Date: 20000114
Docket: IMM-6316-98
BETWEEN:
JOSEPH, Edvin Marina, ANTON Alexand Manojan
et ANTON Ronald Ahilan,
Applicants
-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 the Convention Refugee Determination Division of the Immigration and Refugee Board (Refugee Division) dated November 27, 1998, wherein the applicant and her two youngest sons were found not to be Convention refugees, and her eldest son, Selvan Anton, was determined to be a Convention refugee.
[2] The applicant seeks an order remitting the matter back for reconsideration before a newly constituted panel of the Refugee Division.
FACTS
[3] The principal applicant, Mrs. Joseph Edwin Marina, is a forty-one year old Sri Lankan, of Tamil origin, with three sons: eight year old Alexand Manojan Anton, fourteen year old Ronald Ahilan Anton, and twenty year old Selvan Anton.
[4] The applicant"s three sons are also citizens of Sri Lanka and Tamils by birth.
[5] All three of the applicant"s sons were claiming refugee status on the basis of race, imputed political opinion, and membership in a particular group.
[6] The applicant and her three sons left Sri Lanka on November 6, 1996 and arrived in Canada on November 21, 1996, immediately claiming refugee status.
[7] The applicant states that she was arrested in 1995 by the Sri Lanka police while staying at a lodge in Colombo.
[8] The applicant also states that her eldest son was taken by the police several times in 1996 and beaten. When the applicant tried to get her son released, she was humiliated by the Sinhalese policemen, harassed, and asked vulgar questions while staying at a lodge in Colombo.
[9] The applicant"s first hearing was held on September 3, 1998 and second hearing on October 7, 1998.
[10] At the hearing, both the applicant and her eldest son testified. The panel also considered the applicant"s first PIF and second PIF but did not rely on the statements made in the first PIF. In December 1996, the applicant submitted her first PIF jointly with her husband whereby a narrative had been submitted for question 37.
[11] In 1997, the applicant separated her claim from her husband"s as the couple was then separated and is now divorced.
[12] A new PIF was submitted by the applicant with a new narrative which contained substantial changes from her first PIF.
[13] On this point, the applicant states that she was forced to comply with the story that her husband gave at the time and that she had no other alternative but to lie to Canadian authorities. She states that in her second PIF she was telling the true story.
[14] The Board assessed all of the evidence and concluded that she lacked credibility as her testimony was marked with omissions, implausibilities and evasiveness. For these reasons, the Board found that the applicant"s testimony did not establish a well-founded fear of persecution and therefore determined she was not a Convention refugee. In addition, the Board determined that her two youngest sons were also not Convention refugees.
[15] With respect to the applicant"s eldest son, Selvan Anton, the Board found his testimony to be credible, straightforward and trustworthy, and determined that he was a Convention refugee.
[16] I have some difficulty with this finding but no request for judicial review of this finding has been made.
[17] The applicant now seeks judicial review of the decision that she and her two youngest sons, Alexand Manojan Anton and Ronald Ahilan Anton, are not Convention Refugees.
THE DECISION OF THE BOARD
[18] The Board determined that the applicant and her two youngest sons were not Convention refugees after concluding that the applicant"s testimony lacked credibility and did not establish a well-founded fear of persecution. The essential elements of the Board"s credibility findings are contained in the following paragraphs:
| Mrs. Joseph testified that although she may have encountered little problems since 1991, it was not until 1995 that she started having more serious ones. She stated that while staying in a lodge in Colombo, following a bombing, she was arrested along with some other men and women. She alleged that her son was not arrested at that time and she was questioned by 3 to 4 officers for approximately half an hour. She alleged that she was detained for one day and that she was sexually harassed but not raped. She was later released and told that if anything happened she would be called back. The claimant stated that she had to return every month to sign at the police station. When asked what she had to sign, the claimant was evasive and did not answer the question put to her several times when finally she stated that she signed that she was staying at the lodge. |
| When asked if she had been arrested again, she stated that she was again arrested in September 1996. She alleged that she was detained for one night and was raped. This arrest and alleged rape was completely omitted in the claimant"s PIF. The panel asked the claimant why she would omit such a significant and central issue to her claim. She responded that the interpreter was Tamil and she did not want this to circulate. The panel then pointed out that she had not hesitated in another incident in her PIF to use vague language indicating that something had occurred to her and she could have done the same for this incident. The panel rejects the claimant"s argument and does not believe that this was just an omission which was central to her case but rather that it was self-serving evidence given to the tribunal to augment the gravity of what actually happened to her. Furthermore, the panel believes the burden of proof lies with the claimant and she was given an opportunity by submitting a second narrative to be completely upfront and straightforward with the tribunal which the panel does not believe that she was. |
