Date: 20041105
Docket: IMM-1191-04
Citation: 2004 FC 1557
Ottawa, Ontario, November 5, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
PACKIYANATHAR, Hudson
(a.k.a. Gerasiyan Hudson PACKIYANATHAR)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated January 21st, 2004, which determined that Hudson Packiyanathar (applicant) was not a Convention refugee and was not a person in need of protection. The refugee claim was based on the grounds of race, religion, nationality, political opinion and membership in a particular social group.
RELEVANT FACTS
[2] The applicant is a Roman Catholic Sri Lankan Tamil, and alleges that he was living in Sri Lanka until September 2001, when he came to Canada via the United States. In 1993, he and his brothers were asked to work by the armed Liberation Tigers of Tamil Eelam (LTTE). He did so on and off until July 1999, when the LTTE beat him and his father and threatened to kill him on the belief that he was an army informant.
[3] The applicant managed to escape but was then caught by the army in January of 2000. He was tortured and beat, under suspicion of being an LTTE militant. He was eventually released on a bribe, and fled to Colombo, another city in Sri Lanka. Even there, he had to bribe the police in order not to be taken into custody. The applicant finally left Sri Lanka on September 5th 2001, en route to the United States.
[4] Once landed at JFK airport, the applicant was detained in the United States and eventually his application for withholding of removal was granted. This gave him the opportunity to work, without having the right to become a permanent resident.
[5] On November 30, 2001, the applicant arrived in Canada and claimed refugee status, but he concealed the fact that he was detained in the United States.
ISSUE
[6] Did the Board make adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
ANALYSIS
[7] The only issue to be dealt with in this case is whether the finding of lack of credibility of the RPD was patently unreasonable.
[8] The difficulty in evaluating the credibility of the applicant during a judicial review is quite evident; this Court does not have the luxury of a re-enactment of the testimony given during the first hearing. It is precisely for that reason that this Court need not consider the applicant's credibility. Rather, it must apply the standard of whether the RPD acted in a manner that was patently unreasonable in determining whether the applicant was credible.
[9] It is well established that the RPD may base its decision on the applicant's behaviour at the hearing, their aptitude to answer questions in an honest and clear manner, the coherence and the uniformity of the answers in order to appreciate their credibility, and that such findings with regard to the quality of the testimony should be the object of a significant judicial reserve.
A claimant's demeanour, consistency, ability to present specific facts, and concordance with objective evidence in the record may be thought of as internal credibility, viz, the apparent veracity (or lack thereof) of a witness' testimony, taken within itself and within the record, that is, in the light of demeanour, frankness, readiness to answer, coherence and consistency - what I might call the heartland of credibility. Confusion, failure to respond, evasions, inconsistencies and contradictions will create a perception of lack of credibility. (Tong v. Canada (Secretary of State) [1994] F.C.J. No. 479, at paragraph 3; see also Lapointe v. Hopital Le Gardeur [1992] 1 S.C.R. 351).
[10] The RPD was in the best position to evaluate the evidence and accord it the appropriate weight, and it did just that. The applicant argues that the medical report should have been taken into evidence but was disregarded by the RPD. This report consists of nothing more than a prescription slip with the words " Cinq cicatrices arrondies pigmentées à l'avant bras gauche. Selon les dires du patient, il a été torturé dans son pays par un bout de cigarette brûlante". This is evidently hearsay, the doctor simply re-transcribing what the patient told him. The RPD accorded it the weight it thought it deserved and did not find it noteworthy enough to mention in its decision. I find no fault in that.
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. (Florea v. Canada (M.E.I.) [1993] F.C.J. No.598 (F.C.A.), paragraph 1).
[11] As for the inconsistencies raised by the RPD, the applicant has not in his submissions, demonstrated that its findings were patently unreasonable. Contrary to what the applicant claims, I find that the discrepancies in the manner which the applicant escaped his captors in order to arrive to Canada, his repeated omissions of his having been detained after his release in January 2000, as well as the other lacunas identified by the RPD, are not externalities but go to the heart of the application. Quite recently, this Court addressed these same issues in Xie v. Canada (M.C.I.) [2004] 2 F.C.R. 372, where the Honourable Justice Kelen stated at paragraph 21 that:
In her submissions to the Court, the applicant has challenged most of the inconsistencies and implausibilities identified by the Refugee Division; however, her submissions simply reiterate the explanations she relied upon during her hearing. She has not demonstrated the Refugee Division made its decision in a perverse or capricious manner, or acted without regard for the material before it. In essence, the applicant is asking the Court to re-weigh the evidence that was before the Refugee Division, which is not the role of the Court on an application for judicial review. The credibility and implausibility findings of the Refugee Division are based on the evidence, supported by detailed reasons, and reasonably open to the panel. Accordingly, they are not patently unreasonable. [my emphasis]
[12] For all of the above mentioned reasons, I would dismiss this application for judicial review.
ORDER
THIS COURT ORDERS that:
- This application for judicial review is dismissed.
- No question for certification.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1191-04
STYLE OF CAUSE: PACKIYANATHAR, Hudson
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: OCTOBER 28th, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE
MR. JUSTICE BLAIS
DATED: November 5, 2004
APPEARANCES:
MRS. DIANE NANCY DORAY FOR THE APPLICANT
MRS. SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MRS. DIANE NANCY DORAY FOR THE APPLICANT
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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