Kathirgamu v. Canada (Minister of Citizenship and Immigration), 2005 FC 300

Date: 20050225

Docket: IMM-1199-04

Citation: 2005 FC 300

BETWEEN:

                                                KANAGESWARY KATHIRGAMU

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application under subsection 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 ("IRPA") for leave to seek judicial review of a decision by a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 21, 2004, wherein the applicant was found not to be a Convention refugee, or person in need of protection.

[2]                The applicant seeks an order that the matter be referred back for reconsideration by a differently constituted Board in a manner consistent with the reasons of this Court.

Background

[3]                The applicant is a citizen of Sri Lanka. The applicant claims to have a well-founded fear of persecution due to the fact that she was extorted for money by the Liberation Tigers of Tamil Eelam ("LTTE") and also faced difficulties at the hands of the army.

[4]                The applicant alleged that she will be singled out for persecution on account of her nationality and membership in a particular social group as a vulnerable Tamil woman from Jaffna, preyed upon by the Tamil militants and the Sri Lankan security forces. The applicant fears extortion and harassment by both groups.

[5]                In October 1991, the Sri Lankan forces attacked the applicant's village and she and her family fled to the Jaffna mainland where she stayed with relatives.

[6]                Starting in 1993, the applicant's son began to be harassed by the LTTE.

[7]                In October 1995, the Sri Lankan forces attacked Jaffna and the applicant, along with her family, fled to Chavakaccheri and from there, to Kilinochchi. The applicant's husband subsequently fell ill as medical facilities and drugs were scarce. His health failed rapidly and he died in November 1996.

[8]                In 1996, the applicant was again displaced to Vavunikulam in the Vanni area. The applicant's son began to be harassed by the local LTTE there and fearing that he would be forcibly recruited by the LTTE, he came to Canada where he was accepted as a refugee.

[9]                Following the applicant's son's departure, the LTTE began to harass her daughter. The applicant arranged for a marriage for her daughter, and the daughter was sponsored by her husband to come to Canada in 1999. The applicant was left alone and remained with distant relatives.

[10]            However, the applicant began to be harassed following her children's departures. The LTTE frequented her home where she was staying and pressured her to make payments to them saying that she could afford to pay them as her children were abroad. The LTTE threatened to harm her if she did not continue to make payments to them. The applicant gave her gold chain worth 25,000 Rupees.

[11]            In December 2002, the LTTE returned and demanded that she pay them some money again. The applicant was without money and they gave her two weeks to obtain the funds. The LTTE returned two weeks later and demanded money. The applicant did not have any money. Although she had written to her children to send her money, it had not arrived. The LTTE took the applicant forcibly to their camp where she was made to cook meals for them for five days.

[12]            The applicant's children sent her money and urged her to flee the area. A distant relative accompanied the applicant to Vavuniya. The applicant then remained in an army transit camp for approximately two months. That was a facility available to her after coming out of an LTTE controlled area.

[13]            The applicant contacted her children to tell them where she was and they arranged to send an agent from Columbo to meet her at the camp. The agent obtained a pass for her to go to Columbo. The applicant remained with the agent for about ten days before he was able to make the necessary arrangements for her to be sent out of the country.

Reasons of the Board

[14]            The Board stated at pages 8 through 11 of the tribunal record as follows:           

CREDIBILITY

. . .

The panel notes that the claimant alleged that she was taken by the LTTE in or about December 2002, when she was unable to obtain funds for the LTTE. The claimant alleges that she was taken to their camp for five days and made to cook meals for them.

The panel notes that during this time period, according to the documentary evidence, the activity of war between the LTTE and the Sri Lankan authorities was at a very low point. At that time there was a ceasefire in place that was being enforced. The documentary evidence on file does not indicate that widespread abductions were taking place at this time of senior Tamil widows. The panel therefore does not find it plausible that the claimant was taken and detained by the LTTE for five days on this occasion due to her failure to pay 100,000 Rupees each for both of her children that were overseas.

