Date: 20031215
Docket: IMM-6611-02
Ottawa, Ontario, this 15th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
AJANTHKUMAR THAVARATHINAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision ("Decision") of the Immigration and Refugee Board, Refugee Protection Division ("Member"), dated November 28, 2002, wherein the Member determined that Ajanthkumar Thavarathinam ("Applicant") was not a Convention refugee.
BACKGROUND
[2] The Applicant indicated in his personal information form ("PIF") that he is a Catholic Tamil, born in Kayts in the northern province of Sri Lanka. While a student at St. Anthony's College in Kayts, the separatist organization, the Liberation Tigers of Tamil Eelam ("LTTE"), came to the school and wanted him and other students to join their freedom movement. He was only 13 and terrified of joining. The LTTE returned in 1995 and again wanted him to join. He refused and was forcibly taken to a camp and subjected to hard labour. He was exposed to the sweltering heat and forced to dig bunkers. He fell ill and was sent home.
[3] Unable to live in his birth place and to escape from the LTTE, the Applicant went to Columbo in 1995 to resume his studies and to support his mother and four sisters. While in the Mylan lodge in Columbo, the army raided the lodge. He was arrested along with other Tamils on May 22, 1995, and taken to the Kotahena police station and from there to Kegalle prison. He was then taken to Welikade prison. Since he was under 16 years of age, the prisons refused to admit him so he was eventually taken to Pannipitiya Minors jail. He was kept in detention until June 1, 1995, and was assaulted, punched and kicked. He was also burned with hot metal objects that left scars. The lodge manager contacted a relative of the Applicant who assisted the Applicant to obtain his release. He was treated by a doctor in Columbo.
[4] The Applicant went back to Kayts in June 1995, where he was harassed and mistreated by the Sri Lanka armed forces. On suspicion of passing information to the LTTE and supporting them, he was arrested on February 12, 1999, and kept in detention and underwent "untold sufferings". He was questioned about the LTTE and was released after three days when his mother signed a surety. But the army continued to harass the Applicant and asked him to report to their camp in Kayts. Whenever he went there, he was subjected to inhumane treatment and, as a result, he moved to Columbo on November 6, 2000, and contacted an agent who assisted him in leaving Sri Lanka for Canada. He left Columbo on November 9, 2001, and arrived in Canada on November 21, 2001.
DECISION UNDER REVIEW
[5] The Applicant claimed to fear persecution in Sri Lanka due to his identity as a young Tamil from the north. The Member indicated that the determinative issues in the Applicant's claim were the "interwoven issues of credibility and the identity of the [Applicant] as a young Tamil who was in the north at times material to his claim." Because the Member was not able "to determine the claimant's identity relative to his residence because of lack of credible evidence," he was "unable to further assess his risk of persecution in Sri Lanka."
[6] The basis for the Member's rejection of the claim was that he did not know where the Applicant had come from and he found no trustworthy evidence that he was who he purported to be. The Member made the following findings:
(a) the documents tendered by the Applicant to establish his identity were not credible;
(b) the Applicant's account of his purported journey from the north was not credible;
(c) the Applicant did not persuade the Member that he was in the north of Sri Lanka at times material to his claim;
(d) the Applicant did not demonstrate through credible evidence that he was who he claimed to be;
(e) the evidence of the Applicant's uncle did not advance his claim. Certified Tribunal Record, pp. 11-13.
ISSUES
[7] The Applicant raises the following issues:
Did the Member err in law by breaching the principles of natural justice when the Member specifically stipulated that there was only a need for submissions on one matter, and then considered other issues without notice and took notice of matters in a manner not consistent with the principles of fairness?
Did the Member err in law by making patently unreasonablecredibility findings?
ARGUMENTS
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Member?
[8] The Court must first determine what the appropriate standard of review is for this case.
[9] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[10] The Court should not seek to reweigh evidence before the Member simply because it would have reached a different conclusion. As long as there is evidence to support the Member's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
ISSUES RAISED BY THE APPLICANT
[11] With this standard of review in mind, I find that the Member made a number of significant errors in the Decision. The question is whether, in view of these errors, there is anything left of the Decision to support it.
[12] The Respondent argued at the hearing that the identity issues were not integral to the Decision and that it should be allowed to stand on the basis of what the Member said was "the vague manner in which the claimant testified relative to how he was able to travel from the north... ."
[13] In my opinion, the Member made the following significant errors in the Decision:
1. At the conclusion of the hearing, the Member indicated that his main concern was possible inconsistencies about how the claimant got on the plane in Jaffna and how he made the journey to Colombo. These matters were addressed by counsel for the Applicant in a letter dated September 13, 2002. However, in the Decision, the Member clearly has other concerns that are significant for the Decision. These concerns relate to the Applicant's national identity card ("NIC"), his birth certificate and the evidence given by his uncle. In the process, the Applicant was denied the opportunity to answer the case against him on significant issues that appeared in the Decision. This was a reviewable error;
2. One reason for rejecting the Applicants' identity claims was the position taken by the Member towards the Applicant's birth certificate. The Member did not believe the certificate could be real because it was in English and because birth certificates are normally issued in Tamil or Sinhala. But the record clearly shows that the Tamil version appears to have been a part of the record and was overlooked by the Member. Because identity issues were so fundamental to the Decision, this was a reviewable error;
3. Not only did the Member reject the birth certificate but he also failed to deal with other evidence that clearly corroborated the Applicant's testimony that he was from Kayts in the North. In this regard the Member should have dealt with the Navy ID, the Army ID and the letter from St. Anthony's College, all of which placed the Applicant in Kayts. The Member's failure to do so was a reviewable error.
[14] The Respondent urges that these errors can be overlooked because the real issue of concern to the Member was the apparent lack of knowledge by the Applicant concerning the process of how someone travels from the north. Having reviewed the Applicant's account of how he completed this journey, I find nothing particularly "vague" or unconvincing in his account. But this is not sufficient reason to interfere with the Member's discretion. What does concern me is that I do not believe the errors enumerated above can be left out of account when considering the Decision as a whole. The Member states the following important conclusion:
I do not find documents presented by the claimant in support of his identity to be credible. Furthermore, the vague manner in which the claimant testified relative to how he was able to travel from the north is not persuasive of his having knowledge of the process.
[15] One of the "documents" in support of identity that is discussed at some length by the Member is the birth certificate, and there is a clear error made by the Member in this regard. The Tamil version was on the record. Also, on this crucial issue, the Army ID, the Navy ID and the evidence from the School that corroborate the Applicant's identity are just not dealt with by the Member.
[16] In conclusion, the Member says that "not being able to determine the claimant's identity relative to his residence ... I am unable to further assess his risk of persecution in Sri Lanka."
[17] It seems clear to me that issues of identity were central to the Member's decision and cannot be left out of account. In addition, the procedural fairness issues raised by the Applicant are not answered adequately by the Respondent.
ORDER
THIS COURT ORDERS that:
1. This Application for judicial review is allowed and the matter is returned for consideration by a differently constituted panel;
2. There are no questions for certification.
"James Russell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6611-02
STYLE OF CAUSE: Ajanthkumar Thavarthinam
-and-
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, October 28, 2003
REASONS FOR [ORDER or JUDGMENT] : Russell, J.
DATED: December 15, 2003
APPEARANCES:
Krassina Kostadinov
FOR APPLICANT
Lorne McClenaghan
FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT