Date: 20010330
Docket: IMM-3667-00
Neutral Citation: 2001 FCT 272
BETWEEN:
SITTAMPALAM PRAPAHARAN
VIJAYASUGI PRAPAHARAN
SHAITHAN PRAPAHARAN
Through his Litigation Guardian
VIJAYASUGI PRAPAHARAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN, J.
[1] The applicants seek judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated June 12, 2000, wherein the applicants were denied refugee status.
[2] The issues are whether the Board breached the principle of fairness and whether the credibility findings against the principal male applicant are sustainable.
[3] The principal male applicant is a Jaffna Tamil. Following an incident of alleged persecutory treatment in Sri Lanka in 1991, he found a job in the Maldives and left Sri Lanka in March, 1991. He returned to Sri Lanka in April, 1997 for his wedding ceremony. He claims that the day after his wedding he and his wife were arrested and released following payment of a bribe. He then testified that his wife returned to Sri Lanka from the Maldives in January, 1998 in order to give birth to their child in Sri Lanka, since the medical care in the Maldives was not satisfactory. The principal male applicant did not return to Sri Lanka from the Maldives until November, 1998 after he was not able to renew his employment contract there. At the time his contract was terminated, he was told that he would receive $10,800 in U.S. money prior to leaving the Maldives.
[4] The Applicant testified that he was arrested one week after his return to Sri Lanka. The Board states at page 2 of its reasons:
He further claims that he was released the next day "with the condition that I must obtain a National Identify Card (NIC) and produce the same at Kotahena police station." The principal male claimant did obtain his NIC, but he claims that he had to spend a lot of money to get it. After all the difficulties the claimants faced in Colombo, they allege that they decided to return to Jaffna.
The Board then states at page 3:
After carefully considering the claimants' evidence the panel finds that the claimants did not provide sufficient credible or trustworthy evidence upon which to base a positive determination in their claims to Convention refugee status. The panel has reached this decision for the following reasons.
The principal male claimant presented two national identity cards (NIC). The first shows a date of issue of October 28, 1981, and a residence address of 1140 Kaladdy, Karaveddy West. The second NIC shows a date of issue of December 17, 1998, and a residence address of 49/1Jinananda Mawatte, Colombo 13. When counsel asked the claimant if he was safer in Sri Lanka and Colombo because he had a NIC with a Colombo address, the claimant stated that he had more problems with an NIC with a Colombo address because he was constantly asked how he had obtained it. According to the principal male claimant's PIF, he had to obtain his Colombo NIC.
As I couldn't renew my contract of employment, hesitantly, I came back to Sri Lanka in November 1998. A policeman on duty at the airport snatched my gold chain from my neck before allowing me to leave the airport premises. Within one week of my arrival, I got arrested. I was virtually grilled on mere suspicion of being a supporter for the LTTE, making a false allegation that I was providing financial support for the LTTE from Maldives. I was released on the following day with the condition that I must obtain a National Identity Card (NIC) and produce the same at Kotahena police station. I had to spend a lot of money to get the NIC without delay.
The claimant's explanation of how and why he obtained his NIC with a Colombo address is not consistent with the documentary evidence before the panel.
[5] The Board's reasons do not indicate that there were any references to the issue of bribery in the documentary evidence before the Board. Instead, the Board sets out the process whereby an NIC is usually obtained and makes the following comments:
The documentary evidence also states that in order to get a new NIC with a new residence one has to establish that they have obtained a permanent residence in a new location.
[6] At page 5, the Board then goes on to cite the observations of the Refugee Claim Officer (RCO):
In his observations, the Refugee Claim Officer (RCO) stated that it is extremely difficult to get an NIC with a Colombo address. This is supported by several documentary sources.
[7] The Board then concludes:
Given the foregoing documentary evidence, the panel finds that the principal male claimant's evidence that he obtained his NIC with a Colombo address, shortly after his long absence from Sri Lanka, by merely "spending a lot of money" is not consistent with the documentary evidence before the panel.
The principal male claimant presents this NIC as a genuine document. In order for the claimant to have obtained this document, according to the evidence before the panel, he would have had to establish, to the satisfaction of the Sri Lankan authorities, that his permanent residence is in Colombo. It is reasonable to infer then that the claimants are, in fact, permanent Colombo residents.
[8] The Board states that other documents support this finding. However, the Board, as stated earlier, does not at any place discuss any documentary evidence concerning the issue of bribery. According to both counsel, none of the documentary evidence before the Board contained information concerning bribery. At minimum, the Board is required to indicate (in at least one sentence) why it preferred the documentary evidence over the applicant's testimony regarding the bribery issue. I note that the evidence that the Board relied upon appears to support, rather than contradict, the applicant's testimony. That is, the evidence to the effect that it is difficult to obtain an NIC tends to support the claim that the applicant was forced to bribe officials to obtain his NIC. The Board's reasons must indicate how it reached the conclusion that it preferred documentary evidence over the applicant's testimony.
[9] At the hearing, the Board did not refer to any of the documentary evidence which it claims shows that the principal male applicant did not obtain his NIC by bribery. The only reference to bribery is found in the RCO's observations at the end of the hearing, after all the evidence is in. The RCO refers to a Ministry of Defence document which lists the applicant's mother-in-law as the chief occupant at the address shown on the NIC. That same Ministry of Defence document shows the male applicant as a resident of Colombo at a different address from that of the mother-in-law (and from that shown on his NIC). The RCO stated that this might cloud the applicant's explanation that he obtained his NIC through bribery. The Board does not comment on how this documentary evidence clouds the applicant's explanation that he obtained his NIC through bribery.
