Court File No. IMM-36-97
TH/az
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N:
KRISHNAPILLAI NITHIANANTHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
| HELD AT: 330 University Avenue |
| 8th Floor, Court room number 4 |
Toronto, Ontario
HELD ON: October 21, 1997
REGISTRAR: Sandra McPherson
VOLUME: RULING
A P P E A R A N C E S:
| MARIE CHEN -- for the Applicant |
| SALLY THOMAS -- for the Respondent |
- i -
INDEX OF PROCEEDINGS
Page No.
Ruling 1 - 10
RULING:
| HIS LORDSHIP: The Court is prepared to render a decision now and to give reasons. It will be observed that the CRDD's decision is remarkable in its imbalance and internal contradictions. The panel in this case of Krishnapillai Nithiananthan versus the Minister of Citizenship and Immigration, CRDD's number U95-05266, was rendered by a two member tribunal, one of whom coyly declines to give a first full name, thus rendering the Court wondering about the gender of that person. It may be known to counsel, but not to the Court. |
| After summarizing much, but not all, of the Applicant's credible testimony so found, the Board goes on at great length about how matters are getting better and better all the time in Jaffna, from which the claimant first came to Colombo; how even the rule of law is returning to Jaffna, despite sporadic, idiotic terrorist attacks, frequently of a suicidal nature. |
| The tribunal comes to a kind of a crisis on page 7 of its reasons, page 009 of the Tribunal Record, when it writes: |
| "...In summary, the panel is not persuaded the claimant has a well-founded fear of persecution in Jaffna from the Sri Lankan authorities, or from the LTTE. The situation in Jaffna appears to have stabilized and although sporadic acts of violence still occur, thousands of Tamils who had fled Jaffna appear to be returning to their homes..." |
| That is the culmination of several pages of how wonderful things are getting in Jaffna. When I say "wonderful", I mean by comparison with LTTE savagery. But then the panel, indeed, all in one paragraph, goes on to write this: |
| "...The panel also believes that the claimant has an internal flight alternative in Colombo. He is a professional and resourceful person who would be able to settle in Colombo. Colombo is a reasonable IFA for him if he does not wish to settle in Jaffna. |
| The panel is cognizant of the fact that the claimant is an elderly, frail man who is depressed over his wife's death but, regrettably, he does not come within the ambit of the Convention Refugee definition..." |
| There is much to be said in criticism of this: Three sentences with an internal contradiction: |
| "...He is a professional and resourceful person [they say] who would be able to settle in Colombo..." |
| And, then, they say, having made Jaffna safe in their view, they wipe that all out, because a person who has an internal flight alternative is one who has a well-founded fear of persecution in some other part of his or her country: |
| "...Colombo is a reasonable internal flight alternative for him if he does not wish to settle in Jaffna..." |
| That is a misapprehension. It is not a matter of whether he wishes to settle in Jaffna, but whether he would be safe in Jaffna. And, if they say Colombo is a reasonable IFA for him, then they, in effect, wipe out all their findings about how safe it is in Jaffna. |
| And, then, they go on to say, having said that he was a professional and resourceful person who would be able to settle in Colombo, they say that they are: |
| "...cognizant of the fact that the claimant is an elderly, frail man who is depressed over his wife's [recent] death..." |
| when they say after arriving in Canada, his wife died. |
| Now, one thing which the CRDD does not contradict itself about concerning the Applicant is that he was credible, his testimony was credible. This Court has often held that Tamils have an internal flight alternative in Jaffna. Generally, that is so. The overwhelming majority of Tamils, so far as the Court can see, have a valid, internal flight alternative in Jaffna. But, each case is individual. This old man has testified that he has no friends or relatives in Colombo, that he is staying at a lodge because, presumably, he has nowhere else to go, no friends, no relatives. He testified, credibly according to the CRDD, that the army, the navy and the police frequently raid the lodges of the kind at which he was staying, and they round up the people in the lodges and they take them to the police station for interrogation. |
| Now, the Court cannot say, anyone cannot say that that a refugee makes. The country, after all, is plunged into a vicious civil war. It is not Canada. It does not have the same legal safeguards and traditions as Canada. God knows what would happen to Canada if we were plunged into a vicious civil war. Perhaps many of our vaunted liberties and freedoms might be curtailed. |
| But, in any event, Sri Lanka is plunged into a vicious civil war, and so that the police, the army, the armed forces round up people from the north who are living in the lodges, where people generally do live at the beginning of their new life in Colombo, to interrogate them to try to determine who is an LTTE supporter, who may be carrying messages. And, remember, this credible Applicant said he was surprised to learn that elderly people are recruited to carry messages from the Tamil Tigers to their subversive supporters in the south. So, he said that every time the police round up the inhabitants of the lodges and interrogate them, the police require a bribe. And he was asked, according to the transcript, not once but twice, "Well, what happens? What if you cannot pay the bribe?" and he said "They just let you rot in jail." That was his testimony. That was not mentioned as a matter of persecution in Colombo by the CRDD. |
| So, most Tamils move out of the lodges; they find friends, they find relatives, they find something else. But who willingly takes in an old man or an old woman? They are not attractive, usually, in the eyes of many, and so, there is nowhere for them to go. And so, the inference one draws from his testimony is that he is compelled to live in a lodge, and that every time, he has to pay a bribe. This is a scandal on the Sri Lankan government, and it surprises this Court that it does not move more resolutely to bring to an end the corruption of its police and armed forces. Because you see, in kind, they are no different from the Tamil Tigers. It is only that the amounts they extort in bribes are smaller amounts than the Tigers extort from people who are under their control. One day, the Court assumes, the government of Sri Lanka will be held to account, and it might be bloody account, for its laxity in not cleaning up the corruption in its own police and armed forces. |
| That is a fact of life. That does not a refugee make, unless, of course, you are condemned to paying bribe after bribe after bribe, or being allowed to rot in jail. Well, the CRDD panel in this case did not mention that prospect to which the Applicant testified. And so, there is a contradiction in their decision. They reviewed the facts and the testimony fairly thoroughly and come to this long conclusion with long findings of fact about how safe it is in Jaffna. |
| The CRDD, obviously, was not cognizant of the direction given by the Associate Chief Justice of the Court in the case called Saqlin Syed v. The Minister of Employment and Immigration, M2080/93, dated September 13, 1994. Two passages I read, and in reverse order, beginning on page 3: |
| "...Here, the reasons set out a summary of the Applicant's evidence, a summary of the documentary evidence considered by the Refugee Division, followed by a conclusion which makes no reference to any of the evidence given by the Applicant..." |
| And then, there is a list of what is missing from the decision of the CRDD in that case. Back to page 3, the Associate Chief Justice wrote: |
| "...The function of written reasons is to allow an individual adversely affected by an administrative tribunal's decision to know the underlying rationale for the decision. To that end, the reasons must be proper, adequate and intelligible and must give consideration to the substantial points of argument raised by the parties..." |
| The summary of the Applicant's testimony about conditions in Colombo was not completely considered by the CRDD in this case, and the CRDD in this case fell into the same error, apparently, as that in the Syed case, that is to say, "Oh, they examined to a fare-thee-well all of the facts and factors and all of the testimony relating to Jaffna." And then, they wiped it all out, because it is an inconsistent conclusion first to say, "You are safe in Jaffna", and then to say, "You have an IFA in Colombo". They wiped it all out. But, their conclusion about the IFA in Colombo, while it is definite and unmistakable, does not have the same support of reasons, testimony, citations as the other conclusion, the one which was wiped out about how safe it is in Jaffna. This is a confused and confusing decision. |
| Counsel for the Minister argued valiantly and well in support of the decision, and the Minister has no reason to complain about counsel in this case. But, the fact is that the decision is so bad as to require quashing. It must be reviewed. These facts must be reviewed by a new CRDD panel, because this decision is no prize of logic, consistency or law. Therefore, the decision of this Court is that the CRDD decision in the case of Krishnapillai Nithiananthan, CRDD number U95-05266 is quashed, and the matter is referred back to a differently constituted panel of the CRDD. |
| In concluding, one may note that the names of the Applicant are shown with his surname, or family name, first, Krishnapillai, and it is his given name, his individual name, Nithiananthan which is second, and that is the reverse of the usual order in this country, but not in all countries, but it helps to identify him the better. |
| Those are the conclusions of the Court. Do counsel have any question to certify, an important question? |
| HIS LORDSHIP: No? Counsel have no question to certify, therefore, the Court certifies no questions. Are there any other questions on the part of counsel? |
| MS. CHEN: No, My Lord. Thank you. |
| HIS LORDSHIP: Thank you. Court will rise. |
| --- upon adjourning at 10:55 a.m. |
I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 21st DAY OF OCTOBER, 1997 and taken to the best of my skill, ability and understanding.
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} Certified Correct:
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} ________________________________
} Terry Harris
} Certified Verbatim Reporter
} Tel: 360-6117