Samarakkodige v. Canada (Minister of Citizenship and Immigration), 2005 FC 301

Date: 20050225

Docket: IMM-5177-04

Citation: 2005 FC 301

BETWEEN:

                                       NIMAL KARUNADAS SAMARAKKODIGE

KAMBAKARAGE SEETHA SAMARAKKODY

THARIKA THEJANI SAMARAKKODIGE

                                                                                                                                           Applicants

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated May 18, 2004 ,wherein it was determined that the applicants were not Convention refugees nor persons in need of protection.

[2]                The applicants seek an order of certiorari quashing the decision of the Board that the applicants are not Convention refugees nor persons in need of protection.

Background

[3]                The applicants, Nimal Karundas Samarakkodige, (the "principal applicant") Kambakkarage Seetha Samarakkody and Tharika Thejani Samarrakkodige (his wife and child respectively) are citizens of Sri Lanka who claim a fear of persecution based upon the principal applicant's political opinion.

[4]                The principal applicant alleged a fear of members and supporters of the United National Front (UNF) a coalition of parties led by the United National Party ("UNP") and "underground figures" who are hired by political parties to assassinate prominent political leaders.

[5]                The principal applicant first became politically active in 1989 when he supported the Sri Lankan Freedom Party and in 1993, this Party and a number of other parties joined to become the People's Alliance Party ("PA"). He actively campaigned on behalf of the PA in the general elections of 1994 and October 2000 and the PA won each time.

[6]                The UNP won the elections in December 2001 and after the elections, the violence increased against PA members. The police allegedly generally side with those in power.

He began to receive threatening letters and phone calls after the election, beginning in approximately January 2002. There was so much violence after the election that he did not report the threats to police. He began to think about leaving the country and started to prepare travel documents for his family, however, he had family responsibilities, including his father's illness and subsequent death, and arrangements had to be made for his mother who lived with him, that prevented him from leaving immediately.

[7]                The principal applicant alleged that on December 13, 2002 he was stopped by a well-known underground figure, he was verbally abusive, he forced the principal applicant into his vehicle, threatened him, and then he was released. He filed a police report identifying the "underground figure", however he was not arrested. In fear, the applicants left Sri Lanka for Canada on December 20, 2002 and made a claim for refugee status in February 2003.

[8]                The principal applicant initially stated in April 2003 that he believed his and his family's lives were in danger because the UNP were in power and in light of the issues surrounding the Liberation Tigers of Tamil Eelam, the political situation in Sri Lanka was dangerous. In light of the change in circumstances, notably the victory of the UPFA (the former SLFP based PA) in the elections on April, 2, 2004, he claimed that because of his past history, experience, and his political will, he and his family would continue to face danger if they returned to Sri Lanka.

Reasons of the Board

[9]                The Board determined that there was insufficient credible and trustworthy evidence to establish the applicants had a well-founded fear of persecution based on any ground enumerated in the Convention refugee definition. Further, the Board found the applicants were not in need of protection.

[10]            The Board accepted that, based on the evidence provided, the principal applicant's father had passed away on April 8, 2002, that the principal applicant was a supporter of the Sri Lankan Freedom Party (PA) up until he left Sri Lanka on December 20,2002, and that he filed a police complaint on December 13, 2002.

[11]            The Board found that the principal applicant embellished his claim at the hearing in regards to his political activities from the end of 1994 until he left Sri Lanka in December 2002, and found his roles and activities as described at his hearing during this period to be not believable.

[12]            The Board noted the principal applicant's many re-availments to Sri Lanka between 1994 until October 2001, without any indication that he had ever been a victim of the violence that repeatedly occurred during election periods in Sri Lanka, notwithstanding his allegations that he had actively campaigned for the PA during the election of 1994, and he supported the PA during the elections of October 2000 and December 2001.

[13]            The Board noted that the principal applicant had travelled to Canada and other countries in 1996, 2000 and 2001 and never requested asylum. Additionally, notwithstanding the principal applicant's statement that political violence had risen to an alarming rate and the police could not protect people, he did not fear for his life until January 2002, after the election in December 2001.

