Date: 19980108
Docket: IMM-1298-97
BETWEEN:
GOVINDASAMY SELLATHURAI
RAMALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ, J.
[1] The applicant seeks a review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 5, 1997 to the effect that the applicant is not a convention refugee.
[2] The applicant alleges to be a citizen of Sri Lanka and a Sri Lankan Tamil. The central issue arising from this judicial review is his identity. After considering three specific documents the Board found that "there are serious reasons to believe that the claimant has not established, in a credible fashion, that he is a citizen of Sri Lanka and that he is a Sri Lankan Tamil.". The three documents in question are a passport, a birth certificate and a statement of a Justice of the Peace of Sri Lanka.
[3] The Board rejected the applicant's passport because of the inconsistencies between the document and the testimony of the applicant at the hearing. Under questioning by his own counsel the applicant admitted that he had told an "untruth" about the signature on the passport. Consequently, the Board cannot be faulted for having given no weight to the document in question.
[4] As to the applicant's birth certificate, the Board observed that the document bore the official stamp of "Ceylon" and since Ceylon became the Republic of Sri Lanka in 1972, the document was not accepted by the Board as proof of the applicant's identity. That allegation was not raised in the course of the hearing but appeared in a written submission filed by the refugee claim officer after the hearing. So as to meet that concern, counsel for the applicant contacted the Sri Lankan High Commission in Ottawa and received an electronic mail message confirming that birth certificates of Sri Lankans born after 1972 which have seals or stamps which the word "Ceylon" instead of "Sri Lanka" are valid.
[5] Counsel for the respondent objected to the admissibility of such a document on the ground that it was not produced at the hearing. In my view, since the issue regarding the validity of the applicant's birth certificate was only raised by the refugee claims officer after the close of the proceedings it is fair and proper that the applicant be allowed to respond by filing additional evidence in his own reply submission. Moreover, identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise: see Gur, Jorge P. (1971), 1 I.A.C. 384 (I.A.B.)1. In that Immigration Appeal Board decision, the Chairman asked the following question at page 391:
| "The question here is, who can question the validity of an act of state and who, having questioned it, has the burden of proof as to its validity, and what proof is required?" |
He provided the right answer at page 392, as follows:
| "Although there is almost no jurisprudence to be found bearing directly on the point, it must be held that an act of state - a passport or a certificate of identity - is prima facie valid. The recognition of the sovereignty of a foreign state over its citizens or nationals and the comity of nations make any other finding untenable. The maxim omnia praesumuntur rite et solemniter esse acta applies with particular force here, establishing a rebuttable presumption of validity." |
[6] In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitutes a reviewable error on the part of the Board.
[7] The third document in question is a letter obtained from a Sri Lankan Justice of the Peace, also filed by counsel of the applicant. The document, signed by S. Gunanayagam, Justice of the Peace, Trincomalee District in Sri Lanka, is dated December 7, 1996 and includes these three opening paragraphs:
| "This is to certify that Ramalingam alias Govindan Shelvathurai Ramalingam was born in Iohohilampathai on 5th July 1964. |
| His brother Sellathurai Ravinthran disappeared during the Anti-Tamil riots in Iohohilampathai in the month of June 1985. It is believed that he was killed during the riots. |
| His father Govindasamy Sellathurai was a prominent Member of the T.U.L.F. from Iohohilampathai. He was taken by the L.T.T.E. in June 1990 for questioning and he never came back. It is presumed that he was murdered by the TIGERS." |
The Board gave no weight to that document on several grounds including the fact that the Justice of the Peace did not prepare an affidavit and that he essentially repeated the claimant's allegations "without, however, any mention of the disappearance of the claimants brother and father". That is a second egregious error which shows that the Board did not read, or at least paid scant attention to the three paragraphs reproduced above.
[8] Consequently, this application for judicial review is granted and the matter is referred back to a Board differently constituted with instructions to reconsider the matter in the light of these reasons. There is no question to be certified under section 83(1) of the Immigration Act.
(Sgd.) "J.E. Dubé"
Judge
January 8, 1998
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1298-97
STYLE OF CAUSE: GOVINDASAMY SELLATHURAI RAMALINGAM,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 06, 1998
REASONS FOR ORDER OF THE COURT BY: DUBÉ, J.
DATED: January 08, 1998
APPEARANCES:
| Mr. Douglas Cannon for Applicant |
| Ms. Brenda Carbonell for Respondent |
SOLICITORS OF RECORD:
| Douglas Cannon for Applicant |
| McPherson, Elgin & Cannon |
| George Thomson for Respondent |
Deputy Attorney General of Canada
__________________1 see also Warsame v. M.E.I. (unreported; November 15, 1993, No. A-758-92, (F.C.T.D.)); and Hamid v. M.E.I. (unreported; September 20, 1995, No. IMM-2829-94, (F.C.T.D.))