Date: 20110316
Docket: IMM-3686-10
Citation: 2011 FC 278
Ottawa, Ontario, March 16, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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RATNASINGAM RAMALINGAM
(A.K.A. RAMALINGAM RATNASINGAM)
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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 the decision of Frazer Mark, Visa Officer
(Officer), of the Canadian High Commission in Colombo, Sri Lanka, pursuant to
section 72(1) of the Immigration and Refugee Protection Act, SC 2001 c
27 (Act) by Ratnasingam Ramalingam (Applicant). The Officer refused the
Applicant’s application for permanent residency under the Dependent of Refugee
Class. The Applicant’s son, Thanajan, is a dependent in this application.
I. The
Facts
[2]
The Applicant is a
Sri Lankan Tamil, born on March 19, 1949. His son, Thanajan, was born March 9,
1985. The Applicant married his wife in 1975, and they have five (5) children
in total; two (2) in Canada, two (2) in Sri Lanka, and one (1) in
the United Kingdom. The Applicant’s wife, who is also his
sponsor, claimed refugee status based on her perceived political opinion,
nationality and membership in a particular social group.
[3]
The Applicant alleges
that he worked as a prison guard for the Sri Lankan government from 1971 to
1991. From 1971 to 1976 he worked in Borella, Colombo,
and in 1976 was transferred to Kopay prison in Jaffna.
He retired in 1991 and opened a grocery store with his family members in Kopay.
After five (5) years he abandoned the store and went to Colombo to work as a security guard in a garment factory.
[4]
The Applicant also
alleges the following facts:
(a) Liberation Tigers
of Tamil Eelam (LTTE) members were among the prisoners at the prison where the
Applicant worked, but he was never in charge of guarding them;
(b) The Applicant was
receiving a government pension after 1991, while also working;
(c) The Applicant gave
money to the LTTE on two (2) occasions: in 1991-1992, he gave them two (2)
sovereigns of gold, and then while he ran his grocery store, he was forced to
give them a tax of Rs.250 a month;
(d) No member of the
Applicant’s family ever joined the LTTE or any militant group. The LTTE made
several demands on the Applicant, which he refused. He was left unharmed, but
this was not unusual as he was older and retired;
(e) In 1996, the
Applicant and his family moved to Colombo in anticipation of being sponsored to
Canada by his oldest son. In January 2006, the
Applicant’s wife and daughter moved to Canada. The Applicant received phone calls from
someone who knew that his wife and children were abroad and who threatened to
kidnap the Applicant’s remaining children if he did not give them money. The
Applicant asked his wife to make a refugee claim in Canada at that time; her claim was accepted;
(f) The Applicant was
fearful and took his two (2) remaining children to India from March to December 2006. He was unable to financially
support himself in India, and because the situation in Sri Lanka
had improved, he returned to Sri
Lanka.
[5]
The Applicant was
interviewed by the Officer on May 4, 2010. The summary of the interview is
written in the Computer-Assisted Immigration Processing System (CAIPS) notes,
pages 7-9. A letter refusing the Applicant’s application was sent on May 18,
2010.
II. The Decision under Review
[6]
The decision letter
states that the Applicant was determined to not meet the requirements for
immigration to Canada, and cites section 16(1) of the Act, the
requirement to be truthful in answering all questions. The Officer states that
the Applicant was evasive, untruthful and lacking credibility with respect to
many aspects of his background. There were many discrepancies between the
Applicant’s information and the information provided by his wife in her refugee
application. The Applicant had failed to convince the Officer that he was not
inadmissible to Canada, and the Officer could not pass the
Applicant’s background assessment. The Officer cites section 11(1) of the Act,
stating that an Officer shall issue a visa if “following an examination, the
officer is satisfied that the foreign national is not inadmissible and meets
the requirements of this Act”.
[7]
In the summary of the
interview laid out in the CAIPS notes, the Officer notes that the interview was
conducted with the help of an interpreter. The Officer first asked about the
Applicant’s work history, and was told the Applicant was retired and a
pensioner, and had been running a grocery store before moving to Colombo. When asked what he did in Colombo,
the Applicant described working as a prison guard, and then as a security guard
for a garment factory. The Officer eventually verified the timeline of the
Applicant’s work history, but noted that it was not set out in the application
form. The Officer noted, with confirmation from the interpreter, that the
Applicant changed his story several times and “has a habit of providing the
minimal response to my questions without regard to what he previously said”.
[8]
The Officer asked the
reason for the wife’s refugee claim, and the Applicant responded that he had
told her to claim refugee status because of the problems he was having in Sri Lanka. The Officer noted that the wife’s PIF said that she had
also had problems of her own before leaving Sri Lanka
and does not discuss his problems, and the Applicant then added that she had
also had problems. There were also discrepancies between the wife’s PIF and the
Applicant’s responses as to whether the family had ever been displaced before
going to India; she had said yes but the Applicant said
no, and then backtracked when asked about her response.
[9]
The Applicant denied
any contact with the LTTE, but mentioned giving them two (2) sovereigns of gold
and that he refused to give them any more money. When asked about the
consequences of refusing, he then described the Rs.250 tax that he paid them
for four (4) years. He said he refused to provide them with food, but that
there were no consequences to his refusal. He also said his children had
refused to join the LTTE when members came to the school, and there were no
consequences for them either. He said his son had refused to do sentry duty for
the LTTE, but the Officer noted that the son said he was required to provide
this duty. The Officer asked if the LTTE knew the Applicant was a former
government worker and the Applicant said they did, and asked him to leave the
area, but left him alone when he refused. The Officer did not find this
credible.
[10]
The Applicant described
the kidnapping threat and the move to India, and the Officer noted that this was not
mentioned in anyone’s PIF, and did not find it credible. The Applicant said he
returned to Sri Lanka when the situation improved. The Officer
asked why he told his wife to make a refugee claim in Canada if the situation had improved, and the Applicant repeated
the kidnapping story.
[11]
The Officer noted
overall that the Applicant provided “minimalist responses” throughout the
interview and often changed his “facts”. He was evasive and non-credible in his
replies to the point where the Officer was unable to distinguish fact from
fiction. There were contradictions between the family’s stories, as well as
troublesome contradictions concerning his dealing with the LTTE. The Officer
could not “in good conscience” pass his background. He reviewed the file for
humanitarian and compassionate grounds, but did not find that these outweighed
the requirement to pass a background clearance.
III. Relevant Legislation
[12]
The
relevant portions of the Act are as follows:
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Application before entering Canada
11.
(1) A foreign national must, before entering Canada, apply
to an officer for a visa or for any other document required by the
regulations. The visa or document may be issued if, following an examination,
the officer is satisfied that the foreign national is not inadmissible and
meets the requirements of this Act.
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Visa
et documents
11.
(1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent
les visa et autres documents requis par règlement. L’agent peut les
délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas
interdit de territoire et se conforme à la présente loi.
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Obligation —
answer truthfully
16. (1) A person
who makes an application must answer truthfully all questions put to them for
the purpose of the examination and must produce a visa and all relevant
evidence and documents that the officer reasonably requires.
Obligation — relevant evidence
(2)
In the case of a foreign national,
(a) the relevant
evidence referred to in subsection (1) includes photographic and fingerprint
evidence; and
(b) the foreign
national must submit to a medical examination on request.
Evidence relating to identity
(3)
An officer may require or obtain from a permanent resident or a foreign
national who is arrested, detained or subject to a removal order, any
evidence — photographic, fingerprint or otherwise — that may be used to
establish their identity or compliance with this Act.
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Obligation
du demandeur
16.
(1) L’auteur d’une demande au titre de la présente loi doit répondre
véridiquement aux questions qui lui sont posées lors du contrôle, donner les
renseignements et tous éléments de preuve pertinents et présenter les visa et
documents requis.
Éléments
de preuve
(2)
S’agissant de l’étranger, les éléments de preuve pertinents visent notamment
la photographie et la dactyloscopie et il est tenu de se soumettre, sur
demande, à une visite médicale.
Établissement
de l’identité
(3)
L’agent peut exiger ou obtenir du résident permanent ou de l’étranger qui
fait l’objet d’une arrestation, d’une mise en détention, d’un contrôle ou
d’une mesure de renvoi tous éléments, dont la photographie et la
dactyloscopie, en vue d’établir son identité et vérifier s’il se conforme à
la présente loi.
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Misrepresentation
40.
(1) A permanent resident or a foreign national is inadmissible for
misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
(b)
for being or having been sponsored by a person who is determined to be
inadmissible for misrepresentation;
(c)
on a final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d)
on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act,
in the circumstances set out in subsection 10(2) of that Act.