[14]            The Board drew a negative credibility inference as to the principal applicant's testimony as to the level of his political activity, based on (i) the principal applicant's testimony that he had worked mainly on the 1994 election, (ii) the omission from his Personal Information Form ("PIF") narrative or the immigration interview notes of any substantial later participation, and (iii) the lack of reasonable explanations for the discrepancies and omissions. The Board therefore also found that his profile, as such, would not have lead him to being specifically targeted after the December 2001 election in the manner he alleged. The Board found that on a balance of probabilities, he was not threatened by anyone when he left Sri Lanka because of politics, and he crafted his allegation to support a non-existent claim for protection.

[15]            The Board discounted the principal applicant's claim that in 2001 his opponents wanted information from him about successful political techniques he employed, notwithstanding that his party had lost the recent election and that he had never been bothered before, even when he was actively involved in his party and the party won the elections. The Board therefore found that his evidence that he only began to receive threats after the election defeat in December 2001 to not be credible, and was in fact crafted to fabricate a non-existent claim for protection. The Board resultingly held that the two-lined written threat and the one-lined written threat submitted into evidence were not authentic.

[16]            The Board also found that it was unreasonable for the applicants to delay making an application for Canadian visitor visas for the principal applicant and his family until October 2002, considering the principal applicant had allegedly started to receive threats in January 2002.

[17]            The Board found that the principal applicant's failure to specifically mention the event which allegedly precipitated his final decision to leave Sri Lanka to immigration officials at his interview was unreasonable. The Board did not accept the principal applicant's explanation that he provided brief answers believing that he would be able to provide specific details later. The Board accepted that the December 13, 2002 incident occurred, but determined that it had nothing to do with politics.

[18]            The Board further found that the principal applicant's failure to include a statement as to the alleged reason for the abduction and detention on December 13, 2002 in the police report especially when he had outlined to the police what the assailants told him, seriously undermined his credibility.

[19]            The Board found that in light of all the evidence, the principal applicant's explanations for the delay in claiming protection did not support a subjective fear of persecution and further undermined his credibility. The Board also noted that the principal applicant contradicted the information in his PIF narrative on important issues.

[20]            After a brief discussion of what was found in some of the documentary evidence, and the principal applicant's claims as to not being safe if returned to Sri Lanka due to his past political activities, and anonymous phone calls his mother had allegedly received asking about his and the family's whereabouts, the Board found that the applicants would not be in danger if returned to Sri Lanka. The Board stated the following:

The panel considered however the recent news articles submitted at the claimants' hearing that support the principal claimant's allegations of continued violence between the ruling party and some opposition supporters after the election of April 2004, including violence causing death. The panel also noted however the articles indicate the police are conducting investigations, that police contingents were reinforced with troops when conditions warranted it, and that persons who were involved in several violent incidents were arrested and remanded. Further a spokesperson from the government stated, "We will also severely deal with personnel who have been found to have acted partially or neglected their duties." Although the panel accepts some political leaders have been targeted for serious harm after the election in April 2004, the panel found that there is insufficient credible and trustworthy evidence to establish the principal claimant was a leader within his area for the PA party after 1994.

As a result of all of the above, even after considering the present upheaval in Sri Lanka, the panel found that there is insufficient credible and trustworthy evidence to establish the principal claimant, a PA member whose party is now in control of the government, and after finding the principal claimant has not been particularly active politically since 1994, has a well-founded fear of persecution in Sri Lanka today. The panel also made this determination after considering the principal claimant was not a credible witness. Further as the panel determined the principal claimant was not credible, the panel does not accept the principal claimant's evidence that his mother has received threatening calls concerning the principal claimant, and the panel found this was an attempt by the principal claimant to embellish his claim.

Issues

[21]            1.          Did the Board err in finding that the applicants are not Convention refugees?

2.          Did the Board err by failing to carry out a proper assessment of the applicants' claim under section 97 of IRPA, supra?

Applicants' Submissions

[22]            Reliance on Speculation

The applicants submitted that the Board erred in basing its credibility finding in part on the principal applicant's failure to mention in his police report about the December 13, 2002 incident that opposition supporters wanted specific information from him about the political techniques he used to win election campaigns. The principal applicant never testified that, at the time of the December 13, 2002 incident, anyone ever asked him questions about the political techniques he used to win election campaigns. The Board member asked the principal applicant to speculate on the motives behind the December 13 incident, then drew a negative inference from the fact that the principal applicant had failed to mention that speculative answer in the December 13, 2002 police report.

[23]            The applicants further submitted that this was in fact an implausibility finding. This is not the clearest of cases for an implausibility finding (see Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, 2001 FCT 776). This is also not a case where there are independent reliable sources or details given from the Board member's own experience to support an implausibility finding.

[24]            Reliance on Evidence Found not Credible

The Board erred in stating that, " . . . there is insufficient credible and trustworthy evidence to establish this incident (December 13, 2002) occurred because of politics.", notwithstanding that the police report was accepted as genuine. The police report stated, in part, "He [Nevil Perera] said that they had to suffer a lot with their leaders because of my activities with the previous government and in return I should suffer with my company".

[25]            The applicants submitted that the Board further erred in stating that the principal applicant made up the political motivation for the December 13, 2002 attack once he got to Canada and filed his refugee claim ". . . to embellish his claim and to explain why he left Sri Lanka in December 2002 and not much earlier." The applicants submitted that the Board has thus made a finding that the principal applicant made up after December 20, 2002, a statement that was in fact made on December 13, 2002.

[26]            Immigration Interview Notes:

The applicants submitted that the Board erred in referring to and relying on the principal applicant's statement to immigration officials as there is no such statement on record. The officer's notes are the writings of the officer, and not a statement written by the principal applicant. There is no indication that at the time of the interview, the notes were given to the principal applicant to provide him with an opportunity to comment on their accuracy or completeness.

[27]            The applicants further submitted that the Board erred in stating that reference to the December 13, 2002 incident was completely omitted in the officer's notes. The notes in fact stated:

Claimant received warning messages from the United National Party (the present government) as he had supported the previous regime - the People's Alliance. One warning was in person, the other warning messages were anonymous. Claimant did not clarify content of messages when asked.

The warning in person was the incident of December 13, 2002. The Board made reference to this component of the notes in the reasons.

[28]            The applicants further submitted that in assessing the immigration officer's notes, the Board must keep in mind that what is written there is chosen by the officer, not the applicants. There is no expectation that the brief few lines of notes are meant to tell the whole story (see Thambirasa, Sakuntalia v. Canada (Minister of Citizenship and Immigration), F.C.T.D. No. IMM-1224-98, February 3, 1999).

[29]            The applicants further submitted that the principal applicant's testimony was that he provided brief answers at the interview believing that he would be able to provide details later. This is in keeping with the Immigration Manual PP (Protected Persons) 1, section 8.7 which states that in the context of processing port of entry claims to refugee status, ". . . the officer should not ask the claimant to elaborate on the basis of the claim unless the information relates to admissibility and eligibility." The Board therefore erred in making a negative credibility finding.

[30]            Ancillary Grounds

The Board erred in faulting the applicants for the delay in claiming refugee status as the delay was not substantial, only from late December 2002 to February 2003.

[31]            The applicants further submitted that if the December 13, 2002 incident which precipitated the decision to leave Sri Lanka was wrongly assessed, the whole basis and structure of the reasons collapses. Similarly, if it can be accepted that the principal applicant received a political threat in person in December 2001, there is no reason to question his testimony that he also received telephone threats of the same nature.

[32]            Extended Grounds of Protection (Section 97)

The applicants submitted that even if the credibility findings removed the principal applicant from the Convention refugee definition, by negating nexus, it did not remove him from the definition of a person in need of protection. The Board failed to provide proper and sufficient reasons for its findings, as it is required to do under subsection 169(b) of IRPA.

