Date: 20060613
Docket: IMM-5258-05
Citation: 2006 FC 742
OTTAWA, Ontario, June 13, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
THAVARUBAN THAMBIAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for a judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), dated December 20,
2004, in which the Board found that
the applicant was not a Convention refugee or a persons in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001
S.C. c. 27 (the IRPA). The Board found that the applicant, Thavaruban Thambiah,
lacked credibility, and therefore denied his claim for refugee status.
[2]
The
applicant is a citizen of Sri
Lanka. He is a
Hindu Tamil, born in Jaffna, in the northern part of Sri Lanka. He fears persecution at the hands of
the LTTE, the Eelam People’s Democratic Party (EPDP), the Sri Lankan army and
police, as well as Sinhalese classmates.
[3]
The
applicant alleges that, between 1991 and 1995, he was harassed by members of
the Liberation Tigers of Tamil Eelam (“LTTE” or “Tigers”); that he was arrested by the
Sri Lankan army on May 13, 1996, and detained until June 16, 1996; that he was assaulted by his Sinhalese
classmates on November 10, 1999; that he was arrested by the Sri Lankan
police, along with a classmate, and detained for 15 days.
[4]
He
claims that he
attempted to prevent students from being recruited by the LTTE; that the Tigers
attempted to find him in 2001 due to his activities on campus. They came to his
home in August 2001, but he was not there – the Tigers warned his uncle, and
left.
[5]
On
September 24, 2001, the Sri Lankan army allegedly arrested the applicant, suspecting
that his family was under the protection of the LTTE. He was released on
November 2, 2001.
[6]
On
November 10, 2001, the applicant alleges that a member of the EPDP came to his
home, and warned him and his uncle to vote for the EPDP or suffer consequences.
To avoid voting for the EPDP in the election, the applicant’s uncle took him to
Colombo where he was arrested by
police on December 7, 2001 and detained overnight. He left for Singapore the next day. He arrived in
the United States on May 27, 2002 and was
detained for three weeks.
[7]
The
applicant came to Canada, and filed a refugee claim
which was dismissed.
[8]
The
applicant’s testimony was found to lack credibility, and the Board rejected his
claim due to his impugned credibility.
[9]
The Board
found omissions, implausibility, and inconsistency in the applicant’s
testimony, his original and amended Personal Information Forms (PIF), and his
Port of Entry (POE) notes.
[10]
The Board
drew a negative inference from the time it took the applicant to drastically amend
his PIF. The original was filed in 2002 and the amendment in 2005. At the hearing,
the applicant attested only to the amended PIF.
[11]
The Board
also took into consideration the applicant’s failure to pursue his claim in the
United States.
[12]
In written
submissions, the applicant argues three issues.
[13]
The first is
whether the Board’s decision was made in a perverse and capricious manner,
without due regard to the evidence before it and that it was a patently inconceivable
decision on credibility.
[14]
The second
issues is whether the Board’s decision is tainted by bias, or violated
procedural fairness, in that the same Presiding Member who initially ruled that
the applicant had abandoned his claim but eventually decided the matter on the
merits, notwithstanding an objection from the applicant’s counsel.
[15]
Finally,
the third issue is whether the reverse order questioning, under Guideline 7 of
the Chairperson’s Guidelines is a violation of natural justice in the present
circumstances. During oral submissions, counsel for the applicant advised the
Court that he was abandoning this submission and I need not canvass the issue.
[16]
With
respect to credibility, the applicant submits that the Board came to an
unreasonable conclusion for two reasons: 1) the Board compared the applicant’s
original and amended PIF, while only the amended PIF was attested to at the
hearing, and 2) the Board made unreasonable findings based on omissions and
inconsistencies.
[17]
The
applicant relies on the decision my Justice Nadon, in Osman v. Canada (Minister of Employment and
Immigration)
[1993] F.C.J No 1414 which stated as follows:
Consequently, it was a futile exercise on
the part of the Board to compare the original PIF and statement to the revised
PIF. Rather, the Board should have tried to determine whether the applicant had
any credible evidence to offer. Because of the way it proceeded, the Board
never addressed this issue.
[…]
Because the Applicant filed two
contradictory stories, the Board decided that the Applicant could not be
believed. I would have agreed with the Board wholeheartedly had there not been
and corroborative evidence. In my view, the Board rendered its decision without
regard to the material before it.
[18]
The
Respondent replies that the comparison of the two PIFs was not central to the
Board’s findings. He argues that the comparison cannot been seen as more than
one of the eight contributing factors in rejecting the applicant’s evidence and
questioning his credibility.
[19]
I am of
the view that the Board’s decision in the present matter, with respect to
credibility, was reasonable. The applicant relies on the decision of Justice
Nadon, to support the fact that a Board’s decision can not rely entirely on the
comparison of original and amended PIFs. The PIF comparison did not, by itself,
guide the Board’s findings. As Justice Nadon noted, the Board’s mandate is to
determine if the applicant had any credible evidence to offer. In the present
matter, the Board fulfilled the mandate, and concluded that the applicant did
not have any credible evidence to offer. The Board’s conclusion was reasonable.
[20]
Moreover,
as submitted by the respondent, the Board is entitled to consider discrepancies
between the original and amended PIFs in a refugee claim, in assessing
credibility (see Giminez v. Canada (Minister of Citizenship and Immigration)
2005 FC 1114 (FC)).
[21]
Martineau
J. noted the following with respect to credibility and subjective fear in
R.K.L. v. Canada (Minister of Citizenship and
Immigration)
[2003] F.C.J. No. 162, at paras 7-8:
¶
7 The determination of an applicant's credibility is the heartland of the
Board's jurisdiction. This Court has found that the Board has well-established
expertise in the determination of questions of fact, particularly in the
evaluation of the credibility and the subjective fear of persecution of an
applicant: see Rahaman v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and
Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶
8 Moreover, it has been recognized and confirmed that, with respect to
credibility and assessment of evidence, this Court may not substitute its
decision for that of the Board when the applicant has failed to prove that the Board's
decision was based on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it: see Akinlolu
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at
para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J.
No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for
review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[22]
The
applicants’ application for judicial review is an attempt to have this Court
re-weigh the evidence that was considered by the Board. In the present case,
the Board’s assessment of the evidence was reasonable, especially dealing with
the omissions and inconsistencies in his testimony, POE notes, and amended PIF,
and the implausibility of his oral testimony as it relates to the amended PIF.
[23]
Finally,
the applicant raises the issue of bias, and procedural fairness. The applicant
alleges that the Presiding Member (PM) should have recused himself from the
applicant’s claim, as the PM had previously been the party who had declared the
applicant’s original claim abandoned.
[24]
The claim
was declared abandoned after neither the applicant nor his counsel appeared at
the refugee hearing. The PM never considered the claim on its merits, but merely
declared the claim abandoned.
[25]
At the
refugee hearing, the PM made the applicant and his counsel aware that he was
the one that declared the matter abandoned; the applicant’s counsel
subsequently brought a motion for recusal. The PM considered the motion and
determined that , since he had not considered the claim on the merits, he did
not have to recuse himself. I find that the PM’s decision is supportable. The
Federal Court of Appeal found, in Arthur v. Canada (Minister of Employment
and Immigration) [1993] 1 F.C. 94 (FCA) that, “the mere fact of a second
hearing before the same adjudicator, without more, does not give rise to a
reasonable apprehension of bias…”.
[26]
The
applicant has not demonstrated that the adjudicator was predisposed to decide
his claim in a negative manner. The test for bias is whether an objective
person, given the facts of the matter, would conclude that the Board decided
the claim unfairly, or was predisposed to an answer (a negative answer, in this
case). The applicant has not put forth any evidence of predisposition or bias,
on the part of the PM. On the contrary, the evidence shows that he made the
applicant and his counsel aware that the PM had participated in the abandonment
decision. Counsel then made a motion for a recusal, which he considered, and
dismissed. There is no evidence that the PM acted unreasonably. The application
for judicial review, on the issue of bias and procedural fairness, must be
dismissed.
[27]
A further
argument advanced by the applicant during oral submissions was to the effect
that the panel dealt in detail with applicant’s failure to make a claim in the U.S. and faults it for not having pursued the
issue further; that this was a serious issue that required further
explanation. A review of the transcript clearly highlights the Board’s view of
the matter. They mention in passing that he had only been in the U.S. for a month or so and chose not to be
concerned with his failure to present a U.S. claim.
[28]
The applicant
refers the Court to a statement in the written decision: “the Refugee
Protection Officer (R.P.O.) observations were not to her, as the panel had
excused her at a late point during the hearing, as she was not well”.
[29]
It was
clear from the transcript that no R.P.O. was ever present and this was
mentioned at least twice b y the presiding member. To suggest that she was
obviously confused with another file is a complete exaggeration and I will
comment no further on this preposterous allegation.
[30]
I have been
persuaded that the findings of credibility are not only reasonable but
unassailable. A careful reading of both PIFs, as well as the transcript, does
not in my view, provide any plausible evidence to persuade any panel that he
has any fear of LTEE or the police in Sri Lanka.
[31]
Even if a
few weaknesses were identified or detected, they were not central to the
ultimate finding and the conclusion should not be disturbed.
[32]
At the
request of counsel for the respondent, I hereby strike from the Amended Motion Record
received from the applicant an affidavit sworn by the applicant on September
30, 2005 It does not comply with the rules, nor had it been subjected to proper
cross-examination.
[33]
As all
three issues raised by the applicant must be dismissed, the application for
judicial review, in its entirety, must be dismissed.
JUDGMENT
The application for judicial
review is dismissed. No question of general importance has been submitted for
certification.
"Paul U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5258-05
STYLE OF CAUSE: Thavaruban
Thambiah v. The Minister of Citizenship and Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: May
31, 2006
REASONS FOR JUDGMENT: ROULEAU
D.J.
DATED: June
13, 2006
APPEARANCES:
|
Kumar S.
Sriskanda
Barrister and
Solicitor
|
FOR THE APPLICANT
|
|
Marissa
Bielski
Department of
Justice
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Kumar S.
Sriskanda
Barrister and
Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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