IMM-3861-96
B E T W E E N:
MURUGATHAS ANANDARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.:
There are six issues in this judicial review of an October 1, 1996 decision of the Immigration and Refugee Board finding that the applicant was not a Convention refugee.
1. When the panel was not satisfied about the applicant's identity, did it give the applicant the opportunity to provide corroborative evidence in support of his alleged identity? The transcript is clear that the panel specifically raised the question of the applicant's identity with applicant's counsel as result of matters that transpired during the first part of the refugee hearing. On the resumption of the hearing, counsel was expressly asked whether he wanted to call additional evidence on the point. He specified that he did not. Then in reply submissions, he indicated that if the panel still had concerns about the applicant's identity that further evidence could be called. The panel did not ask for further evidence. The applicant was offered the opportunity to call evidence and chose not do so. There is no obligation on a panel to ask for evidence. Applicant's counsel also submits the panel was not sufficiently specific in identifying its concern about the applicant's identity. I do not think a panel need go further than it did in this case. Where as a result of proceedings an applicant's identity becomes a serious issue and a panel so indicates, I think it has satisfied any obligation it may have. There is no denial of fairness by the panel in the circumstances.
2. The panel referred to the applicant having left Vavuniya in July 1995, when the evidence is that he left in June 1995. Nothing turns on this factual error.
3. The panel found that in the applicant's first hearing, the applicant left the impression that he had not met with the authorities in Colombo while at the resumed hearing the evidence was that he attended at the police station. The panel found the applicant's evidence was not credible on the point. Applicant's counsel says the transcript is clear that the applicant at both the first and resumed hearings said that he attended at the police station. The panel based its credibility findings on the applicant's demeanour and lack of specificity. In the transcript of the first hearing, the applicant's evidence at some points suggests he attended the police station and at others that he sent material with other persons but did not attend himself. The panel says his evidence was unclear on the point. I cannot find fault with the panel's findings in view of the inconsistency of the applicant's evidence. Before me, applicant's counsel suggested that the applicant's apparent inconsistency may have arisen from inadequate interpretation. However, there is no suggestion in the applicant's Memorandum of Fact and Law that interpretation was an issue and I am not persuaded by this last minute argument that the apparent inconsistency was attributable to poor interpretation.
4. Applicant's counsel says that the panel's finding that it was implausible that the applicant would have been given significant amounts gratuitously to get to Canada was inconsistent with the evidence. The applicant testified that an agent gave him the required amount and would only require payment after the applicant got to Canada. Counsel submits that this evidence proves that the payment was not gratuitous. I disagree. An alleged vague arrangement for repayment after a person has moved halfway around the world need not be accepted as evidence that the advance was not gratuitous. The panel was well within it its proper function of weighing the evidence before it when it found that the amount the applicant says he received was gratuitous and that such a gratuitous transaction was implausible.
5. Applicant's counsel forwarded documents on country conditions in Sri Lanka after the close of the hearing but before the panel's decision was rendered. The material before me suggests that the panel did not see this information or at least did not refer to it in its decision. It was sent to the Registrar of the Board and marked "To Whom It May Concern". Although, I agree with Simpson J. (see Vairavanathan v. M.C.I., IMM-1816-95, decision dated July 29, 1996) that there is a duty on counsel to ensure that post-hearing documents are actually received by the relevant I.R.B. members (and I would add relevant R.C.O.), her decision was issued at just about the time when counsel in this case forwarded the additional information to the Board. It may well be that he was not aware of her decision, and I would not decide the matter on this point.
However, the new information was general information on country conditions in Sri Lanka. It was not specific to the applicant. In this case the applicant's identity was an issue ant the panel concluded that it was not satisfied that the applicant was who he said he was. Until the panel is satisfied that the applicant is associated with a specific country, in this case Sri Lanka, that country's conditions do not become relevant. In the circumstances of this case, the material applicant's counsel submitted was not relevant, and even if the panel did not receive it or consider it, no error was committed.
6. Applicant's counsel says that the Personal Information Forms of alleged family members of the applicant corroborate his alleged identity. The panel dealt thoroughly with the Personal Information Forms and birth certificate and rejected that evidence in respect to the applicant's identity. It was within its prerogative to do so.
This judicial review is dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
July 3, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3861-96
STYLE OF CAUSE: MURUGATHAS ANANDARAJAH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JULY 2, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: JULY 3, 1997
APPEARANCES:
Mr. Max Berger
For the Applicant
Mr. James Brender
For the Respondent
SOLICITORS OF RECORD:
Berger, Max, & Associates
207-1033 Bay Street
Toronto, Ontario
M5S 3A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3861-96
Between:
MURUGATHAS ANANDARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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