Date: 19990618
Docket: IMM-2949-98
BETWEEN:
SIVAKUMAR UTHAYAKUMAR
MITHILA UTHAYAKUMAR
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division dated May 12, 1998, which determined that the applicants are not Convention refugees.
FACTS
[2] The applicants are citizens of Sri Lanka. The applicant Sivakumar Uthayakumar is a young boy aged 12, and his sister, the applicant Mithila Uthayakumar, is 14 years old.
[3] According to the facts reported by the panel, the applicants are orphans, as their mother died of cancer in October 1991 and their father disappeared in 1990. The applicants stated that they lived with one of their uncles after the death of their mother.
[4] The female applicant, Mithila Uthayakumar, claims that she was abducted on two occasions in November 1994 and December 1995 by the LTTE (Liberation Tigers of Tamil Eelam), an organization dedicated to the fight for the creation of a separate state for the Tamil minority of Sri Lanka, to work for them.
[5] The applicants claim they and their uncle were abducted by the LTTE in February 1996. The applicants say they were released after two days and their uncle was held for one week. When they were informed that the LTTE was approaching their village, the applicants fled with their uncle to Colombo, the capital, in March 1996.
[6] The applicants state that in Colombo they and their uncle were arrested by the police. After being questioned about the activities of the LTTE, the applicants state that they were released the day after their arrest and their uncle was released after one week.
[7] After his release, the applicants" uncle took the necessary steps so that he and the applicants could leave Sri Lanka. The male applicant, Sivakumar Uthayakumar, was the first to leave the country for Canada with an officer. He arrived on Canadian soil on June 13, 1996.
[8] The female applicant, Mithila Uthayakumar, left Sri Lanka in October 1996 and arrived in Canada on May 10, 1997. She also says that she was arrested four times by police in Colombo before she left for Canada.
[9] The applicants say that they currently live with an aunt and uncle who lived in Canada before they arrived.
PANEL"S DECISION
[10] With respect to the applicants" situation, the panel wrote:
| The claimants are considered to be unaccompanied minors. The panel followed the Guidelines for Child Refugee Claimants: Procedural and Evidentiary Issues in considering their claim for refugee status. |
| The claimants allege that they came to Canada and are staying with their aunt and uncle. However, both the alleged aunt and uncle were noticeably not present in the hearing. The panel found it highly unusual that two young children ages twelve and fourteen came to their refugee hearing in a strange country not knowing the language and yet their alleged relatives did not accompany them for moral support. |
| The panel was not satisfied as to the family relationship, thus considered the claimants to be "unaccompanied" minors. |
[11] The panel rejected the claims for refugee status on the ground that the applicants" testimony was not credible. Essentially, the panel stated that the testimony of the applicant Sivakumar Uthayakumar was evasive and that his explanation about his arrival in Canada was not plausible. It found the female applicant"s testimony with regard to her journey to Canada contradictory. The panel indicated that in both cases, the applicants appeared to recite their testimony.
[12] The panel also concluded that the applicants did not establish a well-founded fear of persecution. The applicants state that they were not beaten by the LTTE and that the rest of their family in Sri Lanka appears never to have had any problems with the LTTE. It also appears that the uncle who accompanied them to Colombo and made the necessary arrangements to send them to Canada, returned to live in his village with his family.
[13] Counsel for the applicants raised several errors in the panel"s decision. She suggested, inter alia , that the panel"s interpretation of the children"s lack of fear while they were with the LTTE does not seem consistent with the transcript of the hearing.
[14] With respect to the panel"s finding that the testimony of the two children seemed to be recited, which is noted at page 2 of the decision, I agree with the suggestion by counsel for the respondent that this comment referred to the testimony of the two children in general. It is unlikely that this comment refers to the testimony of the two children on their father"s absence because the young boy was never examined on his father"s absence. Accordingly, I cannot find that the panel made a reviewable error under the circumstances.
[15] The documentary evidence with respect to the fact that the LTTE recruits children as young as eight or ten years of age to work for the organization is also quite convincing. It also indicates that there seem to be many parents who worry when their children are late returning from school because they fear their children were kidnapped by members of the LTTE.
[16] From a reading of the decision, I cannot conclude that the panel acted unreasonably with respect to its analysis of the documentary and testimonial evidence provided by the two applicants, as the panel found that there was no reasonable chance of persecution for them if they returned to their country.
[17] Counsel for the applicants quite skilfully called the panel"s attention to the unsolicited comment by the immigration officer who seems to believe that the two applicants should have the benefit of the doubt in light of the fact that there were no significant contradictions or inconsistencies in their testimony.
[18] Despite this rather favourable comment by the immigration officer, the fact remains that responsibility for assessing credibility and evaluating whether the facts as a whole suggest that the applicants are Convention refugees rests with the panel. The panel may in fact reach a conclusion different from that of the immigration officer.
[19] I carefully read the testimony of both applicants with regard to their respective journeys from Sri Lanka to Canada and the events surrounding their arrival in Canada.
[20] The panel found that the applicants" descriptions of their respective journeys to Canada was plausible. The panel was particularly concerned about the fact that it was impressed by the female applicant"s maturity and ability to testify with respect to events before she left Sri Lanka, while her testimony on the subject of the period of more than seven months during which she travelled through three different countries before arriving in Canada was unclear, vague and full of memory lapses. In the case of the male applicant, it appears that the panel failed to understand how the applicant could have stayed in a hotel for one month before his aunt, who was aware that he had arrived in Montréal, made the necessary arrangements to have him stay at her house.
[21] The inferences drawn by the panel with respect to the testimony of both applicants on this aspect of their case are quite reasonable under the circumstances. It therefore appears impossible for the Court to intervene on this issue.
[22] With respect to the assessment of the plausibility and credibility of testimony, the Federal Court of Appeal held in Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732, that the Refugee Division is the tribunal with complete jurisdiction on this issue:
| [para. 4] 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 tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[23] Counsel for the applicants reminded the panel that we are dealing with minor children in the instant matter and that under these circumstances, close attention must be paid to the Immigration and Refugee Board"s guidelines on procedural and evidentiary issues for minor children:
On procedure:
| 6. In determining what evidence the child is able to provide and the best way to elicit this evidence, the panel should consider, in addition to any other relevant factors, the following: the age and mental development of the child both at the time of the hearing and at the time of the events about which they might have information; the capacity of the child to recall past events and the time that has elapsed since the events; and the capacity of the child to communicate his or her experiences. |
With respect to evidence:
| 4. Questioning of a child should be done in a sensitive manner and should take into account the type of evidence the child may be able to provide. Children may not know the specific circumstances that led to their flight from the country of origin and, even if they know the circumstances, they may not know the details of those circumstances. The questions put to a child should be formulated in such a manner that the child will understand the question and be able to answer. Consideration should also be given to choosing the person who is best able to question the child. |
| In all cases, whether the child provides oral evidence or not, the following alternative or additional evidence may be considered. |
| Documentary evidence of persons similarly situated to the child, or his or her group, and general country conditions. |
| Concerning the assessment of the evidence: |
| A child claimant may not be able to express a subjective fear of persecution in the same manner as an adult claimant. Therefore, it may be necessary to put more weight on the objective rather than subjective element of the claim. The Federal Court of Canada (Appeal Division) has said the following on this issue: |
| . . . I am loath to believe that a refugee status claim could be dismissed solely on the ground that as the claimant is a young child . . . he or she was incapable of experiencing fear the reasons for which clearly exist in objective terms.1 |
[24] Although the applicants" testimony raises many questions, none of their contradictions or hesitations appears important enough to warrant not attaching any credibility to them.
[25] Accordingly, I find that the panel committed a reviewable error in failing to attach any credibility to the applicants" testimony.
[26] At page 3 of its decision, the panel acknowledged that the female applicant"s testimony was generally comparable to the written testimony in her PIF. It nevertheless found a lack of credibility based on minor contradictions or hesitations during her oral testimony.
[27] It also appears on the face of the record itself that the panel did not properly assess the applicants" fear during their arrest by the police. Although in and of itself this error is not very serious, it nevertheless adds to the other errors with respect to the panel"s conclusions, for example that the applicants were not truly afraid when they were being held by the police. In these circumstances, I consider this improper assessment a serious error on the panel"s part.
[28] I accordingly find that the panel committed a patently unreasonable error of fact which influenced its final conclusions. The panel clearly did not take into consideration the fact that the applicants were ten and twelve years of age when they travelled to Canada and that these two children clearly did not have to keep a log throughout their travels. Furthermore, it was quite possible, and perhaps even likely realistic, that both of the applicants could not precisely remember all of the circumstances of the journey, which must certainly have been very stressful under the circumstances.
[29] The instant application for judicial review is therefore allowed, the decision is set aside and the matter is referred back to the Refugee Division, differently constituted, for rehearing.
[30] Neither counsel recommended that a question be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
June 18, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2949-98
| STYLE OF CAUSE: SIVAKUMAR UTHAYAKUMAR and MITHILA UTHAYAKUMAR v. MCI |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 8, 1999
REASONS FOR ORDER OF BLAIS J.
DATED JUNE 18, 1999
APPEARANCES:
MYRIAM HARDEC
FOR THE APPLICANTS
LIZA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MYRIAM HARDEC
FOR THE APPLICANTS
LIZA MAZIADE
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Yusuf v. M.E.I., [1992] 1 F.C. 629 per Hugessen J.A.
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