Kamalanathan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 553

Date: 20010530

Docket: IMM-447-00

Neutral Citation: 2001 FCT 553

Ottawa, Ontario, this 30th day of May, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

RASAIAH KAMALANATHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated January 13, 2000, of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). In its decision, the Board determined the applicant not to be a Convention refugee.

[2]                The applicant seeks an order setting aside the above decision and referring the matter to a newly constituted Board for redetermination.

Background Facts

[3]                The applicant, Rasaiah Kamalanathan, is a citizen of Sri Lanka who entered Canada and made a refugee claim on January 19, 1999. The applicant's claim was heard August 27, 1999 and September 27, 1999. The Board summarized the claimant's allegations as follows:

The claimant, who was born in Jaffna, went to Colombo in January 1968 to work in his uncle's store. In August 1977, the shop was looted during a riot, following which the claimant returned to Jaffna. In November 1977, he returned to Colombo. In July 1983, his uncle's shop was again looted and because of continuing problems faced by Tamils, the claimant and his uncle went to Jaffna in August 1983. In January 1984, the claimant and his uncle opened up a business in Jaffna. In October 1987, this business was looted by the IPKF, was closed and was reopened in January 1988. In April 1989, the claimant took control of the business and between then and 1989 was forced to give provisions to EPRLF and IPKF soldiers and in December 1989 was forced to give extortion money to the LTTE.

In May 1990, the claimant was taken to work for the LTTE. He was detained for four days and released upon the payment of 100,000 rupees. During the detention, he was assaulted and accused of being an EPRLF spy. In October 1991, the claimant's home was destroyed by soldiers.

In July 1994, the LTTE again extorted money from the claimant and in August 1995 when he refused to pay more money, he was detained for three days. His release was effected upon payment of 60,000 rupees and jewellery.

At the end of October 1995, the claimant and his mother went to Chavukachcheri and in April 1996 the army forced them to return to Jaffna. Again, his shop was looted, closed, and reopened in September 1996.

In 1997 and 1998, he was assaulted at least five to six times by the Army. In the first week of July 1998, the LTTE again took money from the claimant's store and threatened to return for more. The claimant fled to Colombo in August 1998. On November 16, 1998, the claimant was detained for two days in Colombo under suspicion of supporting the LTTE.

On December 21, 1998, he was again arrested by the police. He was detained for one day and released upon payment of 15,000 rupees.

[4]                The Board found him not to be credible. The applicant indicated on his Personal Information Form (PIF) that he had a "husband and a son" and that he had relatives claiming refugee status in Canada. The applicant is single and without children. The applicant made corrections to these errors at the hearing by replacing husband and son with mother and father and by indicating that he did not have any relatives claiming refugee status in Canada. The Board did not accept his explanations as to why he initially provided this information on his PIF. The Board also did not find him credible regarding his experiences between April, 1996 and August, 1998. In finding the applicant not to be a Convention refugee, the Board stated:

The panel has determined that Mr. Rasaiah KAMALANATHAN has not provided trustworthy evidence upon which the panel could find him to be a "Convention refugee" pursuant to Article 2(1) of the Immigration Act.

Issues

[5]                1.         Did the Board err in finding that the applicant did not have a fear of

persecution in Sri Lanka due to changes that he made in his Personal Information Form (PIF)?

2.          Did the Board err by failing to consider whether the applicant had a

prospective fear of persecution should he return to Sri Lanka?

Appplicant's Submissions

[6]                Did the Board err in finding the applicant did not have a fear of persecution in Sri Lanka because he made some changes in his PIF?

Biographical Data on the PIF

The applicant submits the Board's conclusions on this point are speculative and harsh. The applicant argues he is not an educated person and does not understand English. He further argues it is not uncommon for a refugee claimant to focus on the narrative portion of the PIF rather than the biographical data. Such mistakes as those made by the applicant are very common, in his submission. Moreover, the applicant submits such mistakes do not have any relevance or bearing upon his refugee claim.

[7]                Did the Board err by failing to consider whether the applicant had a prospective fear of persecution should he return to Sri Lanka?

The applicant argues the definition of "Convention refugee" is forward looking and suggests that it is likely (given his profile of being a Tamil from the North) that he would be rearrested and detained by the Sri Lankan Army and the LTTE if he returned. The applicant contends the issue of credibility alone is not determinative of whether he is a Convention refugee. The Board accepted that he was a Tamil from the North. The applicant submits the Board cannot ignore evidence demonstrating the persecution to which the Tamil from the North are subjected to in Sri Lanka. As such, even if the Board found him not credible and rejected his account of what happened, the applicant submits the Board must still consider whether he had a well-founded fear of persecution: Sooriyakumar v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 956, IMM-972-94 (June 16, 1995) (F.C.T.D.).

