Docket: IMM-4557-11
Citation: 2012 FC 228
Ottawa, Ontario, February 20,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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KUGAPARAN BALASUBRAMANIAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated June 21, 2011. The
Board found that the Applicant, Kugaparan Balasubramaniam, was neither a
Convention refugee nor person in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant is a Tamil male from northern Sri Lanka. He brought
a refugee claim in Canada alleging persecution at the hands of the
Liberation Tigers of Tamil Eelam (LTTE), the Sri Lankan police and army,
and the Karuna group.
[4]
He
has no connection to the LTTE but during his teenage years he and his family
faced challenges and were forced to relocate. The LTTE pressured him to join
the group until his mother exchanged jewellery with them. Regardless, he was
forced to provide assistance in donating blood and digging bunkers.
[5]
In
spite of these challenges, the Applicant attended Batticaloa University from 2002 to
June 2006. Suspected of having links to the LTTE, many students were
detained or questioned in this period.
[6]
In
June 2006, the Applicant started a business facilitating overseas telephone
calls and providing internet access. Shortly after opening the business, he
alleged that two men from the Karuna group came to his home and demanded five
lakhs of rupees. The Applicant did not have the amount of money request, but
gave them fifty thousand rupees instead. Since the men returned demanding the
money, the Applicant became afraid and left Sri Lanka for India on May 20, 2007.
[7]
He
traveled through various countries before entering the United States on April 25,
2010. He arrived in Canada and made a refugee claim on September 22,
2010.
II. Decision
Under Review
[8]
The
Board identified two determinative issues: (1) the credibility of the
Applicant’s Personal Information Form (PIF) and oral testimony concerning his
subjective fear of persecution as a victim of targeted threats and extortion at
the hands of the Karuna group; and (2) changing political circumstances in Sri Lanka.
[9]
The
Applicant’s testimony was not found, on a balance of probabilities, to be credible
due to “a significant contradiction and omission of a serious nature, regarding
the alleged extortion threat made by the Karuna.” His story was considered a
fabrication. This arose in part from an amendment made to the PIF at the
commencement of the hearing. The Board stated:
The contradictions regarding
when and how often the Karuna attended at the claimant’s home to extort money
from him is an important and central element of the claim and the omission of a
second visit from the PIF and this contradiction with oral testimony of the
claimant constitutes a significant credibility concern, given the claimant’s
inability to provide any reasonable explanation.
[10]
In
addition, the Board was not persuaded, on a balance of probabilities, that the
Applicant would be identified by the army as a sympathizer or a person with
links to the LTTE should he be returned to Sri Lanka.
[11]
The
Applicant’s explanation that he had the foresight to scan the first page of his
passport, because he believed that it would be sufficient for entry into Canada, before
leaving Sri Lanka for India was considered implausible. As a result,
the Board drew a further negative inference as to his overall-credibility, even
though this issue on its own was not central to the claim.
[12]
Finally,
the Board assessed changing circumstances in Sri Lanka at paragraph
73 of its reasons:
(73) […] The Panel would be
remiss if it did not acknowledge and consider ongoing challenges in Sri Lanka during the post-war years,
particularly regarding Tamils perceived to have links to the LTTE. However when
considering the particular circumstances of this claimant, as directed by the
UNHCR above, and as directed by Yusuf above, the Panel notes that the
claimant is not, on a balance of probabilities, a person who is perceived to be
linked to the LTTE by the Sri Lankan government and would therefore now (sic)
not be likely targeted by the Sri Lankan government […]
III. Issues
[13]
This
application raises various issues that can be summarized as follows:
(a) Did the Board err in making its
negative credibility findings?
(b) Did
the Board err by failing to assess the risk the Applicant faced at the hands of
the Karuna group?
(c) Did the Board member’s conduct
result in the denial of a fair hearing to the Applicant?
IV. Standard
of Review
[14]
Questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 51). More specifically, this Court has reviewed
credibility findings based on this standard (see Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at para 14).
[15]
Applying
the reasonableness standard, decisions must reflect justification, transparency
and intelligibility and fall within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir, above at
para 47).
[16]
By
contrast, issues of procedural fairness raised by the Applicant demand the
standard of correctness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
V. Analysis
A. Did
the Board Err in Making its Negative Credibility Findings?
[17]
The
Applicant challenges the negative credibility findings on the basis that the
Board misconstrued the evidence, particularly with regard to the PIF amendment
at the commencement of the hearing. He insists his intention was not to delete
the reference to a second visit by the Karuna group in July 2006 from his PIF,
but merely add to it that the men demanded money within one year and returned
in April 2007. Consequently, he was surprised and did not understand when the
Board member suggested there was an inconsistency between the Citizenship and
Immigration Canada (CIC) notes at the Port of Entry (POE), PIF and oral
testimony.
[18]
According
to the Respondent, the PIF amendment removed the allegation that two members of
the Karuna group came back within one month and replaced it with “[T]hey
demanded that I pay within one year. They came back in April 2007.” The
transcript is clear on this point as the Board member states “I’ve indicated
just to replace that sentence with they demanded a pay within one year and they
came back in April 2007.” The Applicant did not object and confirmed that the
contents of his PIF were true, accurate and complete. During oral testimony,
however, the Applicant referred to three separate visits by members of the
Karuna group.
[19]
Despite
the claim that there was no deletion or inconsistency, I am prepared to agree
with the Respondent that it was reasonable for the Board to take a sceptical
view of the Applicant’s story. If there was confusion created as a result of
the PIF amendment, it seems to me that the Applicant could have simply provided
the clarification he now seeks to introduce in his memorandum.
[20]
The
Board makes clear its determination that the Applicant fabricated his story was
based on cumulative negative inferences made from inconsistent evidence. The
Applicant had not provided a reasonable explanation for the discrepancies
between the POE notes, original PIF, amended PIF and oral testimony. At
paragraph 37 of its reasons, the Board notes:
The Panel concurs with Counsel
that just because the claimant omitted any references to a visit by the Karuna
in April 2007, does not necessarily suggest that the visit did not occur. This
is precisely why the Panel gave the claimant the opportunity to provide a
reasonable explanation for the omission of this allegation from his CIC claim
and it was open to the claimant to proffer a reasonable explanation. The
claimant failed to provide a reasonable explanation for the
contradictions...For this reason, the Panel draws a negative inference in regard
to the claimant’s credibility.
[21]
While
the Board should not conduct a microscopic analysis of the evidence to impute
credibility as the Applicant suggests, discrepancies concerning central
elements of a claim can reasonably lead to a negative inference. The Board
stressed that when and how often Karuna group members attempted to extort money
from the Applicant led to significant credibility concerns, given his inability
to provide an explanation. I accept that it was reasonable for the Board to
place emphasis on this issue.
[22]
The
reasonableness of drawing a negative inference as to credibility based on
omissions or inconsistencies regarding important facts in POE notes, the PIF
and oral testimony is well-established (see for example Kaleja v Canada
(Minister of Citizenship and Immigration), 2011 FC 668, [2011]
FCJ no 840 at para 18; Basseghi v Canada (Minister of Citizenship and
Immigration), [1994] FCJ no 1867, 52 ACWS (3d) 165 at para 33; Nyayieka
v Canada (Minister of Citizenship and Immigration), 2010 FC 690, [2010] FCJ
no 830 at para 11; Zupko v Canada (Minister of Citizenship and Immigration),
2010 FC 1319, [2010] FCJ no 1637 at para 32).
[23]
The
Applicant further asserts that the Board was confused about his evidence as to
documentation used in India as well as how he lost his passport but
managed to photocopy the first page for identification purposes entering Canada.
[24]
According
to the Applicant, the Board initially questioned him about documents required
in Sri Lanka when he was in fact traveling in India. In
addition, the Board suggested there was an inconsistency in the Applicant
saying that he photocopied the passport page in Buffalo when he had
previously indicated that it was accessed through email. He later explained
that he accessed the page through his email and had printed and copied it in Buffalo. In making
this argument, the Applicant relies on the decision in Muhwati v Canada (Minister of
Citizenship and Immigration), 2007 FC 1121, [2007] FCJ no 1450 where
Justice Michael Phelan found the Board erred in its credibility findings by
misappreciating critical facts.
[25]
The
Respondent maintains that in regards to documentation in India, the Board
appropriately drew a negative inference as to credibility. When asked to
explain the contradiction in his oral testimony, the Applicant stated that he
did not wish to respond or make comments. This type of evasiveness and failure
to provide coherent explanations can reasonably form the basis of an adverse
credibility finding (see for example Juarez v Canada (Minister of
Citizenship and Immigration), 2010 FC 890, [2010] FCJ no 1107 at para
26).
[26]
Similarly,
the Respondent notes that the Applicant did not fully explain contradictory
accounts about how he lost and obtained a copy of his passport. The Board expressly
gave him the opportunity to do so during the hearing.
[27]
The
Applicant only had a copy of the first page of his passport and suggested that
he lost it in India. When asked
how he obtained a copy of the first page, he replied that it had been photocopied
in Buffalo. He also
suggested that he had scanned a copy in 2007 with the intention of using it in Canada. At the
POE, he stated that he obtained it through email and was able to print it out
in Buffalo. These
varied stories caused the Board to make an implausibility and lack of
credibility finding. The Board can reasonably make these findings based on
implausibility, common sense and rationality (see Singh v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1272, [2002] FCJ no 1724 at
para 7; Shahamati v Canada (Minister of Employment
and Immigration), [1994] FCJ no 415 at para 2 (FCA)).
