Date: 20030516
Docket: IMM-3466-02
Citation: 2003 FCT 616
OTTAWA, ONTARIO, this 16th day of May 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
SUNDARALINGAM NAGENDIRAN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under the Federal Court Act, R.S.C. 1985, c. F-7 ("the Act") of the decision of the Convention Refugee Division of the Immigration and Refugee Board ("Board"), which was given orally in Chambers on April 12, 2002, and in writing on May 27, 2002. The Board held that the Applicant, Sundaralingam Nagendiran, was not a Convention refugee.
FACTS
[2] The Applicant claims a well-founded fear of persecution by reason of his race, his political opinion, and because he is an able-bodied Tamil male from the Kilinochchi area of Sri Lanka. The Applicant's Personal Information Form ("PIF") alleges that he is a Tamil male in his early fifties, from the northern region of Sri Lanka. He has two daughters and one son. His wife died of cancer in 1994. The Applicant lived most of his life in the farming village of Skandapuram in the Kilinochchi area where he was self-employed as a farmer and a shop keeper. When the Liberation Tigers of Tamil Eelam ("the LTTE") took over the area, he was forced to give them part of his farm and 2% of his shop earnings. Until 1995 neither he nor his children had any serious problems with the LTTE.
[3] In October of 1995, Jaffna was captured by the Sri Lankan Army, and the LTTE made Kilinochchi their headquarters. The LTTE insisted that one of the Applicant's children join them, as they had lost many members during the fight for Jaffna. The daughters were taken by the LTTE to work at cooking and caring for the sick and wounded. The Applicant was forced to dig trenches. On September 8, 1996, while digging, the Applicant was badly wounded in a shell attack. The LTTE allowed him six months to recuperate.
[4] In 1999, fearing forced recruitment, the Applicant began making plans to remove himself and his family out of Sri Lanka. In March 2000, one of his daughters had gone to work for the LTTE and she did not return home. The Applicant went and asked for his daughter at the camp closest to his home and was told that she was being detained because no one from his family had joined the LTTE and she had refused to join voluntarily. The Applicant attempted to have his daughter released, but to no avail.
[5] The Applicant decided he needed to get his son out of Sri Lanka before he also was taken and made to work for the LTTE. They managed to get a pass to leave the LTTE area. The Applicant and his son arrived at an army check point on October 20, 2000 and were taken to an army camp for interrogation. There they were fingerprinted, photographed, and made to fill out forms. They were later taken to a detention centre. On November 2, 2000, they were moved to another army camp for interrogation. The Applicant was questioned about his connections with the LTTE. He was beaten and a plastic bag was put over his head. His son was also questioned and beaten.
[6] After paying a bribe, the Applicant and his son were allowed to proceed to Colombia on January 6, 2001. The police were checking documents and they were both arrested, questioned and beaten. The father and son were finally released on January 13, 2001 after a bribe was paid. They left Sri Lanka with an agent who had been arranged by family members outside of the country. The Applicant, but not the son, received a fake Canadian passport. The Applicant continued on to Canada and the son went to Indonesia to await travel documents.
THE DECISION
[7] The Board found that the Applicant did not meet the burden of demonstrating with credible or trustworthy evidence that there was a reasonable chance he would face persecution on any of the Convention grounds should he be returned to Sri Lanka.
[8] The Board stated that credibility was an important issue. The decision contains the following summary on credibility:
The panel had numerous credibility concerns with the claimant's evidence that were not resolved in his favour. Together with a significant omission from the claimant's PIF and implausibilities and inconsistencies, these were more than sufficient to rebut the presumption of truthfulness on the claimant's part and to persuade the panel, on a balance of probabilities, that the claimant is not a credible or reliable witness.
[9] The Board specifically referred to the following concerns:
1) That the Applicant testified at the hearing that the LTTE thought he gave information to the army. The Board notes, however, that despite the lengthy narrative provided by the applicant in his PIF, which provided a detailed account of his life, this allegation was not mentioned. Because no medical report was filed, the Board rejected the explanation that he had memory problems due to the shelling incident;
2) The Board also doubted the Applicant's testimony that his son was in France. The Board noted that this information was not in the PIF even though the Applicant was given the opportunity to amend this document at the outset of the hearing;
3) The Board found that the Applicant did not testify in a clear and credible fashion. As an example, the Board refers to the Applicant's testimony respecting the conversation he had with an LTTE officer when he inquired as to the whereabouts of his daughter. The Board stated that the Applicant testified that the officer advised him that his daughter had requested to join them. The Board found this to be inconsistent with the PIF narrative, which indicated that the officer had said that she had refused to join them;
4) The Board held that it was implausible that the LTTE would require the Applicant to work if he returned to Sri Lanka, one of the reasons being his age of 52 years. The Board also felt he could live in an army controlled area, and the fact that one of his family members had already been forced to join would be a consideration in his favour;
5) As regards military conscription, the Board found it implausible that a 52 year old man would be forcibly recruited to join the LTTE's auxiliary forces. Also, because of his age, the Board found he did not fit within the profile of those most at risk of persecution in Sri Lanka at the hands of the army as a suspected LTTE combatant or supporter;
6) The Board found that the documentary evidence contained in the Refugee Claim Officer's (RCO's) Disclosure Package did not support the claim that he would face a risk of recruitment by the LTTE if returned. The Board noted that there was a news article submitted by the Applicant that alleged that the LTTE were conscripting people over the age of 45. The Board determined that the article was not helpful as it was two years old at the time the decision was made, and it only dealt with LTTE controlled areas. The Applicant would not have anything to fear if he went to an area controlled by the army;
7) The Board also considered a letter written by the Applicant's brother-in-law, dated September 22, 2001, and gave it little weight because it was not specific enough to provide corroborating evidence with respect to the Applicant's fear of persecution in Sri Lanka.
ISSUES:
1. Whether the Board's confusion as to whether an LTTE officer told the Applicant that the Applicant's daughter asked to join the LTTE was a reviewable error?
2. Whether the Board erred in finding that the documentary evidence indicated that, due to the Applicant's age, there was no more than a mere possibility that he would be persecuted on a Convention ground in Sri Lanka.
ARGUMENTS:
APPLICANT'S POSITION:
Inconsistency - Requested to join or refused to join?
[10] The Applicant argues that the Board misunderstood and misconstrued the Applicant's oral testimony because he never said that an LTTE officer advised him that his daughter had asked to join the LTTE. The Applicant did not acknowledge this inconsistency because there was no inconsistency to acknowledge. The Respondent conceded this mistake at the hearing but argued that it was not a material error.
Documentary Evidence respecting conscription of the elderly
[11] The Applicant takes issue with the Board's finding that there was nothing in the RCO's Disclosure Package to indicate that the Applicant, as a 52 year old male from the North, would face forcible recruitment by the LTTE. The Applicant points to two news articles, found as items 3.2 and 3.3, in the Disclosure Package. One is a BBC News article dated July 18, 2000 entitled "Tigers accused of using elderly fighters." The other is from the Daily News, dated July 19, 2000 and is entitled "LTTE now conscripting elders." The Applicant points out that it is clear the Board did not even read the index to the Disclosure Package, let alone the contents of these articles, and submits that the Board failed to address all the evidence before it.
[12] The Applicant also argues that the Board was patently unreasonable in dismissing the article he put before it entitled "LTTE enlisting all civilians above 45 years." All of the documentary evidence contained in the RCO's Disclosure Package was compiled prior to or during 2000, so that this article should not have been rejected on the basis of being outdated. Only if there was newer evidence demonstrating that the information from the year 2000 was no longer relevant, should it have been dismissed. It is normal for such evidence to be two or more years old.
RESPONDENT'S POSITION:
Inconsistency - Requested to join or refused to join?
[13] The Respondent concedes that the Board made a mistake on this issue but submits it was not material in the context of the whole decision. It is well established that findings of credibility or implausibility warrant a high deference and are subject to the patently unreasonable standard of review: Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.). Here, the Board clearly found that Applicant was not credible and provided several examples of where his testimony was confusing, implausible and inconsistent. It is submitted that the negative credibility finding was made in clear and unmistakable terms, Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.) and that it was based upon cumulative findings so that the mistake concerning the daughter was not pivotal.
[14] Citing the following cases, the Respondent argues that the Federal Court of Appeal has established that the Board is entitled to decide adversely with respect to a claimant's credibility on the basis of contradictions, inconsistencies, and implausibilities: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Leung v. Canada (Minister of Employment and Immigration) (1990), 74 D.L.R. (4th) 313 (F.C.A.); Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.).
[15] The decision does not turn on the error about the daughter. It was but one example of the credibility concerns of the Board. The Respondent refers to other concerns noted by the Board, such as the omission of significant facts from his PIF. This Court has held on numerous occasions that an Applicant's PIF must contain all important and relevant facts and it is reasonable for the Board to disbelieve the omitted events occurred: Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.) at para. 9; Uppal v. Canada (Solicitor General) (1995), 27 Imm. L.R. (2d) 232, at 233.
Documentary Evidence respecting conscription of the elderly
[16] Respecting the Applicant's allegation that the Board failed to consider documentary evidence, and that it was wrong to find that a two year old article was not helpful, the Respondent argues that the Board is presumed to have considered all of the evidence before it and that the assessment of weight to be given to a particular document is within the panel's discretion: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Randhawa v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 606 (T.D.); Huang v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 178.
[17] Here, the Respondent submits, the Board considered the evidence suggesting conscription of older people by the LTTE, and concluded that the Applicant did not provide credible or trustworthy evidence with respect to establishing forcible recruitment. Furthermore, the Respondent argues, the articles presented by the Applicant related to recruitment in the LTTE controlled areas. The Applicant lives in an area controlled by the army. The Respondent also submits the Board is entitled to place less weight on a document that deals with the situation in Sri Lanka two years ago, given the constantly changing events in that country.
[18] Only one article was highlighted by counsel for the Applicant before the Board and the Board dealt with this in its reasons. There is no evidence that the Board ignored any article; it merely did not afford them much weight. The Board wanted more recent evidence on this issue because a cease fire had occurred in February 2002 which changed the situation. (The Respondent concedes that the cease fire was not specifically referred by the Board in its reasons).
ANALYSIS
Inconsistent Testimony
[19] At the hearing of this matter counsel for the Respondent conceded that the Board erred when it said that the Applicant's testimony on what the LTTE officer said concerning the Applicant's daughter, and whether she had asked to join the LTTE, was inconsistent and confusing. The Board said:
[The Applicant] did not acknowledge the inconsistency in his evidence from the allegations he made at the outset of his testimony. The panel found this to be confusing and certainly an inconsistency and was not satisfied with the claimant's explanation with respect to the inconsistency when he was requested to do so by the panel.
[20] Notwithstanding this acknowledged error, counsel for the Respondent argued that it was not pivotal to the decision which, looked at as a whole, questioned the Applicant's credibility based upon a number of factors.
[21] If the Board's decision is examined in its entirety it would appear that this particular issue was used by the Board to show that the Applicant lacked credibility and to refute the suggestions made by the Applicant's counsel that the Applicant had provided credible testimony at the hearing:
The panel is unable to agree with counsel and did not find that the claimant testified in a clear and credible fashion. One example of the claimant's testimony that was not consistent and that was confusing and caused the panel to have some credibility concerns was with respect to the LTTE officer whom the claimant first saw in attempting to get his daughter. There was confusion as to whether this officer stated that the claimant's daughter requested to join the LTTE, or whether the officer told the claimant that the claimant's daughter refused to volunteer.
[22] A review of the record shows that there was, in fact, no inconsistency or confusion on this matter; the Applicant was entirely consistent and stated that his daughter had refused to join.
[23] By using this example in the way it did, the Board, in fact, communicates a very strong message that it was the Board that was confused. If this example, singled out by the Board for illustrative purposes, is the Board's idea of inconsistent and confusing testimony, then it is very difficult to accept the Board's other findings on credibility. It is trite law that the Board is in the best position to identify and assess issues of credibility. If we are to take this position seriously (and we must) a Board that shows itself incapable of getting its own chosen example right is a Board clearly communicating that it doesn't know how to use its position of advantage. It is the Board that has no credibility in such a situation and it can hardly expect much in the way of curial deference as a consequence.
Documentary Evidence respecting conscription of the elderly
[24] Due to his age, the Board found it implausible that the LTTE would forcibly recruit the Applicant if he were to return to Sri Lanka or that he would be at risk from the army as a suspected LTTE combatant or supporter. The Board stated the following:
The documentary evidence contained in the Refugee Claim Officer's (RCOs) Disclosure Package does not support that the claimant, given his particular profile, would face a risk of recruitment by the LTTE today, if he was to return to Sri Lanka.
[25] In making this statement the Board neglected to address specifically two news articles found within the RCO's Disclosure Package which deal with the recruitment of the elderly by the LTTE. A review of the table of contents of the RCO's Disclosure Package reveals the presence of these documents, entitled "Tigers accused of using elderly fighters" and "LTTE now conscripting elders." In my view, the following statement by Evans J., in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998),157 F.T.R. 35 (T.D.), at paragraphs 16 and 17, provides guidance here:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increased with the relevance of the evidence in question to the disputed facts. [...]
[26] These documents were corroborative of a central element of the Applicant's claim to a well-founded fear of persecution. The Board dismissed the notion that the Applicant would be forced to work for, or fight for, the LTTE given his age, and this evidence suggests otherwise. Counsel for the Respondent raised two strong arguments against treating the Board's failure to deal with these two documents as a reviewable error. First of all, the onus is upon the Applicant to make his case to the Board and Applicant's counsel did not refer to or highlight these particular articles when addressing the Board. The difficulty with this is that the Board does actually refer to the RCO's disclosure package in its decision and makes the statement that the documentary evidence contained in that package does not support that the claimant, given his particular profile, would face a risk of recruitment by the LTTE today if he was to return to Sri Lanka. Given that the articles deal with the recruitment of the elderly and lend crucial support to the Applicant's case, the Board's failure to deal with them is a matter of serious concern. We are left wondering whether the Board just didn't see the articles or whether, having reviewed them, the Board felt they did not support the Applicant's position. Having specifically referred to the contents of the RCO's disclosure package, the Board should have dealt with these articles and, at this stage, it is pointless to speculate about what the Board would have decided had it done so. Gibson J. in Nadarajan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1707 (T.D.) and Layden-Stevenson J. in Nadarajah v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 780 (T.D.) dealt with facts similar to the case at bar. The words of Gibson J. in Nadarajan, supra, at paragraph 12 are equally applicable here:
[...] [The Board] failed to have regard to documentary evidence before it that was clearly corroborative of a central element of the Applicant's claim to a well-founded fear of persecution that was, he alleged, the triggering event that led finally to his decision to flee Sri Lanka after he had endured hardship for so many years. To paraphrase Justice McKeown, I am not prepared to speculate on whether, if the CRDD had taken into account the corroborative evidence, its decision would have been different and in favour of the Applicant.
[27] The Board also dismissed an article submitted by the Applicant that was similar to the two overlooked in the RCO's Disclosure Package. The Board stated that it was not helpful as it was almost two years old and the claimant did not provide any further documents with respect to current conditions in northern Sri Lanka. The Court cannot speculate as to whether the Board would have dismissed this submitted article if it had also addressed the two corroborative articles in the RCO's package and there is no real explanation by the Board as to why the evidence is stale-dated or otherwise unconvincing. In the face of three articles, instead of just one, the Board may not have been so inclined to dismiss them for being a mere 2 years old, especially given there was no evidence to the contrary.
[28] But the Respondent argues further that the articles do not assist the Applicant because they do not deal with the area in Sri Lanka to which the Applicant will return. The Board did raise this issue in connection with the third article it did consider and which was entitled "LTTE Enlisting All Civilians Above 45 years." This article was dated May 29, 2002. The Board said:
The panel finds that the claimant did not provide credible or trustworthy evidence with respect to establishing that he would face forcible recruitment by the LTTE auxiliary force, or that he would be forced to work for them should he return to the northern part of Sri Lanka. Further, the panel notes that this article found in Exhibit C-4, mentions LTTE - controlled areas. Therefore, if the claimant was to return to an area in the north of Jaffna, controlled by the army, it does not appear that the claimant would have anything to fear with respect to forcible LTTE recruitment.
[29] The difficulty with this finding in relation to both this article (cited for the Board by the Applicant's counsel) and the two neglected articles in the RCO's disclosure package is that it neglects to take into account the past association between the LTTE and the Applicant's children and between the LTTE and the Applicant himself. Even after 1995 when Jaffna was captured by the Sri Lankan army, the LTTE was able to commandeer the Applicant's daughters and the Applicant into working for them. So, once again, it is difficult to predict what the Board might have decided if it had specifically addressed the two articles in the RCO's package in conjunction with other evidence given by the Applicant.
CONCLUSION
[30] Although the Board relied upon other findings, such as omissions from his PIF, to conclude that the Applicantwas not a credible witness, the two above noted errors respecting the inconsistency finding and the implausibility finding, were central and material to the Board's determination respecting the truthfulness of the Applicant's testimony. Also, the implausibility finding (that the Applicant was too old to work or fight for the LTTE or to be suspected as an LTTE supporter by the army) was found to go to the issue of whether there was more than a mere possibility of persecution. In my opinion, this plausibility concern was also central to the finding that there is not more than a mere possibility that the Applicant would be persecuted on Convention refugee grounds.
[31] These errors are central to the decision, and intervention is warranted to set the decision aside, and refer the matter back for rehearing and redetermination by a differently constituted panel.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the April 12, 2002, decision is set aside and the matter is remitted for rehearing and redetermination by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3466-02
STYLE OF CAUSE: SUNDARALINGAM NAGENDIRAN v. MCI
DATE OF HEARING: April 24, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Justice James Russell
DATED: May 16, 2003
APPEARANCES BY: Ms. Vania Compana
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD:
Ms. Vania Compana
LEWIS & ASSOCIATES
290 Gerrard Street East
Toronto, Ontario
M5A 2G4
FOR THE APPLICANT
Ms. Angela Marinos
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto ON
M5X 1K6
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
Date:20030516
Docket: IMM-3466-02
BETWEEN:
SUNDARALINGAM NAGENDIRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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