| The claimant further alleged that two weeks after her release, the police officers returned to her house on two occasions. The first time, in October 1996, they allegedly came and they raped her. Again, the claimant completely omitted to mention this incident. The second time, she allegedly opened the door but the police officers left because they were afraid that she might scream so they just reminded her to go and sign at the police station and left. The panel does not find the claimant"s statement trustworthy and does not believe that the police would go there and then just remind her to go and sign at the police station. |
| The claimant further alleged that she was humiliated by the police officers who used vulgar language when she went to get her son"s release. When asked by the panel how many times did this happen to her, she was evasive stating that she could not remember and later stated that"s the way police spoke, not just to her but also others who had been arrested at the lodge. |
| The claimant was an active participant in the fabrication of the first narrative that was submitted before the Board and she then had a second opportunity to mention all significant incidents that occurred to her and there again, she omitted serious incidents central to her case. The panel found the claimant to be misleading and not having acted in good faith. |
| Therefore, the panel does not find Mrs. Joseph to be credible and her testimony lacking in credibility. For these reasons, we believe the claimant does not have a well-founded fear of persecution. |
ISSUE
[19] This application raises one question:
| Did the Refugee Division err in its finding that the applicant was not credible? |
POSITION OF THE PARTIES
Applicant"s Position
[20] The applicant submits that the Refugee Division contravened subsection 69(2) of the Act which provides that proceedings will be held in camera. The contravention occurred through the actions of an employee of the Refugee Division, Mr. Clifford Fox, who conducted an interview on April 14, 1997 with the applicants, including the then husband, and subsequently reported a portion of this interview to Immigration Canada by a declaration signed on April 21, 1997. Immigration Canada then entered this document as evidence at the applicant"s hearing before the Refugee Division on December 3, 1998.
[21] The applicant submits that this illegality is sufficient to warrant the intervention of this Court in the decision of the Refugee Division. It is further submitted that all declarations made by Mr. Clifford Fox in the applicant"s file should be removed.
[22] Secondly, the applicant argues that the reasoning of the Refugee Division is absurd in that the applicant and her three children presented their claims at the same time and all gave the same testimony regarding their fear of persecution in Sri Lanka, yet the Board found that only the applicant"s eldest son was a Convention refugee.
[23] The applicant submits that if the Board accepted the testimony of her eldest son, it should have accorded the same benefit of the doubt to her testimony. Further, it is argued that the decision to accord refugee status to her eldest son but not the applicant and her two younger sons illustrates that the Board did not act fairly and impartially.
Respondent"s Position
[24] The respondent submits that the applicant has failed to show any grounds for intervention by this Court given that the decision of the Board is not unreasonable as it is based on a negative credibility finding which is supported by specific implausibilities and omissions in the applicant"s evidence.
[25] The respondent further argues that the jurisprudence of this Court has consistently held that an applicant"s PIF must contain all important facts relating to his/her claim and any significant omissions may contribute to a negative credibility finding.
[26] With respect to the applicant"s interview with Mr. Clifford Fox, the respondent submits that the applicant"s hearings on September 3 and October 7, 1998 were held in camera and violation of subsection 69(2) of the Act did not occur. The notes taken by Mr. Fox at this interview were provided to applicant"s counsel at the hearing on September 3, 1998, and at his request, the hearing was adjourned to provide him an opportunity to review this document. The document in question had no relevance to the applicant"s hearing and therefore there was no breach of confidentiality pursuant to subsection 69(2).
ANALYSIS
Subsection 69(2) of the Act
[27] I will first deal with the question of illegality raised by the applicant before moving on to the main issue, that being the credibility of the applicant. The applicant argues that Mr. Clifford Fox contravened subsection 69(2) of the Act by releasing his notes from his interview with the applicant and her husband to the Refugee Board.
[28] Section 69(2) reads as follows:
| 69(2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable, and be conducted in camera or, if an application therefor is made, in public.
|
69(2) Sous réserve des paragraphes (3) et (3.1), la section du statut tient ses séances à huis clos ou, sur demande en ce sens, en public, et dans la mesure du possible en présence de l'intéressé.
|
[29] I am unable to agree with the applicant"s argument that by reporting part of the interview held with the claimant on April 14, 1997, Mr. Clifford Fox acted contrary to the terms of this provision. The evidence indicates that the hearings on September 3, 1998 and October 7, 1998 were held in camera as required and the fact that Mr. Fox provided his notes to immigration authorities does not violate the Act.
[30] Furthermore, I am satisfied, and both parties agree, that the notes of Mr. Fox had no relevancy to the applicant"s hearing. Therefore, no confidence was breached.
Credibility
[31] The main issue in this case is the applicant"s credibility. The Board determined that the applicant was not a Convention refugee after having concluded that her testimony was not credible. In support of this finding, the Board refers to numerous specific instances where the applicant was not forthright in her oral testimony at the hearing held on October 7, 1998.
[32] Firstly, the Board states that the applicant testified that after having been arrested at a lodge in Colombo, she was required to go to the police station every month and sign in. When asked what she signed, the applicant was evasive and could not answer the question and finally stated that she signed that she was at the same lodge.
[33] Secondly, the Board asked the claimant, following her testimony on her arrest and rape in September 1996, why she would omit such a central event from her PIF. In response, the claimant stated that the interpreter was Tamil and she did not want this information to circulate. The Board was not satisfied with this explanation as she had not hesitated to refer to other incidents in her PIF by using vague language to indicate that something had been done to her.
[34] Thirdly, the claimant alleged in her testimony that she was raped by police officers who came to her house in October 1996 but also failed to mention this incident in her PIF. She alleged that the police came for a second time but did not rape her again because they were afraid she would scream so they just reminded her to go and sign in at the police station and then left her house. The Board found this statement to be implausible and untrustworthy as it is highly unlikely that the police would go to her house just to remind her to sign in at the police station.
[35] Equally important to the Board"s finding on the applicant"s credibility was the fact that they determined that she was a participant in the first PIF narrative which was submitted to the Board and provided with a second chance to state all of the incidents which are relevant to her case. The Board found the applicant still omitted numerous points which were central to her claim.
[36] Considering the totality of the evidence, the Board concluded that her testimony was not reliable and she did not have a well-founded fear of persecution. I addressed the issue of a claimant"s PIF in Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. 1867 where I stated at paragraph 33:
| It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one"s PIF. The oral evidence should go on to explain the information contained in the PIF. |
[37] On the issue of findings of credibility, the Court stated in Boye v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 1 (F.C.T.D.) at 2:
| [t]he jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal"s impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal"s opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it. |
[38] In this case, the claimant clearly did not include all relevant facts in her second PIF.
[39] I am satisfied that the tribunal did not make an adverse credibility finding by ignoring evidence by the applicant which would have explained the apparent inconsistencies in her testimony. There is also no reason to believe that the tribunal misconstrued evidence or took into account irrelevant considerations.
[40] The Board expressed its finding of a lack of credibility in clear and unmistakable terms. Its reasons raise specific instances where the applicant was evasive and where her testimony was not consistent with the answers provided on her PIF.
[41] In my view, the question before the Court in this application was the same as that articulated by Noël J. in Oduro v. Canada (Minister of Citizenship and Immigration) [1993] F.C.J. No. 560 at paragraph 13:
| The question I must answer is whether it was open to the Board on the evidence to conclude as it did. Recognizing that if confronted with the same evidence, I would have been inclined to hold otherwise, I cannot say that the Board ignored the evidence before it or acted capriciously. |
| It drew inferences which were adverse to the Applicant"s claim, and the fact that I might have seen the matter differently does not allow me to intervene in the absence of an overriding error. I have been unable to find such an error. |
[42] In my view, the applicant raises only questions of credibility and of the weight of evidence in this application. This does not constitute a basis for intervention by this Court as I am satisfied that there was no gross errors in the assessment of the evidence by the Board and its findings were not made in a perverse of capricious manner.
[43] The application for judicial review is dismissed.
[44] The applicant submits the following questions for certification:
| 1. Le droit à la confidentialité et au huis clos de l"article 69(2) de la Loi sur l"Immigration, laisse t"il un employé de la C.I.S.R. discuter et transmettre des informations confidentielles à Immigration Canada? Surtout si cette personne les a obtenues lors d"une entrevue visant à déterminer si le revendicateur est un réfugié ou non? |
| 2. Immigration Canada a t"il le droit d"utiliser des renseignements confidentiels, obtenue contrairement à la Loi sur l"Immigration, dans le cadre du droit à la confidentialité et au huis clos de l"article 69(2) de la Loi sur l"Immigration. |
[45] I am satisfied that the questions raise serious issues to be decided by the Court of Appeal and I hereby certify them.
J.F.C.C.
Ottawa, Ontario
January 14, 2000
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