Application
(2)
The following provisions govern subsection (1):
(a)
the permanent resident or the foreign national continues to be inadmissible
for misrepresentation for a period of two years following, in the case of a
determination outside Canada, a final determination of inadmissibility under
subsection (1) or, in the case of a determination in Canada, the date the
removal order is enforced; and
(b)
paragraph (1)(b) does not apply unless the Minister is satisfied that the
facts of the case justify the inadmissibility.
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Fausses
déclarations
40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi;
b)
être ou avoir été parrainé par un répondant dont il a été statué qu’il est
interdit de territoire pour fausses déclarations;
c)
l’annulation en dernier ressort de la décision ayant accueilli la demande
d’asile;
d)
la perte de la citoyenneté au titre de l’alinéa 10(1)a) de la Loi sur la
citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
Application
(2)
Les dispositions suivantes s’appliquent au paragraphe (1) :
a)
l’interdiction de territoire court pour les deux ans suivant la décision la
constatant en dernier ressort, si le résident permanent ou l’étranger n’est
pas au pays, ou suivant l’exécution de la mesure de renvoi;
b)
l’alinéa (1)b) ne s’applique que si le ministre est convaincu que les faits
en cause justifient l’interdiction.
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IV. Issues
and Standard of Review
[13]
This application
raises the following issues:
A. Can section 11 of the Act be
a basis in itself for a refusal to issue a visa?
B. Was the Officer’s decision
reasonable?
[14]
The parties agree
that the standard of review applicable to this latter issue is that of
reasonableness, as the Officer is entitled to deference in his fact-finding and
his assessment of an Applicant’s credibility (Wang v MCI, 2008 FC 798 at
para 11). The first issue however, being a question of law, is reviewable on
the standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-48).
V. Analysis
A. Can
section 11 be a basis in itself for a refusal to issue a visa?
[15]
The Applicant’s main
argument is that the Officer erred in law when he rejected the application
based solely on section 11(1) of the Act. The Applicant submits that the only
issue before the Officer was whether or not the Applicant was inadmissible. The
Applicant argues that section 11(1) does not provide an independent basis for
refusing an application for permanent residence, and argues that if the Officer
was to find that the Applicant was inadmissible to Canada, he should have relied on one of the inadmissibility
provisions laid out in the Act, more precisely sections 33 to 43. The Applicant
argues that absent a finding on one of these bases, the Officer could only have
rejected the application if the Applicant had refused to provide relevant
information when requested. The Applicant relies primarily on Manigat v MCI,
[2000] FCJ No 1052 for this proposition. In Manigat, the Applicant was
asked to submit to DNA testing to prove that her dependents were her own
children, and she refused. The Court held:
[12]
In the case at bar, it is worth noting that the officer did not reject the
application on the ground that the children were not dependants of the
plaintiff's wife: he made no ruling on this point. The application was rejected
for the mother's failure to produce DNA blood tests that could have proved
filial relationships between herself and her children, as the belated birth
certificates or presentations in the temple did not satisfy the officer. In
short, the plaintiff's wife did not meet the requirements of s. 9(3) of the Act
as she was unable to satisfactorily establish the filial relationship that
would have shown she had dependants. That being so, she did not discharge the
burden upon her. The visa officer was thus right to conclude that the principal
applicant's failure to comply with the conditions of s. 9(3) of the Act
justified denial of a visa…
[16]
The Applicant submits
that Manigat was correctly decided, but that its meaning is limited such
that a person cannot be rejected for failure to establish his or her
inadmissibility unless he or she refuses to provide relevant information when
it is requested. In the case at bar, the Applicant argues that he did not fail
to provide any information to the officer when requested, and disputes that he
was evasive.
[17]
The Applicant in his
written submissions contends that to allow a refusal of an application on the
basis of section 11 only would set a dangerous precedent, as it would allow an
officer to engage in endless speculation that there was information being
withheld when there was insufficient evidence to make any positive finding of
inadmissibility. The Applicant submits that nothing in the jurisprudence
supports such a broad and open-ended interpretation of section 11.
[18]
Pursuant to section
11, an Applicant must provide information to satisfy an Officer that he or she
is not inadmissible. The Applicant argues that an Officer can conclude that an Applicant
has not met the requirements on this basis only where the Applicant refuses to
provide information. The Applicant notes that an Applicant can be found
inadmissible on grounds of withholding information or untruthfulness, under
section 40(1), if he fails to answer a legitimate, material question, as per Ghasemzadeh
v MCI, 2010 FC 875. The Applicant submits that this Court should not expand
the grounds of inadmissibility to include situations where an Applicant answers
a question, but the officer is not satisfied with the response.
[19]
The Applicant also
relied on Kang v MEI, [1981] 2 FC 807 (FCA), which dealt with section
9(3) of the former Act (section 9(3) read as follows: Every person shall answer
truthfully all questions put to him by a visa officer and shall produce such
documentation as may be required by the visa officer for the purpose of
establishing that his admission would not be contrary to this Act or the Regulations):
[5]
In order to dispose of this appeal, it is not necessary, in my view, to
determine whether the appellant’s father contravened subsection 9(3) when he
lied to the visa officer. As I indicated at the hearing, I am of opinion that a
violation of subsection 9(3) by a person who applies for a visa does not make
him an inadmissible person described in paragraph 19(2)(d).
[20]
The Applicant also
cited Zhong v MCI, 2004 FC 1971, which dealt with inadmissibility under
the “criminality” category in section 36 and cites Lu v MCI, 2007 FC
226, in which this Court upheld a finding of misrepresentation but determined
that the Applicant was not “criminally inadmissible”.
[21]
In his written
submission, the Applicant also referred to Chen v MCI, 2007 FC 41, where
the Court set aside a refusal based on an Applicant’s failure to satisfy an
Officer that he was not inadmissible. There had been a breach of fairness, but
the Court also set aside the decision because the officer could not refuse an
application selected by Quebec unless there was a finding of
inadmissibility. The Applicant submits that the following dicta are relevant:
[18]
Paragraph 9(1)(a) of the Act provides that the applicant shall be granted
permanent resident status because he met the Quebec
selection criteria as an investor immigration unless found inadmissible. The
visa officer did not find the applicant inadmissible; rather, the visa officer
said he could not be “satisfied that the applicant is not inadmissible”. This
is not a finding that the applicant is inadmissible. If the visa officer
concluded that Mr. Chen was not truthfully answering questions about his source
of fund as required under section 16 of the Act, the visa officer could have
found Mr. Chen inadmissible under section 40 or 41 of the Act. He did not do
so, and did not have the jurisdiction to deny a permanent resident visa to Mr.
Chen under paragraph 9(1)(a) of the Act.
[22]
The Applicant argues
that if he was found to be untruthful or withholding information, he should
have been rejected on the basis of sections 40 or 41, not on the sole basis of
section 11.
[23]
The Applicant cites Belousyuk
v MCI, 2004 FC 899, Nadarasa v MCI, 2009 FC 1350, and Yousefian v
MCI, 2002 FC 677, as examples of Applicants being rejected for
misrepresentation on other bases. The Applicant notes that in Kazimirovic v
MCI, 2000 CanLII 15869, 98 ACWS (3d) 1276, the Court did uphold a refusal
under section 11, but argues that this was only because the Officer in the case
clearly found that the Applicant was not credible in his denial of involvement
in war crimes. There was therefore a clear finding of untruthfulness tantamount
to a finding of misrepresentation.
[24]
The Respondent’s main
argument is that the Officer was unable to make a finding of inadmissibility
under one of the grounds found in sections 34-42 because he could not ascertain
the Applicant’s background, and therefore could not make a finding that the Applicant
was “not inadmissible”, as per section 11(1). The officer could not get to the
stage of continuing to evaluate the application because he could not establish
the lack of inadmissibility; in this interpretation passing section 11(1) is a
necessary component of the permanent residence assessment. The Respondent
argues that there is no question that an Officer cannot by law issue a visa to
an Applicant unless the Officer is satisfied that the Applicant is not
inadmissible. There is nothing in the Act or the associated regulations to
suggest than an Applicant to Canada is by default admissible.
[25]
The Respondent argues
that the Applicant’s answers were sufficiently inconsistent and vague that the
officer could not determine with any confidence the Applicant’s background. The
Applicant’s failure to comply with section 16 meant that the officer did not
have the requisite information to know whether or not the Applicant was
inadmissible.
