Anandakrishnan v. MCI, 2001 FCT 922

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2001 FCT 922

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Date: 20010820

Docket: IMM-5441-00

Neutral citation: 2001 FCT 922

BETWEEN:

KRISHNER ANANDAKRISHNAN and

SIVAGANGAI ANANDAKRISHNAN

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

LEMIEUX J.:

[1] The applicants in this judicial review application against the September 14, 2000 negative decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") are husband and wife, both 67 years of age and Tamils from Jaffna, Sri Lanka.

[2] This is their second refugee claim in Canada. Their first claim was heard on September 3, 1998, with the Refugee Division, denying it on December 1, 1998. Their application for leave and judicial review to this Court was dismissed on April 26, 1999.

[3] For their second claim, the applicants submitted new PIFs in which the male applicant elaborates upon the torture he suffered from the Army. The applicants also tendered new documentary evidence from Dr. Joseph at Ste-Anne's Nursing Home in Colombo stating he saw the male applicant on September 15, 1997 "who had a history of internal pains and abrasions, resulting from torture by the Armed Forces and assault with blunt weapons".

[4] In their new PIFs, the applicants also alleged that many Tamils taken into custody by the Sri Lankan security forces have disappeared and that the LTTE are forcing elderly Tamils to join their auxiliary forces.

[5] The tribunal summarized their oral testimony in the following fashion:

In oral testimony, the male claimant alleged Sri Lankan immigration authorities would confiscate their national identity cards, (NIC's), as there would be no record of the claimants having left Sri Lanka. They will then be interrogated by the CID. He claims that since he is not in possession of an Army pass, they would have difficulty staying in Colombo. He is aware that the Red Cross has begun to run a ferry service from Trincomalee to Jaffna, but they would have a long wait to get on the boat. He maintains that he will be suspected as a supporter of the LTTE and that the authorities know that many Tamils in Canada support the LTTE. When asked if he knew that the situation in Sri Lanka is any different now than when he left, he referred to the Central Bank bombing, the attempt on the President's life, and the assassination of a Tamil MP. The government has now accepted the fact that the LTTE are recruiting people over 55 years of age. There is an auxiliary force, he claims, to assist the LTTE to patrol the borders.

[6] Because this was a second claim, the tribunal followed the approach laid out by Justice Rothstein, then of the Trial Division, in Vasquez v. Canada (Minister of Citizenship and Immigration), IMM-1979-97, November 26, 1998, holding the requirements for the application of issue estoppel, a species of res judicata, had been met citing the Supreme Court of Canada's decision in Angle v. Minister of National Revenue, [1995] 2 S.C.R. 248.

[7] The tribunal expressed its approach this way:

At the start of the hearing, the panel advised counsel and the claimants that it would follow the principle of res judicata and would only consider evidence of changed country circumstances since the last hearing. The previous panel found the male claimant's evidence, about being tortured by the Army on suspicion of being a spy for the Tamil Tigers, not credible. That panel's analysis of the plausibility of the claimant's testimony was based on documentary evidence that did not support the proposition that, on a balance of probabilities, 65-year-old Tamils were so suspected. This panel is not prepared to disturb that finding or relitigate the same facts unless it can objectively be shown that conditions in Sri Lanka have changed to the extent that the claimants now face a serious possibility of persecution because they are Tamils from the Jaffna area of Sri Lanka.

THE ISSUES

[8] Counsel for the applicants accepted the principle of issue estoppel applied in the circumstances but claimed the tribunal breached the rule and, moreover, applied it unequally.

[9] As a first issue, counsel for the applicants said the tribunal breached a principle of natural justice by re-visiting a factual finding made by the previous panel unrelated to the only issue which the tribunal had said it would consider, that of a change of country conditions. According to the applicants, the issue trespassed upon by the tribunal was the question whether the applicants had illegally left Sri Lanka.

[10] As a second issue, one related to the first, is the unequal application of the rule of issue estoppel. The applicants say the tribunal excluded, on that principle, the medical evidence from Dr. Joseph at Ste-Anne's Nursing Home yet, on the other hand, to the disadvantage of the applicants, failed to apply it in concluding that the male applicant was able to present proof of his citizenship at the first hearing because he had obtained that document in order to get a passport to leave Sri Lanka legally.

[11] As to the third issue, counsel for the applicants argues the tribunal misapprehended the basis of the applicants' fear and/or ignored relevant documentary materials which contradicted the tribunal's finding related to LTTE recruitment.

DISCUSSION

(1) The first issue -- breach of natural justice

[12] Counsel for the applicants points to the following extracts from the tribunal's decision to demonstrate a breach of the procedural rules it clearly laid out at the beginning of the hearing, namely, the application of the issue estoppel rule precluded it from considering issues other than changed country conditions:

To begin with, we already notified the claimants that this panel is not prepared to reassess the findings of the previous panel that the claimants were not credible with respect to the central basis of their claim, i.e. that there is serious possibility of their being persecuted by the security forces on suspicion of being LTTE supporters. Given that finding, there is no basis for this panel to believe that the claimants left Sri Lanka illegally. Because the male claimant was born in Malaysia, he secured for his first hearing a document attesting to his Sri Lankan citizenship. This letter dated March 14, 1997 to the claimant, is from the Ministry of Defence addressed to the claimant at his home in Sandilipay . . . . However, the key internal identity document in Sri Lanka is the NIC. The claimant was already in possession of an NIC when he sought confirmation of his citizenship. The panel draws what it considers a reasonable inference that the claimant sought confirmation of his citizenship in order to get a passport. [Emphasis mine]

