Navaratnam v. Canada (Minister of Citizenship and Immigration), docket IMM-1108-98

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docket IMM-1108-98

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Date: 19990108

Docket: IMM-1108-98

BETWEEN:

UTHAYAKYUMAR NAVARATNAM

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

REED J.

[1] The applicant seeks an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"). That decision found him not to be a convention refugee.

[2] The Board dismissed the applicant's claim because he "has not established that he is the person he claims to be". The Board's decision reads:

The claimant did not provide persuasive replies when questioned on significant aspects of the NIC [National Identity Card] and register of births. The panel expected more cogent explanations from someone with 13 years of education. He was unconvincing in explaining the numerical address on his NIC. He gave an implausible explanation when asked why the NIC indicated Chulipuram West while he testified that he lived in Chulipuram East. He provided an unpersuasive reply when asked why he had to leave the North while his brothers remained.

The panel is not persuaded by the claimant's explanation about the February 1997 date stamped on the birth register. He testified that this document was obtained after he arrived in Canada in July 1997. His explanation is not believed.

The panel finds insufficient reliable evidence to conclude that the NIC or the birth register are valid and are those of the claimant. The panel is left with insufficient reliable evidence that he is who he says he is or that he is even a Northern Tamil.

Not believing the claimant on the key issue of identity, the panel finds him not credible. Accordingly, the panel will not consider other issues identified at the outset of the hearing.

[3] At the hearing, the Board had questioned the applicant as to what his street address was and why he said he had lived in Chulipuram East when his National Identity Card indicated that he lived in Chulipuram West. The applicant had responded that there were no numbers on the houses in Chulipuram and he did not know what the number 1067 opposite the heading residence on his card signified. It is agreed that Chulipuram is a town not a street and that no street name appears on the card. The applicant said that the reference to Chulipuram West on the card was a mistake.

[4] In the case of this birth certificate, the Board asked the applicant how it could have been issued when he was in Canada, as he had asserted, when the date of issue on it was February 22, 1997, a time when he was still in Sri Lanka. Again he said it must be a mistake.

[5] Subsequent to the hearing, his then counsel had the documents in question reviewed more closely. It was discovered that the National Identity Card, which is written in both Tamil and Sinhala, showed the applicant's place of residence in Tamil as Chulipuram West, but in Sinhala as Chulipuram East. The first translation, and that relied upon by everyone at the Board hearing, had only translated the Tamil. In reviewing the birth register document, it was noted that while the translation was written in English as February 22, 1997, on the actual document the name of the month was not written out, the date was given by a series of numbers "22.?.97". The number of the month, which I have designated by a question mark, is obscured by an overstamp and counsel for the applicant argued that when it is examined carefully it appears the number is an 8. If the number is 8 then the document would have been issued in August, consistent with the applicant's assertion that it was issued after he left Sri Lanka.

[6] The applicant's counsel applied to the Board for a reopening of the applicant's hearing. The Board rejected the request stating that "the date on the back of the birth register is clearly February 22, 1997". Also, the Board, when describing in its reasons the evidence that had been before it, stated "post-hearing, counsel provided the actual NIC and an original certified copy of the birth register". Counsel did not provide the original certified copy of the birth register. He sent a photocopy. (The original had, at an earlier time, been in the Board office but by this time had been returned to counsel. It had not been before the panel at the hearing of the applicant's claim and was in the hands of counsel when he brought his motion to reopen the hearing.) Thus, the Board appears to have thought it had the original before it when it did not. What is more, it is very difficult to conclude that the date on the photocopies is clearly February 22, 1997.

[7] The applicant's argument is that since the Board's decision was so heavily focussed on the alleged inconsistencies between the applicant's oral testimony and the information on the two identity cards, the applicant should have been given an opportunity to answer those concerns in person; the Board should have examined the original of the birth register in the presence of the applicant and his counsel to see whether confusion had arisen as a result of relying on a photocopy. Also, it is not clear why the applicant's explanation that the reference to Chulipuram West was a mistake was an implausible explanation when further evidence was presented showing that there was a difference on the card between the Tamil and Sinhala descriptions of the place of residence. Sinhala is the language of the administration in Colombo, and that version accorded with the applicant's oral evidence. Counsel also notes that the reference to the applicant's brothers remaining in the north does not really relate to the question of identity but to the question of the well-foundedness of the applicant's fear, an issue the Board never addressed.

[8] Counsel for the respondent argues that the Board's decision was based on broader grounds than merely the points identified above, that it was based on the finding that the applicant had not provided reliable evidence of his identity, that the burden of doing so is on him, that he demonstrated such unfamiliarity with the documents that the Board was justified in reaching the conclusion it did, and that he appears to have agreed with the Board that the date of issue on his birth certificate is February 22.

[9] I conclude that the Board's decision should be set aside and the applicant's claim referred back for rehearing. The Board based its decision on the alleged failure of the applicant to prove his identity. That conclusion was based, except for the reference to his brothers, on the evidence concerning his place of residence in Sri Lanka and the date of issue of his birth certificate. In the light of the post hearing evidence, the hearing should have been reopened to allow the applicant to address these issues further, and the Board should have inspected the original of the birth certificate.

"B. Reed"

Judge

TORONTO, ONTARIO

January 8, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-1108-98

STYLE OF CAUSE: UTHAYAKYUMAR NAVARATNAM

and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: THURSDAY, JANUARY 7, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: REED, J.

DATED: FRIDAY, JANUARY 8, 1999

APPEARANCES: Mr. Michael Crane

For the Applicant

Mr. Godwin Friday

For the Respondent

SOLICITORS OF RECORD: Michael T. Crane

Barrister & Solicitor

200 - 166 Pearl St.

Toronto, Ontario

M5H 1L3