Date: 20000530
Docket: IMM-1371-99
Ottawa, Ontario, the 30th day of May 2000
Present: Mr. Justice Pelletier
BETWEEN:
NAVANEETHAN MARUTHAPILLAI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Convention Refugee Determination Division (the Refugee Division) found that the applicant had been persecuted by the Sri Lankan army. In spite of this finding, the Refugee Division held that an internal flight alternative (IFA) was available to the applicant in Colombo, territory controlled by the Sri Lankan army. The Refugee Division reached this conclusion after finding contradictions in what the applicant said. It remains to be seen whether these contradictions are real or imagined.
[2] The applicant is a young Tamil from the Jaffna area, in the northern part of Sri Lanka. The Refugee Division does not question the applicant's credibility with respect to what he experienced in the north of Sri Lanka and found that he could not return to that part of the country without risk of persecution. Here are the facts as set out by the Refugee Division:
Mr. Navaneethan Maruthapillai alleges that after his father returned from Saudi Arabia where he worked as a driver, the Tigers were extorting money and the claimant's father was forced to pay 25,000 rupees in March 1992.
The Tigers later demanded more money. The claimant's father refused to pay and thus was arrested and detained from October 1992 to November 1992. He was released in poor physical condition and died in December 1992.
The claimant also alleges that starting in November 1993, the Tigers took him with them so that he could work in their camps. In May 1995, Mr. Maruthapillai refused to join them. Because of this refusal, he was assaulted and detained for three days.
The claimant's mother had to pay into the Tigers war fund on two occasions in order to avoid to be harassed by them.
The claimant's family moved to Meesalai in October 1995. In April 1996 they returned to their village (Nayanmarkaddu-Nallur) where the claimant began to work as a mason.
Mr. Maruthapillai alleges that he was arrested by the Sri Lankan army four times: August 1996 (two days detention), November 1996 (released after one day detention), September 1997 (four days detention) and April 1998 (two weeks detention).
In June 1997, the claimant alleges that a soldier humiliated his sister during a house to house march operation. After his last release, Mr. Maruthapillai moved to Colombo with his mother where he was arrested twice by the Sri Lankan police.
[3] The Refugee Division's finding based on those facts was the following: "The panel found him credible and therefore believes there is more than a mere possibility that Mr. Maruthapillai would face persecution should he go back to Jaffna." Given that the applicant would apparently be subject to persecution, the question is, who is the agent of persecution? According to the facts set out by the Refugee Division, the Tigers had not bothered the applicant since 1995, and from August 1996 until he left for Colombo in April 1998, the armed forces had arrested and detained him four times. Therefore, it is safe to assume that if the applicant were to be a victim of persecution, it would be at the hands of the armed forces.
[4] Contrary to its finding with respect to what the applicant had gone through in the north of Sri Lanka, the Refugee Division found the applicant's testimony about his experience in Colombo not credible. Indeed, despite the assertions of the applicant to the contrary, the Refugee Division found that he had not been arrested on two occasions and that he was not subject to persecution by the armed forces in Colombo.
[5] This last finding is now the subject of an application for judicial review, for according to the applicant, the Refugee Division could not find that an internal flight alternative existed in Colombo when the agent of persecution was the state itself and that the state controlled the Colombo area.
[6] An IFA implies effective state protection. However, when the agent of persecution is the state or a branch of the state such as the armed forces, how can one talk about effective state protection within its borders when the state itself is involved in the persecution?
[7] That is the gist of the decision of the Federal Court of Appeal in Canada v. Sharbden [1994] F.C.J. No. 371. Mr. Justice McKeown came to the same conclusion in Balasubramanian v. Canada [1994] F.C.J. No. 1452. In both cases, the Court ruled that a victim of persecution by the state did not have an internal flight alternative within the national borders unless it was proved that there actually was safe haven within the country. That was not established in this case.
[8] The finding in the case before us is all the more puzzling because the applicant testified that he had been arrested twice by the armed forces in Colombo, the very place the Refugee Division proposed as an IFA.
[9] The Refugee Division apparently spotted problem because it went to the trouble to show that the applicant's testimony about his arrests in Colombo - where there was supposedly an IFA - was not credible. In other words, the Refugee Division realized that the applicant's testimony contradicted what it was proposing. To solve the problem, the Refugee Division found that while the applicant's testimony was credible regarding his experience in the Jaffna region, it was not credible with respect to his experience in Columbo. In a process where credibility is quickly undermined by any contradictions or implausible statements, it is quite rare that a claimant is found to be both credible and not credible.
[10] The adverse credibility finding is based on three elements stemming from the applicant's two arrests in Colombo. Here is what the Refugee Division said on the subject:
When asked to specify the time of his first arrest in Colombo, the claimant gave different versions of the event.
At first, he said that he was arrested at noon time while he was going for lunch and that he was released that same day. He then later said that he was released the next day. When questioned further on the time of his arrest, Mr. Maruthapillai said that he was arrested while he was asleep in his bed at 10:30 P.M. and was released the next day at noon. In his Personal Information Form (PIF) the claimant stated that he was released on the same day.
When asked to explain the discrepancy, the claimant said that he had memory problems. These problems were not evident in other parts of his testimony.
The panel does not feel this to be a satisfactory explanation.
[11] Nevertheless, here is what the applicant said in his testimony:
A. On the day of my arrival I registered my name with the police, and the following night I heard a knock at the door. Then somebody said those who were inside the room should come out of the room. When we came out of the room we saw three policemen outside the room. They asked for the identity card. After I gave my identity card, after examining the card, one of them said that he was suspicious of me and I was dragged by one of them. My mother told them that we had duly registered our names and that her son didn't do anything bad. They said they were doing their duty and she come to the police station and speak to them later.
...
Q. Sir, I'm concerned with your first arrest, sir. You say that you were arrested, I don't know, the day after your arrival in Colombo?
A. Yes.
Q. And you were released a day after you say?
A. Yes.
Q. What time you were arrested, sir?
A. It was noontime when I was about to go for my lunch.
Q. At what time you were released, sir?
A. Between 11:30 a.m. and 1:00 p.m.
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. The next day?
A. Yes
BY PRESIDING MEMBER (to person concerned)
Q. And you were released the next day?
A. Yes.
...
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. So you said that the first time you were arrested it was around lunch time you're about to go for lunch, is that right?
A. No, I said ... I told you the first time that after finishing my meal I was going, it was night when I heard knock on the door.
BY PRESIDING MEMBER (to person concerned)
Q. The first time?
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. The first time was at night and you were about to go to bed, okay.
BY COUNSEL(to refugee claim officer)
- When he was released it was at noon.
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. Okay, and you were released when?
A. The following day between 11:30 and 1:00.
Q. Okay. Sir, you've said a few different things now. When I first asked you about the circumstances of your arrest, the first arrest, you said you're in a lodge. You'd registered. And the following night you heard a knock on the door. Okay. Now, that corresponds to what you just said now a minute ago. Okay. So when the presiding member asked you at what time of the day were you arrested, at what time were you arrested, you answered that you were arrested at noontime when you were about to go for lunch. And you were released the following day. Sir, you're not listening, you're talking.
A. What I meant was, I was released at that time from policy custody the following day.
Q. Sir, the question was very clearly, at what time were you arrested? At noontime when you were about to go for lunch. And then you were released the following day between 11:30 a.m. and 1:00 p.m.
A. What I told you was after having our dinner, my mother and I were sleeping and then we heard a knock on the door. And I was released the following day at noontime.
BY COUNSEL(to person concerned)
Q. What time was it? Do you remember when you were arrested?
A. I was fast asleep and it could have been 10:30, 10:45.
Q. P.M.?
A. Yes.
[12] To begin with, the Court notes that the applicant did not first say that he had been arrested at noon while he was going to lunch. On the contrary, he first testified that he had been arrested in his room the day after his arrival. It was only later, while answering a question, that he said - once and only once - that he had been arrested at noon. However, when the refugee claims officer came back to that question, the applicant confirmed his initial testimony.
[13] Weighing evidence is at the core of the Refugee Division's jurisdiction. It is not for the Court to substitute its own assessment for that of the Refugee Division. However, when weighing the evidence, the Refugee Division must respect a claimant's testimony. The Refugee Division cannot distort a claimant's testimony and then find that the claimant lacks credibility. In the case at bar, the applicant did not first say that he was arrested at noon to then say that he was arrested the evening of his arrival. Counsel for the Minister argues that be that as it may, the applicant did give two different versions regarding his first arrest in Colombo; even if the Refugee Division erred on that point, the underlying finding remains valid. The Court would agree if that were the only instance of that type of error, but there are others.