[28]
I
therefore agree with the Respondent that the Board was justified in making
these negative credibility findings in relation to documentation in India and a lost
passport. The Applicant simply did not provide sufficient explanation or
clarity as to how he carried or obtained these documents. I also
recognize that the Board’s findings in this regard were rather limited. The
Board expressly noted that this contradiction was not central to his claim but
that it permitted the drawing of a further negative inference as to
overall-credibility.
[29]
Combined
inconsistencies led the Board to make negative credibility findings that were
within the range of possible, acceptable outcomes.
B. Did
the Board Err by Failing to Assess the Risk the Applicant Faced at the Hands of
the Karuna Group?
[30]
The
Applicant contends that the Board’s assessment of risk cannot be confined to
referencing the changed circumstances in Sri Lanka. The Board
erred by not considering the risk the Applicant faced of the Karuna group because
of its credibility findings.
[31]
Given
my conclusion that the credibility findings were reasonable, it should not be
surprising to the Applicant that the Board did not deal specifically with the
risk posed by the Karuna group, nor is this necessarily problematic.
[32]
I
accept the Respondent’s position that the Board thoroughly reviewed changing
country conditions in Sri Lanka and there was nothing
to show that he had a profile that would otherwise put him directly at risk. More
significantly, the credibility finding that the Applicant had fabricated his
story regarding his encounters with members of the Karuna group was
determinative of the issue and his claim as a whole.
C. Did
the Board Member’s Conduct Result in the Denial of a Fair Hearing to the Applicant?
[33]
The
Applicant also raises concerns regarding the Board member’s conduct during the
hearing. The Board member misunderstood and misstated the evidence leading to
the identification of erroneous contradictions. This confused the Applicant
and caused him to lose confidence in the objectivity of the Board.
[34]
The
Applicant bases his argument on jurisprudence related to aggressive questioning
by the Board and potential breaches of procedural fairness. Although it was
not the Court’s critical finding in Muhwati, above, it was noted that
“there is a way for a member to question an applicant, probe the credibility of
the story, without demeaning or attacking the witness or insulting them.”
[35]
In
Swaminathan v Canada (Minister of
Citizenship and Immigration), 2007 FC 86, [2007] FCJ no 106 at para 35,
the Court found aggressive questioning that was intimidating resulted in an
unfair hearing. Justice Douglas Campbell in Ritchie v Canada (Minister of
Citizenship and Immigration), 2006 FC 99, [2006] FCJ no 210 at para 18
faulted the Board for posing “unanswerable questions.” According to the
Applicant, his situation is synonymous with one where the Board was aggressive
and asked questions that could not be answered due to a misunderstanding
regarding the evidence.
[36]
However,
I also note statements by this Court that vigorous and energetic questioning by
the Board does not necessarily lead to a breach of procedural fairness (see for
example Veres v Canada (Minister of Citizenship and Immigration), [2001]
2 FC 124, [2000] FCJ no 1913 at para 36; Ithibu v Canada (Minister of
Citizenship and Immigration), 2001 FCT 288, [2001] FCJ no 499 at para
68). The Board is entitled to probe the Applicant’s story to address
credibility concerns and inconsistencies. Whether a breach occurs depends on
the circumstances at the hearing.
[37]
As
the Respondent notes, the Applicant has not provided a specific example of
where the Board was aggressive or abusive in its questioning. There is nothing
to suggest that the Board member was demeaning or attacking the Applicant in
his search for clarifications in an inconsistent PIF narrative and oral
testimony as in Muhwati, above.
[38]
Indeed,
the Board’s decision and transcript demonstrate a preoccupation with ensuring
that the Applicant was relaxed, listened to questions carefully and was given
the opportunity to ask for clarification. The Board member stated “I know it’s
difficult but try to relax and listen carefully to the question. I don’t want
to limit your answers. Sometimes I have very specific questions.” She
continued “But if you’re uncertain, don’t hold back, tell me, and I’ll tell you
if I think you’re veering off or your counsel will.” The Board member also
tried to ensure that the Applicant understood what was being asked.
[39]
I
am not convinced that the Board engaged in overly aggressive conduct and posed
unanswerable questions or that the Board acted in such a way as to confuse the
Applicant and deprive him of a fair hearing. The member merely sought to
address her concerns regarding credibility. On its own, this does not amount
to a denial of the Applicant’s right to a fair hearing.
VI. Conclusion
[40]
The
Board reasonably found that the Applicant’s story was not credible based on
various inconsistencies as to the Karuna group’s extortion and obtaining his
passport information. For this reason, there was also no clear error as to the
assessment of risk. In addressing its concerns, the Board member’s questioning
did not amount to a breach of procedural fairness.
[41]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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