BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This application is for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the "Board") dated March 30, 2004 (the "Decision") in which the Board concluded that the Applicant is inadmissible on security grounds under paragraphs 34((1)(c) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as a former member of the Liberation Tigers of Tamil Eelam (the "LTTE") in Sri Lanka.
[2] The Applicant's fundamental problem is that she has provided the Respondent with two diametrically opposed versions of events. On her arrival at the Canadian port of entry, she said that she joined the LTTE as a student and later became an active voluntary adult member. She said that she received training in self-defence and weaponry. This was the same story she had earlier presented in refugee proceedings in Germany and she provided the Board with a copy of the decision of the Administrative Court in Arnsberg, Germany. It had denied her claim.
[3] The problem became apparent when, in her Personal Information Form and at her refugee hearing held in Canada on November 1, 2002, she described herself as an involuntary day-labourer for the LTTE. She explained her changed story but the Board rejected her explanation and concluded that there were more than reasonable grounds to believe that she was a member of the LTTE.
[4] Against this background, the Applicant alleged before the Court that the Board erred in that it:
· Ignored evidence
· Decided the case without the necessary corroborative evidence.
[5] I will deal with each matter in turn.
IGNORED EVIDENCE
[6] The Applicant says that the Board failed to consider two letters dated October 30, 2003 (the "Letters") and a report by a clinical psychologist dated November 12, 2003 (the "Report"). The Decision shows that the Letters and the Report were marked as exhibits. The Letters are from local officials (a Justice of the Peace and a village leader) in the Applicant's home town in Sri Lanka. They say that she is not involved in anti-government activities and that she was in school until 1992. The Report indicates that the Applicant is not inherently prone to prevarication and accepts her allegation that she fabricated the account of her LTTE membership.
[7] The Decision notes that the Minister's counsel suggested that the Letters had no probative value because they did not refer to the relevant period which was between 1993 and 1998. Counsel also submitted that the Report was tainted by the Applicant's lack of credibility. According to the Decision, the Applicant's counsel made no reference to the Letters in submissions but did emphasize that the Report was an independent assessment by a trained professional.
[8] In its analysis, the Board expressly rejected the Report because it was based entirely on information from the Applicant which it found was not credible. In my view, this conclusion was open to the Board.
[9] The Board did not deal with the Letters in its analysis but, given their lack of probative value, I have concluded this was not a reviewable error.
CORROBORATION
[10] The Applicant says that the only evidence which supports the Board's conclusion that she is a LTTE member is her own evidence which she now says was fabricated and which was not believed by the German authorities. She also says that, even if it were true, her evidence that she is a terrorist is uncorroborated by any objective credible evidence and, as such, cannot support a finding of inadmissibility.
[11] In this regard, the Applicant relied on a decision of the Federal Court in Sabour v. Canada(Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 61 in which the Court considered an immigration officer's refusal to grant an applicant status as a permanent resident because he had been a member of an organization concerning which there were reasonable grounds to believe was engaged in terrorism. The membership was not in doubt. It was the nature of the organization that was at issue and the only evidence was of a speculative nature. The Court noted the Minister's guidelines for such cases which require that the information before the officer be "compelling, credible and corroborated". The Court then said:
The requirement, in the department's view, that the information be "compelling, credible and corroborated" is a least as demanding as Justice Dubé's standard of "serious possibility based on credible evidence".
[12] In the present case, the Board did not refer to this issue. No mention was made of the Sabour decision or of the guidelines. Instead, the Board reviewed the law regarding what must be shown to justify a conclusion that there are "reasonable grounds to believe" and noted the requirement that something more than suspicion or conjecture but something less that proof on a balance of probabilities is required.
[13] The Board concluded that it was the Applicant's first account of her membership in the LTTE which was credible and gave cogent reasons for preferring the first account. In my view, it was entitled to reach this conclusion even though it was clearly aware that the German authorities had concluded otherwise. The Board's finding that it had reasonable grounds to believe was based on the Applicant's admission that she was a member of the LTTE. In these circumstances, the suggestion in the Guidelines that there be corroboration is clearly inapplicable.
JUDGE
Ottawa, Ontario
September 14, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3802-04
STYLE OF CAUSE: JAYASIRI PUVANENTHIRAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 15, 2005
REASONS FOR ORDER
AND ORDER BY: SIMPSON, J.
DATED: SEPTEMBER 14, 2005
APPEARANCES BY: Ms. Leigh Salsberg
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD:
Ms. Leigh Salsberg
Barrister & Solicitor
Waldman & Associates
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent