Date: 20000406
Docket: IMM-3224-99
BETWEEN:
POORANACHANDRAN KURUNATHY
KAMALAVATHINI POORANCHANDRAN
(a.k.a. KMALAVATHANI POORANCHANDRAN)
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In the present case, the Convention Refugee Division (the "CRDD") seized on two discrepancies in dates between the Applicant"s PIF and the Applicant"s oral testimony, and, as a result, made central findings of negative credibility. The issue is whether this was done in due process; that is, in fairness to the Applicant by giving him an opportunity to fully explain the discrepancy which the CRDD found so important.
[2] The two date changes are dealt with by the CRDD in the following paragraphs of it"s decision:
| A pivotal event in the claimant"s story is that the Tigers incarcerated him for several months in either 1995 or 1996. There is confusing testimony as to the year. The written testimony indicates that it was between July and October 1995. In oral testimony he changed the year to 1996. He explained that he made an error in the written testimony. The panel does not believe his explanation in light of both claimants having testified at the outset of the hearing that the information provided in their respective PIF narratives was correct. It was only during the examination by the RCO and panel that the claimant changed the year of his incarceration by the Tigers. The alleged incarceration is fairly recent (less than three or perhaps four years ago). The panel is not satisfied that there is reliable evidence of incarceration by the LTTE in 1995 or in 1996. |
| Another inconsistency in the claimant"s testimony concerns his allegation that the Tigers demanded money and took his house from him in September 1997. In oral testimony the claimant changed the year to 1998. He explained that he had made an error in the PIF narrative. The panel does not find his explanation persuasive due to the pivotal nature of the alleged extortion, the proximity of the date of the alleged extortion to the date the claimant signed his PIF (November 28, 1998) and the date of the hearing and the claimant having stated at the outset of the hearing that the contents of the PIF were correct. The panel finds no reliable evidence of extortion or the seizure of his house in 1997 or 1998.1 |
[3] Respecting the first date change, the statement by the CRDD that "it was only during the examination by the RCO and panel that the claimant changed the year of his incarceration by the Tigers" implies that the Applicant somehow hid the issue of the date discrepancy before being so questioned. I find that this is an unfair and erroneous conclusion.
[4] Prior to the hearing of evidence, counsel for the Applicant asked that the date of the termination of the Applicant"s detention be changed from October 1995 to October 1996.2 The Applicant"s PIF was amended accordingly.3
[5] With respect to the second date change, while no application was made to change the PIF as was done in the first date change instance, in his testimony the Applicant was asked whether an error had been made in the PIF. In response, the Applicant confirmed that an error had been made. This issue was dealt with only in passing with no emphasis being placed upon it.4
[6] I accept counsel for the Applicant"s point that he was taken by surprise by the emphasis placed on the issue of date changes in the decision reached by the CRDD. In due process, I find that it was unfair to the Applicant to have a negative interpretation placed on such date change evidence without giving the Applicant an opportunity to fully explain the discrepancies. I also find it was a breach of due process not to give counsel notice that the date change issue was alive, and of major importance, and to not provide an opportunity for full argument to be made in response.
ORDER
[7] Accordingly, I set aside the decision of the CRDD and refer this matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
April 6, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3224-99 |
| STYLE OF CAUSE: POORANACHANDRAN KURUNATHY KAMALAVATHINI POORANCHANDRAN |
(a.k.a. KMALAVATHANI
POORANCHANDRAN)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: WEDNESDAY, APRIL 5, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
| DATED: THURSDAY, APRIL 6, 2000 |
| APPEARANCES: Mr. Avi J. Sirlin |
| For the Applicant |
| Mr. Marcel R. Larouche |
| For the Respondent |
| SOLICITORS OF RECORD: Mr. Avi J. Sirlin |
Barrister & Solicitor
500-425 University Avenue
Toronto, Ontario
M5G 1T6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000406
Docket: IMM-3224-99
Between:
| POORANACHANDRAN KURUNATHY |
KAMALAVATHINI POORANCHANDRAN
(a.k.a. KMALAVATHANI
POORANCHANDRAN)
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
__________________
1Applicant"s Application Record, pp 9-10.
2See Tribunal Record, page 261, 269 and 270.
3See Tribunal Record, page 26. While, as the Respondent argues, the date of the Applicant going into custody was not similarly changed from July 1995 to 1996, I think a fair reading of the Applicant"s evidence has him in custody for a matter of months and not for more than a year. Therefore, I find nothing turns on this failure to amend.
4See Tribunal Record, page 257, and 269. It is interesting to note that in argument, counsel appearing on behalf of the Applicant suggested that the date of September 1997 was placed in the PIF as a typographical error.