[14] In fact, the panel found that the applicant had changed another part of his story:
... Then asked how his mother had found out about his arrest, the claimant said that she became worried because he was out for a long time and asked the lodge owner to make inquiries about the claimant's whereabouts. The lodge owner later told her that the claimant had been arrested.
The panel pointed out to the claimant that his mother knew that he was with the agent and thus found her concern implausible.
The claimant then changed his story and said that the agent called the claimant's mother an hour after the arrest and informed her that he had been detained by the police.
[15] Here is the applicant's testimony as it appears in the transcript:
Q. So, at the police station when you were released the second time you were arrested did you see the lodge owner?
A. Yes, he came there.
Q. Okay. How does he know where you were?
A. Because when my mother told him that I didn't show up for a long time, then the agent had the ... The agent who was taking me he informed him and the lodge owner had (inaudible) police station.
Q. The agent informed them of what?
A. That when I was going with him I had been taken by the police.
Q. So did the agent go right to your mother when this happened, or did your mother have to wait around for a long time to see that you didn't show up?
A. My mother told me only after an hour he informed her of my arrest because the agent had to finish his work before informing my mother.
...
Q. So, when you were taken from the bus, how were you released?
A. Because at the time the agent was with me, so he went and told my mother, then my mother approached the lodge proprietor. So through him I was released.
Q. The agent was with you when you were arrested?
A. Yeah, he was with me.
Q. And can you tell me how the agent would have known where the police took you?
A. He's very older man, he just passed by. He was little far from me. I am the youngest one so they stopped me.
Q. Yeah. My question was, how would he have known where the police station they were taking you to?
A. Yeah, because later on he told me that at the time he just passed and he was watching us where I was taken, because I was taken by foot. So he was watching us where I was taken.
BY PRESIDING MEMBER (to person concerned)
Q. Who was watching?
A. The agent.
BY MEMBER(to person concerned)
Q. So everybody went walking, including the police, when walking to the police station?
A. It's very close where I was arrested at the police station.
[16] Once again, in spite of the fact that the applicant's testimony was completely consistent, the Refugee Division found that he had changed his story. Therefore, the Refugee Division cannot expect the Court to defer to its assessment of the evidence when it does not even stick to the evidence in the record.
[17] Again, in order to support its finding that the applicant was not credible, the Refugee Division made an issue of who was with him on the bus when he was arrested for the second time. The applicant apparently initially said that the person with him was the agent who was to take him out of Sri Lanka. He then said that he realized that it was not the actual agent who was with him but the agent's partner or employee. Because of that, the Refugee Division found that there was another contradiction in the applicant's testimony. According to this Court, making such a finding would be to give the term "agent" a more precise meaning, than it could ever have, in connection with smugglers of human beings. There is no certification process for such agents; they do not have any special status. It was perfectly reasonable for the applicant to believe that the person accompanying him was the agent, just as he was justified in eventually realizing that the person with him was taking orders from someone else. There is no doubt that the applicant was referring to the same person throughout. In the instant case, the Refugee Division did a microscopic analysis of the evidence rather than considering it as a whole.
[18] It seems, therefore, that the Refugee Division was wrong to conclude that the applicant lacked credibility. It follows that the applicant had no internal flight alternative in Colombo.
[19] For all these reasons, the decision of the Refugee Division is set aside, and the applicant's Convention refugee claim is referred back to the Refugee Division for redetermination by a different panel.
ORDER
The decision of the Refugee Division of March 3, 1999, the reasons for which are dated February 17, 1999, is referred back to the Refugee Division for redetermination by a different panel.
J.D. Denis Pelletier
Judge
Certified true translation
John Arrayet
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1371-99
STYLE OF CAUSE: NAVANEETHAN MARUTHAPILLAI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 2, 2000
REASONS FOR THE ORDER OF PELLETIER J.
DATED: MAY 30, 2000
APPEARANCES:
MYRIAM HARBEC FOR THE APPLICANT
THI MY DUNG TRAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MYRIAM HARBEC FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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