Date: 20001106
Docket: IMM-5482-99
BETWEEN:
SRIAHILANDTHARANATHAN MOHANARAJAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This application is for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") made on October 14, 1999. The applicant, Sriahilandtharanathan Mohanarajan (the "Applicant),
made his refugee claim on the basis that he is a young Tamil male from the troubled Jaffna area of Sri Lanka. He alleged persecution by the Liberation Tigers of Tamil Eelam (the "LTTE") and by the Sri Lankan police and army. The Board rejected the Applicant's claim for lack of credibility. It also questioned the accuracy of his identification documents and concluded that there was insufficient reliable evidence to show that he was from the Jaffna area of Sri Lanka.
The Facts
[2] The Applicant is a 37 year old Sri Lankan Tamil. He is single with no children. In his Personal Information Form ("PIF"), the Applicant stated that he was born in Kalluvam, a village on the Jaffna peninsula, but that he was raised and educated in Vavuniya where his father owned a farm. The Applicant described the following events in his PIF.
[3] In 1984, after the assassination of a local superintendent of police, members of the army and police killed innocent Tamil civilians. At this time, the Applicant and his father were badly beaten by the police.
[4] Two years later, in 1986, the LTTE kidnapped, and presumably murdered, the Applicant's brother because he had been a close friend of a member of a rival militant organization.
[5] The Applicant obtained employment in June of 1989 as a driver-mechanic at the Northern Regional Transport Board (the "NRTB"), which he described as a quasi-government organization. The Applicant stated that employees of the NRTB were targeted for harassment by the LTTE.
[6] The civil war intensified in 1990. The Applicant's father sent his daughters and a younger son to Madras, India, for safety. In September 1990, the LTTE called for a general strike, but the Applicant was required to maintain the public transport service. His bus was intercepted by the LTTE and burned. He was not able to identify the assailants and for this he was interrogated and "physically harassed" by the police.
[7] In 1992, members of the LTTE came to the Applicant's family's house and, at gunpoint, "took away the entire paddy that was in our stock at that time". A year later, the army stopped the Applicant's bus and took him with his passengers to a nearby hospital where they were compelled to donate blood.
[8] In April 1994, the army used the Applicant's bus to transport a LTTE arms cache it had found near the Applicant's farm. The LTTE blamed the Applicant for disclosing the location of their stockpile. The Applicant was detained and tortured by the LTTE for 11 days and was only released when his father paid a large ransom. The LTTE ordered the Applicant to leave his work at the NRTB and to stay in Vavuniya. Out of fear, he complied. Six months later, in October 1994, the Applicant's father objected to the LTTE using his lands for a camp. For this, he was beaten severely and, soon afterwards, he died of a heart attack.
[9] The Applicant returned to Kalluvam in 1995 to look after his ailing grandfather and the family farm. He was harassed by LTTE members and was forced to provide them with money and labour. He was also threatened with conscription into the LTTE and was only spared because of a bribe paid by his grandfather. However, he said that he worked for the LTTE "like a slave".
[10] The government's forces took control of the area around Kalluvam in May 1996. As this area had been a LTTE stronghold in the past, the army was hostile towards the residents there. The Applicant stated that the army "somehow" learned about his skill as a mechanic and forced him to work on army vehicles.
[11] In February 1998, members of the LTTE entered the Applicant's home at night and beat him by kicking him in the testicles. They also threatened him with execution if he did not stop his work for the army. The Applicant tried to avoid working for the army but, for that reason, in April 1998, he was arrested by the army and "subjected to harassment of severe physical nature". His grandparents approached a family friend, who was an army officer, and asked him to intervene. As a result of his intervention, the Applicant was released after nine days in detention. In May of 1998, the officer who had helped the applicant was assassinated by the LTTE. The Applicant was overheard making harsh remarks about the LTTE and they therefore came to this house to kill him. However, he was away at the time. Thereafter, the Applicant went into hiding.
[12] The Applicant said that, between May and July of 1998, he made his way to Pavatkulam to stay with one of his father's friends. While there, he arranged to hire an agent to take him to Colombo and then out of the country. The agent escorted him to Colombo, where he stayed only one day. He then went to the airport, where a security officer interrogated him. However, he was able to board his flight to Singapore after the agent bribed the security officers.
[13] The Applicant left Sri Lanka on July 26, 1998, and flew to the United States via Singapore, Malaysia, China and Japan. He crossed the border into Lacolle, Quebec, on August 1, 1998, and made his refugee claim on that day.
The Issues
Issue One: The Applicant's Credibility
[14] The Board gave the following reasons for its conclusion that the Applicant's testimony was not credible:
| (a) at the hearing, the explanation the Applicant gave for how the army knew he was a mechanic differed from the information he had provided in his PIF; |
| (b) at the hearing, the Applicant described his detention and beating by the LTTE and by the army on different occasions with such "eerie similarity" that the Board found that neither event occurred; |
| (c) it was not plausible that the Applicant would stay for six weeks with his father's friend in Pavatkulam during his flight to Colombo; |
| (d) the Applicant told the hearing that his agent arranged for him to drive from Pavatkulam to Colombo in an army van. However, he also told the hearing that he had travelled to Colombo by train. Since he also stated that he had defied the orders of the army when it asked him to return to work on its vehicles and had left his designated area of residence against the army's orders, the Board found that his story was inconsistent, and that the version in which he relied on the army for transport to Colombo was implausible; and |
| (e) the Applicant testified at the hearing about his interrogation and the payment of a bribe at the Colombo airport, but he failed to include a full description of the events in his PIF. |
Discussion of Credibility
[15] In Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, the Court held that a Board's adverse finding on credibility should only be overturned if it was "patently unreasonable". I will examine each finding in turn.
[16] Regarding the Applicant's work as a mechanic, the Board said:
| The claimant testified that the army made him repair their vehicles. When asked how the army knew that he was a mechanic, he said that the army used to bring vehicles to the depot for repairs when he worked for the Northern Regional Transport Board (NRTB) from 1989 to 1994 so they came to know him. This contradicts his narrative in his PIF wherein he states that "somehow, the army personnel got to know about my being a NRTB mechanic and driver." The panel draws a negative inference from this contradiction. In our view, the term "got to know" does not imply firsthand knowledge as indicated in his oral testimony. |
[17] In his PIF, the Applicant had stated:
| In May 1996, the security forces assumed control over Vadamarachchy administrative division, which includes Karaveddi and Kalluvam. As those areas had been a strong hold [sic] of the LTTE at the very outset, the army men took a harsh attitude towards the people of those areas. I had to face inquiries at the nearby army camp on three occasions and undergo occasional hardships. Somehow, the army personnel got to know about my being a NRTB mechanic and driver. They made me to repair [sic] their vehicles off and on. |
[18] I have concluded that the Board's finding on this issue was not patently unreasonable. There was inconsistency between the Applicant's PIF and his oral testimony. I have also concluded that this was a material finding as it dealt with the Applicant's relationship with one of his agents of persecution.
[19] Regarding the beatings, the Applicant acknowledged that there was an inconsistency between his oral evidence and his PIF. In his oral evidence, he described two virtually identical beating incidents (involving being kicked in the testicles) at different times at the hands of two different agents of persecution. Yet, there were differing accounts of his mistreatment by the LTTE and the army in his PIF. However, the Applicant says that this inconsistency is not material and that his confusion about when one of the beatings occurred and when he was released by the army were minor matters.
[20] In my view, the Board was entitled to conclude that the differing descriptions of the two beatings was a material inconsistency which suggested that the Applicant's story was concocted. The two beatings were central to the Applicant's claim and led to his flight. It was not unreasonable to expect the Applicant to describe the events and the agents of persecution in a consistent manner.
[21] On the subject of the Applicant's stay with his father's friend, the Board found it implausible that, in the course of his flight to Colombo, the Applicant would stay for six weeks in Pavatkulam. The Board did not accept the Applicant's explanation and was troubled by the PIF which described the stay as "brief". I have found no basis for concluding that the Board's findings on this matter were patently unreasonable.
[22] Concerning the mode of transport used to reach Colombo, the transcript reveals a clear inconsistency. At one point, the Applicant said that he travelled by van and, at another time, he said that he travelled by train.
