Date: 20021220
Docket: IMM-5722-01
Neutral citation: 2002 FCT 1318
BETWEEN:
VIGINESWARARAJAN YOGORAJAH
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD panel"), dated October 31, 2001 wherein it found the Applicant not to be a Convention refugee. The Applicant seeks an order for certiorari quashing that decision and remitting the matter to a differently constituted tribunal.
[2] The Applicant is a 21 year old citizen of Sri Lanka who claims Convention refugee status based on his perceived political opinion, race and membership in a particular social group - Tamils from the north of Sri Lanka.
[3] The Applicant was born in the province of Jaffna, Sri Lanka on October 6, 1980. He lived in Pungudutivu from birth until 1991 when his family moved back to Jaffna to escape from the army ("SLA"). However, the Applicant states that in Jaffna, the Liberation Tigers of Tamil Eelam ("LTTE") forced him to work for them and tried to get him to join them and follow military training. His father paid money on numerous occasions so that he would not have to join. The Applicant claims he was also required to participate in LTTE meetings held at school.
[4] As a result of hostilities in Sri Lanka in 1994, the Applicant and his family were displaced into a refugee camp. In October 1995, the family moved to Vaddakachchi where the Applicant's father had family. He alleged he was again forced to work for the LLTE and pressured to join the movement. He stated that two of his friends who were taken by the LTTE by force were never heard from again.
[5] In April 1999, the Applicant was told to report to the LTTE camp for work; he did not go and instead rode his mother by bicycle to the hospital. As a result, he was arrested by the LTTE, detained for one week and forced to work for them. He was released on payment of a bribe by his father. In September 1999, his father decided to take him to Colombo in the hope that he could remain there in safety because the LTTE recruitment efforts increased. As a (then) 19 year-old single Tamil male, the Applicant would have been a prime candidate.
[6] The Applicant's father arranged for false passes for them and they left for Colombo on September 28, 1999 posing as businessmen. They travelled by bicycle and on foot. However, when they arrived at an army checkpoint at Ulyiulankulam, he was arrested and taken to the army camp at Anuradhapura where he was held until November 6, 1999. He described incidents of interrogation and torture at the hands of the SLA. He was questioned about the LTTE and asked to identify people, but did not do so. His release was finally obtained when his father paid a bribe. He was told to return north and not go to Colombo, otherwise he would be punished.
[7] However, he and his father nevertheless did go to Colombo, arriving late in the evening of November 6, 1999; he and his father were arrested the next morning by the police in Colombo in the lodge where they were staying. His father was released but he was detained for two days and questioned about the LTTE, assaulted and threatened with guns. He was released on payment of a bribe and a condition to report every second day. However, he never did report but rather went into hiding until his father could arrange his removal from Sri Lanka. He first went to Hong Kong for a few days, and then when his father was able to provide the rest of the money necessary for his flight, he flew to Canada and upon arrival he applied for refugee status.
[8] The Applicant's refugee claim was sent from an expedited interview to a full hearing on the issues of identity and credibility because there were concerns with respect to his identity arising from certain anomalies contained in his National Identity Card (NIC) and his lack of knowledge of the Sri Lankan flag and National Day. The refugee hearing took place on January 24, 2001. In its decision, the CRDD panel accepted that the Applicant was a Tamil, but was not satisfied, on a balance of probabilities, that he was recently from the north of Sri Lanka.
[9] In coming to its conclusions, the CRDD panel made several findings of fact. First, it noted that the NIC tendered in support of the Applicant's identity was found to be fraudulent, and the Applicant was not able to provide an explanation.
[10] Second, significant determination was his departure from Jaffna which was held to be both internally inconsistent and inconsistent with the documentary evidence. The CRDD panel found so for four main reasons:
(1) the Applicant stated that a government official in Jaffna issued false identification to him and his father and they used this false identification to get exit passes to the south. The panel found it would be unlikely, if not implausible, that such an official would risk his position to produce false documents;
(2) the circumstances of the Applicant's and his father's departure were inconsistent with the documentary evidence which indicates that while the LTTE allow people to leave the area for business purposes, the group does not readily issue passes to young Tamil men of fighting age such as the Applicant;
(3) the panel found that since he testified that he was forced to work from time to time for the LTTE and was known to them, it was unlikely that he would have risked leaving the area with false documents; and
(4) the Applicant did not state that there was any requirement that a family member remain behind as a surety. The documentary evidence on the other hand indicated that there was a requirement for the issuance of passes that at least one family member remain behind to ensure the return of the person travelling
[11] Further, the circumstances surrounding the Applicant's alleged stay and journey to Colombo in 1999 were held to be inconsistent with the documentary evidence. More specifically, the CRDD panel could not determine whether the Applicant was a newcomer or long term resident in Colombo for three reasons: (1) in his oral testimony, the Applicant stated that he did not register with the police at either the first or second lodge where he took refuge. Tamils travelling from the north must register with the police in Colombo; (2) the Applicant stated he was "hiding" in Colombo. However, when asked to clarify what he meant by "hiding", the Applicant stated he and his father moved to a lesser known lodge. The panel found this contention to be inconsistent with the documentary evidence that lodges are not considered hiding places since the police frequently perform security checks; and (3) in his oral testimony, the Applicant testified that he and his father made the 18 hour journey to Ulyiulankulam by bicycle. However, at the expedited hearing, he had said that his father could not ride a bicycle because of heart problems. The Applicant was not able to adequately explain this contradiction. The panel found it implausible that the Applicant's father could not ride his mother to the hospital but could ride 50 miles through jungle roads.
[12] The CRDD panel therefore concluded that there was insufficient credible evidence in the Applicant's claim for a positive determination. Specifically, it could not conclude, based on the evidence produced, that the Applicant had recently been in the north of Sri Lanka nor even conclude that he was ever in Colombo in 1999. In short, the Applicant failed to establish his identity as a Tamil from the north of Sri Lanka.
[13] The central issue in this application for judicial review is whether the CRDD erred in finding that the Applicant had not established his identity based on the evidence. A further issue raised is whether the CRDD panel erred by failing to assess the objective evidence which would support the claim that Tamils from Northern Sri Lanka are persecuted.
[14] The Applicant first submits that contrary to what the CRDD panel stated in its reasons, it is clear from the evidence that the LTTE does not always require a family member to stay behind when permits are issued to leave the area. As a result, this finding is unreasonable and the panel erred in so concluding.
[15] Also, the Applicant offered a reasonable explanation for the implausibility highlighted by the panel that the government official in Jaffna (the grama sevaka) would risk his position to produce false documents.
[16] It is further submitted that the documentary evidence clearly indicates that the Applicant would, because of his age, in all likelihood be detained at checkpoints or rounded up if returned to live in any government-controlled area of Sri Lanka and tortured.
[17] The Applicant argues that a refugee claimant need only prove that there is a reasonable chance of persecution upon return to the country of reference. It is submitted that in the case at bar, a reasonable chance of persecution exists since the Applicant would be rounded up or detained at any checkpoint.
[18] The Respondent notes that the Applicant raises only issues of weight of the evidence; that it is within the specialized jurisdiction of the CRDD to determine the cogency and reliability of the evidence and decide how much weight it should be assigned. The CRDD is entitled to rely on documentary evidence in preference to the claimant's testimony. The CRDD is also entitled to give more weight to the documentary evidence, even if it finds the claimant trustworthy and credible. The fact that the written reasons do not summarize all of the evidence which was introduced does not constitute a reviewable error. Where, as in the case at bar, the CRDD has evidence before it which supports its conclusions, the Court will not readily interfere with the weight assigned to the evidence.
[19] Identity was central to the Applicant's refugee claim and the CRDD did not make findings that were perverse and capricious in nature; there was evidence before it to support its conclusions.
[20] The CRDD panel accepted that the Applicant was a Tamil male born in Jaffna, Sri Lanka and that he spent some time there. However, he was found not to be credible in parts of his testimony that could have helped establish his residency in the north, specifically his departure from Jaffna and his journey and stay in Columbo.
[21] I am satisfied that the CRDD's conclusion was reasonably open to it. While the Applicant adduced certain documentary evidence which connected him to Jaffna, i.e. his birth certificate, I am satisfied that it was reasonably open for the CRDD to conclude that the documentary evidence did not establish the Applicant's recent residency in the Jaffna region or any other area of Sri Lanka that was under the control of the LTTE. The documents tendered by the Applicant were found to be fraudulent, and no explanation was offered when questioned. On this point, in light of the evidence, the panel's conclusion was reasonable and open to it.
[22] The Applicant does not point to any documentary evidence to support his contention that "it is clear from the evidence that the LTTE does not always require a family member to stay behind". More importantly however, the fact that the Applicant was permitted to leave without a surety is not the only factor the CRDD panel considered. It also considered the likelihood that the government official would have risked his position to provide false documents to the Applicant and his father; the likelihood that the Applicant would have risked leaving the area with false documents considering that he had been recruited from time to time for the LTTE and was known to them; also, the documentary evidence shows that the LTTE does not readily issue passes to young Tamil men, etc.
[23] The CRDD made several other credibility findings adverse to the Applicant in very clear terms and given the deference to be afforded the CRDD by this Court, and particularly the adverse credibility findings with respect to his identity as a Tamil from the North of Sri Lanka are not couched in vague or general terms; this Court should not interfere.
[24] The existence of documentary evidence that supports the Applicant's story is insufficient to warrant judicial intervention with the CRDD's findings. The significance of establishing the identity of a claimant is set out in Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL) (F.C.T.D.), a case with a similar fact situation. In that case, the Board did not find the claimant to be credible on the issue of identity and the only document produced was the claimant's birth certificate which the Board did not believe to be authentic. As identity was central to the case, Joyal J. concluded at para. 13 of his reasons that once the CRDD had determined that identity had not been established, it was not necessary for it to analyse the evidence any further: see also Arunasalam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1451 (QL) at para. 23 (F.C.T.D.).
[25] The decisions of this Court inThirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) and Maharajah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 735 (QL) (F.C.T.D.) cited by the Applicant can be readily distinguished from the case at bar. In those cases, the CRDD panel did not question the claimant's identity which is a central element to the CRDD's decision in the case at bar.
[26] As stated, I am satisfied that the panel did not err in its conclusions. Even if I had found that the two findings of fact impugned by the Applicant were unreasonable, I believe that the panel gave several other reasons which are sufficient to support its finding that the Applicant did not establish that he was a Tamil recently from Northern Sri Lanka and that he was persecuted. Thus, assessing the Applicant's risk of persecution in light of the documentary evidence would have become a futile exercise.
[27] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
December 20, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5722-01
STYLE OF CAUSE: VIGINESWARARAJAN YOGARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, DECEMBER 11, 2002
REASONS FOR ORDER BY: ROULEAU, J.
APPEARANCES BY: Mr. John Grant
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Mr. John Grant
Grant, Dickison
Barrister & Solicitor
Suite 220
2000 Argentina Road
Plaza 1
Mississauga, Ontario L5N 1P7 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent