Date: 20030411
Docket: IMM-2831-02
Neutral citation: 2003 FCT 428
Toronto, Ontario, Friday, the 11th day of April, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ANANDHAJEYASEELAN SUBRAMANIAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD") dated May 28, 2002, which determined that the Applicant is not a Convention refugee.
[2] The Applicant is a Tamil from Colombo, citizen of Sri Lanka. At the time of the hearing he was twenty-eight years old. He claimed a well-founded fear of persecution from the Liberation Tigers of Tamil Eelam ("LTTE") and the Eelam People's Democratic Party Movement (EPDP)
[3] The Applicant provided a straight-forward account in support of his claim. The Applicant stated in his PIF that he lived most of his life in the Colombo area and, since 1996 until his departure from the country, he was stopped and taken to the police station for questioning more than twenty times. This was on the occasions of round-ups and security checks. The Applicant's allegation of past persecution can be summarized as follows:
In October 1997 he was rounded up and taken to the police after the Galadhari Hotel bombing. At the police station he was interrogated and beaten. His mother paid 30 000 rupees to get him released.
In January 1998 he was arrested on the street while waiting for a friend. The police accused him of connection to the LTTE in regards to the destruction of power transformers and arms smuggling.
In March, 2000, the Applicant and his brother were arrested, interrogated and beaten by police and were ordered to stay in the Colombo municipal area, restricting the Applicant's freedom of movement that was necessary for his business.
In May 2000 the police arrested the Applicant for the last time. They interrogated him and threatened him by saying that "he would never see the light of the day" if he had any contact with a Tiger.
The Applicant arrived to Canada and claimed refugee status on June 18, 2000.
[4] In its decision, with respect to credibility findings, the CRDD correctly cited the law as follows:
In assessing credibility, the panel is mindful of the decision of the Federal Court of Appeal in Maldonado, (Maldonado v. Canada (Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.), wherein the Court states, in part: When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.
However, early in its reasons, despite the Applicant's evidence respecting the merits of his claim, the CRDD stated that "a main credibility concern stems from the fact that the claimant is improperly documented" (p. 5).
[5] The CRDD expressed concern that the Applicant failed to produce the valid passport which he used to exit Sri Lanka, saying as follows:
In the case at hand, the claimant's exit document assumes considerable importance as the linchpin of his claim is the increasing interest in him by the police as a suspected LTTE supporter resulting in four arrests and mistreatment after 1996 and culminating in a threat against his life in May, 2000 that precipitated his decision to flee the country on June 8, 2000. As the panel must consider whether the claimant has established his presence in Sri Lanka at times material to his claim, his Sri Lankan passport would serve as the best prima facie objective evidence not only of his identity but also his presence in Sri Lanka when the passport was issued as well as the date he exited the country. Given his evidence that the passport was reissued in 1997 and he left Sri Lanka in June 2000, presentation of his passport would serve to confirm he was present in Sri Lanka when he was having the serious problems he alleged.
However, as the claimant did not present his passport, or even a copy thereof, the panel next looks to the other documents he provided. At the hearing, he presented a Certificate of Birth, a National Identity Card (NIC) and two declarations listing his residence in Colombo, one in 1995 and one in May, 2000. Both the Certificate of Birth and the NIC were sent to the Canadian High Commission in Colombo for verification and were deemed to be authentic. However, these documents are of no value establishing his presence in Sri Lanka between 1997 and 2000. The birth certificate establishes his presence in the country in 1995 as attested by the stamp affixed, apparently, for the purposes of issuing the passport in 1995. His NIC was issued in 1990 and confirms only that he is a Colombo Tamil.
(Decision, p. 6)
[6] With respect to documents tendered by the Applicant to prove his residence is Colombo in 1995 and 2000, the CRDD questioned their validity in the following words:
The claimant also submitted two copies of a "Declaration of Particulars Regarding the Resident/Householders" from that lists him as a resident at the same address in Colombo. One is dated in 1995 and the other is dated May, 2000. Both forms are signed as being true and accurate by the Chief Occupant, ostensibly, the claimant's mother. According to the Emergency Regulations, it is a requirement in Colombo that Tamil householders list their residents on these forms and file them with the local police. There are several anomalies that render the bona fides of the two documents suspect. At first glance it appears that both documents were written by the same person, but a second look raises serious doubts. A forensic opinion is not required to see that there are obvious differences in the signature of the Chief Occupant and the handwriting throughout the documents. Regardless, what is far more significant and problematic is the absence of any indication on these documents that the contents were verified. These documents are blank forms that anyone can pick up at any police station in Colombo and fill in any information one wishes. It was the claimant's evidence that all his documents were sent to him by his mother. She is not considered a disinterested party to his refugee claim. Absent any persuasive security features, these documents are deemed to be of little probative value. They do not establish the claimant's presence in Colombo at material times.
(Decision, p. 7)
[7] As a result, the panel found as follows:
Following Shanmuganathan, (Shanmuganathan Kanagasabai v. M.C.I. (F.C.T.D., no. IMM-2019-94), Muldoon, May 2, 1995) the panel finds that the claimant has not established his presence in Sri Lanka within the time frame most material to his claim. While the claimant knows when he arrived in Canada, there is no reliable evidence to situate him in the five years prior to his arrival. He could have been anywhere in the world. While the panel does not know why he left Sri Lanka, the panel finds that it was not for the reasons he stated. It is up to the claimant to make his case by presenting reliable evidence in support of his contention that he has a well-founded fear of persecution. He has not done this.
(Decision, p. 12)
[8] I agree with counsel for the Applicant that the finding with respect to the "Declaration(s) of Particulars Regarding the Resident/Householders" has fundamental importance in the evaluation of the Applicant's claim. That is, if these documents were considered to be valid, the CRDD's main credibility concern that the claimant is "improperly documented" would be addressed and, possibly, alleviated. For the reasons which follow, in my opinion, the conclusion reached with respect to these vitally important documents was made in breach of due process.
[9] It is agreed that the two documents in question were first produced before the CRDD without comment and the only question asked of the Applicant with respect to them was to clarify their contents. That is, at no time during the hearing did the CRDD raise a concern with respect to the validity of the documents and, indeed, as a result, no opportunity was given to the Applicant to provide further explanation or argument with respect to their validity.
[10] I find it is a serious breach of due process for the CRDD to have proceeded in this manner. In addition, I find the CRDD's suspicion about the validity of the documents because they were sent to the Applicant by his mother to be entirely unsupported by the evidence and, thus, is most unfair. As a result, I find that the CRDD's decision was made in reviewable error.
ORDER
Accordingly, I set aside the CRDD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-2831-02
STYLE OF CAUSE: ANANDHAJEYASEELAN SUBRAMANIAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 9, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FRIDAY, APRIL 11, 2003
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030411
Docket: IMM-2831-02
BETWEEN:
ANANDHAJEYASEELAN SUBRAMANIAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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