Date: 20010928
Docket: IMM-6620-00
Neutral Citation: 2001 FCT 1070
BETWEEN:
SIVAKUMAR ARUNASALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision dated December 6, 2000, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant is a 40-year-old citizen of Sri Lanka who claims refugee status for reasons of nationality (Tamil), imputed political opinion, and membership in a particular social group, namely being a Tamil from Northern Sri Lanka.
ISSUES
[3] 1. Did the Board err by assessing only one of the several grounds for the applicant's claim?
2. Did the Board err by applying the wrong standard of proof to its analysis?
3. Did the Board ignore the objective evidence in support of the claim after discounting the evidence it found not credible?
4. Did the Board err in its assessment of the applicant's credibility?
ANALYSIS
[4] 1. Did the Board err by assessing only one of the several grounds for the applicant's claim?
[5] In his Personal Information Form ("PIF"), the applicant states that he is claiming refugee status on the grounds of nationality and race, he is a Sri Lankan Tamil, of religion, he is Hindu and membership in a particular social group, being a Tamil from Northern Sri Lanka.
[6] The applicant observes that there are three other grounds of persecution enumerated in his PIF apart from his membership in the social group of Tamil males from the North and that the other grounds were not assessed by the Board. The applicant submits that the Board's failure to take into account the other grounds for the claim is evident in the Board's summary paragraph at the end of the analysis portion of the reasons for its decision.
[7] The applicant further contends that it is apparent from the written reasons that no other grounds were assessed. Accordingly, the Board neglected its duty in regards to the applicant's refugee claim and committed a major error of law.
[8] In my view, it is not sufficient for an applicant to claim fear of persecution on various grounds in a PIF without providing any evidence relating the grounds stated. If no evidence is adduced and no comments are made in order to establish a reasonable fear of persecution on the grounds alleged in a PIF, an applicant cannot then fault a Board for not having dealt with them.
[9] In the case at bar, the applicant alleged various grounds but testified mainly on his fear of persecution based on his membership in the social group of Tamil from northern Sri Lanka and the problems he faced in Sri Lanka. As was put forth by the respondent, the applicant clearly linked in his PIF and testimony, the experiences he faced due to his identity as a Northern Tamil.
[10] Nowhere did the applicant explain why he feared persecution on the ground of his religion nor did he never raised this issue except at the beginning of his PIF. In my view, the Board did not have to deal with the applicant's alleged fear of persecution on the basis of his religion.
[11] The Board in the case at bar, dealt with the applicant's fear of persecution based on his membership in a particular social group and implicit in this ground are the grounds of race and nationality. It is the applicant himself that linked his fear of persecution to the fact that he is a Tamil from Northern Sri Lanka and I cannot find fault with the Board for having assessed the applicant's evidence under that ground.
[12] In my opinion, the Board assessed the applicant's claim on the proper grounds.
2. Did the Board err by applying the wrong standard of proof to its analysis?
[13] The applicant also submits that within its analysis of the ground of the claim relating to membership in a particular social group, the Board's use of the phrase "serious doubts" twice in its analysis demonstrates that it applied the wrong standard of proof to the evidence concerning this basis of the claim.
[14] The applicant submits that the burden is on the applicant to prove his identity only upon a civil standard, that of a balance of probabilities. Yet, the Board expressly rejected the applicant's identity based upon only a serious doubt. A serious doubt, much like the standard of proof for persecution itself (a "serious possibility", "good grounds" or "reasonable chance") is a standard implicitly less than on a balance of probabilities. The Board is implicitly stating that even if it is more likely than not that the applicant is from the North, it has "serious doubts". This is an unlawful rejection of the applicant's identity as a Tamil from the North based on the wrong standard of proof. Thus, the Board committed another error of law.
[15] In my opinion, the expression "serious doubts" used by the Board was not meant to be a burden of proof but an expression to explain that the applicant did not establish his claim and that the Board did not find the applicant credible.
[16] In any event, even if the Board misstated the burden of proof, if it appears that it applied the right burden, the misstatement of the burden of proof would be of no effect.
[17] As was stated in Osei v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 940 (F.C.A.) by the Federal Court of Appeal:
In the same way as an improper formulation of the test by the tribunal may be obviated by a proper application, a proper formulation may be obviated by an improper application. In the instant case there is reason to fear that the tribunal did not properly evaluate the evidence that was before it because it misapplied the test which it properly understood. That being so the decision cannot stand.
[18] Therefore, if I find that the reasons given by the Board are sufficient to support a finding that the applicant has not discharged his burden of proof, the intervention of this Court will not be warranted.
3. Did the Board ignore the objective evidence in support of the claim after discounting the evidence it found not credible?
[19] The applicant submits that regardless of the credibility of his testimony, the Board must still assess the remaining evidence to see whether it is relevant to and supportive of the objective basis of the claim.
[20] The applicant submits that the Board made no reference to any of the country condition documents entered into evidence despite the fact that there is a substantial body of evidence to support some of the remaining grounds for the claim. The significance of this error is underscored by the fact that the Board does not case any doubt about the fact that the applicant is a Tamil from Sri Lanka. Indeed, for example, the applicant's Sri Lanka identity card and his Sri Lanka Red Cross identity card were not impugned in the Board's decision. The Board's suspicion was that the applicant was a Tamil from the South, rather than from the north of Sri Lanka.
[21] A number of the applicant's documents demonstrate that Tamils from Sri Lanka, regardless of point of origin in the North or South of that country, are at risk of serious harm. Some of the documents simply note that Tamils who are deported back are at immediate risk. The fact that all of the documentary evidence was ignored in its entirety leads inescapably to a conclusion that the Board failed to carry out its legal duty and committed a reviewable error.
[22] Accordingly, the Board was bound to carry out its legal mandate to assess the other grounds of the claim and its failure to do so means that its decision must be set aside.
[23] The applicant failed to establish an essential part of his claim, his identity. Since it could not be established, the Board did not have to assess the objective evidence which would support that Tamils from Northern Sri Lanka are persecuted.
[24] Noël J. stated in Sinora v. M.E.I., [1993] F.C.J. No. 725 (F.C.A.):
The applicant admitted that he did not establish that he was personally subject to persecution. He added, however, that since the documentary evidence clearly shows that the poor are mistreated in Haiti, the Board members erred in holding that no evidence of persecution was presented.
In my opinion, the applicant's claim is entirely unfounded. It is settled law that an applicant must demonstrate an objective and subjective fear of persecution. In this case, it was not sufficient simply to file documentary evidence. It was necessary at the very least to establish that the applicant himself had a real fear of persecution. In the absence of such evidence, the Board members were entitled to conclude as they did.
[25] In light of the Board's conclusion, I cannot conclude that it erred because it did not refer to the objective evidence.
4. Did the Board err in its assessment of the applicant's credibility?
[26] The Board found that the applicant was not credible and that the personal documents presented many discrepancies that did not support his claim.
[27] In Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A), the Federal Court of Appeal explained when the intervention of this Court is warranted when the assessment of credibility by the Board is in issue:
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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[28] In Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (F.C.T.D.), Jerome A.C.J. held:
To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[29] The applicant contends that the Board erred in assessing his credibility. For example, the applicant explained the six-month delay in fleeing Sri Lanka by stating that he needed time to raise funds and obtain a travel pass. The Board however, stated in its reasons that no explanation had been offered and made an adverse credibility finding.
[30] It has to be noted that the Board was not referring to the applicant's delay in leaving the country but his delay in going to Colombo. The Board stated at page 4 of its decision:
Finally, there is a subjective fear issue. The panel was unable to obtain from the claimant why he would wait approximately six months after the ultimate incident with the authorities, in May 1999, to leave to Colombo, especially when he had such connections in the city. The claimant had no explanation.
[31] The incident in May 1999 referred to by the Board happened in Point Pedro. The applicant was arrested and released on June 25, 1999. The applicant only left Point Pedro to go to Colombo at the end of December.
[32] When questioned on this issue, the applicant stated, at page 90 of the transcript:
Q. So, sir, if I look at your story, in 1999 the last incident that occurred when you were living up North, in Point Pedro, you were detained in May of 99 and you were released on the 25th of June 99. Yet you wait until virtually the end of the year before leaving or making moves to go to Colombo to leave the country. And this despite the fact that you appear to be in possession at this point in time of a valid passport. Could you explain why you waited so long?
