May of "97 right in that region and that"s why the checkpoint was closed. You had no troubles at all? |
| Claimant No problems at all. |
[5] In its reasons, the CCRD dealt with this issue as follows:
| The claimant testified that he drove in a van with three other Tamils from Mallavi to a Sri Lankan Army (SLA) checkpoint at Thandikulum in September 1997. When it was pointed out to the claimant that the Thandikulam checkpoint was closed by the SLA in May 1997 because the area became the site of a military operation "Jaya Sikuru" which continues to date and that persons travelling to the south had to gain passage to Vavuniya by passing the SLA checkpoint at Ulyukulam near Mannar on the west coast, the claimant explained that the bus driver told him he was taken to Thandikulam. The panel is not persuaded by this explanation and finds the claimant"s evidence not credible. (Footnote omitted) |
[6] The documentary evidence referred to by the CCRD consists of 3 documents, the material portions of which are summarized below:
Doc 4.10 Country Information Report No. 430/97 dated August 21, 1997
Title: Sri Lanka "Jaya Sikuru" in the Vanni
| The document describes a Sri Lankan army operation called "Jaya Sikuru" in which the Sri Lankan army attempted to open the 100 km road from Vavuniya to Jaffna. The document refers to an LTTE counter offensive at Thandikulam on 10 June. There is no specific reference to the Thandikulam checkpoint, but it is a matter of inference that the checkpoint would be closed in the course of an offensive in the immediate area. |
Doc 4.14 Country Information Report No. 483/97
Title: Humanitarian situation in the Vanni region
Date: Sept. 24, 1997
| The document describes conditions in northern Sri Lanka including the movement of refugees into Jaffna and conditions in the Vanni. There is no reference to the Thandikulam checkpoint in the document, nor any information from which any inference could be drawn about the state of the checkpoint. |
Doc. 4.15 Country Information Report No 325/97
Title: Sri Lanka: Human Rights and Humanitarian update:
The Vanni region
Date: July 7, 1997
| The document is a fairly detailed description of conditions in the Vanni region. It describes the movement of people in the region and the social and humanitarian conditions of the population. There is a specific reference to a checkpoint: |
| "The Vavuniya checkpoint from the Vanni has been closed since the 10 May 1997 because it is immediately south of the current military operation. IDPS [Internally Displaced Persons] who want to cross from the LTTE controlled area to the Government controlled area can now only cross at the 10th mile post at Uyilankulam. The military commander in charge of the 80 kilometre stretch road from Vavuniya to Mannar informed us that some people also cross at other points along the road carrying a white flag." |
[7] Counsel for the applicant takes the position that this evidence (assuming the reference to the Vavuniya checkpoint to be a reference to Thandikulam, which was not disputed) is capapble only of proving that the checkpoint was closed from May 10, 1997 to July 7, 1997. It is not necessarily evidence that the checkpoint was still closed at the end of September when the Applicant says he crossed the checkpoint. Counsel says that the applicant"s evidence that he crossed the checkpoint on the date he did is evidence that the checkpoint was open. This cannot be rebutted by the documentary evidence relied upon by the CCRD because it was all prepared prior to the applicant"s date of crossing.
[8] Counsel for the respondent points out that it is the CCRD"s function to weigh and assess the evidence and to draw the proper inferences from the evidence before it. There was evidence that the checkpoint was closed at one point in time; it is a matter of inference that it was closed when the applicant says he crossed it. It is for the CCRD to assess the credibility of the
applicant"s evidence that he crossed the checkpoint when he did. All documentary evidence is limited in time and place and it is for the CCRD to decide what scope to give to the evidence.
[9] In my view, the CCRD"s decision should not be disturbed. The heart of this issue is the nature of a checkpoint. In some circumstances, a checkpoint is a transient entity, moving with the front lines as they advance and retreat. It has no permanence, no infrastructure. It is simply a barrier where persons can leave the territory controlled by one side of a conflict in the direction of the territory controlled by the other side. In other cases, checkpoints become institutionalized. The best example was Checkpoint Charlie at the Berlin Wall. It was a permanent structure along an institutionalized boundary. If one heard that Checkpoint Charlie was closed, one expected that it would reopen where it was, as it was. The same is not necessarily so of a temporary fortification along a fluid front.
[10] It is the function of the CCRD to appreciate local conditions and to know whether the checkpoint at Thandikulum was permanent or transient, whether it was like Checkpoint Charlie or more like a temporary barrier which could be moved and reestablished elsewhere as the need arose. The assumption underlying Counsel"s argument is that Thandikulum was a permanent checkpoint which, by nature of its function and structure, if closed, would reopen in the same place. The CCRD apparently operated on a different assumption but it was entitled to do so, in the absence of concrete evidence to the contrary. The evidence to which Counsel referred is not sufficient to support a finding that the CCRD treated the facts in a capricious or perverse manner.
[11] The application for judicial review is dismissed.
"J.D. Denis Pelletier"
Judge