Date: 20070222
Docket: IMM-1599-06
Citation: 2007 FC 194
Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BOLENTHIRAN NAKALINKAM
CHUKANTHINI BOLENTHIRAN
KIRUSHAN BOLENTHIRAN
JANETIKA BOLENTHIRAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
It
is for the Board as a specialized tribunal to decide to which piece of evidence
to give greater or lesser credence; and, at the very least, when the evidentiary
sources are contradictory, a distillation of information with a clarity of
manifested reflection is required. An inherent logic (inherent to the logic of
the Board, as a specialized tribunal, not necessarily to that of the Court)
must prevail so as to show a standard of a degree of reason. Although certain
decisions appear to the Court to be wise and others to be otherwise, the latter
category are not necessarily patently unreasonable as long as a line of
inherent logic prevails; if no line of inherent logic prevails, then the
decision is patently unreasonable.
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review from a decision of the Immigration and
Refugee Board (Board), dated February 23, 2006, wherein the Board, determined
that the Applicants were not Convention refugees or persons in need of
protection, pursuant to s. 96 and subsection 97(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
BACKGROUND
[3]
The
Applicants are Tamils from Jaffna, Sri Lanka. They were forced to do work
for the Liberation Tigers of Tamil Eelam (LTTE). They were arrested several
times by the army. As a result, they were harassed by the LTTE as they believed
that they were acting as informants against them. The principal male Applicant
was forced to pay extortion money to the LTTE. As a result of continuous harassment
by the LTTE and the Eelam Peoples Democratic Party (EPDP), the Applicants fled
the area in September 2004 and went to Colombo. While
waiting to leave the country, the police arrested them as they were suspected
of assisting the LTTE. They were beaten and interrogated and released two days
later upon payment of a bribe. (Reasons and Affidavit of Applicant, Exhibit
“A”, Personal Information Form (PIF) narrative).
[4]
The
Board ruled that the Applicants’ claim lacked credibility and that it could not
determine if they were in the country at the time of persecution.
STANDARD OF REVIEW
[5]
In
what concerns questions of credibility, the proper standard of review is patent
unreasonableness.
ISSUE
[6]
Did
the Board err in its credibility assessment?
ANALYSIS
Ten year
validity of Identification Cards (ID) (Reasons, pp. 7-11)
[7]
The
Board determined that ID cards have a ten year validity and because the cards
were not renewed, the Applicants could not have been in the country at the
relevant time. (Reasons, pp. 8-10).
[8]
The
Board relied on documentary evidence to support its position. It relied on a
report by the government of Australia, dated June 5, 1996.
That document indicated that ID cards must be renewed every ten years. It
stated: “The ID card also provides a photograph of the card holder, and must be
renewed every ten years so that the photograph could accurately reflect the
holder’s appearance.” (Exhibit “C”, Response to Information Request Attachment,
p. 11).
[9]
The
source for this statement within the Australian document is footnote 20 of the
Board’s Reasons, which is a Response to Information Request dated, December 20,
1993. (Exhibit “C”, Response to Information Request Attachment).
[10]
The
Applicants submit that the Board relied on evidence that predates the hearing
by 13 years and therefore, cannot use that evidence to determine whether the
Applicants could have remained in the country in 2003 and 2004 with their ID
cards.
[11]
The
Australian report also contains other evidence on this point which the Board
ignored. Specifically, the report stated that the 10 year validity is under
review and that “many people do not renew their old cards.” (Exhibit “C”,
Response to Information Request Attachment, p. 10).
[12]
The
Board also ignored evidence in the report indicating that “It is possible, but
not common in practice, for ID cards to be updated.” (Exhibit “C”, Response to
Information Request Attachment, p. 11).
[13]
The
Board rejected the community worker’s evidence contained in the Australian
report which stated that the cards are not updated as it preferred another
source rather than the over the community worker specified in the Australian
report; since this was not the only evidence that contradicted the Board’s
position, the Board was obliged to assess all of the
evidence on this point. (Reasons, p. 11).
[14]
At
the very least, when evidentiary sources are contradictory, a distillation of
information with a clarity of manifested reflection is required. (Exhibit “C”,
Response to Information Request Attachment).
[15]
If
the Board’s position is accurate, citizens would actually renew their cards for
the purpose of being able to live in the country and to be identified, as such,
by officials. The Board simply assumed that the 10 year validity period was,
“for the obvious reason” owing to the “civil war”; therefore, the Board erred
in basing its conclusion on speculation and not evidence. (Reasons, p. 8).