Respondent's Submissions

[33]            The respondent submitted that the standard of review for findings of fact is patent unreasonableness. The errors alleged by the applicants in this judicial review are findings of implausibility and credibility. The Board is entitled to make reasonable findings based upon implausibility findings, common sense and rationality. These findings are not subject to judicial review as long as the inferences drawn by the Board are not patently unreasonable (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). If the Court determines that the errors are of mixed fact and law, the respondent submitted that the Board dealt with factually intensive questions, and thus, the standard remains patent unreasonableness.

[34]            The respondent submitted that the Board's finding that the principal applicant was not credible, that he embellished his claim, and that some of his allegations were implausible were reasonable and supported by the evidence.

[35]            Reliance on Speculation

The respondent submitted that it was open to the Board to find that the police report was authentic, but that the principal applicant was not stopped for reasons of his political activity. The Board's finding that the incident on December 13, 2002 was not politically motivated was premised on a number of factors including: (i) the principal applicant had travelled extensively and never encountered any problems, (ii) he did not seek protection when travelling, even though his party was not in power and violence had occurred including during the December 2001 election, (iii) he had not suffered any harm nor had feared for his life until January 2002 and (iv) when questioned about his post 1994 involvement he could give no details, he may not even have been in the country during some of the post 1994 elections.

[36]            The principal applicant completely omitted in his written materials, any reference to political involvement post-1994. The Board found it not credible that he would not have suffered any political violence that he claimed other party members did if he were as active post 1994 as he now claims. The Board found instead that he fabricated threats that led to him leaving Sri Lanka. The Board found these fabricated as he did not apply for visas for his family when he received these threats until sometime after. Even though he said his wife and child were threatened, he did not take any steps to protect them. This and many other inconsistencies lead the Board to make the findings it did.

[37]            The Board was aware of the statement in the police report and it made the finding that the incident had nothing to do with politics. In giving him an opportunity to explain possible motives, this was used by the Board to assess the totality of his credibility and plausible explanations. It is reasonable to assume that when you make a police report motives for your being taken are important elements of the report. The Board found the police report was authentic as a police report was made. The Board found that there was insufficient credible and trustworthy evidence to establish this was anything more than an isolated incident.

[38]            Immigration Interview Notes

The respondent submitted that the principal applicant did not complain at the hearing that the immigration officer did not properly record what the principal applicant had said. There is no evidence that he asked to look at the notes and was not allowed to.

[39]            The principal applicant was given the opportunity to clarify what the warning was, and he would not, and did not. As the December 13, 2002 incident was, according to the principal applicant, the reason he and his family got on the plane to come to Canada it was reasonable for the Board to expect this specific incident to be mentioned and to make a negative inference that there was a nexus. The facts of this case are distinguishable from Sawyer, supra, in that in this case, the officer asked him to explain and he did not.

[40]            The respondent submitted that the applicants are attempting to have the Court re-weigh the evidence. It is submitted that is not the role of the Court on a judicial review.

[41]            Ancillary Grounds

The respondent submitted that the Board's finding that delay was a factor was reasonably open to it. It was a finding that the applicants had no subjective fear of persecution. It was a relevant but not determinative factor.

[42]            Objective Fear

The respondent submitted that the Board made the finding that the principal applicant was not politically active after 1994. Accordingly, any subsequent allegations were found to be embellishments or in the case of the written threats, not authentic. The principal applicant's own PIF narrative detailed his involvement prior to 1994 and nothing afterwards.

[43]            Extended Grounds of Protection (Section 97)

The respondent submitted that it was open to the Board to find that as the political party that the principal applicant had been affiliated with was in power as of April 2004, that objectively, the principal applicant could return to Sri Lanka with no fear of harm. This is especially so when he had not been harmed while he was politically active prior to 1994.

[44]            The respondent submitted that it is not necessary for the Board to do a full analysis of the section 97 claim when a Board finds that there was no evidence that would have lead it to conclude the applicants were persons in need of protection (see De Silva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1388). While it would have been preferable for the Board to have stated that there was no persuasive evidence, this was not a material error (see Thuraisingam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1604).

Relevant Statutory Provisions

[45]            Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:

Standard of Review

[46]            The standard of review on questions of credibility is patent unreasonableness (see Aguebor, supra and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.)).

Analysis and Decision

[47]            Issue 1

Did the Board err in finding that the applicants are not Convention refugees?

The Board member accepted most of the principal applicant's testimony, but did not accept that the incident of December 13, 2002 was politically motivated, nor did the member accept the level of the principal applicant's political activity after 1994. The Board member did not believe that the incident of December 13, 2002 had anything to do with politics for two reasons. First, the connection to politics was not mentioned in the police report and secondly, the connection to politics was not mentioned in the statements to the immigration officer.

[48]            Police Statement

A review of the police statement shows that the principal applicant did mention that Nevil

Perera stated that he would suffer because of his activities with the previous government. While he does not specifically state that Nevil Perera was trying to get information about his political activities, it seems to me that this reference in the police statement by the principal applicant would encompass questions about politics since it was stated that he would suffer because of his activities with the previous government.

[49]            Immigration Officer's Interview Notes

The Board wrote that the principal applicant completely omitted the December 13, 2002 incident from his statement to the officer. It should be noted that the notes of the immigration officer are notes that the officer made when questions were asked of the principal applicant. I do not agree with the Board member that the December 13, 2002 incident was completely omitted from the officer's notes. The notes stated in part as follows:

Claimant received warning messages from the United National Party (the present government) as he had supported the previous regime - the People's Alliance. One warning was in person, the other warning messages were anonymous. Claimant did not clarify content of messages when asked.

I take the reference to the warning in person to be a reference to the December 13, 2002 incident.

[50]            In addition, the respondent's document, PP1 Processing Claims for Protection in Canada states in part in paragraph 8.7 - Assessing Admissibility, as follows:

Appropriate questions

The officer should ask the claimant the standard questions on the refugee claim and the answers must be recorded. However, the officer should not ask the claimant to elaborate on the basis of the claim unless the information relates to admissibility and eligibility. It is not the officer's responsibility to determine the credibility of the claim for refugee protection.

I am of the view that this indicates that the information found in the immigration officer's notes would not likely contain all the details of the principal applicant's claim.

[51]            In Valtchev, supra, Muldoon J. stated in part:

. . . plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. . . .

[52]            I have reviewed the plausibility findings made by the Board with respect to the police statement and the immigration officer's notes, and I am not satisfied that based on the evidence, the Board could find the principal applicant to be not credible on the facts. Admittedly, there were other concerns noted by the Board, but a perusal of the decision shows that these two findings were the main basis for finding the principal applicant to be not credible. Had the Board not made these plausibility findings, its position with respect to the applicant's credibility may well have been different.

[53]            Because of my finding with respect to Issue 1, I need not deal with Issue 2.

[54]            I have not considered the applicant's post-hearing submissions in reaching my decision.

[55]            The application for judicial review must therefore be allowed and the matter remitted to a differently constituted board for redetermination.

[56]            The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration for certification and five days for any reply to the question proposed.

                                                                               "John A. O'Keefe"            

                                                                                                   J.F.C.                     

Ottawa, Ontario

February 25, 2005

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-5177-04

STYLE OF CAUSE: NIMAL KARUNADAS SAMARAKKODIGE et al

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Winnipeg, Manitoba

DATE OF HEARING:                                   February 9, 2005

REASONS FOR ORDER OF                      O'KEEFE J.

DATED:                     February 25, 2005

APPEARANCES:

David Matas

FOR APPLICANTS

Glennys Bembridge

FOR RESPONDENT

SOLICITORS OF RECORD:

David Matas

Winnipeg, Manitoba

FOR APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT