Date: 20010209
Docket: IMM-1291-99
Citation: 2001 FCT 48
BETWEEN:
KULAMANIDEVI YOGESWARAN
JEEVARAJ YOGESWARAN
THARSA YOGESWARAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated February 17, 1999, in which the CRDD determined that the applicants were not Convention refugees under the Immigration Act, R.S.C. 1985, c. I-2, as amended [hereinafter the "Act"].
[2] The principal applicant is a 41-year old female, Kulamanidevi Yogeswaran. She served as the designated representative for the minor applicants, her 11-year old son, Jeevaraj Yogeswaran, and her 10-year old daughter, Tharsa Yogeswaran. On November 6, 1997, the applicants arrived in Canada and made a claim for Convention refugees status. They claim they have a well-founded fear of persecution based on their race, nationality, political opinion and membership in a particular social group, namely young Tamils from Jaffna.
[3] The basis for the applicants' refugee claim may be summarized as follows. The principal applicant alleged that the Liberation Tigers of Tamil Eelam ("LTTE") had harassed her and her husband when they had lived in the Jaffna area of Sri Lanka. They were forced to pay a monthly business tax and they were compelled to work for them. The principal applicant alleges that in October, 1995, her family was forced to flee south to Kilinochchi, and thereafter to Puthukudiyiruppu where, in June 1997, her husband was allegedly taken by the LTTE. With the assistance of her father-in-law, the principal applicant and her two children went to Colombo. There, they could not find permanent accommodation, and she could not enrol her children in school. She claimed she had been forced to sign a document in Sinhalese and had to report to a police station every week. The applicants claimed they had left Sri Lanka because they could not live "any sort of normal life in Colombo."
[4] On November 23, 1998, a one-member panel of the CRDD (the "board") heard the claim. The two main issues raised at the hearing were the applicants' identity and their credibility. In order to establish their identify, the applicants produced Sri Lankan National Identity Cards ("NICs") and their birth certificates.
[5] In its decision, dated February 17, 1999, the board determined that the applicants were not Convention refugees. The board concluded that the applicants did not meet the burden of proof in establishing that they are who they claim to be, or in providing credible or trustworthy evidence. The board gave the following reasons for its conclusion that the principal applicant did not establish their identity.
[6] The principal applicant's NIC stated her maiden name as Kandiah Kulamanidevi, while her Information on Admissibility to Canada and Claim to be a Convention Refugee Form ("CIC Form") stated her maiden name as "Kandappoo" and her birth certificate stated her father's name as Shanmugan Kanthappu. When questioned with respect to this discrepancy, the principal applicant testified that her father's name was Kanthappu Kandiah and that her birth certificate was filled out incorrectly. At the hearing, the minor applicants testified that their maternal grandfather was only known to them as "Kandappoo." The board found that the unexplained discrepancies raised serious questions about the principal applicant's identity and the documents she presented.
[7] The principal applicant produced four identity documents with three different dates of birth. In her Personal Information Form ("PIF"), she indicated that her date of birth is November 14, 1957. The same date of birth is found in her NIC. However, her birth certificate shows November 26, 1957 as her date of birth. The minor applicants' birth certificates show their mother's, i.e., the principal applicant's, date of birth as November 29, 1957. The principal applicant testified that her husband had obtained birth certificates and due to confusion caused by displacement of the family, he must have made a mistake. She also testified that when obtaining birth certificates, her husband did not have her NIC because her father-in-law had taken her NIC to register something. The board noted that although it was the principal applicant's husband who allegedly had obtained the birth certificates, his date of birth on these certificates is listed as "Not known."
[8] In her PIF, the principal applicant provided only the month and year of her husband's date of birth, i.e., May 1957. She testified that she did not know her husband's full date of birth. The board did not find this explanation reasonable. To complicate matters even further, on her and her children's CIC Forms, the principal applicant had written her husband's date of birth as June 16, 1957.
[9] The board further noted the same application date and the same issue date, i.e., January 31, 1994, on each of the birth certificates, for the principal applicant and her two children, yet her date of birth was not consistently stated in these documents.
[10] At the outset of the hearing, the principal applicant amended her and her son's PIFs by changing his date of birth. She also amended her daughter's PIF by changing her date of birth. The amended dates matched those on the minor applicants' birth certificates. The board concluded that the principal applicant amended the PIFs to make them consistent with the allegedly genuine birth certificates. The board also noted that the minor applicants' dates of birth in their CIC forms did not correspond to the dates of birth in their PIFs and birth certificates. The board concluded that is was not reasonable to accept that the principal applicant would not know the correct dates of birth of her own children even though this appeared to be the case from the amendments made to the PIFs.
[11] The board made the following finding with respect to the applicants' identity:
| The principal claimant's lack of knowledge of her husband's and her children's dates of birth, coupled with the inconsistencies in the dates of birth found in the identity documents, lead the panel to conclude that the claimants did not present credible or trustworthy evidence in support of their identity. The panel further concludes that the identity documents presented are not reliable. The panel, thus, concludes that the claimants have not met the burden of proof in establishing that they are, in fact, who they claim to be. |
[12] The board noted two aspects of the principal applicant's testimony as going directly to the issue of credibility. First, the board did not accept as reasonable the principal applicant's explanations for inconsistencies she reported as to how long she had been separated from her husband. Upon her arrival in Canada in November 1997, she told the immigration officer that she had been separated from her husband for two years, but in her PIF narrative, she indicated that her husband had been taken by the LTTE in June 1997, some five months before her arrival in Canada. When questioned about this discrepancy at the hearing, the principal applicant testified that when she arrived in Canada, she did not have "much memory power". The board did not accept this as a reasonable explanation and concluded that she gave inconsistent evidence about when she was allegedly separated from her husband.
[13] The second issue going directly to the principal applicant's credibility, in the board's opinion, was her vagueness and inability to provide detailed information with respect to her travel route south to Colombo given the fact that she "did not present herself as a naïve or simple woman." The board concluded that "...[t]he lack of detail that the principal claimant provided on their travel south to Colombo suggests that they did not make this journey in the manner that they allege, if at all." The board concluded:
| Taking all of the above-noted negative credibility findings into consideration, including those dealing with the claimants' alleged identity documents, the panel concludes that the claimants did not present sufficient credible or trustworthy evidence upon which to base a positive determination in their claim to Convention refugee status. Thus, the claimants were not only not credible witnesses, they also could not properly establish their identities. |
| Having carefully considered the evidence presented and for the reasons stated above, the Refugee Division determines that Kulamanidevi Yogeswaran and her two children, Jeevaraj Yogeswaran and Tharsa Yogeswaran, not to be Convention refugees. |
[14] Counsel for the applicants contends that the board erred in its assessment of the applicants' identity in that it had made its conclusion on the basis of a lay assessment of their identity documents instead of referring them for proper testing to verify their authenticity. While agreeing that the issue of identity of the applicants is central to a refugee status determination and conceding that if it could not be established, the claim would fail, counsel urged that the board here erred and deprived the applicants of natural justice, by questioning the identity documents without first ensuring whether or not they were authentic.
[15] Counsel for the applicants contends that it is the policy and practice of the CRDD to refer documents, such as the identity documents in the case at bar, for proper testing. Counsel noted that at the conclusion of the board's hearing, in final submissions, it was urged that the documents in question be sent for forensic testing if the board continued to question their authenticity.
[16] Counsel for the applicants argued that a finding of lack of credibility did not necessarily lead to a negative determination of a refugee claim. In support of this proposition, counsel relied on the decision of Madam Justice Tremblay-Lamer in Seevaratnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 694 (T.D.), in which a distinction was drawn between credibility or a credible witness, on one hand, and credible evidence, on the other hand. In making the distinction in Seevaratnam, Tremblay-Lamer J. referred to an earlier decision of MacGuigan J.A. in Sheikh v. Canada (Minister of Citizenship and Immigration), [1990] 3 F.C. 238 at 244 (C.A.). In Seevaratnam, Tremblay-Lamer J. wrote:
| ...MacGuigan J.A., writing for the Court, stated that a tribunal's finding that the claimant is not a credible witness may amount to a finding of no credible evidence, where the only evidence before the tribunal linking the claimant to his or her claim is that of the claimant him or herself. |
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
| I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. |
[17] Tremblay-Lamer J. allowed the application for judicial review concluding that the CRDD "...did not address documentary evidence emanating from sources other than the Applicant's testimony, which confirms the risks facing young Tamil women in Sri Lanka."
[18] Counsel for the applicants argued that even if the board did not find the principal applicant credible, it had to objectively assess the facts and determine if the applicants had a well-founded fear of persecution. Counsel contended that the board was under a duty to assess other evidence before it, such as the objective country materials, which it failed to do. Counsel relied on the decision of Mr. Justice Gibson in Mylvaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 (T.D.). In particular, this Court's attention was directed to paragraph 10 of Gibson J.'s reasons:
| The CRDD had before it substantial documentary evidence attesting to the difficulties that all young Tamil males, particularly those from the north, face in Sri Lanka. Even if it rejected outright, as it did, the applicant's own alleged experience of persecution, in its analysis in support of its decision in this matter, it does not appear to have rejected the applicant's identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity, the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but also potentially a well-founded objective basis to that fear. In failing to so much as even consider this possibility, I am satisfied that the CRDD reached its decision in this matter without taking into account all of the evidence that was before it. In essence, it was so centered on its concern regarding the credibility of the applicant himself and the interrelationship of that concern with the psychiatric report that it had before it, that it would appear to have ignored all other evidence that was before it that could reasonably have been considered to be relevant to the applicant's claim. In the result, on this ground, I am satisfied that the CRDD erred in a reviewable manner. On this ground alone, I conclude that this application for judicial review must be allowed and the decision of the CRDD set aside and the matter referred back for rehearing and redetermination. |
[19] In my opinion, the Mylvaganam case can be distinguished from the case at bar. There, the board did not question the claimant's identity which is a central element of the board's decision in the case at bar.
[20] In this case, counsel for the Minister stressed the significance of establishing the identity of a claimant, relying on Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (T.D.), where the CRDD did not find the claimant to be credible on the issue of identity. In that case, the only document produced was the claimant's birth certificate which the CRDD did not believe to be authentic. The CRDD denied the refugee claim because of contradictory explanations the claimant had provided, and discrepancies between her testimony and her documentation, such as her PIF. Mr. Justice Joyal made the following comments with respect to the issue of credibility:
| In refugee claims, the determination of credibility is a question of fact which is within the Board's jurisdiction. Although in the area of plausibility, the unreasonableness of a decision may be more obvious, the Board is still in the best position to gauge the credibility of a claimant. Contradictions or discrepancies in the evidence are accepted bases for a finding of lack of credibility. The Court should not interfere in the Board's conclusion unless it be patently unreasonable |
| The Board, in rendering its decision, must respect certain conditions in order to "shield" itself from judicial review. A negative finding of credibility must be addressed in "clear and unmistakable terms", in regards to the totality of the evidence. A claimant must be given an opportunity to explain the contradictions and, in assessing the evidence, the Board must be wary of applying western standards of rationality upon a claimant's particular situation. Nevertheless, it is upon the applicant that rests the burden of demonstrating that the inferences drawn by the Board were unreasonable in regards to the material before it. |
[21] Counsel for the Minister further argued that once the board concluded that the applicants' identity had not been established, it was not necessary for the board to analyze the evidence any further. Again, counsel for Minister relied on Husein:
| ...In my respectful view, once the Board had concluded that identity had not been established or that the main applicant had not proven who she allegedly is, it was not necessary for the Board to |
| analyze the evidence any further. Identity was central to the case. The main applicant's failure to prove that she belonged to a persecuted clan effectively undermined any claim of a well-founded fear of persecution. |
[22] Counsel for the Minster in this case urged that the CRDD had based its decision on credibility or lack thereof, not only with respect to identity of the applicants but also because of the lack of knowledge of the principal applicant about the route travelled from Jaffna to Colombo, and inconsistencies in evidence relating to the date of the principal applicant's separation from her husband.
[23] Counsel for the Minister then referred the court to Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (C.A.). There, the CRDD found the claimant not to be credible and the Court of Appeal concluded that the adverse finding of credibility ought not to be disturbed. However, in that case, one of the bases for the adverse finding was the fact that the claimant first travelled to the United States where he had no right to remain and engaged in illegal employment. He then presented himself at the Canadian border claiming Convention refugee status. He later abandoned this claim. It was not until much later that he made a new refugee claim in Canada. The Court of Appeal agreed with the CRDD's finding that these actions on the part of the claimant seriously undermined his credibility. In my view, the circumstances of the applicants' claim in the case at bar are unlike those in Yassine.
[24] Counsel for the Minister further contended that the applicants had failed to establish a personal link between themselves and the alleged persecution. Relying on the decision of the Federal Court of Appeal in Pour-Shariati v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 810 (C.A.), he argued that indirect persecution did not amount to persecution within the meaning of Convention refugee under the Act.
[25] With respect to the issue of referring the identity documents for authenticity testing, counsel for the Minister urged that even if the documents would have been found to be authentic, this would only show authenticity of the documents without explaining the discrepancies in dates and names.
[26] In his final submission, counsel for the Minister contended that following Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (C.A.), the proper standard of review of the CRDD's decisions is patent unreasonableness. The Court ought not to interfere with the panel's findings where that standard does not apply.
[27] In its final conclusion, the board states that the applicants did not present sufficient credible or trustworthy evidence upon which to base a positive determination of their claim. They were not credible witnesses and they did not properly establish their identities. Upon reading of the board's reasons, it is difficult to establish which conclusion was reached first, i.e., that on unreliability of the identity documents or that on lack of credibility of the applicants.
[28] Madam Justice Dawson recently noted in Thamothampillai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1186 (T.D.):
| I accept counsel for the applicants' submission that if the CRDD had not impugned the applicants' identity, the balance of its concerns may well not have been sufficient to impugn generally the applicants' credibility. |
| There is no doubt that the CRDD's finding that the applicants could not establish their respective identities was central to its conclusion on credibility and to the disposition of the claims. |
Nevertheless, Madam Justice Dawson allowed the application for judicial review on the ground that the board failed to consider certain evidence, the testimony of the applicants' son.
[29] While the record does not indicate whether the issue of identity was brought to the attention of the applicants before the hearing, that matter was raised early in the hearing and the applicants were represented by counsel. Of course it is an essential element for a positive determination of a refugee claim. In Lembagusala v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 531 (T.D.), such a lack of notice was one of the bases on which the board's decision was set aside. I am not persuaded that there was inadequate notice in this case.
[30] In my view, the board did not err by relying in its conclusions on the discrepancies between the identity documents and the principal applicant's testimony in coming to a negative determination of the applicants' refugee claim, without first verifying the authenticity of these documents. I am in agreement with the Minister's submission that even if the identity documents were found to be authentic, this would only speak to the authenticity issue, without explaining the discrepancies in dates and names.
[31] At the conclusion of the hearing of this application, I indicated to counsel that I would reserve decision and then, after issuing of these reasons, I would provide the parties an opportunity to submit any question for certification pursuant to subsection 83(1) of the Act. Counsel may now have 14 days from the date of these reasons to consult and to submit such questions, whether they be proposed by one, or by both, of counsel on behalf of the respective parties.
[32] For the reasons set out, this application for judicial review will be dismissed. An Order will so provide after consideration of any questions proposed for consideration under ss. 83(1) of the Act.
"W. Andrew MacKay"
Judge
Ottawa, Ontario
February 9, 2001