[8]                The applicant also refers to Mahanandan v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1228, A-608-91 (August 24, 1994) (F.C.A.) where Isaac C.J. wrote at paragraph 8:

Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.

[9]                Given the circumstances of this case, the applicant submits the Board erred in not addressing the ample documentary evidence emanating from sources other than his testimony that confirms the risks facing Tamil men in Sri Lanka. The Board thus failed to determine whether the applicant had a reasonable fear of persecution.

[10]            The applicant also directs the Court's attention to Burgos-Rojas v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 157 (F.C.T.D.), where the Court held at page 159:

Therefore, even if the Board found that the applicant was not credible and rejected his account of what happened to him in Chile, it still had to consider the question of whether the applicant had a well-founded fear of persecution in Chile as a result of his sexual orientation.

. . .

There was ample documentary evidence to support the applicant's allegations that in Chile gay men are persecuted and in some cases incarcerated. The tribunal failed to determine whether or not, the applicant had a reasonable fear of persecution if he returned to Chile.

This is an error of law and the matter is hereby returned for a rehearing by a newly constituted panel.

[11]            In his memorandum of argument the applicant refers to passages from two reports before the Board to demonstrate that there was ample documentary evidence to support his claim of persecution if he were to return to Sri Lanka. In not considering the documentary evidence led by counsel and the RCO at the hearing, the Board ignored relevant evidence on the record. The applicant submits this failure is a reviewable error and offers the following from Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 at 113 (F.C.A.) in support thereof:

The failure to take account of material evidence has been variously characterized by this Court in allowing s. 28 applications. In Toro v. M.E.I., [1981] 1 F.C. 652, my brother Heald, for the Court, said:

It appears therefore that the Board, in making its decision, has not had regard to the totality of the evidence properly before it

It has therefore erred in law.

[12]            The applicant also refers to Padda v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1866, IMM-671-94 (December 6, 1994) (F.C.T.D.):

The applicant submits that the Board, in the statements noted above, erred in law by ignoring documentary evidence submitted by the Refugee Hearing Officer (R.H.O.). I agree with that assertion. Although there was evidence before the Board that conditions for Sikhs outside the Punjab are not generally hostile, there was also evidence that some Sikhs have been targets of violence. Specifically, the document, India: Sikhs Outside Punjab (Research Directorate; Documentation, Information, and Research Branch; Immigration and Refugee Board, Ottawa: December 1992) stated that "young Sikh male students who advocate the establishment of Khalistan or who protest publicly against the government of India may be unsafe anywhere in India, especially if they have drawn attention to themselves by holding marches or writing anti-government statements."

Although the Board is entitled to consider and weigh the evidence, it cannot ignore evidence. The respondent submits that this Court should not interfere with the Refugee Division's weighting of the evidence. I agree. However, there is no question that this Court should interfere when the Board fails to consider evidence that directly and explicitly contradicts its findings. Not to consider the totality of evidence is an error of law.

[13]            Given all of the above mentioned circumstances, the applicant submits it would not be reasonable for him to seek refuge either within or outside Jaffna. Therefore, the applicant submits the threshold of reasonableness mandated in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) has not been met.

Respondent's Submissions

[14]            Credibility Findings

Assessment of the applicant's personal credibility is crucial to the Board's decision-making function. Furthermore, the respondent submits that questions of credibility and weight of evidence are within the jurisdiction of the Board as the trier of fact.

[15]            The respondent submits that given the seriousness of a refugee claim, the applicant had a responsibility to ensure the correctness of the information in his PIF. It is unreasonable, according to the respondent, to believe the applicant failed to detect the errors in his form since he had it translated back to him. Thus, the respondent argues it was reasonably open to the Board to question how and who initially provided the information.

[16]            The respondent further submits the applicant's PIF was only one factor which the Board relied on in finding him not credible. The applicant's medical report revealed an ancient fracture of the right arm and right leg, but no explanation was given by him as to the connection between the fractures and his claim. The Board also rejected the applicant's claims that groups tried to extort money from him since he was unable to identify any of those groups.

[17]            Sooriyakumar, supra is distinguishable from the case at bar according to the respondent. The Court found in Sooriyakumar that there was insufficient or no evidence, to justify the Board's conclusions. In the present case, the respondent submits the Board's conclusions were supported on the facts as found in the oral testimony of the applicant and the documentary evidence before it. The Court, in the respondent's submission, should be less inclined to interfere where the Board makes a finding regarding credibility of a witness. Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; Leung v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 685, A-756-91 (July 8, 1993) (F.C.A.) and Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385, T-1986-92 (March 16, 1993) (F.C.T.D.) are offered in support of this submission.

[18]            Ignoring Evidence

The PIF outlines the basis of the applicant's claim to refugee status and, in the respondent's submission, there is no indication in it that the applicant's claim is simply based upon his status as a male Tamil living in Sri Lanka. Rather, the claim is based upon the specific incidents outlined in the PIF, incidents found not credible by the Board. Moreover, the respondent submits there is no evidence in the applicant's affidavit that a claim based upon membership in a particular social group was advanced at the hearing.

[19]            The respondent submits the Board stated in its reasons that the claim was based upon the applicant's political opinion, that is, that the authorities would believe he supported the Tamil Tigers and, hence, be subjected to persecutory treatment. However, as the Board found the evidence of imputed political opinion not credible, the applicant failed to support his claim. The respondent submits the applicant cannot now advance a claim based on his status as a male Tamil when such a position was not advanced before the Board itself.

[20]            In the alternative, the respondent argues the documents relied upon by the applicant do not support an argument that all Tamil males are subject to persecutory treatment in Sri Lanka. One of these reports refers to the treatment of young Tamils. The respondent submits the applicant, at age 49, clearly does not fall within this category. Furthermore, the respondent submits the treatment is described in the documents as harassment as opposed to persecution. One of the documents refers to treatment of Tamils by the LTTE, however the respondent submits the Board did not find credible the applicant's evidence of treatment by the LTTE. According to the respondent, it is not now open to the applicant to argue he is nevertheless at risk. If the applicant was at risk by the Tamil Tigers, the respondent submits the onus was upon him to advance credible evidence of this risk at the hearing. The applicant failed to provide credible evidence linking him to the evidence contained in the documents.

[21]            One of the documents relied upon by the applicant addresses the situation of Tamils suspected of involvement with the LTTE. The respondent submits the Board found no credible evidence that the applicant was under this suspicion and as such, this documentation does not apply to him. Moreover, the respondent argues the evidence which the applicant did present concerning his treatment in Colombo was not similar to that described in the documents. The applicant was not tortured in custody, but held for a couple of days and then released upon a bribe. Therefore, the respondent submits the Board did not ignore evidence which supported the applicant's claim. Moreover, although there exists an obligation to consider all the relevant evidence, there is no duty for the Board to discuss or refer to every piece of evidence considered in coming to its conclusion.

[22]            Absent a perverse or capricious finding of fact that is central to the Board's decision, the Court should not interfere with its finding. Even if the Board made a perverse or capricious finding of fact, the respondent submits it is only peripheral to its reasoning and would not change the ultimate finding that the applicant is not a Convention refugee.

Relevant Statutory Provisions

[23]            The definition of "Convention refugee" under the provision of the Immigration Act is:

Analysis and Decision

[24]            I propose to deal first with Issue 2.

Did the Board err by failing to consider whether the applicant had a

prospective fear of persecution should he return to Sri Lanka?

The Board has clearly not accepted the credibility of the applicant. The whole decision deals solely with the credibility of the applicant's evidence and in fact, the only conclusion of the Board was:

The panel has determined that Mr. Rasaiah KAMALANATHAN has not provided trustworthy evidence upon which the panel could find him to be a "Convention refugee" pursuant to Article 2(1) of the Immigration Act.

This certainly is a finding that the Board was entitled to make, but that should not have been the end of the matter as there was other documentary evidence before the Board which was not considered.

[25]            This Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (F.C.T.D.) at page 132 stated:

Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.

This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.

I am of the view that the Board should have considered the independent documentary evidence before it which states that certain Tamil males from the North face persecution. This evidence should have been considered in order to determine whether or not the applicant was a member of the class of Tamil males referred to therein. That evidence may have established a well-founded fear of persecution on the applicant's behalf or it may not have. The important point is that the panel should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. In my opinion, the Board committed an error of law by failing to do so and its decision must be set aside.

[26]            The application for judicial review is granted and the matter is referred to different panel of the Board for redetermination.

[27]            Because of my disposition of Issue 2, it is not necessary to deal with Issue 1.

[28]            Neither party wished to certify a serious question of general importance.

ORDER

[29]            IT IS ORDERED that the application for judicial review is allowed and the matter is to be referred to a different panel of the Board for redetermination.

                                                                               "John A. O'Keefe"              

                                                                                               J.F.C.C.                     

Ottawa, Ontario

May 30, 2001