[10] Furthermore, the failure of the Board members to question the applicant on the documentary evidence which they felt contradicted his testimony that he obtained his NIC card by bribery is particularly important in light of the RCO's comments regarding the male applicant's credibility. The RCO stated:
With respect to credibility, if the panel accepts the claimant's explanations for the replacement National Identity card, I don't believe there will be too much concern in the area of credibility.
[11] The applicant was straightforward when giving his testimony. There didn't seem to be any inconsistencies between his oral and written testimony. When there were areas of concern, he certainly was able to provide an explanation to the point where the panel might find that his explanations were reasonable and plausible under the circumstances.
[12] This is particularly important where the Board does not discuss any analysis of the bribery concern. As a result of the findings with respect to the NIC card, the Board makes other credibility findings with reference to the documentary evidence and concludes at page 9:
Taking all of the foregoing negative credibility findings into consideration, the panel concludes that the claimants did not present sufficient credible or trustworthy evidence upon which to base their claims to Convention refugee status.
[13] In my view, it is certainly possible in some cases that the Board might prefer documentary evidence over the testimony of an applicant. However, documentary evidence in itself does not justify finding a lack of credibility in the applicant in a general sense. This is a reversible error which demands a return of this matter to a differently constituted board for redetermination in a manner not inconsistent with these reasons. The Board must address the question of why, in its view, the documentary evidence does address the subject of bribery. The Board must at least provide a brief analysis of the issue of bribery, instead of merely stating its conclusions on this matter. In this instance, a finding of general lack of credibility contravenes the principle of fairness.
[14] I must look briefly at the question of re-availment. At pages 9-10 of its reasons, the Board found that after the applicants started working in the Maldives:
[t]he principal male claimant returned to Sri Lanka on two separate occasions, in April 1997 for three months, and in November 1998. The principal female claimant returned to Sri Lanka on one occasion, January 1998. On each occasion, the principal claimants re-availed themselves of the protection of the Sri Lanka authorities. The claimants' return to Sri Lanka, after alleging that they had experienced past human rights abuses and, hence, that they feared persecutory treatment should they return, belies their claim to having a well-founded fear of persecution should they return to Sri Lanka today. The principal male claimant's explanation for returning to Sri Lanka in 1997 was to get married and to visit his parents. The principal female claimant's explanation for returning to Sri Lanka was to be with her mother and family, during her period of confinement, and because of the superior medical facilities in Colombo, Sri Lanka, compared to the Maldives. The principal female claimant also testified that she had a breach birth and the surgery could only be done in Colombo. The principal male claimant's explanation for why he returned to Sri Lanka in 1998 was because his work permit/visa had expired. He stated that he received his termination and could no longer stay in the Maldives. However, it is interesting to note that the letter provided by the principal male claimant's employer in the Maldives does not mention that his employment contract is not being renewed, or that he is being terminated, laid off, and so on. It merely states that the claimant is leaving Hummingbird Island Maldives Airways on November 10, 1998. The letter from the principal male claimant's employer does not, in fact, corroborate the principal male claimant's testimony for why he could not stay in the Maldives.
[15] I have some problem with this reasoning by the Board because the letter of termination also provided for a payment of U.S.$10,800. I do not think a payment of this amount is likely to have been paid if the person had not been terminated.
[16] At pages 10-11, the Board goes on to state:
The panel can not [sic] accept the claimants' explanations for why they would return to Sri Lanka. Counsel submits that the claimants' only options were to return to Sri Lanka. The panel does not accept counsel's submission on point. The claimants could very well have pursued other possibilities rather than return to a country where they claim they fear persecution. The fact that the claimants re-availed themselves of their country's protection does not support their claims to a subjectively well-founded fear of persecution in Sri Lanka. This also further supports the panel's conclusions that the claimants did not present sufficient credible or trustworthy evidence upon which to base a positive determination in their claims to refugee status.
I note that the U.S.$10, 800 payment might be relevant to the question of whether or not the applicant had any alternative option to that of returning to Sri Lanka. However, I make no finding in this respect.
[17] Although counsel for the respondent makes a very able argument, many of these are based on evidence which was not referred to by the Board. I am unable to determine whether the re-availment argument should succeed or not because the Board has not indicated whether the 1991 incident of arrest was sufficient to constitute persecution. It appears that the applicants' main claims with respect to persecution seem to pre-date to the time after they had returned to Sri Lanka in 1998. Subsequent persecution after re-availment does not preclude a person from making a claim for refugee status without being faced with the re-availment argument.
[18] The applicants' counsel made submissions with respect to other credibility and factual findings by the Board based on documentary evidence, such as whether there were peaceful locations in southern Sri Lanka to which the applicants could have gone after their persecution in 1998, and also on the question of credibility with regard to the fact that the military defence document referred to the applicant as being a permanent resident of Sri Lanka in 1997. There are also questions with respect to the plausibility findings regarding the return of the applicants to the north, their residence in Colombo and the death of the female applicant's father. Since a new Board will be looking at these matters, I have not made any detailed findings in this respect.
[19] The application for judicial review is granted. The matter shall be returned to a differently constituted Board for redetermination in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
MARCH 30, 2001
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