The panel notes that the claimant also was inconsistent with respect to her testimony at her hearing, and what was contained in her Personal Information Form (PIF) narrative.                                              

The claimant at the hearing indicated that the LTTE wanted two lax (100,000 Rupees), and one lax was given. However, the claimant indicates in her PIF narrative that only her children sent her money and urged her to flee the area. There is no indication that the LTTE were paid one lax of Rupees. The panel therefore makes a negative credibility finding with respect to this inconsistency.

The panel notes that there is articles and information with respect to one individual who was a senior citizen who was kidnapped in Battacola in the eastern provinces. This elderly citizen was a wealthy Justice of the Peace, and also had a well-known Barrister and Solicitor for a son, who practices in Toronto, Canada. This gentleman was later released after an international scandal erupted and extreme pressure was put on the LTTE to release him.

The panel notes that the claimant in these circumstances is not a well-known wealthy Justice of the Peace with a well-known barrister and solicitor for a son in Toronto, Canada.

The claimant at her hearing testified that she was afraid of the army because they would persecute her because she gave money to the LTTE and would ask her why she gave money to them. The panel notes that the claimant did not include this in her PIF narrative. Accordingly the panel makes a negative credibility finding with respect to this omission.

The panel on a balance of probabilities believes that the claimant is not telling the truth with respect to her alleged detention by the LTTE. The panel does not believe that the claimant faced the alleged persecution in Sri Lanka. Accordingly the panel determines that the claimant on a balance of probabilities is not a credible and trustworthy witness.

WELL-FOUNDED FEAR OF PERSECUTION

The panel notes that the claimant is not the age of those most at risk of persecution in Sri Lanka. It is a well known fact that young Tamil males and females from the north of Sri Lanka are most at risk in Sri Lanka of being persecuted by the LTTE by forcibly trying to recruit them or by the army and police as suspected LTTE operants or supporters. The panel notes the claimant does not fit within that group of people who would be suspected by the army of being LTTE operants or supporters, or would be pressured by the LTTE to join their fighting.

The panel does note that the claimant as a widow with children abroad would fit into a vulnerable class of people in Sri Lanka. The panel notes that the claimant would potentially be at risk of extortion by the LTTE or other Tamil militant groups in Sri Lanka. However, given that the claimant was not found to be credible and the panel did not believe that the claimant suffered past persecution, the panel concludes that the claimant does not face more than a mere possibility that she would face extortion from the LTTE or be persecuted in the future in Sri Lanka.

Of course there is a possibility that the claimant would face extortion should she return to Sri Lanka, by either the LTTE or other militant Tamil groups, or by the army, or by the police. However, the panel does not believe that this level of potential persecution amounts to more than a possibility. Accordingly the panel determines that this claimant does not have a well-founded fear of persecution in her native Sri Lanka.

PERSON IN NEED OF PROTECTION IN CANADA

The panel considered all the claimant's evidence to determine whether the claimant is a person at risk to her life, at risk of cruel or unusual treatment or punishment or faces torture should she return to Sri Lanka.

After reviewing all of the evidence the panel determines that this claimant does not face a risk to her life or face a risk of cruel and unusual treatment or punishment or face torture should she return to Sri Lanka.

Accordingly the panel does not believe that the claimant is a person in need of protection in Canada.

Issues

[15]            The applicant proposed the following issues:

1.          Did the Board err in law by determining, based on speculation and misapprehension of the evidence, that the applicant's testimony was not plausible or credible?

2.          Did the Board err in law by failing to consider the totality of the evidence in determining the objective basis of the applicant's fear?

3.          Did the Board err in requiring evidence of past persecution to support a conclusion of a well-founded fear of persecution?

