Date: 20000113
Docket: IMM-1591-98
BETWEEN:
ADITHAN KANAGARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (Act) for judicial review of a decision of José Andrés Sotto and M. Clive Joakim, members of the Convention Refugee Determination Division of the Immigration and Refugee Board (Refugee Division) dated February 25, 1998, wherein the applicant was found not to be a Convention Refugee.
FACTS
[1] The applicant, a Tamil citizen of Sri Lanka, was born on February 26, 1971 in Udupiddy, Jaffna district, in the northern peninsula of Sri Lanka.
[2] The applicant lived in Vaddakachchi until the arrival of the Indian Peacekeeping Force (IPKF) in August 1987. Following this, the applicant alleges that the Eelam People Revolutionary Liberation Front (EPRLF) collaborated with the IPKF and began erecting camps in their area.
[3] The applicant alleges that the IPKF suspected him as a sympathiser of the Liberation Tigers of Tamil Eelam (LTTE) and harassed him until their departure in 1991.
[4] After the departure of the IPKF, the applicant alleges that the activities of the LTTE significantly increased in the area and he was pressured to join the movement but declined to do so.
[5] The applicant alleges that he was continually harassed by the LTTE through visits to his home which were aimed at persuading him to participate in their activities.
[6] At this time, the applicant states that he, as well as his family members, were sponsored by his brother in Canada to come to Canada. However, he alleges he was not allowed to leave the Killinochchi area and therefore could not attend the interview in Colombo to get the visa.
[7] The applicant"s mother left Sri Lanka in November 1991 for Canada.
[8] The applicant states that, fearing conscription, he escaped from the Kilinochchi area and went to Colombo.
[9] Upon arriving in Colombo, the applicant states that he was arrested twice. Despite this, his brother in Canada had arranged an agent to bring the applicant to Canada.
[10] En route to Canada, the applicant states that he, the agent, and four others were arrested at the Pakistan International Airport for not having possession of valid visas and were subsequently detained.
[11] Having refused the authorities" demand that they plead guilty to certain charges, the applicant states that they were detained until the early part of 1994.
[12] After hearing that peace talks had started in Sri Lanka and seeing no possibility of landing in Canada, the applicant states that he and the others opted to return to Sri Lanka and they were released on this condition.
[13] Upon returning to Vaddakachchi in March 1994, the applicant states he was one of the many victims of the LTTE. In October 1995, the LTTE transferred its headquarters to Kilinochchi which led to the Sri Lankan army launching several attacks on the area.
[14] The applicant states that the LTTE became concerned about the attacks and ordered that one man from each house undergo military training to counteract the army, and that he and others were forced into hard labour for the LTTE.
[15] The applicant states that his maternal uncle was living in Chilaw and had sent his children to Canada, and that his mother wrote to him to arrange that he pick up the applicant from Vaddakachchi.
[16] In January 1997, the applicant"s uncle came to get him and they fled through the jungle and arrived in Chilaw. The applicant states that his uncle tried to register his name with police when they arrived in Negombo but that the police advised him that the applicant could not stay for more than two weeks and could not be seen outside the house during this time.
[17] The applicant left Colombo International Airport on February 18, 1997, travelled from Colombo to Hong Kong with a Sri Lankan passport, and then from Hong Kong to Canada, arriving in Canada on February 22, 1997.
[18] The applicant bases his refugee claim on a well-founded fear of persecution due to his political opinion and his membership in a particular social group - young Tamil males from the northern region of Sri Lanka.
THE DECISION OF THE REFUGEE DIVISION
[19] The Refugee Division made the following findings:
| [...] Given all of the above concerns, the panel finds that the claimant was not being forthright with the panel with regard to his actual experiences in Sri Lanka. |
| The panel determined that even if it were to have found that the claimant had a well-founded fear of persecution in the northern region of Sri Lanka, he has an IFA in Colombo. |
| The claimant testified that he had been to Colombo before, in April 1993, during which time he was arrested twice, but, on each occasion, he was immediately released after he succeeded in proving his identity. The panel finds that this particular experience of the claimant is consistent with documentary evidence which shows that hundreds of newly arrived Tamils - particularly those from the North - are brought in for questioning with regard to their identity. The panel finds that what is significant is that, notwithstanding the fact that the claimant was a young Tamil from the northern region of Sri Lanka, he succeeded in proving his identity and did not have any severe experience other than being brought to the police station for identity verification. The panel determines that such arrests and brief detentions for the purpose of checking the identity of Tamils who are in Colombo are perfectly legitimate measures by a government that is trying its best to restore order in a city that is vulnerable to terrorist attacks. The panel determines that the legitimacy of these arrests and brief detentions for the purpose of identity checks has to be viewed from the perspective that the LITE is a widely known terrorist group whose offensive strategies, if not checked early, can easily wreak unfathomable havoc, not only to the capital city, but also to the entire country of Sri Lanka. Given further documentary evidence that the LITE terrorists have significantly escalated their offensive against the Sri Lankan military and foreign diplomatic missions, and that their bombs have infiltrated the capital city, the panel finds that the authorities" decision to arrest, briefly detain, and interrogate Tamils is a reasonable and responsible one, which in turn reflects the government"s resolve to protect its citizens from terrorism. |
ISSUES
[20] The issues raised in this application are the following:
| 1) Did the Refugee Division err in finding that the applicant was not credible? |
| 2) Did the Refugee Division err in its findings on the IFA? |
SUBMISSIONS OF THE PARTIES
Applicant"s Submissions
[21] The applicant submits that the Board"s adverse findings of credibility were based on irrelevant considerations, namely whether the applicant"s fear of persecution in Sri Lanka was well-founded.
[22] Secondly, the applicant argues that the IFA issue was never raised at the hearing, and that the Board erred in finding that in addition to his two trips to Colombo, the applicant had made a third trip to Colombo at which time his uncle was told that he could not stay there for more than two weeks. This is an error of fact which is illustrated by the applicant"s PIF which indicates that his uncle was told in Negombo that the applicant could not stay for more than two weeks.
Respondent"s Submissions
[23] Firstly, the respondent submits that the Refugee Division is entitled to make findings of credibility on the basis of contradictions and inconsistencies in the claimant"s testimony and other evidence submitted to the Refugee Division. Moreover, the Board is entitled to make an adverse finding of credibility on the basis of the implausibility of the claimant"s testimony alone.
[24] Secondly, the respondent argues that although the Board did make an error of fact in finding that the applicant"s uncle had been told in Colombo that the applicant could not stay more than two weeks, this finding was not central to its assessment that even if a well-founded fear of persecution had been established, the applicant has an IFA in Colombo. The respondent disagrees that this error of fact is evidence that the issue of IFA was not raised at the hearing.
ANALYSIS
Credibility
[25] It is trite law that the Board is in the best position to make findings of credibility. Findings of fact based on internal inconsistencies and evasive evidence are "the heartland of the discretion of triers of fact" as was stated by the court in Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
[26] In Aguebor v. Minister of Employment and Immigration [1993] F.C.J. No. 732 this was reaffirmed by the Court at paragraph 4 where Décary J. stated:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[27] This Court has consistently exercised deference in judicial review proceedings with respect to findings of credibility unless they are clearly made without regard to the evidence: Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).
[28] In the instant case, the Board appears to have given numerous valid reasons for its finding that the applicant"s testimony lacked credibility. The Board refers to several specific inconsistencies and contradictions in the evidence presented at the hearing which led it to conclude that the applicant was not credible.
[29] Firstly, the claimant wrote in his PIF that in April 1993 he was arrested in Pakistan for not having valid documents yet in his testimony he stated that the Pakistani authorities accepted his passport as genuine and he was sent back to Sri Lanka on the strength of that passport. The applicant was unable to give the Board any reasonable explanation for this obvious discrepancy.
[30] Secondly, the claimant testified that he was beaten in Pakistan and received medical treatment as a result of his injuries. In his PIF, the Board noted that the applicant never mentioned this incident. The Board asked the applicant to explain why he had omitted to mention this beating in his PIF but no explanation was offered. Thus, the Board concluded that the applicant was embellishing his testimony and deliberately attempting to mislead it.
[31] Thirdly, the claimant testified that when he returned from Pakistan to Vaddakachchi in March 1994, he was beaten by the Tigers for leaving. Once again, the applicant made no mention of this incident in his PIF thereby leading the Board to believe that the applicant was not credible.
[32] Lastly, the applicant testified that he was detained by the IPKF in 1988 and upon his release he was required to report back and sign in at the IPKF headquarters for some time, and yet he did not mention this in his PIF narrative. When asked about this omission, the claimant indicated that he did not think that he still needed to include this specific information since everyone knows that it happened. The Board found this explanation to be another example of the claimant embellishing his testimony.
[33] Due to these inconsistencies and discrepancies, the Board found that the claimant had not been forthright about his experiences in Sri Lanka and concluded that he was not credible.
[34] With respect to the applicant"s assertion that the Board misconstrued the evidence or took into account irrelevant factors in its assessment of his credibility, I am unable to agree. In my opinion, the Board examined all of the evidence before concluding that the applicant was incredulous and there is no indication that any outside factors formed part of its deliberations.
[35] The credibility findings of the Board are solidly founded in the evidence and are neither irrational or unreasonable. No judicial interference is warranted on these findings of fact.
[36] Credibility was clearly the central issue in this case. Having come to the conclusion, as the Board did, that the applicant was not credible, the existence of an IFA is irrelevant. It is my view that the Board based its findings on the entirety of the evidence and was well within its jurisdiction in its assessment of credibility. There is no basis for me to believe that irrelevant factors were taken into consideration or that the Board ignored evidence.
[37] Counsel for the applicant raised the issue that if the applicant were to be returned to Sri Lanka, he would be imprisoned for having left Sri Lanka illegally.
[38] I was referred to a number of documents not forwarded by the Board to the Court but in the Board"s file as well as to documents in the file all of which were exhibits.
[39] I cannot agree with this submission. My reading of the material accords with the submission of the respondent filed on December 20, 1999.
[40] For the above stated reasons, I find that no judicial interference in the Board"s decision is warranted.
[41] In that the applicant"s brother and mother were granted refugee status in Canada, perhaps the applicant should be allowed to remain in Canada based on humanitarian and compassionate grounds.
[42] The application for judicial review is denied. No question for certification was submitted for my consideration.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
January 13, 2000
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