[23] However, while I can find no error with the Board's finding about the Applicant's inconsistent descriptions of his mode of travel, I agree with the Applicant that the Board's conclusion that the Applicant travelled to Colombo with a "special military escort" was not justified by the evidence. At most, it could only be said from the Applicant's evidence that he travelled with a person who was in the army.
[24] Finally, regarding events at the airport, the Applicant said in his PIF that:
| I stayed in Colombo only for one day and without registering my name with the police. By seeking the help of retired police officer, my agent was able to take me to the Colombo International Airport. There, the security officers started grilling me. My agent was able to bribe them and safeguarded me from being taken to the Negombo police station for further questioning and enabled me to leave Sri Lanka on July 26, 1998, by the scheduled flight. |
[25] On this topic, the Board said:
| Testifying about his departure from Sri Lanka, the claimant related to the panel that at the Colombo airport, about the time he was to go on the airplane, he observed two people in grey, checking his bags. He claimed that they thought he was a Tiger and asked why he was going to Singapore. The claimant testified that he told these two people that he was going to buy things. He said they found out that he had US$1,000 in his possession. They told the claimant, according to his story, that the US$1,000 was not (missing text) why this airport event was not mentioned in his PIF narrative. The claimant replied that he told his story in a shortened form with the intent to elaborate at the hearing. Counsel pointed out in his submissions that the claimant was required to write down only the significant events that led to his decision to Leave Sri Lanka. Nonetheless, the panel finds that if this incident had indeed occurred, it was significant enough to be included in his narrative and that given the fact that he mentions less significant events, the claimant should have included this in his PIF. He is neither credible nor trustworthy. |
[26] In my view, the Board was justified in concluding that a confrontation at the airport as he fled the country, in which he was challenged as a member of the LTTE, should have been described in the Applicant's PIF.
| Issue Two: The Applicant's Identity |
[27] To prove his identity as a young Tamil male from the Jaffna area, the Applicant introduced a national identity card and two other cards which he alleged were the front and back of what had been a single identity card issued by the NRTB. The Board referred the documents to the RCMP for forensic testing, but the results were "inconclusive". However, the Board relied on the RCMP's forensic report and on other evidence to question the credibility of the documents. The Board concluded that it was not satisfied that the documents reliably showed that the Applicant was a Tamil from the Jaffna area of Sri Lanka.
Discussion of Identity
[28] The following three documents were before the Board:
| Q-1: One Sri Lankan National Identity Card ("NIC"), number 672491789V, dated 89-91-10. |
| Q-2: One side of an NRTB identification card, number 001459, dated 89/12/18, which included a photograph. |
| Q-3: One side of an NRTB identification card, number 001459, which showed a handwritten date of 05-08-93. |
[29] The RCMP's forensic report made the following observations about each document:
| Q-1: This identity card was considered to be genuine. The RCMP said that: |
| It has been compared with genuine Sri Lankan Identity cards of the same type and was found to be consistent in its printing processes and production as well in the security features incorporated in it, such as: microprinted lines; letterpress printed control number, ultraviolet fluorescent features and security design on the laminate. |
However, the RCMP also noted that:
| Exhibit Q-1 displays damage to its original laminate as well as to the hand written information on the paper substrate. In addition, the card has been manipulated by trimming the original laminate along the four edges of the paper and re-laminating the card by applying the second laminate. |
| Q-2: The RCMP could not say whether this document was genuine. It remarked that: |
| The unavailability of any information on the production and issuance of this type of document resulted in the opinion of "Inconclusive" on the question of authenticity of Q-2. |
| The microscopic analysis of exhibit Q-2 revealed that it is printed with the letterpress process. The second digit in the number "622491780", has been overwritten to change it from "2" to "7", the significance of this change is not known. A second lamina had been applied over the card then the face of the card (the photo side) was scored with a sharp instrument and split from its backing thus resulting in the partial card which constitutes exhibit Q-2. |
| Q-3: The RCMP could also not say whether this document was genuine. It remarked that: |
| The unavailability of any information on the production and issuance of this type of document resulted in the opinion of "Inconclusive" on the question of authenticity of Q-3. |
| The analysis of exhibit Q-3 resulted in the observations that the laminate on one side of the card has been scored with a sharp instrument and was split thus resulting in the partial card which constitutes exhibit Q-3. |
| When the back sides (non-laminated sides) of exhibits Q-2 and Q-3 are superimposed, they do not physically match. The paper layer on the back of the photo in Q-2 does not match any portion missing from the back of Q-3, and the watermarks in both documents, although similar in design, do not match when superimposed. |
[30] In its decision, the Board made the following observations and reached the following conclusions about the documents:
| Exhibit C-2(a) the copy of the claimant's NIC is designated Q-1 in the RCMP report. In his response to the RCMP report, counsel make the point that it is not uncommon for one to re-laminate documents and that trimming of the excess plastic is purely cosmetic. This does not account for the absence of certain security features on the NIC. Earlier referenced |
| documentary evidence indicates that beginning in 1989 certain numeric codes were added to NIC's in order to identify the area of the country from which the holder of the document came. Thus, a NIC whose holder is from anywhere in the Northern Province would carry the numeric allocation 4 in the top right hand corner of the front (picture side) of the card. On the reverse side, the numeric 11 to indicate that he is from Vavuniya should be at the bottom of the card. Both of these features are absent from the JIC presented by the claimant on a card that was purported to have been issued in 1989. However, since the card tendered was issued on January 10, 1989, it is possible the law had not yet taken effect. |
| The document designated Q-2 by the RCMP is an identity card purported to have been issued by the NRTB on December 18, 1989, the same year as his NIC. The number of the claimant's NIC is 672491789V. Although this would seem to be the same number on the card issued by the NRTB, the second digit in the number on the NRTB card 622491789V has been overwritten to change the number from "2" to "7". This change is noted in the forensic report that goes on to say that the significance of the change is not known. Again, when the panel perused previously referenced documents, the documents indicate that the two first digits of the NIC number represents the year of birth of the holder. Given the fact that there has been tampering related to the original lamina on this card and given the fact that all other ID documents indicates that the claimant was born in 1967, the panel finds that the change of the second digit "2" on this card to read "7" is an attempt to falsify a document such that it matches the number of the NIC. |
| The document designated Q-3 by the RCMP also supposedly issued by the NRTB was purported to be a part of Q-2 |
| . . . |
| The panel finds that Q-3 was never a part of Q-2 as the claimant claims. Even a cursory examination of both documents will show that Q-2 is letter press printed, while most of Q-3 is handwritten. The logos are not identical as would be the case if they were both printed as parts of the same document. Furthermore, it makes no sense that the portion Q-3 would be a renewal of his NRTB identity card. He claims the ID was effective for 6 years. The original was issued in 1989. How could he get his ID card renewed at the NRTB in 1995 when he testified that he stopped working for that organization in 1994 due to threats to his life from the LTTE? Moreover, even if it were suggested that 1995 was the end of the effective period for the card issued in 1989, why then is the date 05/08/93 on the bottom of Q-3 instead of an issuing date of 1989. The panel finds that these documents are of very questionable veracity and that they have failed to establish the identity of the claimant especially with regard to this presence in the North at the material times referred to in his claim. |
[31] Regarding Q-2, Applicant's counsel suggested that the Board's conclusion that the second digit was changed from a "2" to a "7" to make it conform to Q-1 was illogical because it is highly unlikely that the Applicant (if he was a forger), would find a card to work with which had all the numbers he needed (but one) to match Q-1. I agree with this submission, but this does not necessarily mean that the document is genuine. All it means is that whoever prepared the document (whether the NRTB or a forger) made a mistake which was corrected when the number was being placed on the card.
[32] Given all the problems which were identified in connection with the documents, it is my view that the Board's finding was open to it. The Board is entitled, given its expertise, to reach conclusions about the reliability of a document even though the RCMP had not determined whether it was or was not authentic.
Conclusion
[33] For all these reasons, the application for judicial review will be dismissed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 6, 2000
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SRIAHILANDTHARANATHAN MOHANARAJAN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-5482-99
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2000
REASONS FOR ORDER: SIMPSON J.
DATED: November 6, 2000
APPEARANCES:
John M. Guoba for Applicant
Neeta Logsetty for Respondent
SOLICITORS OF RECORD:
John M. Guoba for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, Ontario