Date: 20000811
Docket: IMM-5925-99
BETWEEN:
PUSHPAKANTHAN SELLATHURAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Pushpakanthan Sellathurai is a 46 year old Tamil male from the Jaffna peninsula of Sri Lanka. He claims status as a Convention refugee on the basis of membership in a particular social group and imputed political opinion. Mr. Sellathurai fears persecution at the hands of the Liberation Tigers of Tamil Eelam ("LTTE") and the Sri Lankan Army.
[2] In a decision dated November 9, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") determined that Mr. Sellathurai was not a Convention refugee.
[3] In this proceeding, Mr. Sellathurai seeks an order quashing that decision and an order remitting the matter back for redetermination before a differently constituted panel of the CRDD.
[4] It was Mr. Sellathurai"s testimony that he lived in the Jaffna peninsula until 1995 and that he worked there as a welder. He stated that between 1990 and 1995 he was forced to do welding work for the LTTE on its vehicles. He told the CRDD that with the advancement of the Sri Lankan Army to Jaffna in the fall of 1995, he and his family left the Jaffna peninsula for Kilinochchi.
[5] Mr. Sellathurai also stated that on February 26, 1996, he was arrested by the LTTE. He was then kept by the LTTE at its camps, where he was again required to perform welding work for the LTTE. Mr. Sellathurai advised that in August of 1997, following a bomb attack, he was able to escape from the LTTE camp where he was then held. He said that following his escape he went to Vavuniya where he had an uncle.
THE DECISION
[6] The CRDD determined that Mr. Sellathurai was not a Convention refugee because it made adverse credibility findings in respect of his claim. To do this, the CRDD assessed the reasonableness of Mr. Sellathurai"s claim in light of the documentary evidence before it.
[7] The key passages of the CRDD"s decision state as follows:
| To begin with, reliable documentary evidence states that it is young Tamils from the north and east who are most at risk in Sri Lanka. From the LTTE"s interest, that organization does not allow persons of a certain age group to leave the areas under their control;1 the ages are from 10 to 23 for females and from 10 to 25 for males. From the interest of the security forces, special screening takes place and restrictions are imposed for those in the 14 to 25 age group who seek permission to leave the Jaffna area.2 The claimant, aged 46 and married, is well outside the profile of those most at risk of LTTE recruitment or security force suspicion of LTTE involvement. Secondly, the panel notes that following the fall of Jaffna and subsequent control by the army, the claimant chose to go to another area controlled by the LTTE--Kilinochchi. The panel does not find credible the claimant"s testimony that he was forced to work for the LTTE. |
| ... |
| Given the documentary evidence reviewed by the panel, we find on a balance of probabilities, that the claimant was not forced to work for the LTTE and that he was not kept at their jungle camp in Kilinochchi. Nor do we find credible his account of fleeing the LTTE camp as a result of a bomb blast. He is not of the age group of most interest to the LTTE. [footnotes omitted] |
THE ISSUE
[8] One issue is raised on this application for judicial review, whether the CRDD erred in finding that the evidence of Mr. Sellathurai was not credible. Having disbelieved Mr. Sellathurai"s testimony, the CRDD went on to conclude that it saw no serious impediment to Mr. Sellathurai returning to Jaffna because it found there was not a serious possibility that Mr. Sellathurai would be persecuted by the Sri Lankan Army or the LTTE if he returned to Jaffna.
ANALYSIS
[9] The CRDD did note, when reciting Mr. Sellathurai"s evidence, that he was a welder and that he claimed to have been forced to work as a welder on vehicles belonging to the LTTE. However, when concluding that it was implausible that the LTTE would be interested in Mr. Sellathurai because of his age, the CRDD appears to have overlooked that there may well have been other reasons, besides age and the potential to fight, which would cause the LTTE to have an interest in an individual. There was nothing in the other evidence before the CRDD which suggested that it was implausible that Mr. Sellathurai would have been of interest to the LTTE because of his welding skills.
[10] With respect to the CRDD"s conclusion that, if Mr. Sellathurai feared the LTTE, it was implausible that he would have gone to another area controlled by the LTTE after the fall of Jaffna in 1995, the CRDD failed to deal with Mr. Sellathurai"s explanation as to why he went to Kilinochchi. In his Personal Information Form, Mr. Sellathurai stated that he and his family went to the Kilinochchi district as refugees.
[11] There was evidence before the CRDD, a report by Amnesty International relied upon in other respects by the panel, to the effect that during the 1995 offensive the LTTE ordered civilians to vacate Jaffna, and that those who did not wish to leave were forced to leave by intimidation, threats, manipulation and the use of force. In this context the LTTE was said to have "encouraged people" to move to Kilinochchi, where the organization had relocated most of its offices after vacating Jaffna town.
[12] This evidence does not, in my view, support the inference that simply by going to Kilinochchi as a refugee Mr. Sellathurai evidenced no fear of the LTTE.
[13] With respect to the CRDD"s finding that Mr. Sellathurai"s account of fleeing the LTTE camp as a result of a bomb blast was not credible, the CRDD gave no reasons for this conclusion.
[14] The CRDD is entitled to judicial deference with respect to its findings of credibility and plausibility, unless the findings are so unreasonable as to warrant the Court"s intervention.
[15] In my view, the CRDD"s conclusion that it did not believe that Mr. Sellathurai was forced to work for the LTTE was made without regard to the material before it. I so conclude because the CRDD"s analysis failed to deal with Mr. Sellathurai"s uncontradicted testimony that, notwithstanding his age, it was his expertise as a welder which made him of interest to the LTTE. As well, I find the inference that Mr. Sellathurai did not fear the LTTE ignored the evidence in the Amnesty International report to the effect that the LTTE, while using threats and force, influenced civilians to move to Kilinochchi.
[16] The CRDD also erred by not giving reasons for its finding that Mr. Sellathurai"s account of fleeing the LTTE camp was not credible.
[17] These errors are reviewable errors.
[18] The effect of those errors is such that I am not satisfied that, but for those errors, the CRDD would have reached its conclusion that there was no serious impediment to Mr. Sellathurai returning to Jaffna, and that there was no serious possibility that he would be harmed by the LTTE if he returned to Jaffna.
[19] In the result, despite the very able submission of counsel for the Minister, I have concluded that the application for judicial review should be allowed, and the matter be remitted to a differently constituted panel of the CRDD for redetermination.
[20] Counsel posed no question for certification.
[21]
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
August 11, 2000