Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
CHUKANTHINI BOLENTHIRAN
KIRUSHAN BOLENTHIRAN
JANETIKA BOLENTHIRAN
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] It is for the Board as a specialized tribunal to decide to which piece of evidence to give greater or lesser credence; and, at the very least, when the evidentiary sources are contradictory, a distillation of information with a clarity of manifested reflection is required. An inherent logic (inherent to the logic of the Board, as a specialized tribunal, not necessarily to that of the Court) must prevail so as to show a standard of a degree of reason. Although certain decisions appear to the Court to be wise and others to be otherwise, the latter category are not necessarily patently unreasonable as long as a line of inherent logic prevails; if no line of inherent logic prevails, then the decision is patently unreasonable.
JUDICIAL PROCEDURE
[2] This is an application for judicial review from a decision of the Immigration and Refugee Board (Board), dated February 23, 2006, wherein the Board, determined that the Applicants were not Convention refugees or persons in need of protection, pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
BACKGROUND
[3] The Applicants are Tamils from Jaffna, Sri Lanka. They were forced to do work for the Liberation Tigers of Tamil Eelam (LTTE). They were arrested several times by the army. As a result, they were harassed by the LTTE as they believed that they were acting as informants against them. The principal male Applicant was forced to pay extortion money to the LTTE. As a result of continuous harassment by the LTTE and the Eelam Peoples Democratic Party (EPDP), the Applicants fled the area in September 2004 and went to Colombo. While waiting to leave the country, the police arrested them as they were suspected of assisting the LTTE. They were beaten and interrogated and released two days later upon payment of a bribe. (Reasons and Affidavit of Applicant, Exhibit “A”, Personal Information Form (PIF) narrative).
[4] The Board ruled that the Applicants’ claim lacked credibility and that it could not determine if they were in the country at the time of persecution.
STANDARD OF REVIEW
[5] In what concerns questions of credibility, the proper standard of review is patent unreasonableness.
ISSUE
[6] Did the Board err in its credibility assessment?
ANALYSIS
Ten year validity of Identification Cards (ID) (Reasons, pp. 7-11)
[7] The Board determined that ID cards have a ten year validity and because the cards were not renewed, the Applicants could not have been in the country at the relevant time. (Reasons, pp. 8-10).
[8] The Board relied on documentary evidence to support its position. It relied on a report by the government of Australia, dated June 5, 1996. That document indicated that ID cards must be renewed every ten years. It stated: “The ID card also provides a photograph of the card holder, and must be renewed every ten years so that the photograph could accurately reflect the holder’s appearance.” (Exhibit “C”, Response to Information Request Attachment, p. 11).
[9] The source for this statement within the Australian document is footnote 20 of the Board’s Reasons, which is a Response to Information Request dated, December 20, 1993. (Exhibit “C”, Response to Information Request Attachment).
[10] The Applicants submit that the Board relied on evidence that predates the hearing by 13 years and therefore, cannot use that evidence to determine whether the Applicants could have remained in the country in 2003 and 2004 with their ID cards.
[11] The Australian report also contains other evidence on this point which the Board ignored. Specifically, the report stated that the 10 year validity is under review and that “many people do not renew their old cards.” (Exhibit “C”, Response to Information Request Attachment, p. 10).
[12] The Board also ignored evidence in the report indicating that “It is possible, but not common in practice, for ID cards to be updated.” (Exhibit “C”, Response to Information Request Attachment, p. 11).
[13] The Board rejected the community worker’s evidence contained in the Australian report which stated that the cards are not updated as it preferred another source rather than the over the community worker specified in the Australian report; since this was not the only evidence that contradicted the Board’s position, the Board was obliged to assess all of the evidence on this point. (Reasons, p. 11).
[14] At the very least, when evidentiary sources are contradictory, a distillation of information with a clarity of manifested reflection is required. (Exhibit “C”, Response to Information Request Attachment).
[15] If the Board’s position is accurate, citizens would actually renew their cards for the purpose of being able to live in the country and to be identified, as such, by officials. The Board simply assumed that the 10 year validity period was, “for the obvious reason” owing to the “civil war”; therefore, the Board erred in basing its conclusion on speculation and not evidence. (Reasons, p. 8).
[16] Lastly, the Board erred in confusing the 10 year validity period with the actual practice in the country. There was no evidence that persons who failed to renew their cards had any problems in their daily lives, and, in fact, evidence to which reference is made indicates that most people failed to renew their cards.
[17] The Board reached a patently unreasonable finding that the lack of renewed cards meant that the Applicants were not in the country and would not have been arrested without their expired cards having given them problems. (Reasons, p. 9).
Birth Certificates
[18] Similarly, the Board misconstrued evidence concerning the birth certificates. It determined that: “It is noted that in both the case of the co-claimant and the minor claimant Kirushan, these certificates were applied for and registered after the claimants were in Canada. While in the case of the claimant, the registration date was 1998, before the time he stated that the first arrest took place.” (Reasons, p. 12).
[19] The Board erred in stating that the registration did not take place until after the Applicants left Sri Lanka. The minor Kirushan’s birth certificate clearly indicates that the registration took place in 1999. (Affidavit of Applicant, Exhibit “B”, birth certificate).
[20] The Board misconstrued the date of the principal Applicant’s first arrest as being in 1999. In fact, he was first arrested in 1996, thereby placing him in the country prior to his birth certificate being issued in 1998. This is significant, given the Board’s reliance on the timing of the registration of the births to indicate that there was a lack of evidence that the Applicants were in the country during the times they were persecuted. It stated that: “Based on the documents presented, the claimants may have established that at least the adult claimants were born in Sri Lanka and lived there for some period of time, however, they have failed to establish that they were in Sri Lanka at times material to their claim.” The evidence, in fact, shows that the principal Applicant was in Sri Lanka after his first arrest. (Affidavit of Applicant, Exhibit “B”, birth certificate and Reasons, p. 12).
[21] The Board also erred in finding that the co-claimant’s birth certificate was issued after she left the country, as, in fact, it was registered in 1972. Although the Applicants acknowledge that this has no bearing on its findings, it reveals a pattern of misconstruing evidence. (Affidavit of Applicant, Exhibit “B”, birth certificate and Reasons, p. 12).
Plausibility of persons coming into shop
[22] The Board found it implausible that the army would detain the principal Applicant simply because the LTTE came into the shop, based on the fact that this occurred during the ceasefire, when travel restrictions had been lifted. (Reasons, pp. 14-15).
[23] The Board misapprehended the issue. The question is not the lack of restrictions on travel, but whether the attendance of the LTTE at the shop could reasonably raise suspicions about the Applicant.
Plausibility of arrests in Colombo
[24] The Board was concerned that the Applicants stated that they were arrested in Colombo after bomb blasts and killings in 2004. (Reasons, pp. 14-15).
[25] The Board reasoned that Tamils were safe in Colombo as travel restrictions had been lifted. It further indicated that the principal Applicant gave wavering testimony as to whether it was the bombs or killings that led to his arrest.
[26] The Board erred in ignoring documentation in evidence concerning bombing in July 2004 in Colombo. The Applicant was approached at his shop in March 2004. The evidence indicates that in July 2004, a suicide bomber killed herself and four police officers in Colombo. The evidence further indicates that more violence took place in 2005 and that “despite the ceasefire, hundreds of people have been killed and most of the murders have been blamed on the Tigers and a rival faction”. (Affidavit of Applicant, Exhibit “C”, news articles).
Reason for not leaving sooner and for a fear of returning
[27] The Board then asked the Applicants why they feared returning and they stated that war might break out. From this, the Board concluded that it was the fear of war that had driven them out of the country and would have motivated them not to return. The Board then determined that the Applicants share the same fear of the general population and there is no basis for their refugee claims. (Reasons, pp. 16-17).
[28] The Board misconstrued the Applicants’ testimony. The Applicants simply explained, given their past experiences which included numerous arrests from 1997 until 2004, that the outbreak of war would put them at still further risk.
CONCLUSION
[29] For all the above reasons, the application for judicial review is granted.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be allowed and the matter be remitted for redetermination by a differently constituted panel;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1599-06
STYLE OF CAUSE: BOLENTHIRAN NAKALINKAM
CHUKANTHINI BOLENTHIRAN
KIRUSHAN BOLENTHIRAN
JANETIKA BOLENTHIRAN v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 13, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Ms. Maureen Silcoff
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Ms. Vanita Goela
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SOLICITORS OF RECORD:
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Maureen Silcoff Barrister & Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |