Date: 20050908
Docket: IMM-8659-04
Citation: 2005 FC 1216
BETWEEN:
IYENKARAN ARIYARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This case involves an application for judicial review of a decision of the Immigration and Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated September 14, 2004 (the "Decision") in which the Board concluded that the Applicant is not a convention refugee because it was not satisfied of his alleged identity as a Sri Lankan Tamil.
[2] The Applicant criticized the Decision on the following grounds:
a) The Board erred in relying on the report by the Sri Lankan High Commission in India (the "High Commission") about the validity of Sri Lankan passports.
b) The Board failed to mention the Applicant's offer to have his passport authenticated.
c) The Board failed to refer to the Applicant's evidence that he only needed 15 to 20 days to obtain a copy of a police report from India.
d) The Board failed to discuss the weight to be given to the Applicant's birth certificate.
e) The Board failed to refer to the significance of the Applicant's knowledge of the Tamil language and country conditions in Sri Lanka.
f) The Board erred in relying on Article 49 of the UN Convention.
g) The Board acted unreasonably when it drew adverse inferences based on the Applicant's conflicting evidence about the date on his army identification card and his inability to provide the birth date on the fraudulent Indian passport he used to reach Canada.
DISCUSSION
Issues (a-d)
[3] These issues are inter-related. The Applicant's most serious difficulty in this case was the fact that his Sri Lankan passport did not display a National Identity Card (NIC) number in the usual way. Accordingly, his was a "no NIC" passport.
[4] The Applicant testified in the opening session of his hearing in mid-June of 2004 that, when he arrived in India from Sri Lanka in December 2000, he registered with the Indian police and they prepared a report which included his passport and NIC numbers (the "Report"). While in India, he lost his passport and NIC. However, he testified at the Board's first evidentiary hearing in early June 2004, that there was no need to report their loss to the Indian police because they had noted the necessary numbers when they prepared the Report.
[5] After losing his documents, the Applicant applied for a new Sri Lankan passport (the "Passport") and used the Report and his birth certificate. The birth certificate shows Sri Lanka as the Applicant's place of birth but it has no photo. He was issued a new Passport which is described as a "no NIC" Passport because his NIC number was not shown.
[6] When the hearing before the Board resumed later in June 2004, the Applicant contradicted his earlier evidence and said that the Report might not include his Passport and NIC numbers because he had just "shown" the documents to the Indian Police. He also testified that he had arranged to have a copy of the Report picked up in India that day and that he expected to receive it in 15 to 20 days. It was never submitted to the Board and no explanation was provided.
[7] The Board was concerned that the Applicant's Passport was a "no NIC" Passport and could not understand why that would be the case since the Report, which he initially testified had included his NIC number had been used in the Passport application. There was cause for the Board's concern. The High Commission had provided the Board with the following information about "no NIC" Passports:
"No NIC number may be an indicator when fraud is suspected that the person may have used someone else's identity. And further, although the Sri Lankan passport is secure, very few checks are done to confirm the identity of the person applying for the passport. And the passport is endorsed for multiple journeys only when an NIC is presented."
[8] I have concluded that this information was sufficient to rebut the usual presumption in favour of the authenticity of formal documents. This was especially so given the Applicant's changed evidence about the contents of the Report and given his failure to produce the Report. It was, in my view, open to the Board to conclude that, although the Passport may have been a genuine Sri Lankan document, it had been fraudulently obtained by the Applicant using a false identity.
[9] In these circumstances the Applicant's offer to have the Passport authenticated by the High Commission was meaningless because the genuineness of the Passport was not at issue. As well, the Board's failure to mention that the Applicant offered to provide the Report is not an error given that it was, in fact, never produced.
[10] Finally, the Board was clearly aware that it had a copy of the Applicant's birth certificate in its record and that the Applicant had used it in conjunction with the Report to apply for the Passport. These facts are mentioned in the Decision. However, there is no discussion about why the birth certificate was not accepted as proof of Sri Lankan nationality. The only hint comes from the Board's comment that, apart from the "No NIC" Passport, "The claimant provided no other photo identity document at the hearing." In my view, because the Passport was not reliable, it was open to the Board to give no weight to a document, such as a birth certificate, which did not include a photo. The reasons could have been clearer on this issue but they are sufficient in the circumstances of this case.
Issue (e)
[11] The documentary evidence before the Board shows that there are large Tamil populations in India. In these circumstances, the fact that the Applicant spoke the Tamil language and was aware of country conditions in Sri Lanka did not necessarily establish Sri Lanka nationality and, given the serious issues about his national identity, the Board did not make a material error when it failed to discuss this evidence.
Issue (f)
[12] At the end of its Decision the Board refers to Article 49 of the UNHCR handbook. The Applicant says, and I agree, that the reference does not make sense. However, in my view this is not a material error in the circumstances of this case.
Issue (g)
[13] I also agree with the Applicant that the credibility findings on these topics may have been unduly harsh and not open to the Board. However, these are tangential matters unrelated to the serious issue arising from the "no NIC" Passport and the errors are therefore immaterial.
CONCLUSION
[14] For all these reasons, the application will be dismissed.
"Sandra J. Simpson"
Ottawa, Ontario
September 8, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8659-04
STYLE OF CAUSE: IYENKARAN ARIYARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 25, 2005
REASONS FOR ORDER
AND ORDER BY: SIMPSON, J.
DATED: SEPTEMBER 8, 2005
APPEARANCES BY:
Lani Gozlan FOR THE APPLICANT
Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Berger & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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