[13] Counsel for the respondent acknowledged the tribunal breached the rules it had laid out at the beginning of the hearing when, in its decision, it concluded the applicants had not left Sri Lanka illegally as a result of an inference drawn based on the evidence before the first panel. However, counsel for the respondent says this breach was of no consequence because the tribunal made an alternative finding in these terms:

Even if we are wrong, the panel believes that with proof of their citizenship, their NICs and their birth and marriage certificates, the claimants will not be unduly harassed by Sri Lankan immigration upon their return to Colombo. We are not prepared to believe that because they have been in Canada, they will be suspected of being LTTE supporters. They may be detained and questioned but there is no evidence before the panel to suggest that elderly Tamils with ample identification returning from Canada are unduly harassed in Colombo. [Emphasis mine]

[14] The context of the finding objected to by counsel for the applicants, as well as the alternative finding, relates to what kind of reception the applicants would receive from the Sri Lankan immigration authorities (as distinct from the Sri Lankan Army (SLA)) when they would arrive at Colombo International Airport on their return.

[15] I am prepared to accept counsel for the respondent's submission that the alternative finding cures the transgression which the tribunal committed when it allowed itself to draw an inference that the applicants had left Sri Lanka legally leading to its conclusion their clearance at the airport would not be unduly affected. I do so for two reasons.

[16] First, the tribunal's finding does not breach the issue estoppel rule nor their procedural instructions at the opening of the second hearing because the alternative finding is, in essence, a repetition of the finding made by the first panel on this point and I quote from that first decision:

... the key issue is always verification of identity and the national identity card (NIC) is the standard identification document although a passport, a driver's licence or some other document may suffice. The person most at risk is someone recently arrived from the north or east who was born there, is not registered in Colombo, has no NIC card, or has no place to stay, etc. All residents of Colombo, including Sinhales, are regularly stopped, and checkpoints and security checks are simply considered a way of life in the capital. The female claimant has her NIC and passport to establish her identity and the male claimant has documents attesting to his citizenship. Therefore, in our view, the claimants do not have good grounds for fearing persecution. We also note that they do not fit the profile of those who are most at risk in Sri Lanka, that is, young single Tamil males and females.

[17] Second, the documentary evidence before the first panel (and relied on by it) based on a UN HCR release stated that rejected asylum seekers who arrive with national travel documents should have no problem when arriving at Colombo Airport and that, in general, rejected asylum-seekers are not singled out, either at the airport or at a later stage.

2. The second issue -- unequal application of issue estoppel rule

[18] Discussion of the second issue raised by the applicants need not be extensive. Clearly, the tribunal was correct in giving the letter from Ste-Anne's Nursing Home no weight because it fell within the ambit of impermissible new evidence contrary to Angle and Vasquez, supra. The inequality of application arising out of the reference to his citizenship has no significance given the alternative finding by the tribunal and the finding by the first panel that the male applicant has documents attesting to his Sri Lankan citizenship.

3. The third issue -- misapprehension of applicants' fear and/ignoring relevant documentary material

[19] Counsel for the applicants submits that the applicants' fear was based on the fact the LTTE does recruit people of their age and, as a result, their age will not protect them from being suspected by the Sri Lankan authorities as LTTE members or supporters. When the LTTE attacks places under the control of the Army, the applicants, as residents of those areas, fear they will be detained by the authorities. Counsel for the applicants points to documentary materials which post-dated the materials before the first panel which they say contradicts the tribunal's finding that on the return to Sri Lanka, the applicants will not be unduly harassed by Sri Lankan immigration on their return to Colombo.

[20] I am not prepared to disturb the tribunal's finding on this point, because, once again, it is essentially an invitation to revisit the findings of the first panel. The applicants relied on their new PIF to support their claim that the LTTE are forcing elderly Tamils to join their auxiliary force. They also testified on the point.

[21] There was documentary evidence before the tribunal by way of Information Bulletin Number 23 dated July 11, 2000 from the University Teachers for Human Rights, Jaffna, Sir Lanka, upon which the tribunal based its conclusions concerning LTTE policy towards child recruitment. As well, this Bulletin mentioned the Border Force and stated that the civilians drawn into it are between the ages of 16 to 45; those above that age are drawn into the Village Force and do jobs like repairing roads.

[22] It is upon these facts the tribunal drew its conclusions the claimants, each at 65 years of age, do not face a serious possibility of such recruitment in the areas controlled by the Army and it followed that they would also not be suspected by the Army of being LTTE supporters. The documentary evidence considered by the tribunal supports that finding. I do not accept counsel for the applicants' argument the tribunal ignored documentary evidence in the form of an October 1998 Issue Paper from the Research Directorate of the Immigration and Refugee Board with a particular reference to pages 31 and 32 where it is mentioned that bribery is far more problematic for Tamils returning from abroad.

[23] I fail to see a contradiction between the specific finding by the tribunal that the applicants, because of the documents which they have, will not be unduly harassed by Sri Lankan immigration authorities at Colombo Airport and a more generalized statement in the IRB Issue Paper that "officials assume that these Tamils are Tigers and considered them fair game" for extensive bribery and extortion. The IRB Report is based on an assumption which the tribunal did not make and in fact rejected.

DISPOSITION

[24] For all of these reasons, this judicial review application is dismissed. No certified question arises.

"J. Francois Lemieux"

JUDGE

OTTAWA, ONTARIO

August 20, 2001