Chidambaram v. Canada (Minister of Citizenship and Immigration), 2003 FCT 66

Date: 20030123

Docket: IMM-1788-01

Neutral citation: 2003 FCT 66

BETWEEN:

                                                          ILANGO CHIDAMBARAM

                                                                                                                                                       Applicant

                                                                                 and

                                                                     THE MINISTER

                                             OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning given to that expression in subsection 2(1) of the Immigration Act^[1]. The decision under review is dated the 2^nd of March, 2001.

BACKGROUND

[2]                 The applicant is a Tamil from Sri Lanka who alleges that he was born in Kayts in the north of Sri Lanka and that he lived in the north of Sri Lanka for essentially all of his life before he left Sri Lanka in early August, 1999, arriving in Canada a few days after his leaving. Very shortly after arriving in Canada, the applicant claimed Convention refugee status on the basis that he feared persecution by reason of his nationality and imputed political opinion if he is required to return to Sri Lanka.

[3]                 The applicant's account of his difficulties, harassment and alleged persecution in the north of Sri Lanka between May of 1991 and the time he allegedly left the north in June of 1999 to travel to Colombo, leaving behind his spouse and a young daughter, is all too familiar and need not be recounted here. On his travels to Colombo, once again all too familiarly, he alleged he was detained by the Sri Lankan army in Vavuniya for slightly in excess of a month. He eventually reached Colombo where he registered with the police and stayed at a lodge. Once again all too familiarly, he was rounded up by police at the lodge where he was staying. He was interrogated, beaten and accused of being a Tamil Tiger. He was released on payment of a bribe and on condition that he leave Colombo immediately. Within days, he left Colombo to come to Canada.

THE DECISION UNDER REVIEW

[4]                 The decision denying the applicant's application for Convention refugee status turned essentially on a conclusion by the CRDD that the applicant had not established, on a balance of probabilities, "what is at the heart of his claim," that is to say, that he is from the north of Sri Lanka. The critical paragraphs of the CRDD's decision are the following:

In order to establish his identity, the claimant filed a birth certificate and a national identity card. Both documents were obtained after the claimant left Sri Lanka. He alleged that he left a signed form, his birth certificate and 20,000 rupees with his lodge owner in Colombo in order to obtain a new identity card. The card would then have been sent to him by the lodge owner through someone. The claimant alleged that he left his birth certificate with the lodge owner on August 3, 1999 and that he left Sri Lanka the next day. He was confronted with the fact that the birth certificate on file is dated August 24, 1999, to which he replied that it could have been obtained after and that it was mailed to him by the lodge owner.

The claimant had no idea why and how his birth certificate was obtained. He did not know what had happened to the original and he speculated that the lodge owner might have preferred not to keep it in the lodge in case police came; he said that the lodge owner told him that he had lost it. He agreed that birth certificates contain the application date on the left top corner and said that this one did, which was not the case. Furthermore, the documentary evidence is to the effect that, even though any one can apply to obtain a birth certificate, it must be done in the district where the birth took place, which does not appear to be the case.

The claimant was confronted with the documentary evidence to the effect that one must go in person to obtain a national identity card. He replied that he did not know about this and that he paid 20,000 rupees and was told it would be obtained. There are exceptions to the picking up of the national identity card in person but the Tribunal concludes, on a balance of probabilities, that the card filed by the claimant was not obtained in accordance with the process described in the documentary evidence. Furthermore, even though several features of the national identity card were in conformity with the description appearing in the documentary evidence, an important one was missing: under the emblem of Sri Lanka and under the date of issue on the front side and under all entries on the reverse side, there is no stroke line with small "Sri Lanka", as should appear on cards issued as of Autumn 1986, but merely a dotted line. The claimant maintained that the card was genuine but could not tell why he said that.

The Tribunal concludes that the claimant has not established, on a balance of probabilities, what is at the heart of his claim, namely that he is from Northern Sri Lanka.                                                                                                                                                                                                                                                        [citations omitted]

[5]                 Following the hearing before the CRDD, the applicant submitted his marriage certificate, and a birth certificate for his child.    The CRDD concluded that neither of such certificates was certified and it therefore gave no weight to those documents. At hearing before me, it was conceded that both documents were in fact certified.

[6]                 Finally, the CRDD determined that the applicant's testimony regarding arrangements made for him to leave Sri Lanka was "very confused" and that this confusion cast further doubt on the credibility of the applicant. Nonetheless, the CRDD determined that the applicant's confusion in respect of his arrangements for leaving Sri Lanka was not "central to the claim".

THE ISSUE

[7]                 Counsel for the applicant urged that only one issue arose on this application for judicial review, namely, whether the CRDD erred in law by making findings regarding the applicant's identity documents, namely, his birth certificate and his national identity card, without regard to the evidence before it.

ANALYSIS

[8]                 I am satisfied that the CRDD in fact erred in law by making findings regarding the applicant's birth certificate and national identity card without regard to the evidence before it.

[9]                 Counsel for the applicant conceded that the birth certificate produced to the CRDD did not contain the application date on the left top corner as noted by the CRDD. Counsel noted, however, that the CRDD cited no evidence to establish the importance of this omission. He urged that the birth certificate did indicate that it was issued in Jaffna, in the division Kayts, and that it was only the certification of the copy that was endorsed in Colombo.

[10]            In Ramalingam v. Canada (Minister of Citizenship and Immigration)^[2], Justice Dubé wrote at paragraphs [5] and [6] of his reasons:

... Moreover, identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise: See Gur, Jorge P. (1971), 1 I.A.C. 384 (I.A.B.). In that Immigration Appeal Board decision, the Chairman asked the following question at page 391:

"The question here is, who can question the validity of an act of state and who, having questioned it, has the burden of proof as to its validity, and what proof is required?"

He provided the right answer at page 392, as follows:

"Although there is almost no jurisprudence to be found bearing directly on the point, it must be held that an act of state - a passport or a certificate of identity - is prima facie valid. The recognition of the sovereignty of a foreign state over its citizens or nationals and the comity of nations make any other finding untenable. The maxim omnia praesumuntur rite et solemniter esse acta applies with particular force here, establishing a rebuttable presumption of validity."

In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitutes a reviewable error on the part of the Board.^[3]

I find Justice Dubé's analysis persuasive.

[11]            In relation to the national identity card produced on behalf of the applicant before the CRDD, the CRDD was correct in noting that there are exceptions to the general rule that "...one must go in person to obtain a national identity card." Those exceptions are noted at page 130 of the tribunal record. The CRDD provided no explanation whatsoever as to how or why it concluded one or more of those exceptions might not have applied in relation to the card in question.

[12]            Further, while the CRDD was apparently correct in identifying a security defect with respect to the national identity card^[4], it completely omitted to note the "General advice" appearing at the same page and the following page of the tribunal record. That "General advice" was in the following terms:

Care is recommended when analysing Sri Lankan identity cards, due to the different types. The fact that one of the listed marks of genuineness is missing does not necessarily point to the identity card having been forged. By the same token, the presence of one of the mentioned signs of forgery is not conclusive proof that the document has been forged. It is also to be noted that several signs of forgery are present in a forged document, as a rule...

[13]            Thus, given that the marriage certificate and birth certificate of his child produced by the applicant following the hearing before the CRDD were in fact certified copies, and given the foregoing weaknesses in the CRDD's principal analysis and finding, I am satisfied that the CRDD erred in failing to give any weight to the marriage certificate and birth certificate.

CONCLUSION

[14]            While the conclusion reached by the CRDD on this application for judicial review might well have been open to it on a more thorough analysis of the totality of the evidence before it, I am satisfied that the foregoing weaknesses in its reasons for decision, individually, and certainly collectively, are such that its decision was made in reviewable error and cannot stand. In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicant's application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

[15]            Neither counsel recommended certification of a question. I am satisfied that no serious issue of general importance arises out of this application. In the result, no question will be certified.

____________________________

     J. F.C.C.

Ottawa, Ontario

January 23, 2003

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-1788-01

STYLE OF CAUSE:              ILANGO CHIDAMBARAM

Applicant

                                                    - and-

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           THURSDAY, JANUARY 16, 2003

REASONS FOR ORDER BY:                       GIBSON, J.

DATED:                          THURSDAY, JANUARY 23, 2003

APPEARANCES BY:            

Mr. Michael F. Battista     For the Applicant

Mr. John Loncar          For the Respondent

SOLICITORS OF RECORD:                      

Michael F. Battista            For the applicant

Barrister & Solicitor

Wiseman, Battista

Toronto, Ont.

M5S 3A5 - (416)964-2285

Morris Rosenberg             For the respondent

Deputy Attorney General of Canada

Per: John Loncar, Counsel

Department of Justice

The Exchange Tower

130 King Street West,

Toronto, Ontario (416) 973-0933