Date: 20030408
Docket: IMM-3430-02
Neutral citation: 2003 FCT 409
Toronto, Ontario, Tuesday, the 8th day of April, 2003
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SATHTHIYATHASAN KATHIRKAMU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review of the decision of the Convention Refugee Determination Division (the "Board"), dated June 3, 2002 deciding that Saththiyathasan Kathirkamu (the "Applicant") was not a Convention refugee. The Applicant asks that the decision of the Board be set aside pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, and that the claim be referred back to the Board for redetermination.
Background
[2] The Applicant alleges that he is a 22-year-old male Tamil who purports to be a citizen of Sri Lanka from the north. He claims refugee status based on his race and membership in a particular social group, Tamil males from northern Sri Lanka facing persecution from the Sri Lankan authorities (the "SLA") and the Liberation Tigers of Tamil Eelam (the "LTTE").
[3] The Applicant alleges that his family has suffered at the hands of the LTTE since 1991. They had to flee their home several times because of army invasions. In 1996 the claimant was compelled to work for the LTTE for two days. He transported injured Tiger members to a hospital after a local battle. The Applicant and his parents had to once again flee in 1996 because of army advances. In 1998 and 1999 the LTTE increased pressure on the Applicant to help them and on two occasions forced him to do manual labour.
[4] In late 2000 he decided to flee the area with his mother after the LTTE demanded that all young people undergo military training. They travelled to Vidalthalthivu with the help of a guide and then to Mannar by fisherman's boat. When they reached the army checkpoint at Koddaimunai he was detained, interrogated and held for seven days during which time he was assaulted on his back and feet with a plastic pipe. His mother obtained his release by paying a bribe to a local broker. After their applications for passes to travel to Colombo were denied, an agent was hired in Colombo with the help of their relatives. The agent came to Mannar with the necessary travel documents and on March 16, 2001 the Applicant left with the agent for Colombo via Vavuniya with a pass obtained by a bribe, leaving his mother in Mannar. The Applicant remained in hiding in Colombo, and left Sri Lanka on March 28, 2001. After staying in Singapore and Taiwan for approximately 2 months the Applicant arrived in Canada via the United States and made his refugee claim on arrival.
Board's Decision
[5] The Board found that the Applicant was not a Convention refugee because he was not credible and he did not demonstrate with credible or trustworthy evidence that he faced a serious possibility of persecution at the hands of the Sri Lankan security forces or the LTTE in Sri Lanka.
[6] The Board found that there was a number of serious credibility concerns with the Applicant that were "more than sufficient to rebut the presumption of truthfulness on his part."
[7] It held that the main credibility concern stemmed from the fact that the Applicant was improperly documented. He arrived in Canada without any documents but at the hearing produced a Birth Certificate and a Postal Identity Card that were sent to him from Sri Lanka by his mother.
[8] The Board held that it did not find the Applicant's claim credible and "more important we do not find that he has established his identity, with the documents he placed before us, or that he is recently from northern Sri Lanka." It stated:
The Birth Certificate and the Postal Identity Card are of limited probative value. The Birth Certificate, issued in Jaffna in 1993, has no photo identification to link it to the claimant. The Postal Identity Card, issued in July, 1994 and stating "Jaffna" as the permanent residence, bears a photo that resembles the claimant. However, this card has no security features. Even if the panel were to accept that the claimant is who he says he is on the basis of these documents, they help support the possibility of his presence in Sri Lanka only until July, 1994. (Ibid)
[9] The Board went on to discuss the importance of the fact that the Applicant did not present the Board with his National Identity Card ("NIC"). It stated:
The primary identity document in Sri Lanka is the National Identity Card (NIC) that citizens are required to carry on their persons at all times, and, therefore, the NIC is the key identity document utilized in refugee hearings for Sri Lankans. The claimant gave confusing and inconsistent evidence about what happened to his NIC. He was able to recall his NIC number and testified that his NIC was issued in 1998 and that it gave his address as Ward 3 Punguduttivu. He initially said that when he reached Singapore the agent asked for this NIC as it would be of no further use to him. However, he also said that the agent undertook to send him the NIC to the address in Canada the claimant provided, but that it never arrived, even after he contacted his relative in Germany who told him she spoke with the agent and he told her he would send it. The claimant speculated that the agent may have lost the NIC, otherwise he would have sent it because 'it is an important document'. We find the claimant's explanation dubious.
The movement of Tamils to Canada utilising smuggling agents has become an established practice over many years. Young Tamil males often have their claims expedited if they have two pieces of identification, one of which is the NIC. It is naive to believe that such Tamils preparing to leave Sri Lanka to make refugee claims in Canada and employing agents for considerable sums of money would not know that a genuine NIC would provide them with a higher probability of a successful claim...The panel notes extensive documentation about the importance of the NIC within Sri Lanka. In addition to it being obligatory to have one, there are elaborate security features associated with the NIC and very strict procedures about obtaining replacements. Even photographs for the NIC can only be taken at those studios approved by the Department for the Registration of Persons. It is because the NIC has such significance in Sri Lanka that it also assumes significance in proving one's identity and domicile in a refugee claim in Canada. There is no evidence that either of the documents the claimant did present, i.e., Birth Certificate and Postal Identity Card, will satisfy authorities in Sri Lanka as a substitute for a valid NIC; nor does it satisfy the panel.
[10] The Board also found that it was implausible that the smuggler would not keep his "business agreement" with the Applicant to send him his NIC because this would damage the smuggler's "prospects for repeat business." The Board found that the Applicant's testimony about how he obtained his travel documents was inconsistent and contrary to the documentary evidence. It stated that the provision of his passport would have been the best possible evidence of his identity.
[11] The Board found that:
What stands out in this claim is the lack of any persuasive independent evidence that could assist the panel in extending the benefit of the doubt to the claimant when there appear to be several promising areas in the claimant's evidence for reasonably obtainable corroborative documentation.
[12] The Board commented that the Applicant did not provide school certificates, letters from relatives or passes, and therefore found that "the claimant's efforts do not demonstrate reasonable diligence in attempting to provide objective evidence in support of his claim."
[13] The Board also found that his testimony with respect to his experience in Sri Lanka was not credible. It found it implausible that the Applicant was never asked to join the LTTE. There were contradictions between his PIF and his oral testimony in his description of the work he was required to do for the LTTE. He also could not describe the area where he had lived with sufficient detail. In addition the Board found it implausible that in his description of events between 1998 and 1999 he was only required to work for the LTTE twice and otherwise described a relatively "idyllic, pastoral existence." This was during a time where the documentary evidence indicates there was serious fighting going on in the area. The Board found it implausible that the LTTE would not have been interested in recruiting such an able-bodied young man.
[14] The Board also found that the Applicant contradicted his PIF by testifying that he was detained and beaten three times in Mannar when in his PIF he stated only that he had been assaulted and beaten on his back and feet. It also commented that after such "torture" it was implausible that he did not require medical treatment and that "his oral account of his only physical mistreatment lacked any discernable emotion and gave the impression he was reciting a script." Counsel for the Respondent conceded at the hearing that this finding of the Board was wrong. The Board also found it implausible that he faced no further problems from state officials once he was released after paying a bribe.
[15] Finally, the Board found that:
The numerous country condition documents in evidence are of little assistance to the claimant in finding a valid basis for his claim. Firstly, it is not the duty of the panel to sift through the documentary evidence and make a case for any claimant when the claimant himself fails to make his own case.
[16] Because the Board did not find the claimant to be credible it did not assess the documentary evidence of country conditions. The Board decided that, even if it accepted his identity, his documents did not put the Applicant in Sri Lanka after 1994 and therefore it could not assess his risk of persecution.
Issues
[17] The issues are as follows:
1. Whether the Board erred in law in disbelieving the Applicant's identity?
2. Whether the Board erred in law in its alternate findings, and whether these can sustain the Board's decision independently of its rejection of his identity?
3. Whether the Board's inability to produce a complete record of the hearing prejudices the Applicant, and whether the Court should grant judicial review on this basis?
4. Whether the Board members erred in law by making conflicting decisions on the issue of Sri Lankan National Identity Cards?
