Date: 20020523
Docket: IMM-2583-01
Neutral citation: 2002 FCT 590
BETWEEN:
GUHABALAN NADARAJAH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
LAYDEN-STEVENSON J.
[1] Guhabalan Nadarajah, a 65 year-old Sri Lankan citizen of Tamil ethnicity, claims a well-founded fear of persecution in Sri Lanka based upon his experiences with the army and with the Liberation Tigers of Tamil Eelam (LTTE). He applies for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD), which, in oral reasons on February 28, 2001 and written reasons dated April 25, 2001, found the applicant not to be a Convention refugee.
[2] The applicant lived in Tricomalee, an area controlled by the Sri Lankan army but where the LTTE were very active. In 1966, the applicant assisted the sons of his sister's relatives with the result that he was targeted and detained by the army for perceived involvement with the LTTE.
[3] In 1997, the LTTE threatened serious action against the applicant's family unless the applicant sent his son to the LTTE training camp, obtained information for the LTTE and permitted the LTTE to stay with the applicant's family when in his area. The applicant sent his son to Canada where he was accepted as a refugee.
[4] In September 1998, the LTTE arrested the applicant at his sister's home to which he had recently moved. The applicant alleges that he was detained by the LTTE until August 1999 when his family paid a bribe for his release. Upon his release, the applicant returned to his sister's home until October 1999 when he left for Canada. He claimed refugee status upon his arrival in Canada.
[5] In his written submission and at the outset of the hearing for judicial review, the applicant's counsel raised an issue with respect to the resumption of the applicant's hearing by the CRDD in the absence of the applicant. After reference to the transcript, counsel withdrew his allegation in relation to this issue.
[6] The applicant identified numerous alleged errors with respect to the decision of the CRDD. The respondent submitted that the applicant had engaged in a microscopic examination of the decision. In view of my findings, I will not refer to all of the applicant's arguments but will identify those that I consider to be particularly significant.
[7] The applicant conceded that it was open to the CRDD to find that Mr. Nadarajah was not credible but, in so doing, it was incumbent upon it to say so explicitly in clear and unmistakable terms. The applicant relies on Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.) and Shahiraj v. Canada (Minister of Citizenship and Immigration), 2001 FCT 453, [2001] F.C.J. No. 734. The respondent, relying on Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.) and Castro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 787 (T.D.), submits that it is within the discretion of the CRDD to rule on credibility.
[8] Both positions are correct. However, in this instance, the CRDD appeared to accept certain aspects of the applicant's evidence and in the same breath, appeared to reject those aspects. By way of example, I refer to the following statements from the decision:
It was at this time that the Tigers came and took the claimant and put him into detention from September 1998 to August 1999 . . . In this regard, the panel has some concerns with the actual situation of the claimant . . .
However, the claimant did move to his sister's place and the panel finds on a balance of probabilities, given the evidence before us, that the claimant was merely a random target of the LTTE during one of its known "round ups". It is possible that as a male in the house he was taken . . .
The claimant alleges that he was kept for eleven months in detention, however. There is nothing to corroborate that statement and although the claimant has provided no corroborating evidence, and is not required to do so, the panel does accept on a balance of probabilities, that the claimant may have had some experience with the Tigers . . .
The panel finds it interesting that the claimant would go back to an area where he allegedly had ongoing problems with the LTTE . . .
We also find interesting the long period of time between the claimant's first meeting in July 1997 with the LTTE, and a subsequent finding of him in September, 1998.
In the final analysis, the CRDD concludes:
There is no persuasive or credible information before us to suggest that this claimant, on a balance of probabilities, would, upon return to Sri Lanka, be taken in by the LTTE and be forced to engage in anti-governmental terrorist or anti-military activities.
[9] The comments of McKeown J. in Shahiraj are applicable here: "the Board does not explicitly state that it does not believe the whole or certain parts of the applicant's story . . . it does not go that one step further to state that it disbelieves the applicant's version of the events." Here, the credibility findings of the CRDD are, at best, vague and ambiguous. That being so, they cannot be found to be adequate and the decision cannot be sustained on the basis of negative credibility.
[10] The applicant also argued that the CRDD failed to consider documentary evidence that established that the applicant had the indicia of a person at risk. In this regard, the applicant relies on Nadarajan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1222, [2001] F.C.J. No. 1707 in which Gibson J. stated:
This is not a case where the Applicant had placed before the CRDD voluminous documentary evidence that no panel of the CRDD could be expected to have taken cognizance of in all its detail. Indeed, the document in question was put into the Record, at least by reference, by the CRDD itself. It was a summary of one of a series of well-known and reputable documents on country conditions. It was a document with which the CRDD member and Refugee Claim Officer should both have been familiar and on which they should not have had to rely on counsel for the Applicant for an appropriate reference.
Justice Gibson held that this error alone was sufficient to allow the application.
[11] The applicant argues that although the CRDD did refer to one excerpt from the documentary evidence, it ignored the other references, which although not specifically addressed in argument, had been submitted by counsel with the relevant portions highlighted. The respondent, on the other hand, says that the CRDD did refer to one of the passages and determined that even if the elderly were being recruited, this particular person would not be because of his frailty.
[12] The reference of the CRDD to the documentary evidence is as follows:
The documentary evidence does not support his allegation that old persons are also at risk in respect of being forcibly requited [sic] by the LTTE. Exhibit C4 is an article from the counsel's exhibits that says that older people are being recruited - in fact I would refer to the last page. It says: "Tigers forcing older civilians to take up arms: Report." However, the report provides only one brief line that says that the LTTE was finding it difficult to enlist young fighters and was resorting to conscripting older people. It is clear from the physiological make up of this gentleman, a frail, older man, that he would be of very little use, in our view, to the LTTE, for conscripting into military service or engaging in anti-government activities, given his age and frail health and appearance.
[13] The Tribunal Record contains additional documentary evidence, specifically three additional references to LTTE recruitment of older citizens, all of which had been submitted and highlighted by counsel for the applicant. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, Evans J., as he then was, after finding that the CRDD is not required to refer to every piece of evidence, went on to say:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increased with the relevance of the evidence in question to the disputed facts . . .
[14] In Alfred v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 231, MacKay J., in addressing a similar question regarding a younger, rather than an elderly, Tamil, said:
Without assessing the applicant's evidence that in his experience he had been treated as a young male Tamil, despite his age, because he was single and without family responsibilities of his own, the tribunal concluded he would not meet the profile of a young Tamil, because of his age, and thus would not be the target of Sri Lankan authorities in their efforts to suppress LTTE activities. It appears to have relied upon its own perception of the applicant, not the perception of Sri Lankan authorities. See Mr. Justice LaForest, speaking for the Supreme Court, in Ward v. Canada (Minister of Employment and Immigration), 20 Imm.L.R. (2d) 85 at 127 (S.C.C.). Moreover, it appears to have assumed that only young Tamils were the object of Sri Lankan police and security operations, a narrow perception inconsistent with much of the documentary evidence.
I concur with Justice MacKay's view and find that, in this case also, the CRDD relied upon its own perception of the applicant, which was a narrow perception inconsistent with documentary evidence.
[15] The other error alleged by the applicant is the use, by the CRDD, of the word "round up" in relation to the activities of the LTTE. Counsel for both the applicant and the respondent agreed that the word "round up" applies to arrests made by the Sri Lankan army whereas the word "recruitment" is used in reference to the LTTE practice of forcing individuals to engage in its anti-government activities. The applicant maintains that the CRDD improperly characterized the issue from the outset and misconstrued the grounds upon which the applicant's claim was based. The argument is that if the CRDD was addressing "round ups" rather than a "recruitment", it was incumbent upon it to so inform the applicant in order to enable him to respond. The failure to do so deprived the applicant of the opportunity to address the issue and therefore goes to the fairness of the proceeding. The respondent argues that the CRDD intended "round up" to mean "recruitment".
[16] The CRDD did refer to LTTE "recruitment" when it stated: "Notwithstanding his health, the panel finds he does not fit the profile of young Tamil males in Sri Lanka as targets for LTTE recruitment, and the panel finds he is not at risk for a Convention ground should he return to Sri Lanka." (emphasis added)
[17] However, the CRDD also stated:
However, the claimant did move to his sister's place and the panel finds on a balance of probabilities, given the evidence before us, that the claimant was merely a random target of the LTTE during one of the known "rounds ups".
There is no persuasive evidence before the panel for it to conclude that the male claimant was rounded up as a result, or in association with, his previous alleged experiences.
We consider this to be less a means of targeting the claimant as perhaps prone to a random round up which we know the LTTE engages in. (all emphasis added)
[18] To attempt to determine whether, as the respondent suggests, the CRDD intended to use the word "recruitment" rather than the word "round up" when referring to the practices of the LTTE would be pure speculation. Similarly, any purported analysis regarding the actual or potential impact that the alleged misconception of the practices of the LTTE, as contrasted with those of the army, may have had on its decision would be equally speculative. It is not the function of the Court to engage in speculation.
[19] The failure of the CRDD to clearly address the credibility issue, the failure to consider documentary evidence corroborating the applicant's position and the potential misconception regarding the basis of the applicant's alleged fear constitute those errors alleged by the applicant that I have identified as being particularly significant. The aforementioned errors, when viewed individually, might not result in a successful application. However, cumulatively, these errors do constitute grounds for setting aside the decision of the CRDD.
[20] Therefore, the application for judicial review is allowed, the decision of the CRDD dated April 25, 2001 is set aside and the matter is referred back to the Minister for redetermination by a differently constituted panel of the CRDD.
[21] Counsel did not suggest a serious question of general importance therefore no question is certified under section 83(1) of the Immigration Act.
___________________________________
Judge
Ottawa, Ontario
May 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2583-01
STYLE OF CAUSE: Guhabalan Nadarajah v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 2, 2002
REASONS FOR ORDER OF The Honourable Madam Justice Layden-Stevenson
DATED: May 23, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANT
Mr. Marcel LaroucheFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada