Date: 20040205
Docket: IMM-1031-03
Citation: 2004 FC 195
BETWEEN:
PATHMASIKAMANI BABU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Pathmasikamani Babu is a 28 year old Tamil, and a citizen of Sri Lanka. As a Northern Tamil, Mr. Babu claims to have a well-founded fear of persecution at the hands of the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE).
[2] Mr. Babu's application for refugee status was denied by the Refugee Protection Division of the Immigration and Refugee Board because the Board found that Mr. Babu did not provide credible and trustworthy evidence that he resided in the North of Sri Lanka during the period in which he had allegedly been subjected to persecution. He now seeks to have that decision set aside, alleging that the Board dealt with his claim in a procedurally unfair manner, and further, that the Board's identity and plausibility findings were made in a perverse or capricious manner, without regard for the material before it.
Background
[3] Mr. Babu was born in Jaffna, in northern Sri Lanka, in 1976. In the early 1990's, Mr. Babu moved with his family to Mount Lavinia, near Colombo, in the southern part of the country. Mr. Babu's father worked for the Government of Sri Lanka, and operated an electrical engineering business on the side.
[4] In the summer of 1991, while he was still living in Jaffna, Mr. Babu says that he was forcibly recruited by the LTTE to provide labour. After escaping, Mr. Babu was arrested by the LTTE, and was held for eight days, during which time he was physically abused. After his parents and school teacher were able to secure his release, the entire family relocated to Mount Lavinia.
[5] In the Fall of 1992, the police stopped Mr. Babu on the street in Colombo. According to Mr. Babu, the police assaulted him, took his postal identity card and told him to apply for a National Identity Card, which he did. The card that he obtained showed Mr. Babu residing in Colombo.
[6] As a result of ongoing conflict in Colombo, Mr. Babu says that his family moved back to northern Sri Lanka in August of 1993. On his return to the North, Mr. Babu says that he worked in his father's electrical repair business.
[7] Mr. Babu says that in 1995, he was regularly forced to work for the LTTE. In July of that year, he was arrested by the LTTE at his father's store. Mr. Babu was allegedly detained for 5 days, during which time he says that he was beaten because of his refusal to join the LTTE. After Mr. Babu's father paid a bribe to the LTTE, Mr. Babu was released with the warning that he should work for the LTTE, and not for his father.
[8] In October of 1995, there was a mass exodus of Tamils from Jaffna. Mr. Babu says that his family relocated to Chavakachcheri for 6 months. There, Mr. Babu says that he was beaten for not lending his bicycle to an LTTE collaborator.
[9] Mr. Babu's family returned to Jaffna in May of 1996. Mr. Babu says that he was arrested and badly mistreated by the SLA in July of 1996. This occurred during a crackdown on Tamil activity that followed an attempt on the life of a Cabinet minister.
[10] In August of 1998, Mr. Babu says that he was arrested by the SLA at his father's store for allegedly having supplied electrical wires to the LTTE. Mr. Babu alleges that he was interrogated and tortured until such time as his father was able to secure his release through the payment of a bribe.
[11] On December 5, 2000, LTTE members came into the store, and gave Mr. Babu a list of the items that they wanted him to deliver. Mr. Babu says that he refused to give them what they wanted because of his fear of the SLA. According to Mr. Babu, he was then physically attacked by the LTTE members. The assault stopped when his sister ran into the street screaming for help.
[12] Mr. Babu says that he was then summoned to appear before an inquiry to be held by LTTE officials. Mr. Babu initially went into hiding, and then fled to Colombo on January 14, 2001. Mr. Babu left Sri Lanka on February 16, 2001. He arrived in Canada on March 1, 2001, and immediately thereafter made his refugee claim.
The Board's Decision
[13] The Board identified the issues in Mr. Babu's case as "credibility and the claimant's identity as a Tamil who resided in the North at times material to his claim". The Board was not persuaded that Mr. Babu had provided credible and trustworthy evidence in support of his claim to having resided in the north of Sri Lanka after August of 1993.
[14] Apart from Mr. Babu's testimony, the only evidence offered in support of Mr. Babu's claim was an undated letter written on the letterhead of Mr. Babu's father's electrical business. The letter is addressed to the Commander of the Subas Hotel Camp in Jaffna, and is written by an individual who Mr. Babu identified as the manager of his father's store. The letter states that the author was present when Mr. Babu was arrested by the SLA in August of 1998. The letter appears to have been written in an effort to secure Mr. Babu's release, and includes a testimonial from the author as to Mr. Babu's good character, and the effect that his continued detention was having on the family
[15] The Board recognized that if the letter was authentic, it would place Mr. Babu in the north of Sri Lanka at the time in question. Nevertheless, the Board had serious concerns about the reliability of the letter. The Board found it implausible that the author of the letter would not himself have been accused of complicity in the supply of electrical wires to the LTTE. The Board stated " ... that only the claimant was arrested for supplying banned items to the LTTE defies common sense and what is generally known about the way the SLA operate (specially in an era of heightened conflict)." (sic throughout)
[16] The Board was also not persuaded that it would have been necessary for a store employee to write a letter in an effort to secure Mr. Babu's release from the SLA, given Mr. Babu's father's position of influence in the government
[17] The Board did not accept Mr. Babu's explanation for his failure to produce any other documentation supporting his claim, and concluded that Mr. Babu had not established that he was in northern Sri Lanka after August of 1993, and that the events described by Mr. Babu had been fabricated to boost his claim. As a result, the Board concluded that Mr. Babu was neither a Convention refugee, nor a person in need of protection.
Issues
[18] Mr. Babu raises two issues on this application:
1) Did the Board fail to observe a principle of natural justice or procedural fairness?
and
2) Did the Board make its identity and plausibility findings in a perverse or capricious manner or without regard for the material before it?
Did the Board fail to observe a principle of natural justice or procedural fairness?
[19] Mr. Babu asserts that the Board acted unfairly in purporting to take the issue of identity "off the table" at the commencement of the hearing, and then making Mr. Babu's identity the central issue in the case.
[20] Mr. Babu says that he was not questioned about his identity at any length during the hearing as a result of the presiding member's statement that identity was not in issue. The Board went on to dismiss Mr. Babu's refugee claim, to a large extent because of it's findings related to Mr. Babu's identity. This, Mr. Babu says, is a breach of procedural fairness, citing ths Court's decision in Moya v. Minister of Citizenship and Immigration [2002] FCT 1147 in support of this contention.
[21] I do not accept this argument. The Board clearly took the question of Mr. Babu's personal identity "off the table", and indeed the Board did not take issue with the fact that Mr. Babu is who he says he is. What concerned the Board was Mr. Babu's identity as a Tamil from northern Sri Lanka. A review of the record discloses that this issue was always understood by all of the participants to be a live one.
[22] Prior to the commencement of Mr. Babu's refugee hearing there was a question as to the authenticity of Mr. Babu's identity papers. As a result, Mr. Babu's hearing was postponed in order to allow for the verification of the identity documents. The identity documents were subsequently confirmed to be authentic. The most recent identity documentation provided by Mr. Babu was his National Identity Card, which, it will be recalled, showed Mr. Babu residing in Columbo and not in northern Sri Lanka.
[23] A review of the transcript from the hearing discloses that at the commencement of the hearing, the Board advised Mr. Babu that it " ... [did] not regard identity as an issue any longer." The Board went on to clarify what it meant by 'identity', stating "when I say identity in this regard I am referring to your personal identity .... ".
[24] The Board went on to say "Of course credibility is an issue in all claims." A few minutes later, the Board clearly identified the question of whether Mr. Babu was resident in the north of Sri Lanka at the material times as one of the live issues in the case.
[25] Nor was there any confusion in anyone's mind as to what was and was not in issue in this case during the hearing. After all of the evidence was in, Mr. Babu filed written submissions with the Board with respect to his claim. These submissions state "At the beginning of the hearing, I understood the Board to indicate that identity was no longer an issue; however, the claimant still had to establish he was resident in the North at the times material to his claim ..."
[26] It is evident that Mr. Babu clearly understood what the issues were that were of concern to the Board. As a result, I am not persuaded that there was any denial of procedural fairness in this regard.
Did the Board make its identity and plausibility findings in a perverse or capricious manner or without regard for the material before it?
[27] Mr. Babu says that there was no evidentiary basis for the Board's finding that it was implausible that the manager of the electrical repair business would not have been arrested at the same time as Mr. Babu. Further, given that the authenticity of the letter was central to the Board's decision, the Board should have put its concerns with respect to the letter to Mr. Babu for an explanation. In this regard, Mr. Babu relies upon the decision of this Court in Abdul v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 352, where the Court stated:
While the Board may not be required to put every inconsistency or implausibility to the plaintiff, when such findings are at the heart of the claim, the Applicant must be given an opportunity to explain.
[28] Whether or not Mr. Babu lived in the northern part of Sri Lanka between 1993 and 2001 is a pure question of fact. This Court is required to pay considerable deference to findings of fact made by the Board, and should not interfere with these findings unless they are patently unreasonable, or, to use the language of section 18.1 of the Federal Court Act, are "made in a perverse or capricious manner or without regard for the material before it". Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)
[29] In this case, the Board gave clear reasons for its finding that the key aspects of Mr. Babu's story were implausible. This finding was reasonably open to it. In my view, the Board had no obligation to express its concerns with respect to the authenticity of the store manager's letter in the course of the hearing. In this regard, I adopt the reasoning in Sarker v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 209 (T.D.), where Justice MacKay stated:
The finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has had the opportunity to consider it.
In my opinion there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of evidence, in advance of a decision.
See also Zheng v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 2002
[30] In any event, the Board did question Mr. Babu quite extensively with respect to the reasons for his inability to produce any additional documentary proof of his residence in the north of Sri Lanka at the time in question. These questions clearly indicated that the Board was troubled by the quality of the evidence before it regarding Mr. Babu's place of residence.
[31] For these reasons, I have concluded that Mr. Babu has not demonstrated that the Board committed a reviewable error in this case, and accordingly, this application is dismissed.
Certification
[32] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040205
Docket: IMM-1031-03
BETWEEN:
PATHMASIKAMANI BABU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1031-03
STYLE OF CAUSE:
PATHMASIKAMANI BABU v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: February 5, 2004
APPEARANCES:
SOLICITORS OF RECORD:
|
John M. Guoba
Barrister and Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Department of Justice
Toronto, Ontario
|
FOR THE RESPONDENT
|
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