Applicant's Submissions
[18] The Applicant submits that the standard of review for findings of fact and law are different. Findings of fact must be shown to be made in a "perverse or capricious manner," or made "without regard to the material." With respect to errors of law, the Board need only be shown to have erred (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
Issue 1:
[19] The Applicant submits that the Board's findings on identity influence the core of its other credibility findings, and if it erred in its identity finding its other credibility findings cannot be upheld (Peng v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 119 (C.A.)(QL)). The Board had no justification for dismissing the Applicant's birth certificate and postal identity card. It was an error to require photo identification and for the Board to require unspecified "security features." This is an undefined standard. The Board gave no weight to these documents. The Board by implication presumed them to be forgeries without saying so, which is an error in law (Zhuravl'ov v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 445 (T.D.)(QL); Warsame v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1202 (T.D.)(QL)). Identity documents are presumed valid unless evidence is produced to prove otherwise (Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (T.D.)(QL)). The Applicant submits that the Board was wrong to reject these two identity documents and, therefore, the rest of its analysis was coloured by the assumption that the Applicant was not who he says he was.
[20] With respect to the NIC, the Applicant submits that it was an error for the Board to presume that the Applicant should have known that the Board would expect the NIC (Rahnema v. Canada (Solicitor General), [1993] F.C.J. No. 1431 (T.D.)(QL)). Furthermore, it was perverse for the Board to expect the Applicant not to entrust the smuggler with this document and to assume that the smuggler would send the NIC in order to ensure "repeat business."
Issue 2:
[21] The Applicant submits that it was an error for the Board to require proof that the Applicant was recently in Sri Lanka (Selvakumaran v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No.842 (T.D.)(QL)). Proof of being recently in the north is not a prerequisite for refugee status (Santhanam v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No.989 (T.D.)(QL)). It is the Applicant's submission that even if the Applicant had not recently lived in the North, the Board still has to consider whether a young Tamil male originally from Sri Lanka would be at risk. Young Tamil males are a particular social group (Veeravagu v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No.468 (C.A.)(QL); Ragunathan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 253 (C.A.)(QL)). The Federal Court has held that even if a refugee claimant is found to be incredible, if his identity can be shown and documentary evidence shows that people with that identity are at risk, then the Board should consider him to be a Convention refugee (Jeyaseelan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No.458 (T.D.)(QL); Baranyi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.987 (T.D.)(QL); Kamalanathan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 826 (T.D.)(QL). The Board specifically states that it did not consider the evidence submitted by counsel as to the risk faced by the Applicant. The Applicant submits that the Board erred in stating this because it has a duty to consider all of the evidence before it (Cai v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No.690 (T.D.)(QL); Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No.1228 (C.A)(QL)). The generic comment that "all the evidence was considered" is inadequate when evidence specifically contradicts the Board's central assumptions and is not mentioned in the decision (Alfred v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No.463 (T.D.)(QL)).
[22] The Applicant submits that the Board erred in finding that there was inconsistency in the Applicant's description of why the smuggler kept his NIC. The Board also erred in finding that all of the evidence emanating from the Applicant was biassed and self-serving (Gonzalez v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 408 (C.A.)(QL)). The Board's statements that the Applicant's evidence of events in Sri Lanka "remains a mystery" and "lacks the ring of truth" are insufficient explanations as to why it refused to accept the Applicant's story. Furthermore, there was no contradiction in the Applicant's description of his beating while he was detained in Mannar. The Board also erred in finding that his story as to his detention and beating was incredible because he did not describe it with discernible emotion (Reginald v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 523 (T.D.); Shaker v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1077 (T.D.)(QL))
Issue 3:
[23] The Applicant submits that the incomplete transcript provided by the Board is unfair to the Applicant, particularly where issues of credibility are raised. This puts the Applicant at a disadvantage and is reason enough to return the case for a new hearing (Hatami v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 402 (T.D.); Benavente v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 635 (T.D.)(QL); Farouji v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1253 (T.D.)(QL); Goodman v. Canada (Minister of Citizenship and Immigration), [2000]_F.C.J. No. 342 (T.D.)(QL)). This was particularly damaging in this case where exchanges relied on by the Board are not found in the transcript.
Issue 4:
[24] The Applicant submits that Board Members Then and Wilson, who decided this case have made several decisions which state conflicting beliefs with respect to Sri Lankan National Identity Cards.
[25] In the case at bar the Board made extensive comments on the importance of a NIC as proof of identity of Sri Lankan nationals. In Sivasothy Sivamoorthy v. MCI (IMM-2214-01), however, the same two Board members made an opposite finding. The Board in the Sivamoorthy case rejected a NIC as proof of identity despite the fact that the Sri Lankan government had verified it as genuine because "it is possible to obtain NICs by fraudulent means." In Re D.D.S. (Elayathamby Ratheeskumar) [2001] C.R.D.D. No. 449, Board Member Wilson determined that NICs would serve to establish in fact that the Applicant is a citizen of Sri Lanka. In Re Arulleeli Devendrarajah, (unreported C.R.D.D. decision dated January 9, 2002), Board member Then relied on the Sri Lankan government's finding that the NIC was not genuine. These conflicting decisions imply that the Board did not decide the case at bar in good faith. The Board cannot possibly believe all the conflicting principles expressed in these decisions. Either NICs are necessary and reliable or they are of no use. Either the verification of the Sri Lankan government is reliable or it is of no use. These conflicting findings raise a reasonable apprehension of bias that the Board members intended to reject the claimant's identity, regardless of the identity evidence on record.
[26] The test for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly. The conflicting decisions of these members show that there is no way that a Tamil could truly establish their identity to the satisfaction of these particular Board members. Bias need not be pleaded in the course of a hearing if bias is only expressed in the Board's reasons. In the alternative, the Applicant submits that making conflicting decisions is a reviewable error, even if it is not characterized as raising apprehension of bias, simply because it is capricious for the same Board Members to hold conflicting positions on the same issue (Katalayi v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 1494 (TD)(QL)).
Respondent's Submissions
[27] The Respondent submits that, contrary to the Applicant's submission, the Board did not apply a capricious legal principal in rejecting the postal identity card because it lacked security features. The Board was simply weighing the reliability of the postal identity card against the reliability of NICs. The Board also did not err by failing to set out the security features it considered adequate. The Board stated that the features it would consider adequate are those security features that are on an NIC. The Board did not casually reject valid documents. It provided reasons for rejecting the documents. Furthermore, the onus is on the Applicant to persuade the Board of the authenticity of the documents. While it is true that the Sri Lankan government can say whether documents it issues are genuine, the Board in this case found that there was no evidence that the Sri Lankan government would accept the ID documents presented by the Applicant as a substitute for the NIC.
[28] The Respondent submits that the Applicant's argument that the Board erred by refusing to "sift through the documentary evidence" was a misinterpretation of the Board's decision. The Board was simply saying that it will not put together the Applicant's case because that is not its responsibility. It does not say that it will not consider the evidence submitted. The evidence also indicates that the Board was correct in finding that the Applicant was inconsistent with respect to how the smuggler obtained his NIC.
[29] The Respondent further submits that the Board did not err in its comments about the Applicant's story lacking a "ring of truth." The Board explained it was because his story contradicted the documentary evidence. The use of the words "relatively idyllic, pastoral existence..." was not sarcastic, but rather an accurate description of the Applicant's own evidence. Furthermore, the Board did not err with respect to its findings regarding his detention and beatings in Mannar. The case of Shaker, supra, can be distinguished from the present case because in Shaker, supra, the claimant testified "so long after the event" and therefore was not expected to express emotion. Negative findings of credibility with respect to tribunal members observations of the Applicant's demeanor during testimony are unassailable on judicial review in the absence of perverseness (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.)(QL); Sun v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No.637; Ankrah v.Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (T.D.)(QL)).
[30] With respect to the partial transcript, the Respondent submits that the Applicant has not shown that there is a serious possibility that a ground for review has been denied. Moreover, the Applicant has been able to establish his case against the panel's findings (Goodman, supra).
Analysis
Standard of Review
[31] The Court must first decide the appropriate standard of review for this case.
[32] In Aguebor, supra, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[33] The Court should not seek to reweigh evidence before the Board simply because it would have reached a different conclusion. As long as there is evidence to support the Board's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
Issue 1: Did the Board err in law in disbelieving the Applicant's identity?
[34] The Board did commit an overriding error in disbelieving the Applicant's identity. The Board stated that "the claimant could not establish his identity with reliable objective evidence." The Board gave little probative value to the birth certificate and the postal identity card. In fact, while not saying so specifically, it is apparent that the Board gave these documents no probative value because it believed them to be fraudulent. There is no other explanation as to why the Board would reject this evidence. It is an error of law to find that apparently validly issued identity documents are fraudulent if there is no evidence to establish this (Ramalingan, supra).
[35] The Board appears to say that it would only accept the Birth Certificate and the Postal Identity Card as proof of the Applicant's identity if the Sri Lankan government would accept these documents as substitutes for an NIC. This is revealed in the following passage:
There is no evidence that either of the documents the claimant did present, ie., Birth Certificate and Postal Identity Card, will satisfy authorities in Sri Lanka as a substitution for a valid NIC; nor does it satisfy the panel.
[36] This is a perverse and a capricious standard to apply to identity documents. The Board is not the Sri Lankan government and applicants are not trying to establish their identity to the Sri Lankan government when they are seeking protection from Canada. Furthermore, the Board stated that there was no credible or trustworthy evidence of the Applicant's identity. These documents, unless proven to be fraudulent, are credible and trustworthy evidence, irrespective of whether or not the Sri Lankan government would except them as substitutes for an NIC.
[37] I also agree with the Applicant that it was wrong for the Board to presume that the Applicant would know that he would need his NIC and therefore would not have given it to the smuggler. In Rahnema, supra, Gibson J. stated at paragraph 20:
I conclude that the CRDD, in the foregoing paragraphs assumed that, since they identified the Applicant as a "worldly-wise" individual whether or not he in fact deserved this description, his logical thought processes would have led him to the same conclusions as the CRDD hypothesizes it would have reached in similar circumstances, applying the North American logic and experience of the CRDD members and their experiences through exposure to a range of refugee related immigration matters in Canada.
[38] Similarly, in the present case the Board found that the Applicant should have known that he would need his NIC and would not surrender it to the smuggler. The evidence before the Board was that the Applicant was from a rural part of Sri Lanka and that he did not have significant international experience. To presume that he would know the requirements of the refugee determination process in Canada is perverse. Furthermore, the Applicant was relying on a smuggler to get to Canada. It is perfectly reasonable that he would listen to the smuggler's advice with respect to his identity documents in his efforts to get here. This was a reviewable error.
[39] These errors all contribute to the overriding error the Board made by rejecting the Applicant's identity. It was an error sufficiently egregious to colour the entire decision. The finding that the Applicant was not who he said he was taints the Board's findings in all other aspects of its decision and therefore should result in a new hearing. It is impossible to say what the Board would have decided had they believed the Applicant's identity in this case (Peng, supra).
Issue 2: Can the other findings of the Board be upheld?
[40] The Applicant submits that the Board erred in finding that, even if he was a Sri Lankan Tamil, this would be inadequate because he also had to prove that he was in Sri Lanka recently, and that he was recently from the north.
[41] I agree with the Applicant on this issue. There was no evidence before the Board to contradict the Applicant's account that he was anywhere but in Sri Lanka after 1994. In Selvakumaran, supra, McKeown J held at paragraph 14:
The Board is not entitled to make an adverse credibility finding on the basis of the applicant's failure to produce identity document issued during the 1980's. In Attakora v. Canada (1980) 99 N.R. 168, the Federal Court of Appeal held that the failure to produce supporting documentation cannot reflect adversely on a claimant's credibility unless there is evidence that contradicts the applicant's testimony. In this case, the Board has identified no such evidence, therefore, in my view, the finding is unreasonable. In order to justify this finding the Board has made other credibility findings which are patently unreasonable.
[42] Likewise, in the case at bar, there was no evidence that the Applicant was anywhere else besides Sri Lanka at the relevant times.
[43] The Applicant further argues that the Board erred in not assessing the Applicant's risk even if it did not believe him to be recently from the north, or even recently from Sri Lanka. The Applicant submits that Tamil males who are originally from Sri Lanka are also at risk, irrespective of recent residency. It is trite law that Tamil males are a particular social group (Veeravagu, supra; Ragunathan, supra). The Applicant alleges that, even if a refugee claimant is not found to be credible, if their identity can be established and documentary evidence shows that people with that identity are at risk, then the Board should determine them to be Convention refugees.
[44] In the case of Baranyi, supra, O'Keefe J. stated at paragraph 14:
Even in situations where the CRDD finds an applicant not to be credible it still must consider the documentary evidence. This Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (FCTD) state at page 132:
Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.
This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.
The documentary evidence may have established a well-founded fear of persecution on the applicant's behalf or it may not have. The CRDD should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. I have reviewed the decision of the CRDD and I can find no reference to the documentary evidence to the effect that other Roma citizens of Hungary are or were being persecuted. In my opinion, the CRDD committed a reviewable error of law by failing to consider this evidence, whether you apply a standard of review of reasonableness simpliciter or patent unreasonableness.
[45] Similarly, in the case at bar the Applicant adduced evidence that he was a Sri Lankan Tamil, and that evidence links him to persecution of Tamil males in Sri Lanka. So the Board should have gone on to assess whether or not the Applicant had an objective fear of persecution as a Sri Lankan Tamil male were he to be returned to Sri Lanka.
[46] The Board clearly stated that it did not deem it to be necessary to consider the evidence of the persecution of Tamil males in Sri Lanka when it said:
The numerous country condition documents in evidence are of little assistance to the claimant in finding a valid basis for his claim. Firstly, it is not the duty of the panel to sift through the documentary evidence and make a case for any claimant when the claimant himself fails to make his own case.
[47] This passage indicates that the Board members did not find it necessary to consider the objective component of the Applicant's claim. As the Applicant submits, it is precisely the duty of the Board to "sift through the evidence" in cases before them. Their responsibility is to consider all of the evidence (Mahanandan, supra). The failure of the Board to do this was a serious error. The Respondent replies that the Board is not stating that it will not consider the evidence, it is simply stating that it will not make the Applicant's case for him. But the Board is clearly saying that it need not consider the documentary evidence in this case because it does not believe the Applicant. The Board's boiler-plate statement at the end of the decision that "it considered all the evidence" cannot overcome the obvious fact that it did not do so.
[48] The Applicant also submits that the Board erred in other findings on credibility. I agree with the Applicant that the Board's finding of inconsistency that his testimony with respect to how the smuggler kept the Applicant's NIC, is not supportable. The Board's reasons reveal no contradictions or inconsistency in the Applicant's account.
[49] The Applicant submits that the Board erred in not providing reasons for stating that some accounts lacked "the ring of truth" and "remains a mystery." While the Board did not precisely outline its reasons for making these statements, the reading of the decision reveals an explanation on these two points. The Board did not find it plausible that the Applicant would be left alone by the LTTE to care for his mother when his father was there to look after her. The Board also found it implausible that the Applicant would not be asked to join the LTTE when the documentary evidence indicates that there was serious fighting going on during the time that the Applicant testified that he was only asked to do work twice. This was not an error.
[50] The Board did err, however, in drawing an adverse inference from the fact that the Applicant testified about his beating in an unemotional manner. Claimants cannot all be expected to explain incidence of violence and persecution with emotion. This imposes a standard that is unsupportable and insensitive to the variety of reactions people have to acts of persecution (Reginald, supra; Shaker, supra). The Respondent's submission that Shaker, supra, only refers to cases where the persecution was a long time ago does not accurately reflect the reasons of Reed J. in that case.
[51] Finally, I also find that the Applicant was not inconsistent when describing the forced labour he did in transporting injured LTTE members. In his PIF he stated that he transported them to the hospital. In oral testimony he stated that he helped carry them to the vehicles that would transport them. While not identical, I do not find that the difference in this area can be characterized as inconsistent. It is the same work that is described, just a different specific task with respect to the transportation of the injured.
[52] The Board's decision is filled with so many errors and so few of its credibility findings can be supported that the decision must be sent back for rehearing from a differently constituted panel. In the alternative, the errors with respect to the central finding of identity are sufficient to grant the application in this case.
[53] Having so found, I do not feel it necessary to consider whether the defective transcript gives rise to a violation of natural justice, or whether conflicting decisions by Board members on the probative value of NICs give rise to a reasonable apprehension of bias. Obviously, the transcript issue has not prevented the Applicant from presenting his case and the bias issue ceases to have relevance when the Board's decision in the present case is to be set aside on the grounds I have stated.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the June 3, 2002 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-3430-02
STYLE OF CAUSE: SATHTHIYATHASAN KATHIRKAMU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MARCH 25, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
DATED: TUESDAY, APRIL 8, 2003
APPEARANCES BY: Mr. Raoul Boulakia
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Raoul Boulakia
Barrister and Solicitor
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030408
Docket: IMM-3430-02
BETWEEN:
SATHTHIYATHASAN KATHIRKAMU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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