MA5-03161

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File # / No. dossier SPR : MA5-03161 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX XXXXX) Date(s) of Hearing Date(s) de l'audience March 8th, 2007 Place of Hearing Lieu de l'audience Toronto, Ontario Videoconferencing heard in Fait par vidéoconférence à Montreal, Quebec Date of decision Date de la décision June 14th, 2007 Panel Tribunal Sajjad Randhawa Claimant's Counsel Conseil du demandeur d'asile Ian D. Hamilton (Barrister and Solicitor) Refugee Protection Officer Agent de la protection des réfugiés Cristian Jadue Designated representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A Following are the panel's reasons for its decision in the claim of Mr. XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX XXXXX). The claimant is a 28-year-old Hindu Tamil male with grade 9 of education and has last worked as a XXXXX. He is a citizen of Sri Lanka. He left his country on XXXXX, 2004, arrived in Canada on March 12, 2005, after sojourning in the United States of America (USA) over three months, and made his claim the same day. Grounds for his claim are enumerated in his Personal Information Form (PIF)1 at page 9. SUMMARY OF ALLEGATIONS (as noted from the claimant's PIF) Family started to have problems when Tigers took control of the North in mid 1990. They forced people to support their war, to work for them and extorted money. People who defied were either punished severely or killed. His parents were forced to pay money. His father died in XXXXX 1997. The claimant and his siblings were forced to work for Tigers and dig bunkers. He started to XXXXX in XXXXX 1995. Tigers forced him to work for them on several occasions since. He worked for them about 70 days in XXXXX area. In XXXXX 2000, the claimant fled to XXXXX due to pressure from Tigers to join them through some of his classmates who had already joined Tigers. He was arrested by the army at XXXXX checkpoint on his way to XXXXX. They accused him to be a Tiger. He was detained at the XXXXX camp for three months. He was questioned, beaten, kicked with boots and soaked his head in a plastic bag with petrol. Army arrested him again in XXXXX 2001 from his residence in XXXXX and took him to the same camp. They kept him for two months. They questioned him twice and beat him telling they received information that Tigers' "Pistol Group" had come to XXXXX from XXXXX and the claimant was hiding some of them he knew, while living in XXXXX. Ceasefire came into effect in February 2002. Tigers became more powerful after this. In XXXXX, they killed their opponents, recruited children, extorted money and abducted people. In XXXXX 2004, the army arrested him once more detaining him at the XXXXX camp for 28 days. They accused him of helping Tigers. They released him after they had checked his details with their head office. Tigers wanted him to return to XXXXX in XXXXX 2004 for "discussion" in order to make him join their ranks. He made the decision to seek safety. REASONS Identity, including the claimant's residency, and credibility were the determinative issues in this claim. Identity and Residency The claimant was shown a copy of his National Identity Card (NIC)2 and asked what was the large digit indicated on top of the right hand corner on the original. He testified he remembered there was a digit there, however, he did not remember the digit now. The panel expected him to know or remember this digit. Documentary evidence3 shows the digit identifies the region of NIC. Document indicates the digit "4" for NIC for the person hailing from the North. His NIC shows he was a resident of the North. He failed to tell this important security feature of his NIC. In absence of the original NIC, the panel is of the view it was fraudulently obtained. It therefore cannot rely on this document for his identity as well as residency. Asked if he had any other identity documents while in Sri Lanka beside his NIC, the claimant replied in the negative. When asked if he had a Birth Certificate (BC), he answered in the affirmative, adding he possessed no other identity documents. Asked further if he had a passport, the claimant said he obtained it in Colombo in 2004, but could not remember the month. He testified he went to Colombo in XXXXX 2004. Asked further why he could not say earlier in which month of 2004 he got his passport, the claimant responded he remembered the month when he was asked which month he had gone to Colombo. The panel does not accept this explanation. His earlier testimony says he got his passport in Colombo before he was asked when he had gone there. He lacked in spontaneity and was adjusting his later testimony. Moreover, he was not consistent within his own testimony, saying he had no other identity documents in his country besides his NIC and saying as well he had other identity documents as his BC and passport. He is not a straightforward witness. The claimant's BC4, issued in 1993, could not be relied upon for identity purposes as it had no photograph of him on it. This document does not provide an address. His residency therefore could not be corroborated as well. Asked further, the claimant remembered what other identity documents he had, he testified he had his driver licence5 in XXXXX in 2002 which he renewed each year, adding he last renewed it in 2003. According to him, it allowed him to drive XXXXX XXXXX. The claimant testified it was a temporary permit (driver licence) issued to him in 2002, it takes a year to get a permanent one, he did not get it. He said he was allowed to drive the XXXXX without a permanent licence. Reminded his PIF, at question 7, says he became a XXXXX in XXXXX 2000, the claimant said "yes", adding he drove the XXXXX without licence in 2000. He never said this before. He was adjusting. His testimony reveals he had no evidence he worked in XXXXX as alleged, and that he did not try to obtain this evidence either. Moreover, despite several follow-ups on this matter above, the claimant never revealed he had a driver's licence. Also, the licence does not indicate his residency address. Moreover, it was a temporary licence only, as testified. In absence of permanent licence issued by the competent authority, the panel does not rely on it for his identity and his residency. It does not know his whereabouts during the alleged period. He said XXXXX was under the control of the army in 2000, when he went there and that it was still under their control when he left in 2004. He testified he had a special identity card issued to him by them as a resident of XXXXX in XXXXX 2000. The claimant testified as well this card was left at his sister-in-law's (his cousin's wife) place where he was staying. To a follow-up, the claimant said he made no attempt to get it here as he did not know he needed it. Reminded he continues to add identity documents he had in Sri Lanka upon follow-ups, he answered he did not mention about this card as XXXXX was under the army control. In absence of such evidence, his exact residency or whereabouts remain in doubt since 2000. Also, his residency proof letter6 was problematic. It fails to mention his special card number issued by the army there. Signatures across his picture and on handwritten certification by the "XXXXX XXXXX" were different. The panel does not claim to be expert in such matters, however, to the naked eye, these two signatures belonging to the same person (XXXXX XXXXX) as evidence by the stamp, seem to be distinctively different. Furthermore, the residency confirmation letter addressed to the XXXXX XXXXX of XXXXX via the XXXXX XXXXX as well the handwritten note on this document by XXXXX XXXXX is addressed to "XXXXX. XXXXX", i.e. the XXXXX XXXXX, who has never attested this document as a competent authority. This attestation was necessary as the request was addressed to this competent authority. For these reasons, the panel assigns no probative value to this document. It does not believe the claimant resided in XXXXX in the alleged period. For the reasons mentioned above, the claimant failed to meet his burden of proof for his identity, including his residency. He therefore did not satisfy Section 106 of the Immigration and Refugee Protection Act (the Act) in this regard. Credibility According to the claimant, he decided to leave his homeland in XXXXX 2004, when Tigers had approached him. Asked why he would go to Colombo in XXXXX 2004 and meet the agent if his decision to leave was not yet made, he responded he was getting ready and had no funds. The panel does not accept his explanation. It does not find it plausible that the claimant would commence the process with an agent to depart his country in XXXXX 2004, without making the decision to leave. His later testimony says he obtained his passport in XXXXX 2004 to leave as soon as possible. The panel is of the opinion he had decided to leave in XXXXX 2004 and not in XXXXX 2004, as testified. He is not a credible witness. The claimant testified he did not leave earlier than he did as he lacked funds. Asked if he had thought or tried to leave earlier, he replied "I was thinking". Asked further when he thought of it the first time, he answered "when the army detained and punished, hoped to leave". He avoided to be specific. Asked again when he thought of it, the claimant testified it was in year 2000. When asked what efforts he had made in the ensuing four years to leave, the claimant said "no" and repeated his earlier response of lack of funds. The panel has difficulty with his explanation. The claimant may have had funding problem, however, this does not stop him from making efforts including to raise funds, if he had intended to leave since 2000. Moreover, his PIF is mute whether he ever thought of leaving the country in 2000. When followed-up, he said his cousin, who was in Germany since 1995, paid for his departure in XXXXX 2004. When followed-up further, the claimant testified he had asked the cousin before as well for financial help, adding the cousin had declined to help before. He was adjusting. His earlier testimony says he made no efforts to leave earlier since 2000. During a redirect, he said his mother made efforts to raise money since, with no success. He never said this before. He was adjusting further. This has negative effect on his credibility. The claimant testified that no one in his family lived in XXXXX, XXXXX, since XXXXX 2006. Asked if his family had problems since he left till XXXXX 2006 due to him, he responded people were taken by Tigers from homes and farms to dig bunkers, asked to pay money, adding his mother was afraid. He was avoiding. When followed-up, he said they had no problems from the army during this period. When told specifically that no group followed up on him since his departure, he replied "seems came and asked about me". He remained vague in his response. This does not make him a credible witness. According to the claimant, the family left XXXXX, XXXXX, in XXXXX 2006, because the claimant's younger sister was harassed by Tigers. His later testimony says that his two brothers were harassed by Tigers in 2006 as well. When reminded he had not mentioned this earlier except to say his sister had problems in XXXXX 2006, he offered no response by remaining silent. This is not helpful to his credibility. When asked why the army suspected him as a Tiger in XXXXX, the claimant testified in 2004 (XXXXX), Tigers had infiltrated the area, they shot a People's Liberation Organisation of Tamil Eelam (PLOTE) member. Asked if he was questioned about it by the army, he answered in the affirmative. Reminded his PIF was general and made no specific reference about this, the claimant said they (army) arrested him on suspicion, they told him about the killing when they arrested him. The panel expected him to specifically mention this killing in his PIF, if he was allegedly questioned by the army for this. When told that, according to the USA asylum documents7, there is no reference to this alleged incident except to say they checked his identity, he remained silent and provided no further explanation. The panel does not believe the claimant. The claimant testified he was arrested in XXXXX 2001 in XXXXX, as the army had suspected he was helping Tigers' "Pistol Group" hailing from XXXXX. When referred again to the USA documents saying the army checked his identity and accused him being a Tiger as he was living in a different area, reminding the claimant there was no reference to "Pistol Group" or XXXXX people being arrested in this episode, the claimant responded the US authorities did not ask him to explain. The panel does not accept his explanation. He was asked questions about his second arrest (XXXXX 2001) by the US authorities, it was up to him to provide specifics. His PIF and testimony both fail to be consistent with his explanations provided to the US authorities. He is not credible. When advised he had mentioned Criminal Investigation Department (CID) in the above document several times, the claimant said "yes", then changed his response to say "I was not". He testified it was the army, not CID who had questioned him. Asked why he had mentioned CID there, he denied mentioning CID to the US authorities and laid the blame on the interpreter used via the phone there, adding he never told or referred to CID. Reminded CID is mentioned there several times, including the forms used there, he started to adjust his testimony to say CID was present in the alleged episode, however the army questioned him, adding CID were in civilian clothes. Followed-up, he said when the army questioned him, they told him if he did not answer them, they would hand him over to CID. Asked directly if he had mentioned CID to the US authorities, he said "yes". When asked why he was now accepting this, the claimant replied he was asked if CID had questioned him, he had said "no". To a follow-up, he answered he had told the interpreter that CID was there, but only the army had questioned him. He was further adjusting. Referred to the document again saying CID had arrested him, he testified he never said this. Asked further why there is no reference to CID in his PIF, he replied he was asked who had arrested him. When advised that no one had to ask him specific question, the narrative in his PIF is to be his own story as told by him, once again, he remained mute and provided no explanation. This further dents his credibility. The claimant said after his first interview for his asylum application in the USA, he was given the INS card. Asked why he did not continue this claim there, he testified the US authorities released him after giving him the card. Told if his claim had passed the first stage and he was represented by a lawyer or consultant in the USA for this, why he did not follow through his claim there, the claimant replied he told the authorities in the USA his intent to come to Canada, so they let him go by giving him the card, adding he had no intention to continue his claim in the USA, as he had planned to come to Canada. Asked why then he claimed there, he said he was detained in the USA without identity and his lawyer had told him to give a short story. The panel has difficulty to accept this explanation. According to the US documents referred to earlier, he had passed through the first interview to assess credibility of his alleged fear. The panel may understand his plan was to come to Canada. However, his claim passed the first stage of eligibility in the USA. He was already in a safe country (USA), which is a signatory to the Convention, has reputable human rights record internationally and does have an established and well recognized process to accept refugees. If the panel were to believe in the claimant's fear, then it expected him to pursue his claim there. It was his first opportunity to protect himself. Coming to Canada for the same purpose offered him no guarantees either. Moreover, the panel questions why he would not travel to Canada directly rather than travelling through the USA undocumented? His failure to avail the first opportunity to protect himself undermines his alleged fear. His testimony reveals the claimant went to Colombo in XXXXX 2004 and returned to XXXXX. As mentioned before, his PIF is mute about his visit to Colombo in XXXXX 2004. Also, his PIF, at question 11, makes no mention of his stay in Colombo and/or returning to XXXXX thereafter, before his departure to the USA in XXXXX 2004. The panel questions, given his problems he had in Vavuniya with the army who allegedly had detained him in XXXXX and XXXXX 2004 for two months and 28 days respectively as a Tiger suspect, why he would venture to return to XXXXX from Colombo? He exposed his own life to further danger by acting in a manner not consistent to a person claiming for fear. According to him, he faced no problems in Colombo during his stay in XXXXX 2004. The panel further questions why he did not stay there till his departure in XXXXX 2004. It does not believe in his claim to fear. Asked why he was not afraid to return to XXXXX from Colombo considering his alleged fear from Tigers to ask him to join, the claimant testified he had arranged for him to live in hiding in XXXXX. Again, his PIF is silent about him living in XXXXX in hiding, as testified. He did not provide an explanation for this omission either on a follow-up. The panel questions why the agent could not make similar arrangements for the claimant in Colombo where he had no problems during his stay. He is not a reliable witness. According to the claimant, he went into hiding in XXXXX outskirts in mid XXXXX 2004. He testified Tigers visited him mid XXXXX 2004, while he was in hiding. The panel does not find it plausible how they could find out about his hideout so soon. As mentioned before, his PIF fails to indicate he ever went into hiding in XXXXX the alleged time. He is not a reliable witness. The claimant was asked whether he was arrested at XXXXX checkpoint by the army and taken to XXXXX camp for thee months or he was kept by them until his identity was verified by a guarantor from XXXXX, as he was crossing over from a Tiger control area (XXXXX) to the army control area of XXXXX. He replied he was kept by them for three months, his mother who lived in XXXXX paid them and they issued a pass to him thereafter. He also said they gave him a pass because of his elderly mother. He was avoiding. The panel did not find his explanations plausible, particularly when his mother lived in an entirely different area than XXXXX. When told that he obtained the pass for XXXXX as his cousin's wife lived there, he testified in the affirmative, adding she signed for him and obtained the pass. This is a different explanation than before when he had said he obtained the pass, as his mother had paid the army and that he got the pass because she was an elderly. This further diminishes his credibility and the panel does not believe he lived in XXXXX, as alleged. His testimony tells us that in 1999, he was visited by former classmates who already had joined Tigers asking him to do the same as he was not doing enough for Tigers. According to him, they told him they would return in a week again, if refused, they would force him to join them. His PIF makes no mention they had told him they would be back in a week to follow-up on this. He was exaggerating. He is not a trustworthy witness. As stated earlier, the panel did not believe the claimant resided in XXXXX during the alleged period. As a consequence, it does not believe the alleged incidents in XXXXX happened to the claimant. The panel is of the opinion that the UNHCR report8 does not apply in the case at bar as the claimant lacked in credibility in his own testimony, he was unable to establish his residency in XXXXX and his failure to pursue his claim in the USA. For the same reasons as above, the panel is not obliged to provide analysis under Section 97 of the Act. DECISION Based on all the foregoing, the claimant was found not to be credible. He failed to establish his identity including his residency in XXXXX and the well-foundedness of his fear with credible evidence. The panel therefore has determined the claimant, Mr. XXXXX XXXXX (a.k.a. XXXXX XXXXX or XXXXX XXXXX), not to be a "Convention refugee"9 and that he is not a "person in need of protection"10. Hence, it rejects his claim for refugee protection. The panel has further determined the claimant has no credible basis to his claim, as defined in Section 107(2) of the Act. Sajjad Randhawa Sajjad Randhawa June 14th, 2007 Date /ez 1 Exhibit C-1 - The claimant's Personal Information Form (PIF) including his National Identity Card (NIC) and his Birth Certificate (BC); Exhibit C-3 - Amendments to his PIF. 2 Exhibit C-1 - The claimant's Personal Information Form (PIF), "his National Identity Card (NIC)". 3 Exhibit A-1 - Index of the National Documentation Package of Sri Lanka, March 15, 2006, tab. 3.1: Response to Information Request LKA28906.E, February 23, 1998. 4 Exhibit C-1 - The claimant's Personal Information Form (PIF), "his Birth Certificate". 5 Exhibit C-7 - Driver's Licence. 6 Exhibit C-6 - Claimant's documents en liasse, "Reference letter from XXXXX XXXXX - XXXXX ". 7 Exhibit C-4 - Documents from the United States of America. 8 Country condition documents en liasse, "Item #20, UNHCR Background Paper, December 2006". 9 " 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reasons of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country." 10 " 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care." REFUGEE PROTECTION DIVISION / VICTIMS OF CONFLICT / AGENTS OF PERSECUTION / MILITARY SERVICE / DETENTION / TORTURE / IDENTITY / REFUGEE IDENTITY DOCUMENTS / FORGERY / PROTECTION ELSEWHERE / REFUGEE STATUS / ABANDONMENT / MALE / NEGATIVE / SRI LANKA --------------- --------------- --------------- --------------- RPD File # / No. dossier SPR : MA5-03161 1