Applicant's Submissions

[16]            Standard of review

The applicant submitted that the appropriate standard of review is correctness. The applicant submitted that the level of deference afforded the two-member Board on credibility findings under the former Immigration Act, R.S.C. 1985, c.I-2 should not be extended to a one member Board under IRPA. The applicant submitted that Parliament, in order to compensate for having only one member make a determination, conferred a right of appeal for refugee claimants to the Refugee Appeal Division under section110 of IRPA, though the provision is not yet proclaimed. The applicant submitted that as the decision is an appealable decision, this Court "shall grant the same treatment which the appeal division could grant under IRPA".

[17]            The applicant submitted that the Board erred in law when it determined that the applicant's testimony was not plausible or credible. The Board based its determination on speculation and a misapprehension of the evidence.

[18]            The applicant submitted that the Board, in drawing negative plausibility conclusions from the absence of evidence of abduction of Tamil widows in the same circumstances as the applicant, erred in law in demanding a specificity of documentary evidence, which it knows or ought to know would not be available (see Atefi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1979 (T.D.); Chi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 186 (T.D.); Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518 (T.D.)). The Board ignored the evidence before it.

[19]            The applicant submitted that there was indication that individuals were being subjected to extortion demands by the LTTE after the cessation of hostilities agreement had been reached between the LTTE and the Sri Lankan government. In addition to the specific reporting on the abduction of an elderly Tamil by the LTTE who wanted 2,5000,000 Rupees, the University Teachers for Human Rights indicated that scores of persons were being extorted by the LTTE and only a few cases had been brought to the attention of the public. There was fear of reporting violations by the LTTE in areas it controlled because of the lack of protection.

[20]            The applicant submitted that the Board erred in making negative credibility findings in relation to the two inconsistencies between the PIF narrative and the applicant's testimony; (i) the applicant did not mention in her PIF narrative that she had paid one lax to the LTTE before leaving Sri Lanka, and (ii) she had not mentioned in her PIF narrative that she feared the Sri Lankan army because she had given money to the LTTE.

[21]            The applicant submitted that in regards to the payment of a lax to the LTTE, the applicant was asked by her counsel at the hearing how she obtained her release from the LTTE camp and she indicated it was because the lady where she had been staying arranged to pay the lax to the LTTE to secure her release.

[22]            The Board member asked her why she had not mentioned at her eligibility examination that she feared the LTTE because she had only paid them one lax and not two, but did not give her the opportunity to answer. She was never asked why she had not mentioned the one lax payment in her PIF narrative. The Board erred by making a negative credibility finding despite not having provided the applicant an opportunity to explain the apparent inconsistencies.

[23]            The applicant submitted that providing more detail at the oral hearing is not a basis upon which to make a negative credibility conclusion (see Kassa v. Canada (Minister of Employment and Immigration) (1998), 105 N.R. 33 (F.C.A.)). It is not an inconsistency, but merely providing more detail.

[24]            The applicant submitted that the Board further erred in similarly making a negative credibility finding as to the applicant noting in testimony, but not in her PIF narrative, that she feared the army because she had given money to the LTTE. The applicant was not asked at the hearing why the information had not been put in the PIF and she did indicate in her PIF narrative that she feared the Sri Lankan army, although she did not spell out the reasons in any detail.

[25]            The applicant submitted that the Board noted in the reasons that as a widow with children abroad, she would fit into a vulnerable class, as she would potentially be at risk of extortion by the LTTE or other militant Tamil groups in Sri Lanka. The Board concluded that there was no more than a mere possibility that she would face persecution because of that.

[26]            In reaching that conclusion, the applicant submitted that the Board ignored the totality of the evidence before it, both in respect of the conditions in Sri Lanka and the applicant's particular circumstances. The Board failed to take into account the applicant's age, gender, past history of extended internal displacement and lack of protectors in Sri Lanka. There was evidence before the Board which showed, inter alia, that the LTTE was engaging in extortion in scores of instances and only a few cases had been reported.

