Date: 20050822
Docket: IMM-9365-04
Citation: 2005 FC 1116
Ottawa, Ontario, August 22, 2005
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
MUHAMMED SHABEEN MUHAMMED YOOSUFF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Muhammed Shabeen Muhammed Yoosuff fled Sri Lanka in 2003. He sought refugee protection in Canada based on his fear of the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA). A panel of the Immigration and Refugee Board dismissed his claim because his version of events seemed implausible. Mr. Yousuff argues that the Board failed to explain why his account of his experiences in Sri Lanka did not ring true. He asks for a new hearing. I agree that the Board erred and, therefore, will grant this application for judicial review.
I. Issue
[2] Were the Board's reasons for rejecting Mr. Yousuff's testimony supported by the evidence?
II. Analysis
[3] The Board must give clear and convincing reasons for finding a claimant's testimony incredible. The same is true when it finds that the claimant's story is implausible. In the latter case, however, the Board's findings are somewhat more susceptible to scrutiny on judicial review because the Court is often in just as good a position as the Board to decide whether the claimant has presented a coherent and plausible narrative of events. Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (C.A.) (QL). Still, the Court will intervene only where the Board's conclusions are unsupported by the evidence before it: Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131 (T.D.) (QL).
[4] Mr. Yoosuff said that he managed a gas station in the north of Sri Lanka. In March 2003, the SLA approached him because he had sold large quantities of gas and oil to an LTTE member. Mr. Yoosuff alleged that the SLA detained, assaulted and threatened him because it suspected that he was aiding the LTTE. He claims that he was released two weeks later, after paying a bribe, on the condition that he report every two weeks and not leave the area without permission.
[5] A few days after his release, Mr. Yousuff went to Matale for a few days, without permission, to visit his ailing mother. Mr. Yoosuff alleges that members of both the SLA and LTTE came to the gas station looking for him. Out of fear, he went into hiding and left Sri Lanka five months later. He says he fears the SLA because it suspects him of being an LTTE supporter and because he violated the terms of his release. He also fears the LTTE because they suspect him of being an informant to the SLA.
[6] The Board dismissed Mr. Yoosuff's claim because his story was "very thin" and not plausible. The Board saw no reason why the SLA would have arrested him. At the time, it was not illegal to sell gas to LTTE members and there were no grounds to believe Mr. Yousuff might have been helping the LTTE in other ways. Further, the SLA would probably not suspect a Muslim, such as Mr. Yousuff, of being sympathetic to the LTTE because there is a great deal of tension between the LTTE and the Muslim community. Finally, the Board did not understand how Mr. Yousuff could have left Sri Lanka using his own passport if the SLA was looking for him.
[7] As for the LTTE, the Board questioned why they would think that Mr. Yousuff was an informer. He did not know anything about the LTTE and was not connected to any of its members.
[8] The respondent argues that the Board was entitled to conclude, on the evidence before it, that Mr. Yousuff's story did not add up. In my view, the Board fell into error when it seemed to require Mr. Yousuff to prove that the actions of the LTTE and SLA were rational and justifiable. It may well be that there was no good reason for either group to suspect or harm Mr. Yousuff. But that was not the issue. Indeed, terrorists groups often act irrationally: Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162 (F.C.) (QL).
[9] The SLA has been known to arrest and detain innocent persons for questioning. It has also been known to extort bribes from detainees. It may not have had grounds to arrest Mr. Yousuff as an LTTE supporter, but it might have thought that doing so would stop him from selling his wares to the LTTE. As for Mr. Yousuff's easy emigration from Sri Lanka, there was no evidence before the Board suggesting that the SLA and border control authorities shared information about wanted persons (see: Abdul v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 352 (T.D.)(QL)).
[10] Regarding the LTTE, its members have been known to harm suspected informers. Since Mr. Yousuff had been in SLA custody for two weeks, the LTTE might well have thought that he had supplied the SLA with useful information, voluntarily or otherwise.
[11] In other words, the scenario Mr. Yousuff described was not out of keeping with what is known about the SLA or the LTTE. Indeed, it was consistent with the documentary evidence before the Board. The conduct Mr. Yousuff ascribes to those groups may not seem rational or reasonable at first blush, but within the context of the long-standing hostilities in northern Sri Lanka, his account should not have been dismissed out of hand. In my view, the Board's finding that Mr. Yousuff's version of events was implausible was not supported by the evidence. Accordingly, I must grant this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9365-04
STYLE OF CAUSE: MUHAMMED SHABEEN MUHAMMED YOOSUFF v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: July 14, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: August 22, 2005
APPEARANCES BY:
Mr. Daniel K. McLeod FOR THE APPLICANT
Mr. Jonathan Shapiro FOR THE RESPONDENT
SOLICITORS OF RECORD:
McKITRICK, CLARK, McLEOD
Vancouver, B.C. FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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