Date: 20060330
Docket: IMM-4772-05
Citation: 2006 FC 415
Ottawa, Ontario, March 30, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
YASOTHARAN MAHADEVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated July 19, 2005, in which Mr. Yasotharan Mahadeva (the applicant) was determined not to be a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a citizen of Sri Lanka. Out of fear of forcible recruitment by Tamil Tigers, he left Sri Lanka for India in February 1992.
[3] Once in India, he alleges being arrested and detained for one year as a suspected Liberation Tigers of Tamil Eelam (LTTE) militant. After leaving India in June 1993, the applicant went to Thailand, and then to England in March 1994. While in England, the applicant asked for political asylum and was turned down. When the UK authorities were about to deport him back to Sri Lanka, the applicant decided to come to Canada via the USA.
[4] Once in the USA, he spent three months in detention. Upon his release, the applicant came to Canada and filed for refugee status on October 18, 2002.
ISSUES
[5] 1.Was the Board's negative credibility finding patently unreasonable?
2. Did the Board err in failing to conduct a separate section 97 analysis in order to determine whether the applicant was a person in need of protection?
ANALYSIS
1. Was the Board's negative credibility finding patently unreasonable?
[6] The applicant presented a motion at the beginning of the hearing to file a new piece of evidence. The document is a document from Human Rights Watch, available on the internet on March 14, 2006.
[7] I heard representations on both sides and I am not convinced that we found ourselves in exceptional circumstances justifying an exception to the general principle of exclusion of evidence that was not included in the record that was before the decision-maker.
[8] As Madam Justice Carolyn Layden-Stevenson held in Lubega v. The Minister of Citizenship 2006 FC 303, at paragraph 4:
The reviewing court must proceed on the record, as it exists, confining itself to the criteria for judicial review: Canada(Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.).
Therefore, the applicant is not allowed to file the new piece of evidence.
[9] The Board's findings of credibility are reviewable on a standard of patent unreasonableness, and cannot be overturned unless they are made in a perverse or capricious manner or based on erroneous findings of facts (see Sivanathan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 500 at paragraph 13; Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141 at paragraph 45).
[10] Contrary to the applicant's argument, the Board did not base its negative credibility decision on the fact that the applicant exaggerated the 1991 incidents which allegedly led him to flee Sri Lanka in 1992. The Board found important omissions, contradictions and implausibilities in the applicant's Personal Information Form (PIF), amended PIF and his testimony, which led it to conclude that the applicant's story was not credible. For example, the applicant provided no corroborative evidence showing that he was imprisoned in India in 1992 and 1993. He also gave contradictory versions of the circumstances of his arrest in India. The Board also noted that the applicant failed to come directly from England to Canada while his intention at the time he left England was to come to Canada. Also, the applicant's first PIF and his amended PIF contained conflicting stories regarding his stays in England and the USA.
[11] Upon review of the Board's decision, there is nothing to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence in its credibility finding. As such, the applicant failed to prove that the Board's credibility finding was patently unreasonable.
2. Did the Board err in failing to conduct a separate section 97 analysis in order to determine whether the applicant was a person in need of protection?
[12] In Bouaouni v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540, Justice Edmond P. Blanchard, at paragraph 42, stated the following regarding the necessity of a separate section 97 analysis:
In the present case the Board found important omissions, contradictions and implausibilities in the applicant's evidence, which led it to conclude that the applicant's story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant's allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the Board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence.
[13] In Stanchev v. Canada (Minister of Citizenship and Immigration), 2006 FC 173, [2006] F.C.J. No. 200, at paragraphs 17 and 18, Justice Konrad von Finckenstein affirmed that a separate section 97 analysis, although preferable, is not always necessary:
Although it may be good practice to perform a separate s. 97 analysis, it is not always required. This is because the analysis can be implicit in the decision. Section 97 is concerned with whether the Applicant faces a risk of torture or cruel punishment if returned to Bulgaria.
In Yorulmaz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 193, 2004 FC 128, it was held that as the Board's negative credibility finding was substantiated by the facts, a failure to perform a separate s. 97 analysis was not relevant as there was a lack of evidence showing it was necessary.
[14] The applicant submits that the evidence before the Board clearly establishes that if he is returned to Sri Lanka, there exists a reasonable risk of torture and persecution for young Tamil males fitting his description. The applicant argues that the Board should have performed a separate section 97 analysis to determine whether or not he was a person in need of protection because he faced a risk to life or cruel and unusual treatment or punishment. The applicant argues that the failure of the Board to do so is a reviewable error.
[15] The applicant's main arguments as to why he is a person in need of protection pursuant to section 97 of the Act, was that his arrest, detention and torture by the CIB might lead the LTTE to conclude that he was a collaborator of the Indian government, or that the army might find out that he had not completed his bail before leaving India. However, the Board disbelieved that such events even took place and provided detailed reasons for its findings. Apart from the evidence that the Board found to be not credible, I find that there was no other evidence submitted that could have led it to conclude that the applicant was a person in need of protection. As such, although it would have been preferable for the Board to perform a separate section 97 analysis, I find that it was not relevant as there was a lack of evidence showing it was necessary.
[16] The applicant submits two questions for certification:
1.When the IRB RPD finds a claimant not to be credible and reject the claim on that basis, when there is credible evidence remaining in the case, such as identity documents and documentation on country conditions, does the RPD have the obligation to assess the remaining credible evidence to determine if the claim is well founded or not under section 96 of IRPA?
2.When the IRB RPD finds a claimant not to be credible, under section 96 of IRPA, and reject the claim on that basis, when there is credible evidence remaining in the case, such as identity documents and documentation on country conditions, does the RPD have the obligation to assess the remaining credible evidence to determine if the claimant is a person in need of protection under section 97 of IRPA?
[17] The applicant did not raise the issues found in the questions suggested for certification in his memorandum. In my view, this application was denied because the applicant was found not to be credible. The questions of identity documents or documentation on country conditions were not an issue. It was obviously not a question of general importance; therefore, these questions will not be certified.
ORDER
THIS COURT ORDERS that
· The application for judicial review be dismissed;
· No questions for certification.
"Pierre Blais"
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