[27]            The applicant submitted that the Board concluded there was a possibility that the applicant would face extortion by the LTTE, other Tamil militant groups, by the army or by the police, but the level of potential persecution amounts to no more than a mere possibility. This was because it did not believe that the applicant had faced past persecution. The Board erred in law as evidence of past persecution is not required to establish that a person has a well-founded fear of future persecution (see Hristova v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 132 (T.D.)).

Respondent's Submissions

[28]            Standard of review

The respondent submitted that applying the factors outlined in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the patent unreasonableness standard would apply to the Board's credibility findings regardless of whether the Board consisted of one or two members. The respondent submitted that (i) as per the underlying analysis in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (F.C.T.D.), the Board here is deciding a question of fact, and its determination on those questions of fact enjoy deference; (ii) the decision here will affect only one person, as such, there is less of a need for the Board's decision to receive heavier scrutiny due to its wide impact, and (iii) credibility is a question within the sole discretion of the Board, which the Board has expertise in deciding.

[29]            The respondent submitted that the Board acknowledged that there were some reports of the abduction of elderly persons. However, it found the evidence not persuasive, given that the applicant was allegedly abducted during a period of relative calm. The Board was therefore not blind to that evidence.

[30]            The respondent submitted that the Board found that the applicant did not mention the bribe paid to the LTTE from the money she received from her children to assist her in leaving Sri Lanka. The applicant submitted that a negative credibility finding cannot be drawn from a simple omission in her evidence. Contrary to the applicant's submissions, there is no evidentiary basis for the suggestion that the inconsistency is due to an omission in her narrative. Furthermore, as a matter of law, a Board can rely on omissions in the applicant's PIF narrative when drawing its credibility findings (see Enrique v. Canada (Minister of Citizenship and Immigration), 2002 FC 738; Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357, [2003] F.C.J. No. 506 (QL)).

[31]            The respondent submitted that the Board did not expect the applicant to adduce documentary evidence, but rather assessed her alleged fear against the conditions that prevailed in Sri Lanka at that time. The Board could question the applicant's claim of being abducted when it was not consistent with the prevailing conditions in Sri Lanka at that time. The Board assessed the evidence of the abduction of seniors, explained why it considered it to be unique, and outlined why the evidence did not disclose a risk to the applicant. Having recognized the evidence, reviewed it and assessed its impact on the applicant's fear, the Board could not have ignored the import of that evidence.

[32]            The Board can expect that all relevant facts to a claim are disclosed in the narrative. This is required by the PIF instructions, as well as the burden on the applicant to advance her claim and establish her claim. When the applicant did not outline all of the material incidents to her claim in her narrative, the Board could makes its credibility finding.

[33]            The respondent noted that the Board disclosed the concerns that some of the elements of the applicant's fear were not revealed in her narrative, and did question the applicant about who paid the bribe to secure her release. Fairness did not require the Board to put the inconsistency to her for comment before drawing its credibility conclusion. In Tekin, supra, Justice Snider explained that the Board was not required to disclose its credibility concerns arising from the inconsistencies between the applicant's oral evidence and PIF narrative.

[34]            The respondent submitted that a decision maker is presumed to consider all the evidence before it, even though the decision maker does not mention specific pieces of evidence. Furthermore, a review of the reasons indicated that the Board was fully aware of the prevailing and relevant country conditions in Sri Lanka. As such, the failure of the Board to make specific reference to the documentary evidence in its reasons does not indicate that the Board was not aware and guided in its decision by the existing country conditions in Sri Lanka.

[35]            The respondent submitted that the Board's assessment of the situation in Sri Lanka was quite even-handed. There is no indication that the applicant put contrary evidence before the Board so as to trigger its duty to comment on said evidence. The Board is not required to comment on every piece of contrary evidence (see Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394).

[36]            The respondent submitted that the Board assessed the objective risk of extortion that the applicant faced, and did not find it to be well-founded. Given this finding of objective fear, it cannot be said that the Board was requiring evidence of past extortion to find the applicant to be a Convention refugee.

[37]            The respondent submitted that the Board found that the applicant was not credible - a determination that her fear of persecution was not subjectively well founded. The Board also found that her fear was not objectively well-founded. Both findings disqualify the applicant from Convention refugee status. The applicant must demonstrate that the Board erred in making both findings, as if even one of the determinations remains standing, the applicant cannot qualify for status. As such, an error in less than all three findings would not be material as it would not affect the decision to deny her status (see Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55).

[38]            The respondent submitted that the application for judicial review should be dismissed.

Relevant Statutory Provisions

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

Analysis and Decision

[40]            Standard of Review

The applicant submitted that in light of the provisions for an appeal from the decision of a one person Board to the Refugee Appeal Division ("RAD") once it is proclaimed in force, this Court should not afford the Board the same level of deference on credibility issues as it has for a two person Board. I disagree. The Supreme Court of Canada in Pushpanathan, supra, stated that in applying the pragmatic and functional approach, the existence of a right of appeal is not a determinative factor. As credibility findings have been deemed to be within the expertise of the Board, the standard of review would not change solely due to the inclusion of an appeal provision, especially when the RAD is not yet even functional.

[41]            Further, the applicant has not provided any evidence to support the submission that Parliament included a provision for the RAD for the specific purpose of addressing any alleged deficiencies resulting from a single member Board decision. While such evidence might result at best in the standard of review being determined to be reasonableness simpliciter, it would not result in a standard of review of correctness as the applicant suggests. Accordingly, the appropriate standard of review on findings related to credibility is patent unreasonableness (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.)).

[42]            Issue 1

Did the Board err in law by determining, based on speculation and misapprehension of the evidence, that the applicant's testimony was not plausible or credible?

The Board found that there was an inconsistency between the applicant's PIF narrative and her testimony in connection with the applicant's alleged fear of the army. The Board made a negative credibility finding as the fear of the army had not been included in her PIF narrative. The applicant stated in paragraph 1 of her PIF:

I am a 59 year old Tamil widow from the village of Punguduthivu in Jaffna, Sri Lanka. I fear that I will be singled out for persecution on account of my nationality and membership in a particular social group as a vulnerable Tamil woman from Jaffna, preyed upon by the Tamil militants and the Sri Lankan security forces. I fear extortion and harassment by both groups.

[43]            The Board failed to note that the applicant feared harassment and extortion by both the LTTE and the Sri Lankan security forces. While the applicant does not explicitly state "army" rather than "security forces", the Board erred in making a negative credibility finding.

[44]            The Board also made an implausibility finding that the applicant was not taken and detained by the LTTE for five days. The Board, in large part, premised this finding on the statement that:

The panel notes that during this time period, according to the documentary evidence, the activity of war between the LTTE and the Sri Lankan authorities was at a very low point. At that time there was a ceasefire in place that was being enforced. The documentary evidence on file does not indicate that widespread abductions were taking place at this time of senior Tamil widows.

[45]            I am of the view that the Board erred in making this plausibility finding as there was contrary documentary evidence before it that indicated that while there might have been a ceasefire in place, extortions still continued.

[46]            The applicant raised other issues, but I need not deal with those issues because of my finding with respect to the Board's credibility and implausibility findings.

[47]            The application for judicial review is therefore allowed and the matter is referred back for reconsideration by a differently constituted Board.

[48]            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 a further three days for any reply.

                               "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-1199-04

STYLE OF CAUSE: KANAGESWARY KATHIRGAMU

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   December 1, 2004

REASONS FOR ORDER OF                      O'KEEFE J.

DATED:                     February 25, 2005

APPEARANCES:

Barbara Jackman

FOR APPLICANT

Martin Anderson

FOR RESPONDENT

SOLICITORS OF RECORD:

Barbara Jackman

Toronto, Ontario

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada       

FOR RESPONDENT