Date: 20040804
Docket: IMM-6166-03
Citation: 2004 FC 1061
BETWEEN:
RUDRAPATHY LINGESWARAN
Applicant
- and -
THE MINISTER OF IMMIGRATION AND CITIZENSHIP
Respondent
REASONS FOR ORDER
BLANCHARD J.
INTRODUCTION
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated July 9, 2003, in which the Board found that the applicant was not a Convention refugee and not a person in need of protection.
BACKGROUND
[2] The Applicant, Rudrapathy Lingeswaran, is a 31 year old Hindu Tamil citizen of Sri Lanka and claims convention refugee status on the basis of nationality, imputed political opinion and membership in a particular social group, namely being a Tamil male.
[3] The Applicant alleges that as a result of living in Northern Sri Lanka he has come into contact with both the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army Forces (SLAF). The Applicant claims that he was forced to perform hard labour for the LTTE from 1990-1995, until he was displaced in 1995 to the Vanni region. In 1996, the Applicant claims he was forced to transport goods the LTTE had looted from the local army camp, for 6 days under extreme duress. Upon his release, the Applicant obtained a pass to go to Vavuniya, where he was interrogated and threatened by the SLAF.
[4] The Applicant subsequently moved to the Eastern province and bought a grocery store. He claims that he was harassed by the army at various checkpoints, as well as at his store. The LTTE would also visit regularly to take goods from the Applicant, generally demanding food and provisions once a month. Consequently, the SLAF threatened the Applicant's life for having links with the LTTE. On November 15, 2001, 2 LTTE members came to the Applicant's store and demanded provisions and kerosene, and when he refused they caused a commotion. The SLAF arrived at the store and a gun battle ensued. The SLAF arrested the Applicant and took him to a detention camp where he alleges he was beaten and tortured for eighteen days. He was released on December 3, 2001, upon payment of a bribe. While held, the Applicant had given the army the names of two LTTE members and claims that he was placed at great risk for doing so. The Applicant fled to Columbo, where arrangements were made for him to leave Sri Lanka, which he did on December 24, 2001. He made his refugee claim upon arrival in Canada on March 30, 2002.
IMPUGNED DECISION
[5] The Board found the Applicant's evidence to be lacking in credibility and that he was not a Convention refugee nor a person in need of protection. The Board's central concern was the identity of the Applicant, which was supported by an extract of birth, his National Identity Card (NIC) and a translated certificate of birth. Though concerns were raised about the Applicant's NIC during the expedited process which was ultimately not held, the Board acknowledged it was not bound by those findings and stated that no evidence was adduced to the question of the legitimacy of the NIC. The Board, however, had serious problems with other documents in respect to the Applicant's identity and found that the Applicant had not fulfilled his obligation pursuant to section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), ie. that he did not possess acceptable documentation establishing his identity.
ISSUES
[6] The determinative issue in this judicial review application is whether the Board erred in deciding that the Applicant did not establish his identity.
[7] While other identity documents were considered by the Board in its reasons, in my view this application turns on the Board's treatment of the Applicant's NIC which was in evidence at the hearing before the Board.
[8] The NIC is an identity card issued by the government of Sri Lanka identifying the citizen by means of a photograph. The NIC is generally accepted as a key identity document utilized in refugee hearings for Sri Lankans. (See Kathirkamu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 409, [2003] F.C.J. 592 (QL).) In the instant case the Board did not question the authenticity of the NIC. Though concerns in respect of the NIC may have been raised at the expedited stage, the Board clearly stated at page 2 of its reasons that it was not bound by any concerns with regard to the NIC that were expressed at the expedited stage, and in fact noted that "no evidence was actually attached to question the legitimacy of the NIC". It is clear, therefore, that the Board did not identify issues or concerns in respect to the NIC at the hearing, nor did the Board address any doubts it may have had as to its authenticity in its reasons for decision. It is also clear, on a review of the transcript of the hearing that the Board never raised the issue of the NIC with the applicant, in order to give him an opportunity to respond to any concerns it may have had regarding the NIC.
[9] Though it is true that the failure of a Board to mention a particular document does not necessarily mean that it did not take the document into account (Hassan v. Canada (Minister of Employment and Immigration), 1992, 147 N.R. 317), a decision of the Board will be vitiated if the Board fails to mention evidence that is central and probative to the applicant's claim, and in contradiction to the Board's own conclusion. The omission of any reference to such evidence in the reasons raises an apprehension that the decision was made without regard to the evidence. I adopt the view expressed by Evans J., as he then was, in the decision of Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, where the learned judge wrote:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
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 increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[10] In the instant case, the Applicant's identity is a central element of his claim. His NIC is a document that purports to establish his identity. It follows therefore, that the NIC is evidence that is central, specific and probative to the Applicant's claim and which points to an opposite conclusion of that of the Board. It is important evidence that should have been mentioned specifically and analysed in the Board's reasons. Having failed to do so, I find that the Board made its decision without regard to the evidence before it.
CONCLUSION
[11] For the above reasons, I conclude that Board committed a reviewable error when it failed to consider the NIC in its reasons. As a result, the application for judicial review will be allowed.
[12] In view of my above conclusion, which is determinative of this judicial review application, it is not necessary to consider in these reasons the other arguments by the parties.
[13] The parties will have 5 days from the date of these reasons to submit questions for certification and a further five days to respond to any questions that may be submitted by the opposite party following which an order will issue confirming these reasons.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
August 4, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6166-03
STYLE OF CAUSE: Rudrapathy Lingeswaran v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 20, 2004
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: August 4, 2004
APPEARANCES BY:
Mr. Kumar Sriskanda For the applicant
Ms. Alexis Singer For the respondent
SOLICITORS OF RECORD:
Kumar Sriskanda For the applicant
Toronto, Ontario
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario