Date: 20030218
Docket: IMM-1658-02
Neutral Citation: 2003 FCT 194
Toronto, Ontario, Tuesday the 18th day of February, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JOSEPH CHELLIAH KINGSLEY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated March 21, 2001, wherein the CRDD determined that the Applicant is not a Convention refugee.
[2] The Applicant is a citizen of Sri Lanka. He claims a well-founded fear of persecution based on his ethnicity as a Tamil from northern Sri Lanka. Specifically, the Applicant claims a fear of persecution at the hands of the Liberation Tamil Tigers of Eelam (LTTE).
[3] In his PIF and testimony, the Applicant recounted numerous incidents of persecution that he had suffered at the hands of the LTTE. The Applicant had travelled to Saudi Arabia and worked there from 1993 until 1997. He claims that upon his return, he resided in Vavuniya, where he was arrested in 1998 and 1999 on suspicion of being a supporter of the LTTE. He claims that the army interrogated him and tortured him on numerous occasions. Finally, in October 2000, he claims that he was arrested in Colombo and tortured. He fled the country through the assistance of a smuggler on October 17, 2000, and arrived in Canada in December 2000. The Applicant filed a refugee claim immediately upon arrival.
[4] The CRDD expressed significant concerns about the Applicant's credibility. While the CRDD accepted that the Applicant was a Tamil from Northern Sri Lanka, it had concerns about whether he was a recent resident of the North. Though he claimed to be a recent resident of Vavuniya, the CRDD found that he lacked knowledge of the area. The CRDD stated the following:
We do not find that the claimant is credible or trustworthy. We accept that he was born in the north of Sri Lanka and spent some time there. We accept that he was in Saudi Arabia between 1993 and 1997. Other than that we have no idea where he has been, however, we do find as a fact that wherever he has been, it is somewhere other than Vavuniya. (Applicant's Application Record, p. 13)[Emphasis added]
[5] While the CRDD did not believe the Applicant's evidence with respect to persecution in Vavuniya, it is agreed that the CRDD found that he had travelled to Sri Lanka, and upon leaving Sri Lanka he immediately travelled to Canada. Therefore, the important evidentiary issue left before the CRDD was what to do with the evidence of persecution in Colombo.
[6] The Applicant gave a detailed account both in his PIF and during the hearing before the CRDD of the torture he suffered at the hands of the army in Colombo. The Applicant submits that the medical evidence, which indicates that the injuries are compatible with the experience of torture claimed by the Applicant, should have been believed and given weight.
[7] The medical evidence with respect to his injuries is as follows:
Mr. Kingsley stated that while he was in Sri Lanka he was arrested and tortured by the Sri Lankan Army. He described how he was beaten with plastic pipes and iron rods. He stated that he was also burnt with cigarette butts. He went on to describe how the Sri Lanken Army tortured him by covering his whole head in a bag filled with chilli. He described the excruciating pain from chilli burn in his eyes. He later escaped from Sri Lanka and arrived in Canada on November 2, 2000.
Examination on March 15, 2001 revealed a 32 year old man in moderate distress. He was obviously very nervous. There were multiple round scars on his forearms, arms, chest, and back. These scars were 1 to 2 cm in diameter. These wounds were rough and hard with round borders which were well demarcated. These wounds are compatible with thermal burns and most of them were in all probability third degree burns involving soft tissues damage well beneath the dermis. Mr. Kingsley stated that these were caused by cigarette burns. There were multiple linear scars on his back, left leg and ankle. These scars are compatible with wounds inflicted by beating with a rod shaped object. Mr. Kingsley stated that these were results of his being beaten with iron rods and plastic pipes. Mr. Kingsley also had multiple joint pain and chest wall pain. Neurological examination did not reveal any focal deficit. His blood pressure was normal 140/80. His heart rate was fast at 100 beats per minute. This was in all probability due to anxiety as Mr. Kingsley was exhibiting emotion stress when he was asked to describe his experience of torture. The rest of the physical examination was essentially unremarkable.
Opinion: The pattern and severity of Mr. Kingsley's scars together with his emotional reactions are compatible with his stated experience of the torture.
(Tribunal Record, pp. 37-38)
[8] With respect to the Colombo element of the Applicant's claim of persecution, the CRDD found as follows:
We accept that the findings made in the medical report and we find that he claimant suffers from problems including chest wall costochondritis and multiple round scars on his forearms, arms, chest and back. He also has multiple linear scars on his back, left leg and ankle. He attended at a physician in Canada on the fourth day after his arrival in Canada. In his photographs apparently taken shortly after arrival it was observed by the Refugee Claim Officer that some wounds were fresh looking: appearing to be red and having scabs on the wounds.
Although the claimant has been wounded and sustained wounds just prior to entering Canada, we find, for all of the above reasons, that we do not have credible evidence as to how, or under what circumstances these wounds were sustained. Evidence of wounds is not evidence on its own of persecution experienced because of a Convention reason in any claim. Given the country condition evidence about Sri Lanka it is not reasonable to find solely because a Tamil man has wounds or scars that he has been an innocent victim of the government. Even taking into account the claimant's Post Traumatic Stress Disorder we do not find him to be a credible and trustworthy witness. (Applicant's Application Record, p. 13)
In my opinion, the CRDD's complete disregard of the Applicant's evidence of torture in light of the corroborating medical evidence renders the decision as patently unreasonable.
ORDER
Accordingly, the decision of the CRDD is set aside and the matter is referred back for redetermination by a differently constituted panel.
"Douglas R. Campbell"
____________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1658-02
STYLE OF CAUSE:JOSEPH CHELLIAH KINGSLEY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 18, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: TUESDAY, FEBRUARY 18, 2003
APPEARANCES BY: Mr. Kumar S. Srikanda
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Kumar S. Sriskanda
Barrister & Solicitor
209-3852 Finch Avenue East
Scarborough, Ontario
M1T 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030218
Docket: IMM-1658-02
BETWEEN:
JOSEPH CHELLIAH KINGSLEY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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