[16]
Lastly,
the Board erred in confusing the 10 year validity period with the actual
practice in the country. There was no evidence that persons who failed to renew
their cards had any problems in their daily lives, and, in fact, evidence to
which reference is made indicates that most people failed to renew their cards.
[17]
The
Board reached a patently unreasonable finding that the lack of renewed cards
meant that the Applicants were not in the country and would not have been
arrested without their expired cards having given them problems. (Reasons, p.
9).
Birth
Certificates
[18]
Similarly,
the Board misconstrued evidence concerning the birth certificates. It
determined that: “It is noted that in both the case of the co-claimant and the
minor claimant Kirushan, these certificates were applied for and registered
after the claimants were in Canada. While in the case of the claimant, the
registration date was 1998, before the time he stated that the first arrest
took place.” (Reasons, p. 12).
[19]
The
Board erred in stating that the registration did not take place until after the
Applicants left Sri Lanka. The minor Kirushan’s birth certificate clearly
indicates that the registration took place in 1999. (Affidavit of Applicant,
Exhibit “B”, birth certificate).
[20]
The
Board misconstrued the date of the principal Applicant’s first arrest as being
in 1999. In fact, he was first arrested in 1996, thereby placing him in the
country prior to his birth certificate being issued in 1998. This is
significant, given the Board’s reliance on the timing of the registration of
the births to indicate that there was a lack of evidence that the Applicants
were in the country during the times they were persecuted. It stated that:
“Based on the documents presented, the claimants may have established that at
least the adult claimants were born in Sri Lanka and lived there
for some period of time, however, they have failed to establish that they were
in Sri
Lanka
at times material to their claim.” The evidence, in fact, shows that the
principal Applicant was in Sri Lanka after his first arrest.
(Affidavit of Applicant, Exhibit “B”, birth certificate and Reasons, p. 12).
[21]
The
Board also erred in finding that the co-claimant’s birth certificate was issued
after she left the country, as, in fact, it was registered in 1972. Although
the Applicants acknowledge that this has no bearing on its findings, it reveals
a pattern of misconstruing evidence. (Affidavit of Applicant, Exhibit “B”,
birth certificate and Reasons, p. 12).
Plausibility
of persons coming into shop
[22]
The
Board found it implausible that the army would detain the principal Applicant
simply because the LTTE came into the shop, based on the fact that this
occurred during the ceasefire, when travel restrictions had been lifted.
(Reasons, pp. 14-15).
[23]
The
Board misapprehended the issue. The question is not the lack of restrictions on
travel, but whether the attendance of the LTTE at the shop could reasonably
raise suspicions about the Applicant.
Plausibility
of arrests in Colombo
[24]
The
Board was concerned that the Applicants stated that they were arrested in Colombo after bomb
blasts and killings in 2004. (Reasons, pp. 14-15).
[25]
The
Board reasoned that Tamils were safe in Colombo as travel
restrictions had been lifted. It further indicated that the principal Applicant
gave wavering testimony as to whether it was the bombs or killings that led to
his arrest.
[26]
The
Board erred in ignoring documentation in evidence concerning bombing in July
2004 in Colombo. The
Applicant was approached at his shop in March 2004. The evidence indicates that
in July 2004, a suicide bomber killed herself and four police officers in Colombo. The
evidence further indicates that more violence took place in 2005 and that
“despite the ceasefire, hundreds of people have been killed and most of the
murders have been blamed on the Tigers and a rival faction”. (Affidavit of
Applicant, Exhibit “C”, news articles).
Reason for
not leaving sooner and for a fear of returning
[27]
The
Board then asked the Applicants why they feared returning and they stated that
war might break out. From this, the Board concluded that it was the fear of war
that had driven them out of the country and would have motivated them not to
return. The Board then determined that the Applicants share the same fear of
the general population and there is no basis for their refugee claims. (Reasons,
pp. 16-17).
[28]
The
Board misconstrued the Applicants’ testimony. The Applicants simply explained,
given their past experiences which included numerous arrests from 1997 until
2004, that the outbreak of war would put them at still further risk.
CONCLUSION
[29]
For
all the above reasons, the application for judicial review is granted.
JUDGMENT
THIS COURT ORDERS that
1. The
application for judicial review be allowed and the matter be remitted for
redetermination by a differently constituted panel;
2. No serious question of general importance
be certified.
“Michel M.J. Shore”
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