A. One reason is you'll have to make arrangements for money. In order to obtain a pass, I applied to the gramasivaka, that is to the village headman. And for two months he was just trying...he was telling me come tomorrow, come day after like that it was going on for two months. But finally a person known to us, he said give me five-thousand rupees I'll get a pass for you. He took me Jaffna town to the pass office, made some arrangement and got me the pass.
[...]
Q. You didn't try to escape or leave by any other means? You didn't try to bribe and get a pass earlier?
A. It was taking time for me to arrange money, and gramasivaka also finally did this to me. He was making me to go up and down on this.
[33] In my opinion, the applicant did give reasons. The applicant's reasons can be considered reasonable. Despite the applicant's explanations, I am not sure that the Board's reasons are unreasonable since he obtained his pass after two months and only left six months after his release.
[34] Similarly, the applicant explained precisely why he applied to study abroad and thus leave Colombo when just a short while earlier he had decided to re-locate there. Yet the Board again expressly stated in its reasons that no explanation had been offered and made an adverse credibility finding.
[35] The Board observed that the school certificate the applicant produced from the university was dated in 1996, fully ten years after his graduation. When the applicant was asked why the date appears as 1996, he testified that he obtained his certificate in late 1996, in order for him to make arrangements to study for a Ph.D abroad. The Board noted that this option was not mentioned in the applicant's PIF.
[36] The Board also found that this conflicted with earlier testimony, when the applicant was asked why both he and his wife went to Colombo in the fall of 1996. The applicant explained that it was to find work in Colombo. Again, when confronted on these inconsistencies, the applicant had no explanation.
[37] The following discussion took place on this issue, as can be seen from the transcript at page 78:
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. Okay, but why did you obtain that certificate?
A. Sir, at that time I came to Colombo for registration. At that time I was visiting Colombo too often, so during that time I obtained this.
Q. And for what reason?
A. In order to apply for a scholarship.
BY PRESIDING MEMBER (to person concerned)
Q. For what?
A. For higher studies. To do Ph.D.
Q. And why were you doing that, sir?
[...]
A. I like to study, to continue my studies.
Q. In U.K. In United Kingdom, sir?
[...]
Q. Now, if I understand correctly, you just get married, you're fleeing an area Kilinochi. Your wife is working. Your wife is working. And by December, by all accounts, would have been, December of 96, would have been pregnant with your daughter who was born the following July. Yet somehow you're asking for a certificate so you can go study in the U.K.
A. When you apply, after one semester only they will call us. After one year they will call us. So the whole family will be given the visa.
Q. So if you were doing that, sir, in 1996, so that was your plan in 1996?
A. I had a plan to continue my studies, to go for higher studies.
Q. Yeah, but if that was your plan, sir in 1996, why are you not doing other things that would seem to go along with this plan like apply for a passport?
A. I had the admission, but I did not get the grant. That is why I did not go.
[38] At page 88, the applicant further testified:
BY PRESIDING MEMBER (to person concerned)
Q. In 1996, in September of 96 when you went to Colombo with your wife, what was your plan? What were you going to Colombo to do? And what was your plan were [sic] you going to Colombo to do, and what was your plan?
A. We went with the idea... at that time with the idea of living there.
Q. Living in Colombo?
A. Yes.
Q. Well, that appears to contradict your earlier testimony a few moments ago when you said that you were looking to study in England. Sir, please wait for the question. And that is why you obtained this certificate in December of 96. Do you have an explanation?
A. It is I went with the... we went with the idea of living there. Then upon arrival there, it is my wife who told me to do my Ph.D.
[39] I cannot find that the Board erred in its conclusion since the applicant did state earlier in his testimony that he went to Colombo to get his registration. The applicant was definitely not clear in his answers and I cannot fault the Board in concluding that the applicant contradicted himself.
[40] The Board also drew an adverse inference against the credibility of the applicant by noting that the applicant's sales receipt from Singapore pre-dated his arrival in that country. Yet nowhere does it reject or even expressly consider his explanation at the hearing that he purchased the camera after his arrival in Singapore from another person who provided him with the receipt.
[41] On the issue of the sales receipt, I believe that the Board's conclusion was reasonable and that the Board did not have to accept the applicant's explanation.
[42] The applicant submits that the Board breached the principle of due process when it failed to notify the applicant that changes to or omissions from the PIF arising during the hearing are of significant importance and nevertheless proceeded to rely upon those very matter as giving rise to credibility problems.
[43] The applicant submits that the Board denied him due process in some of the credibility findings. At page two of its reasons, the Board drew an adverse inference from two separate omissions from the PIF concerning the applicant's brothers and the fact that he resided for a period of time in Kandy. Yet when these matters were addressed in oral testimony, the Board did not place any undue emphasis upon either beyond asking for, and receiving, an explanation concerning the information about why the brothers' information was not originally included.
[44] The applicant knew when he filed his PIF that he had to provide the information asked.
[45] The first page of the PIF states:
The purpose of this form is to inform the Refugee Division of the Immigration and Refugee Board (IRB) about your claim to be a Convention refugee. [...]
This form will be entered as evidence at a hearing for the purpose of determining your claim to be a Convention refugee. You may be asked questions at the hearing into your claim to be a Convention refugee pertaining to any or all of your answers in this form.
It is therefore very important that this form be complete, true and correct. Answer all questions, marking N/A (not applicable) for those that do not apply to you. If you need more space than provided to answer any question, use a separate sheet, so as to provide a complete answer. Give exact details, dates and names of places. If you do not understand a question, please seek clarification before answering.
[46] In my view, the applicant was duly notified of the importance of the answers in the PIF before his hearing.
[47] Furthermore, whether the Board notified the applicant that omissions from the PIF arising during the hearing are of significant importance would not change the fact that the applicant omitted facts in his PIF. Even if the Board had told him about it, the Board would still have been entitled to rely on the omissions to make findings of credibility. The applicant had the opportunity to explain why he omitted facts in his PIF. In my view, the Board respected the principles of natural justice and due process.
[48] In Basseghi c. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (F.C.T.D.), Teitelbaum J. held:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[49] The applicant contends that the Board's effort to impugn his evidence was so over-reaching that it even extended to a mis-characterization of the applicant's birth certificate. It is self-evident from a review of the documents that they are not in the true sense two birth certificates as initially described by the Board. Rather there is one English translation and one Tamil version. The Board states that the Tamil version was issued in either 1993 or 1998 and thus post-dates the translation. Yet it is evident from the second page of the Tamil version that the date on the second page (1993) refers to the date that a certified copy was made at the Registry office. The applicant candidly admitted that he had to obtain a more recent copy of the Tamil birth certificate because the original copy had been filed with his university. Nowhere does the Board assert that the English translation and the Tamil version are different in content. Therefore, the Board's attempt to characterize these documents as dubious is unwarranted.
[50] I have reviewed the transcript and in my view, the applicant was not testifying, as found the Board, that the English translation was translated from the Tamil version dated 1993 or 1998. I believe the applicant was saying that the English translation was translated from an original document in his file.
[51] In my view, the Board misinterpreted the applicant's testimony on this point.
[52] Since that part of the Board's reasons should not be relied upon to doubt the credibility of the birth certificates, it should be considered whether the other reasons provided by the Board are sufficient to justify a conclusion that the birth certificate copies should not be considered.
[53] The Board noted that the two birth certificates referred to the country as Ceylon and not Sri Lanka. Regarding the applicant's testimony that the Tamil version of his 1981 birth certificate (English version) was filed at the Sinhalese University he attended, the Board was of the view that it would seem that the reverse would be appropriate. I am not sure that the Board's other reasons for doubting the credibility of the documents are sufficient.
[54] Although, I found that the Board might have erred regarding the birth certificates and the delay in leaving Point Pedro to go to Colombo, I believe that the Board's other reasons are sufficient to support its finding that the applicant did not establish that he was a Tamil from Northern Sri Lanka and that he was persecuted.
[55] Therefore, this application for judicial review is dismissed.
[56] Neither counsel suggest a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 28, 2001