Najeebdeen v. Canada (Minister of Citizenship and Immigration), docket IMM-5438-98

Date: 19990730

Docket: IMM-5438-98

BETWEEN:

     MOHAMED SALY NAJEEBDEEN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

[1]      The applicant, 34, is a citizen of Sri Lanka. He is a Tamil Muslim from the eastern region.

[2]      The applicant"s allegations of persecution were summarized in general terms by the Convention Refugee Determination Division tribunal:

[3]      The tribunal characterized the applicant"s testimony as implausible on three issues. One infers from this that the tribunal made a negative finding of credibility concerning the applicant but the reasons contain no direct statement in this regard.

[4]      Each of the three findings of implausibility will be considered in turn.

[5]      First, the tribunal found implausible the applicant"s testimony that he faced problems from seven different organizations and that "...such unrelenting extortion and harassment could have continued for 19 years with the [applicant] neither relocating his business nor seeking a safer occupation in some other part of Sri Lanka." The tribunal adds nothing to support this finding. Its bald assertion of implausibility is not nourished with any specific analysis of the allegations.

[6]      No reference is made to the applicant"s detailed recital, in the first twelve clearly articulated paragraphs of his personal information form, of several specific incidents between 1983-96 concerning beatings, threats, extortion and, in 1990, the murder of his cousin, who was also his business partner. The transcript of the hearing discloses no significant, if any, questioning of the applicant concerning these allegations. Before making such a broad negative finding, the tribunal was required to question the applicant on his years of alleged harassment and persecution. On the basis of the applicant"s responses and his comportment and demeanour as a witness, the tribunal could have assessed his credibility and outlined the reasons for its finding in specific terms.

[7]      The tribunal"s second finding of implausibility is also deficient. Here, the tribunal focussed on the applicant"s allegations for being forced to transport LTTE cadres and goods in December 1997. The applicant was questioned on these incidents during the hearing. Again, however, the tribunal failed to explain in its decision its appreciation of the applicant"s specific testimony.

[8]      Instead, the tribunal reviewed in general terms the close relationship between the Tamil Muslim community and the Sri Lankan government in the conflict with the LTTE. In the words of the tribunal, "religion proved to be a stronger force than language. ... [T]he LTTE made a strategic tactical error by attacking the Muslim community in the Eastern Province - it sabotaged any chance they had of gaining the support of Tamil speaking Muslims in the east." Neither party questioned this summary of the documentary evidence.

[9]      However, simply on the basis on this analysis of the documentary evidence and with no other reference to the applicant"s testimony, the tribunal viewed "as objectively implausible the [applicant"s] assertions that the LTTE used his transport business to transport materials and their members. We find implausible that the LTTE would risk reliance on Muslims who have steadfastly rejected them and supported the Sinhalese government." It is simply wrong to extrapolate that a specific incident alleged by a refugee claimant is implausible because it runs counter to the general political relationship between groups.

[10]      The applicant was operating a transportation business and normally drove in Tamil-speaking areas. The LTTE required the transportation of goods and personnel and intercepted the applicant"s vehicles. The applicant states he was threatened with execution. There was no documentary evidence that the LTTE did not employ Tamil-speaking Muslims despite their allegiance to the Sinhalese government. It is not for this Court to determine if the applicant"s story is true. However, in not dealing with the specifics of the applicant"s allegations, the tribunal"s finding of implausibility was not based on the evidence before it.

[11]      The third finding of implausibility is stated succinctly: "We find implausible that the [applicant] would give up his business built over 19 years without attempting to seek some protection from a Government sympathetic to Muslim support." There are two aspects to this finding: (a) the applicant "gave up" his business and (b) did so without first seeking government support. Again, the tribunal explains its finding of implausibility solely in terms of the documentary evidence. No reference is made to its appreciation of the applicant"s testimony as to the value and the ownership of the business in 1997. The tribunal ignores the applicant"s allegations that the government"s Special Task Force detained him for some nine days in January 1998. The respondent did not seriously challenge that it would have been preferable for the tribunal to be more explicit, if it chose not to believe the applicant"s testimony on these issues.

[12]      In summary, this decision falls way below the threshold that negative credibility findings must be stated in clear and unmistakable terms. The three findings of implausibility are based on documentary evidence with no attempt to explain, as was required, the reasons for disbelieving the applicant"s testimony. As the Court of Appeal stated in Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315, at paragraph 3: "... it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony." In this case, the findings of implausibility were not accompanied by relevant questioning of the witness and an analysis of his testimony.

[13]      Finally, I do not accept the respondent"s argument that the decision can be justified on the tribunal"s alternative determination that the claimant had an internal flight alternative in Colombo. No where does the tribunal state that it believes the applicant"s evidence concerning his treatment by the government"s Special Task Force in December 1997. It is not sufficient to assert an internal flight alterative without dealing with allegations inextricably linked to the issue of Colombo being a safe haven.

[14]      For these reasons, the tribunal"s decision will be set aside and the matter referred for rehearing and redetermination by a differently constituted panel. Neither party suggested the certification of a serious question.

     "Allan Lutfy"

     J.F.C.C.

Ottawa, Ontario

July 30, 1999