Date: 19990615
Docket: IMM-4123-98
BETWEEN:
KUMARAMOORTHY NADARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board dated July 10, 1998, wherein the Refugee Division determined that the applicant was not a Convention refugee.
[2] In that case, counsel for the applicant suggests that the credibility of the applicant was the major point.
[3] Counsel for the applicant suggests that the panel finds that the claimant"s testimony was implausible and therefore, not credible or trustworthy, based on three particular findings.
| - First, a change in the applicant"s PIF. |
| - Second, the panel found that it was implausible that, at the time of high security alert due to the increase of the Liberation Tigers of Tamil Eelam (LTTE) terrorist attacks in Colombo and elsewhere, the claimant was able to pass through SLA-controlled areas, such as Pavatkulam, and Madavachchi, where he boarded the train and the Colombo train station where he arrived, without encountering any SLA checkpoints. |
| - And third, the panel finds it implausible that the police would release, even upon payment of a bribe, a young male Tamil recently arrived from the North without a SLA pass which would indicate to the Colombo police that the claimant had at least passed through the security processing and was cleared to travel south. |
[4] I would address only the first element concerning the change in the applicant"s PIF and the fact that the applicant suggests that at the port of entry, the officer had taken handwritten notes and that the information included in those handwritten notes could demonstrate that those notes are consistent with the testimony of the applicant.
[5] Counsel for the applicant has asked for those handwritten notes and it appears that nobody could find those handwritten notes before the hearing.
[6] At the beginning of the hearing, counsel for the applicant mentioned:
COUNSEL The only comment I make at this point in time is that I believe everybody in their file does have a copy of a letter that I sent to the board on March 26th, 1998. And in that letter reference is made to the fact that, apparently anyway, my client advises that during this interview at the port of entry the Immigration Officer took some handwritten notes of the interview, and I had asked that those handwritten notes be disclosed and made available prior to the hearing.
I did receive a telephone call yesterday from the case officer from the board advising that, although attempts have been made to try and obtain those notes, Canada Immigration -- nobody at -- was available at Canada Immigration in order to provide those notes to us at this time. And I"m taking the position that those notes are quite important considering the comment made by the Immigration Officer in the port of entry notes, and if, in fact, the issue of the absence of disclosing the fact that Mr. Nadarajah had a transit point between Singapore and Canada becomes contentious, I will require that those notes be disclosed at some point in time prior to a decision being made in the hearing.
But otherwise, we are prepared to proceed this morning, and perhaps we can just clear it up with the testimony.1
[7] At the end of the hearing, counsel for the respondent, again, raised the point:
So, I don"t know what documentation this particular Immigration Officer was relying on when he completed the SIO Note Review Report, but whether or not he had the benefit of the handwritten notes of the original Immigration Officer from the port of entry remains to be seen, so, I"d ask you to consider that in assessing whether or not this is really problematic as far as the SIO Notes and Review Report are concerned. You"ve got at least three or four different Immigration Officers who don"t know what they"re relying on in order to come to this particular conclusion. And I still take the position that if, in fact, this is an issue before you, that we should at some point in time try and get the handwritten notes from the Immigration Officer in order to clear up what potentially the credibility issue with respect to this young man who"s testified specifically what he indicated to the Immigration Officer that he did come through an unknown third country between Singapore and Canada.
| TAUB Counsel, the notes that we have just indicates that calls were made to Immigration but there was no answer. |
| COUNSEL Correct. |
| TAUB So there"s no confirmation whether these notes exist or not? |
| COUNSEL That"s correct. That"s the same thing that happened -- I got a call from a case officer yesterday confirming exactly what you just said. So whether they exist or not, they may exist and they not exist. We don"t know at this point in time, because Immigration hasn"t had the opportunity to call back. |
...
| TAUB Back on the record. The same parties are present with the exception of the RCO. I think we"re going to set a -- try to follow up on the confirmation of these notes. We"re not going to wait too long because -- April 1st . Easter is -- |
...
| TAUB Try and get confirmation of this, rather than speculating one way or another. Okay. Confirmation, port of entry handwritten notes. Okay. |
...
And, at the final end,
| TAUB Okay. Thank you. Then this hearing is concluded, but adjourned for confirmation of the existence of certain notes from Immigration Canada, to April 14th. Thank you very much. |
| COUNSEL Thank you.2 |
[8] After the hearing, counsel for the applicant sent a letter to the Board on April 22, 1998,3 asking whether the handwritten notes were acquired by the Board, and if so, to provide him with a copy.
[9] Counsel for the applicant also mentioned that if it was an issue concerning credibility, he wanted to reopen the hearing for the purpose of cross-examining the Immigration officer.
[10] A month later, on May 28, 1998, counsel for the applicant sent another letter to the Board, acknowledging receipt of a package of material and mentioning also that the handwritten notes he was looking for, were absent from the disclosure of documents.
[11] In this letter, counsel for the applicant suggests that he was requiring the Board to reopen the hearing for cross-examination of all immigration officers who had handled this file.4
[12] And finally, on May 29, 1998, counsel for the applicant confirmed in a letter that he had received a message from the Board which consisted of the following:
The case is now concluded and the decision reserved. We do not concede to counsel"s submission speculation regarding immigrations"s handwritten notes and we will not re-open the case. The case is concluded and the decision reserved.5
[13] In my opinion, I can conclude from those events that counsel for the applicant made every efforts to get the handwritten notes, if they ever existed, to be filed and has even asked the panel to reopen the hearing to cross-examine the respondent"s officers involved in the case.
[14] The panel decided to deny the applicant"s request for a reopening of the hearing and cross-examination of other witnesses on documents that were not materialized.
[15] I cannot see in this decision a reviewable error.
[16] Counsel for the applicant filed a decision from Justice Gibson in Lin v. Canada (Minister of Citizenship and Immigration) 1995, 101 F.T.R. 192.
[17] In that case, port of entry notes were filed. The problem was almost the opposite because counsel for the applicant opposed the filing of those port of entry notes as they were and wanted an opportunity to subpoena and then cross-examine the immigration officer who wrote the notes and the interpreter.
[18] Counsel for the applicant in that case, was denied his request for cross-examination by the panel and finally, the Federal Court granted the judicial review.
[19] In the Lin case, the Court decided that refusing the applicant the right to cross-examine the immigration officer on his port of entry notes, "violated the principle of natural justice and fairness and denied the applicant of a fair hearing".6
[20] In our case, there is a big difference. We do not have those handwritten notes that were claimed by counsel for the applicant.
[21] We are not facing existing handwritten notes, but facing a request to cross-examine a witness on a document that never materialized.
[22] The Board did not err by failing to reopen the hearing for cross-examination of an immigration officer.
[23] The applicant was aware, prior to the hearing, of the documents that the Refugee Division eventually relied upon in assessing the applicant"s credibility. It was opened to the applicant to subpoena the author of the documents at the hearing. The applicant was not prevented from challenging the evidence relied upon by the Refugee Division.
[24] Concerning the credibility and plausibility of the evidence submitted in this case, the Board is entitled to decide adversely with respect to a claimant"s credibility on the basis of contradictions and inconsistency in the claimant"s story and between the claimant"s story and other evidence before the Refugee Division.
[25] Moreover, the Board is entitled to make an adverse finding regarding credibility on the basis of the implausibility of the claimant"s testimony alone.
[26] On a question of credibility, this Court should be very cautious to intervene, unless it is clear that the Board has committed a reviewable error. It is not the case here.
[27] For all those reasons, this application for judicial review is dismissed.
[28] Neither counsel have suggested question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 15, 1999
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