Nagarajan v. Canada (Minister of Citizenship and Immigration), 2006 FC 526

Date: 20060426

Docket: IMM-4664-05

Citation: 2006 FC 526

Ottawa, Ontario, April 26, 2006

PRESENT:      The Honourable Mr. Justice Phelan

BETWEEN:

KAJENTHIRAN NAGARAJAN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]                The Applicant is a 25-year-old male Tamil from northern Sri Lanka. He sought refugee status on the basis of his perceived political opinion, nationality, and membership in a particular social group. He claimed fear of the LTTE (Liberation Tigers for Tamil Eelam), the Sri Lankan army, the Sri Lankan police, and the Eelam People's Democratic Party (EPDP) - a party opposed to the LTTE.

[2]                The Applicant claimed, as part of his overall claim, that the LTTE had given him pamphlets and had demanded that he distribute them. He said that he was also forced to participate in a LTTE Heroes Day celebration. Finally, while he denied being a LTTE supporter, he said that these activities were known to the army and the EPDP.

[3]                The IRB Panel Member made two key findings; (a) that the Applicant's story lacked credibility and (b) that there was no documentary evidence that the army was targeting the LTTE, its members, supporters, or political workers for political activity or for distributing LTTE flyers or pamphlets.

[4]                Since this decision must be quashed for other reasons, I will refrain from commenting on the credibility findings except in regard to the scope and application of Justice Campbell's comments in El Moussa v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 259 (QL); 2005 FC 217. There is some suggestion that the case stands for the proposition that the absence of documentary evidence confirming the occurrence of an alleged persecutory event could not be the sole basis upon which to find that the said event did not occur.

[5]                I do not understand Justice Campbell's decision to establish any such universal proposition of law, and if it did, I would respectfully disagree. Too much turns on the nature of the documentary evidence, its specifics and reliability and the nature of an applicant's evidence to make any such sweeping statement. The best that can be said is that the absence of corrobative documentary evidence may, but does not automatically, call an applicant's credibility into question.

[6]                However, the fatal flaw in the IRB's decision is the finding that there was no documentary evidence that the army was targeting the LTTE, its members, supporters, or political workers for political activity or for distributing LTTE flyers or pamphlets. While the last part of the statement is true - there was nothing specifically about pamphlets and flyers - the first part is not accurate.

[7]                It may be due to unfortunate phrasing or that the IRB was focused on the pamphlet/flyer matter but it is not possible to make that determination. The result of the IRB's comment is too important to be left in doubt. The impugned statement is contradicted by a significant number of reports and statements to the contrary. On that basis, the finding is patently unreasonable and on a matter critical to the IRB's decision.

[8]                Therefore, this judicial review will be granted, the IRB's decision quashed, and the matter remitted to a new panel for a new determination of the claim.

[9]                The Court appreciates the forthrightness, candor, and quality of the submissions by both counsel.

[10]            There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review will be granted, the decision of the IRB quashed and the matter remitted to a new panel for a new determination of the claim.

"Michael L. Phelan"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-4664-05

STYLE OF CAUSE:                           KAJENTHIRAN NAGARAJAN

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 21, 2006

REASONS FOR ORDER:                Phelan J.

DATED:                                              April 26, 2006

APPEARANCES:

SOLICITORS OF RECORD: