Date: 20031105
Docket: IMM-2829-02
Citation: 2003 FC 1235
Toronto, Ontario, November 5th, 2003
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
SINNAPPU SELLATHURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the
Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 24, 2002, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board and referring the matter back to a differently constituted panel for redetermination in accordance with such directions as this Honourable Court may consider appropriate.
Background
[3] The applicant, Sinnappu Sellathurai, is a citizen of Sri Lanka. He claims a well-founded fear of persecution on the basis of membership in a particular social group (i.e. Tamil men from Northern Sri Lanka). The source of the persecution, according to the applicant, is the Sri Lankan authorities, particularly the army, and the Liberation Tigers of Tamil Eelam ("LTTE").
[4] The applicant's submission is based on the problems he encountered at the hands of the LTTE and the Sri Lankan army. The applicant was employed as a bus driver in Sri Lanka from May 1970 until December 1986 in an area under the control of the LTTE. He claimed to have been harassed and ordered by the LTTE to drive their vehicles. The applicant was also taken forcibly by the LTTE on numerous occasions.
[5] In 1995, the applicant and his family assisted some Tamil refugees that had moved to his village. The applicant claimed that the LTTE forced him to recruit these refugees into the LTTE movement.
[6] The applicant also claimed that in 1995 he was identified by an informer to be a LTTE supporter. As a result, he was arrested and interrogated, assaulted and detained for three days by the Sri Lankan army.
[7] In April 2000, the applicant and his family moved from their village to avoid the heavy fighting, and his former residence was damaged. In August 2000, the applicant was arrested with his family in an army cordon operation. He was detained for three months, and only released upon payment of a bribe. Upon his release, he was unable to find his family members. He moved to Vavuniya and then to Colombo. The police located the applicant during a raid on the lodge where he was residing, and warned him to get out of Colombo or face consequences. The applicant then made arrangements to leave Sri Lanka with the assistance of an agent and travelled to Canada.
The Board's Findings
[8] The Board determined that credibility was a central issue in the assessment of the applicant's claim. The Board determined that the applicant's evidence was not credible or trustworthy, on the basis of inconsistencies between the Port of Entry ("POE") notes and the applicant's PIF narrative, as well as inconsistencies between the testimony of the applicant and his designated representative. The Board found that neither the applicant nor his designated representative were able to provide sufficient credible and/or trustworthy evidence to result in a positive determination.
[9] The Board expressed the following concerns:
The claimant according to the POE notes was travelling with a Canadian Citizen # 2673-4374 who was apparently charged with aiding and abetting the claimant's illegal entry into Canada. His travelling companion appears to have admitted that his friend, the claimant's son had requested that he assist the claimant in coming to Canada. The claimant appeared to have the wherewithal to tell the Canadian authorities that he just met the man on the flight from Paris and was helped by the man when he asked him to help him. There is no indication in the POE notes whether the Canadian citizen was convicted of any offence.
The claimant also told the officials at his point of entry that his house was completely destroyed in 1993 while in his PIF he states it was in 2000. The claimant also appears to have told the officials at his point of entry that he was separated from his wife since July 1983, while in his PIF he states it was in 2000. The claimant also told the officials at his point of entry that he had two children in Canada while in his PIF he states that he has three. The claimant also told the officials at his point of entry that his date of birth was March 27th, 1939 while in his PIF he states it was April 10th 1939. The claimant also appears to have told the officials at his point of entry that he had no problems with the Government or police authorities while in his PIF he alleges that he was arrested and detained for three months in the year 2000. The claimant also told the officials at his point of entry that he had four children while in his PIF he states that he has five children.
The Board found that inconsistencies such as these were not resolved in a satisfactory manner.
[10] The Board found the following in relation to the applicant's profile:
There is nothing in the documentary evidence to indicate that generally a 63-year-old Tamil male from the North, who resides in a government-controlled area, would be suspected by the government or the authorities of being an LTTE member or of necessarily supporting the LTTE. In any event, the claimant at his hearing testified that he did not have any present fears of the Army and it was the LTTE who he was afraid of. The panel, accordingly, determines that the claimant does not have a well-founded fear of persecution at the hands of the Sri Lankan army or police, who would mistreat him to such an extent as to amount to persecution. The claimant, as an elder Tamil, now could very well be questioned by the army with respect to LTTE activity, but the panel does not find that there is more than a mere possibility of persecution at the hands of the army, should the claimant return to his native Sri Lanka.
With respect to the claimant's alleged fear of the LTTE, there is ample evidence in the documentary material before the panel that indicates the LTTE does penetrate government-controlled areas to carry out terroristic acts such as the attack on the Colombo airport this past summer and indications that they carry out other activities in government-controlled areas. The panel does not doubt that the LTTE extorts money from Tamils in both areas that they control and ventures into government-controlled areas to extort money from Tamils living in those areas. However, the panel has not been provided with any credible or trustworthy evidence that the claimant suffered at the hands of the LTTE in the past. The panel is aware that there is an ongoing conflict in Sri Lanka, even today, between the LTTE and the army and an area that may be controlled by the government today could be taken by the LTTE tomorrow or vice versa. However, it appears, according to the claimant's own testimony, that the LTTE are only interested in the claimant to have him work for them by driving a bus or to help recruit young people and have not harmed him in any way, personally, in the past, by way of beatings or other physical harm. However, the claimant mentions in his PIF that he was assaulted and threatened by the LTTE when he refused their orders but this was not repeated at his hearing. Indeed, the claimant testified that the LTTE has paid him for services rendered or given him rice. Given the claimant's age and profile, there is no indication that the LTTE would require the claimant to carry out military operations for them or to otherwise compel him to fight for their cause. The panel does not accept the claimant's testimony as credible with respect to the LTTE wanting to compel the claimant to drive for them or that there would be such a shortage of experienced people in Sri Lanka that the LTTE would require the claimant who is now 63 years old with medical problems to drive for them.
[11] The Board made a finding that the applicant was not a trustworthy or credible witness and was unable to conclude that any of the incidents related by the applicant actually occurred.
[12] The Board found both the required objective and subjective components of a well-founded fear of persecution to be lacking in the applicant's claim.
Applicant's Submissions
[13] The applicant submits that the tribunal erred in law by failing to properly assess the claim of the applicant. Since three of the applicant's children were accepted as Convention refugees in Canada on the basis of the same facts, the applicant submits that his claim should be assessed as being similarly situated to that of his children.
[14] The applicant submits that the Board erred in law with respect to its finding of credibility by its failure to grant sufficient weight to the medical evidence presented by the applicant. Although the Board did not dismiss or doubt the findings of the psychological report, it did not accept it as a satisfactory explanation for the inconsistencies between the applicant's POE interview and oral testimony. In addition, the applicant claims that it is a reviewable error for the Board to accept the medical report which diagnoses the applicant's medical condition as post traumatic stress disorder, but then reject the applicant's claim of past persecution.
[15] The applicant further submits that although the Board made an adverse credibility determination with regard to the events of August 2000, there was no such finding made in relation to the events preceding it. As such, the failure of the Board to take into account these incidents represents a reviewable error.
[16] With regard to the inconsistencies identified by the Board, the applicant asserts that these inconsistencies do not relate to issues central to his claim, and that the Board focussed on these minor inconsistencies while ignoring the abundant evidence of persecution suffered by the applicant and the refugee status of his children.
Respondent's Submissions
[17] The respondent submits that the decision of the Board is not patently unreasonable.
[18] The respondent submits that the numerous inconsistencies between the POE and the oral testimony of the applicant resulted in an adverse credibility determination which was justified on the basis of the implausibilities before the Board.
[19] Issues
1. Did the Board commit a reviewable error in failing to consider whether the applicant was similarly situated to his children?
2. Did the Board err by accepting the medical evidence and then finding that the applicant did not have a history of past persecution?
3. Did the Board commit any other errors that would warrant redetermination?
Relevant Statutory Provisions, Regulations and Rules
[20] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, defines "Convention refugee" as follows:
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"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(I) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(I) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la prése
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Analysis and Decision
[21] Issue 1
Did the Board commit a reviewable error in failing to consider whether the applicant was similarly situated to his children?
The applicant's eldest son fled Sri Lanka in 1987 and sought refuge in Norway, where he was granted Convention refugee status. The applicant's second son, oldest daughter and third son came to Canada in 1991, 1992 and 1995 respectively. All of them were accepted as Convention refugees. The applicant argues the Board should have addressed the issue of whether he was a refugee based on the fact that his children were accepted as Convention refugees in Canada. The applicant led no other evidence with respect to the children other than they were found to be Convention refugees and the year they left Sri Lanka. Basically, the applicant claims that by failing to consider in its decision whether or not the applicant was similarily situated to his children, the Board committed a reviewable error.
[22] The applicant relies on Vettivelu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1038 (T.D.). In that case, the applicant led evidence that her children had apparently been granted Convention refugee status on the basis of the family's political activity. Rothstein J. (as he then was) ruled that the Board committed a reviewable error in failing to address this issue in its decision. The situation is not the same in the present case as the applicant did not lead any evidence as to why his children were accepted as Convention refugees. Without evidence of this nature, the Board, even if it addressed the issue, would not have been able to determine whether the applicant was similarly situated to his children. The Board therefore did not make any error in this respect. The case of Bernadine v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1590 (T.D.), is also distinguishable because in the case at hand, the Board stated in clear and unmistakable terms its findings (the parties referred to Bernadine as "Perera").
[23] Issue 2
Did the Board err by accepting the medical evidence and then finding that the applicant did not have a history of past persecution?
The applicant submitted a medical report about which the Board stated at pages 5 and 6 of its decision:
The panel is mindful of the medical report dated March 26th, 2002, prepared by Dr. Sooriabalan, a Tamil speaking psychiatrist, found in exhibit C-4. It appears from the report that the claimant was seen by Dr. Sooriabalan on only one occasion on February 15th, 2002. There does not appear to have been any other visits prior to the preparation of the report as Dr. Sooriavbalan [sic] states that "I hope to see him regularly". The panel does not have medical/psychiatric expertise to dispute the doctor's medical findings and does not doubt the doctor's medical findings and does not doubt that the claimant has some medical difficulties. The panel notes that Dr. Sooriavbalan [sic] comments that the claimant had poor concentration and poor short-term memory.
[24] Dr. Sooriabalan's report states the applicant showed symptoms of major depressive disorder and post-traumatic stress disorder. The applicant submits that since the Board accepted the medical findings of the psychiatrist, it was perverse not to find he has suffered past persecution. The difficulty with this argument is that the Board did not accept as credible the findings upon which the medical report was based. The applicant may well have the medical conditions indicated in the medical report, but that does not establish the story related by the applicant as true. I do not accept that the Board made a reviewable error in this respect.
[25] Issue 3
Did the Board commit any other errors that would warrant redetermination?
The applicant submits that although the Board reached an adverse credibility finding
about the August 2000 incident, it did not make a negative determination about the other incidents on which his claim was based. The applicant submits this constitutes a reviewable error.
[26] The Board, at pages 6 and 7 of its decision stated:
All of the aforementioned difficulties with the claimant's testimony at his hearing and plausibility concerns with his PIF narrative has led the panel to make a finding that the claimant is not a credible or trustworthy witness. The panel cannot conclude that any of the incidents that the claimant testified to with respect to him, actually occurred. It appears to the panel in considering all of the evidence that the claimant has fabricated his August 2000 arrest by the Army to further his claim for Convention refugee status in Canada.
The panel, therefore, determines that the presumption of truthfulness of the claimant's testimony has been rebutted. The panel cannot conclude that the claimant suffered the past persecution that he alleges to have suffered.
[27] The Board made a global determination of credibility and addressed the presumption of an applicant's truthfulness by stating that it was rebutted in this case. The Board was not obligated to address each aspect of the applicant's claim and make a credibility determination on it.
[28] The applicant submitted that the Board erred by drawing a negative inference from inconsistencies in his oral and documentary evidence regarding issues that did not relate to central aspects of his claim. Relying on Mahathmasseelan v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1110 (C.A.), the applicant submits the Board had an obligation to consider apparent inconsistencies in the applicant's testimony in the context of the totality of the evidence before it. The applicant contends the Board failed to consider credible evidence regarding central issues and inappropriately focussed on inconsistencies regarding peripheral issues.
[29] I have reviewed the Board's reasons and I note the following inconsistencies that were listed at pages 4 to 5 of the decision:
1. The applicant told officials at the port of entry that his house was completely destroyed in 1993 while in his PIF, he states it was in 2000.
2. The applicant told officials at the port of entry that he had been separated from his wife since July 1983, while in his PIF notes he states it was in 2000.
3. At the port of entry, he told officials he had two children in Canada while in his PIF he states there are three.
4. The applicant told officials at the port of entry that he had no problems with the government or police authorities, while in his PIF he alleges he was arrested and detained for three months in the year 2000.
5. At the port of entry he told officials he had four children, while his PIF states he has five children.
I am of the opinion that the Board could draw a negative inference regarding the applicant's credibility from these inconsistencies. This case is easily distinguishable from the facts in Mahathmasseelan, supra, a case relied on by the applicant, where the Board did not find a total absence of credibility despite various inconsistencies in the claimant's testimony. In Mahathmasseelan, supra, the Board found the claimant had a subjective fear of persecution that may have been exaggerated. On appeal, Desjardins J. for a unanimous Court of Appeal held the Board had erred in focussing on inconsistencies that were not central to the claim and ignoring credible, substantiated parts of her claim. On the facts at hand, this case does not assist the applicant. Here, the Board disbelieved that any of the incidents described by the applicant that involved mistreatment had even occurred. Part of the Board's global assessment of credibility arose from inconsistencies in the applicant's testimony and these findings are in no way parallel to those overruled in Mahathmasseelan, supra. The Board's findings in this regard do not constitute a reviewable error.
[30] The applicant took issue with the Board's determination that the applicant did not fit the profile of the people at risk of persecution in Sri Lanka at the hands of the Sri Lankan army or the LTTE. According to his own testimony, the applicant did not fear the army unless fighting broke out again. In my opinion, this testimony was likely determinative for the Board regarding whether the applicant possessed a well-founded fear of persecution at the hands of the army. By his own testimony, he did not.
[31] The Board also adequately explained why it stated that it could not find "that the claimant faces more than a mere possibility of persecution at the hands of the LTTE, should he return to the north." The Board did not make an error in these respects.
[32] I am satisfied that the Board did not make any reviewable error in its findings. The judicial review application is, therefore, dismissed.
[33] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2829-02
STYLE OF CAUSE: SINNAPPU SELLATHURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 27, 2003
REASONS FOR ORDER
AND ORDER BY: O'KEEFE, J.
DATED: NOVEMBER 5, 2003
APPEARANCES BY: Mr. Jegan N. Mohan
FOR APPLICANT
Mr. Tamrat Gebeyehu
FOR RESPONDENT
SOLICITORS OF RECORD: Mohan & Mohan
Scarborough, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031105
Docket: IMM-2829-02
BETWEEN:
SINNAPPU SELLATHURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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