[26]
The Respondent in his
written submission disputes the Applicant’s narrow interpretation of Manigat,
and argues that the decision in that case came about because the Applicant had
failed to discharge her onus to show that she was not inadmissible. The Respondent
argues that the Applicant’s narrow reading of the case is not borne out by the
Court’s reasons. The Applicant in Manigat failed to discharge the burden
upon her to establish a specific relationship that was in question; this
information was necessary for the officer in order to determine whether she was
inadmissible or not. If an Applicant does not provide information to satisfy an
officer that they are who they say they are, then the officer cannot make a
determination that they are not inadmissible. The Respondent argues that the Applicant’s
interpretation would create a situation where Applicants could be untruthful in
their representations without consequence, and where an officer would always
have to find an Applicant “not inadmissible” unless he refused to provide
documentation or clearly fit into one of the “inadmissible” grounds.
[27]
The Respondent argues
that the language of section 11(1) supports the interpretation that the officer
must be satisfied that the person is not inadmissible after examining and
weighing the evidence, not that the Officer must consider someone not inadmissible
if every document requested is provided. The Respondent argues that the Applicant
has failed to demonstrate a legal error in the Officer’s application of section
11(1).
[28]
The Respondent cites Vimalenthirakumar
v MCI, 2010 FC 1181, where the Applicant tried to argue that the Officer
had made a finding that he was admissible when the Officer determined that he
was “not inadmissible”:
[18]
The applicant submits that the Officer had made a positive decision and found
him to be admissible to Canada. In effect, the applicant is asserting
that the Officer was functus when he states in the CAIPS notes that the
applicant is not inadmissible. Contrary to the applicant’s submission, at no
time did the Officer or anyone else at the Canadian Embassy make a positive decision
in favor of the applicant or determine that he was admissible to Canada. The
Officer only made an initial or preliminary finding that the applicant appeared
admissible; however, no decision was made, no visa was issued and the Officer
continued to process the application.
[29]
The Respondent cites
this case to show that “admissible” and “not inadmissible” are distinct
concepts, and therefore, that the lack of a specific finding of
“inadmissibility” on one of the grounds listed does not necessarily means that
the Applicant is therefore “admissible”.
[30]
The Respondent also
relies on Shi v MCI, 2005 FC 1224, where the Court upheld the officer’s
finding that he could not determine whether the foreign national was “not
inadmissible” under section 11:
[7]
The primary flaw in Mr. Shi’s reasoning is that the officer did not make a
finding of inadmissibility; rather, he dismissed Mr. Shi’s application. Section
11(1) provides that an application for visa or other entry document may be
refused on two different grounds: (a) because the foreign national is
inadmissible; or (b) because he does not meet the requirements of the IRPA. In
this case, the visa officer’s decision was based on two findings: -the visa
officer was not satisfied on how Mr. Shi had accumulated his wealth; and –the
visa officer was not satisfied that Mr. Shi met the requirements of s.11(1) and
s.16(1) of the Act. The officer made no finding of inadmissibility pursuant to
any of the provisions in sections 34 to 41.
[8]
The officer made no finding of inadmissibility pursuant to any of the
provisions in sections 34 to 41. Had the visa officer found Mr. Shi to be
inadmissible to Canada under those provisions, the consequences
would have extended far beyond the refusal of his permanent residence application.
For example, pursuant to s. 179 of the Regulations, he would not be able to
acquire a temporary resident visa as a member of the visitor, worker or student
class; for such a visa, a foreign national must show that he is not
inadmissible (Regulations, s. 179(e)). Even though Mr. Shi's application for
permanent residence has been denied, he may still (subject to examination and
other application criteria) be eligible to visit Canada.
[31]
The Respondent also
cites Kumarasekaram v MCI, 2010 FC 1311, in which the Officer found that
the Applicant had not satisfied him that the Applicant was “not inadmissible”
as there were discrepancies between the Applicant’s PIF and that of his
spouse’s in support of the refugee claim. The officer in that case found the Applicant
to be evasive and to not volunteer any information to him; therefore the
officer was of the view that he did not have a complete picture of the Applicant’s
activities. Justice Rennie held:
[9]
Under s.11 of the IRPA a visa officer must be satisfied that the Applicant is
“not inadmissible” and meets the requirements of the Act. The burden is always
on the applicant to provide sufficient evidence to warrant the favorable
exercise of discretion: Kazimirovic v. MCI, [2000] F.C.J. No. 1193. In
this case, the applicant requests that this Court substitute its view on both
the frankness and candor of the applicant during the interview and whether the
onus on the applicant to establish that he is not inadmissible has been
discharged. Here, the discrepancies noted by the officer were concrete and
objective and would, in the mind of any reasonable person, give reason for
concern.
[32]
The Respondent argues
that the Applicant cannot rely on Chen in support of its arguments, as
in the case of Zhou v MCI, 2010 FC 1230 at paras 12-13, where the Applicant
attempted to rely on the same obiter paragraph of Chen, the Court
specifically limited the application of Chen as only relevant to Quebec
cases.
[33]
In reviewing cases
cited by the Applicant, I note firstly that Kang was a 1981 case that
appears to have been decided more specifically on the language of the former Act.
I do not think that it is particularly relevant to the present case. Justice
Pratte says at paragraph 7:
[7]
It does not follow that the failure of an applicant to comply with the
requirements of subsection 9(3) is without sanction. That failure may or may
not, according to the circumstances, justify a decision not to grant a visa; it
does not, however, as was assumed by the decision under attack, have the
automatic effect of making the applicant an inadmissible person described in
paragraph 19(2)(d).
[34]
I also agree with the
Respondent that Zhou limits Chen to applying exclusively in Quebec cases:
[13]
The applicant's reliance on Chen and on Belkacem v Canada (Minister of Citizenship and Immigration), 2008 FC 375, as
to the jurisdiction of the officer to refuse a visa application absent a
finding of inadmissibility is misplaced. Both Chen and Belkacem involved
decisions made by the Province
of Quebec under the Canada-Québec Accord relating
to Immigration and Temporary Admission of Aliens. Section 12(a) of that Accord
provides that "Québec has sole responsibility for the selection of
immigrants destined to that province and Canada has sole responsibility for the
admission of immigrants to that province." Because Québec has sole
responsibility for the selection of foreign nationals who intend to reside in
that Province, s. 9(1)(a) of the Act applies. It was that provision that was
relied on by the Court in both cases as suggesting that the officer had no
jurisdiction to deny a visa absent a finding of inadmissibility.
[35]
I appreciate the
distinction that the Applicant is attempting to make between Kazimirovic
and the present case, in that the Officer in Kazimirovic had a more
concrete reason to believe that the Applicant’s story was not credible, because
the Officer had knowledge of certain military events in the former Yugoslavia that did not appear to match the Applicant’s story.
However, the following paragraph from the judgment does not seem to me to
support the Applicant’s argument that the finding under section 11(1) was
intended to be limited in the sense that the Applicant suggests:
[10]
…The burden rested with the Applicant to convince the visa officer of his
qualifications to enter Canada, and having given what she considered to
be an unbelievable story relating to his military service, he simply failed to
discharge it.
[36]
I find myself, on the
whole, convinced by the Respondent’s interpretation of section 11(1), as being
more logical with regard to the language of the provision. After reading Manigat,
I agree with the Respondent that there is no indication that the Court intended
to limit its application to the narrow grounds described by the Applicant.
[37]
Based on the recent
case of Kumarasekaram, I find that the Applicant is incorrect in arguing
that there is no jurisprudence in support of rejecting an application on the
basis of section 11(1). I am persuaded that an Officer can reject an
application without a specific finding of inadmissibility, on the grounds that
the failure of the Applicant to provide a complete picture of his background,
that Officer cannot actually determine that the Applicant is “not
inadmissible”.
B. Was the Officer’s decision reasonable?
[38]
The Applicant
disputes that he was evasive or that he failed to provide any information to
the Officer, and argues that the CAIPS notes support this argument. He argues
that his work history is clearly demarked in the CAIPS notes. He clearly explained
the nature of his involvement with the LTTE, in the form of the bribes of gold
and the tax money, and that he had never guarded them in prison, nor agreed to
their requests to leave the area. The Applicant argues that the Officer had no
concrete evidence in front of him that could have led him to disbelieve the Applicant’s
testimony, and submits that the Officer provided no evidence to support his
statement that it was not credible that the LTTE would have left the Applicant
alone though he had been a government prison guard. There was no therefore
factual basis for the Officer’s credibility assessment. The Applicant notes
that any inconsistencies can be explained by the fact that the Officer was
asking the Applicant about events that had occurred some fifteen to twenty
years previously.
[39]
The Applicant further
argues that the Officer should not have considered differences between the Applicant’s
testimony and that of his son, with regard to whether the son had completed
sentry duty for the LTTE, as the Applicant was applying as a dependent of his
wife, not of his son. The Applicant also argues that his testimonies to the
effect that his son refused to provide this duty, and his son’s testimony that
he was required to provide it, are not contradictory. The Applicant pointed the
Court to paragraph 7 of the son’s testimony where it is stated that he refused
initially but was subsequently forced to do so.
[40]
The Applicant also
disagrees that there were discrepancies between his testimony and his wife’s PIF.
In essence when his wife mentions the family in her PIF the Applicant was
obviously included as a member of the family. Therefore according to the Applicant
there are no contradictions. With respect to the displacement, in his interview
he stated only that they had gone to India. When it was pointed out to him that his
wife said they had been displaced to Meesalai, the Applicant agreed with this,
saying he thought that the Officer was referring to a different period in time.
The Applicant argues that as he agreed in the end that they had been displaced
to Meesalai, there was no discrepancy, and there is no evidence to show that it
was unreasonable of him to have misunderstood the time frame being referred to.
[41]
Finally the Applicant
argues that any discrepancies were not material and they were overemphasized by
the Officer.
[42]
The Respondent
submits that the Officer was entitled to consider the wife’s PIF and the son’s
testimony, as he was trying to determine the Applicant’s background and was
entitled to review documents provided by the Applicant’s family members in
order to verify this background. The Officer’s examination includes an
entitlement to consider inconsistencies in the stories provided. The Respondent
contends that the majority of the discrepancies noted by the Applicant was
material to the Applicant’s claim and went to his credibility, and argues that
the Applicant is merely taking issue with the Officer’s weighing of the
evidence, something that does not warrant the Court’s intervention.
[43]
The Respondent
reiterates the Officer’s findings of evasiveness and discrepancies regarding
the Applicant’s work history, the reasons for his wife’s refugee claim, the
displacement of his family, his payments to the LTTE, and the fact that the
kidnapping threats were not included in any family member’s PIF. The Respondent
argues that it is not enough for the Applicant to say that in the end he told
the Officer all the details; the Officer’s findings that the Applicant would
indicate that he had completely answered a question, and then later change his
story or alter the details, led the Officer to reasonably find that the Applicant
was not consistent in his testimony.
[44]
The Respondent argues
that though individually there may be slight issues with the Officer’s
findings, when taken together, it is clear that the cumulative effect of the
Officer’s concerns led him to the reasonable conclusion that the Applicant was
not being truthful as per his obligation under section 16(1), and consequently
that he could not find that the Applicant was not inadmissible under section 11(1).
[45]
I agree with the Applicant
that the Officer’s concerns regarding the Applicant’s work history do not seem
reasonable; as it is clear from the CAIPS notes that the Applicant did list his
time as a prison guard, a grocer, and then a security guard, but did not
discuss them chronologically at the interview. All of the documents submitted
by the Applicant appear to me to uphold his work timeline, and I am convinced
by the Applicant’s explanation that he simply discussed his jobs in the wrong
order due to confusion from the Officer’s question about what he did in Colombo.
[46]
However, on the whole
I find that this problem or the interpretation of family in his wife’s PIF does
not mitigate the Officer’s entire decision. In examining the wife’s PIF (Applicant’s
Record, pp 65-66), it is clear that she gave extensive reasons for her refugee
claim, dating back to 1991, rather than, as the Applicant stated in his
interview, that he told her to claim refugee status in 2006 on the sole basis
of the problems he was having in Sri
Lanka at the time. She does
mention that the Applicant went to India with the children, but does not mention
the threat of kidnapping.
[47]
It is a well
established principle that deference must be given to the findings of Officers
who have had the benefit of a direct contact with the Applicant who had also
been forewarned that he would be interviewed.
[48]
There is nothing in
the Officer’s findings that leads me to believe that his assessment of the Applicant’s
credibility and evasiveness was unreasonable on the whole. It is the Officer’s
role to make such an assessment, and I am persuaded that on the basis of what
he found, he was unable to determine that the Applicant was in fact “not inadmissible”,
without being able to determine that he was “inadmissible” on any particular
ground.
[49]
Therefore, I am
dismissing the application because I find the Officer’s decision reasonable
under the circumstances.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed, and no question of general importance is certified.
"André
F.J. Scott"
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