Date: 20110516
Docket: IMM-5389-10
Citation: 2011 FC 548
Ottawa, Ontario, May 16, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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RASAMALAR JOSEPH
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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
I.
Overview
[1]
In
2009, Ms. Rasamalar Joseph claimed refugee protection in Canada based on her
alleged fear of persecution as a Tamil woman from northern Sri Lanka. A panel of
the Immigration and Refugee Board dismissed her claim after finding an absence
of credible evidence supporting it.
[2]
Ms.
Joseph maintains that the Board carried out a microscopic analysis of the
evidence she presented. This caused it, she says, to dismiss and overlook
evidence that reinforced her claim, and to arrive at an unreasonable
conclusion. She asks me to overturn the Board’s decision and order a new
hearing before a different panel.
[3]
I
cannot find, however, a basis for overturning the Board’s decision and must,
therefore, dismiss this application for judicial review. In my view, the
Board’s conclusion that Ms. Joseph’s claim was unsupported by reliable evidence
was reasonable.
[4]
The
issue is whether the Board’s treatment of the evidence was reasonable.
II. The Board’s
Decision
[5]
The
Board found there was little evidence supporting Ms. Joseph’s account of
events.
[6]
The
Board was concerned about gaps in Ms. Joseph’s recollection of her voyage from
Sri Lanka to Canada. She could
not remember what airline took her from Sri Lanka to
Singapore, or from Singapore to Japan, or from Japan to Canada. An agent
provided her a new passport in Singapore but she could not
remember what country had issued it, or whose name appeared on it.
[7]
The
Board also noted that Ms. Joseph had provided little documentation to show that
she had lived in Sri Lanka until 1999 as she had testified. She had no
bank records, no ownership records for her house or business, and no driver’s
licence. She provided a birth certificate (issued in 2004 with no photo) and a
letter from a lawyer who had done legal work for her parents. The latter was
clearly a form letter – mostly boilerplate information, with only a few
personal details. Ms. Joseph also provided an affidavit from a friend in
Toronto stating that Ms. Joseph had been living in Sri Lanka, but the
deponent had not seen her since 1992.
[8]
The
Board also found some parts of Ms. Joseph’s narrative implausible. She stated
that she had given her original passport and National Identity Card to the
agent to mail to her. The Board wondered why she could not have mailed it
herself, and why the agent would take the risk of being found with two different
travel documents.
III. Was the
Board’s Treatment of the Evidence Reasonable?
[9]
The
task of evaluating and weighing the evidence falls to the Board. It is not my
role to second-guess the Board’s fact-finding unless its analysis was
unreasonable.
[10]
Here,
the Board’s concerns about the evidence before it caused it to find that there
was no basis on which to conclude that Ms. Joseph’s alleged fear of persecution
in Sri
Lanka
was well-founded. Ms. Joseph argues that the Board’s concerns related solely to
issues at the periphery of her refugee claim. Even if the Board did not believe
her story about how she got to Canada or what happened to her identity
documents, the fact remained that she was a Tamil woman from the north of Sri Lanka and the
documentary evidence supported her claim to be at risk of persecution if she
returned there. Her birth certificate proved her identity and ethnicity and
that alone, she says, should have been enough to sustain her claim for refugee
protection.
[11]
The
Board must be careful not to dismiss a refugee claim on the basis that it
disbelieves parts of the claimant’s testimony, or evidence that does not go to
the core of the claim. Sometimes claimants embellish their stories, or they
forget minor details. It is unreasonable for the Board to dismiss claims simply
because they find evidence at the fringes not to be reliable or trustworthy. Even
if the Board finds some evidence not to be credible, it must go on to consider
whether there remains a residuum of reliable evidence to support a well-founded
fear of persecution. (See, e.g. Seevaratnam v Canada (Minister of
Citizenship and Immigration) (1999), 167 FTR 130, 88 ACW (3d) 650 (TD); Mylvaganam
v Canada (Minister of Citizenship and Immigration) (2000), 98 ACWS (3d)
1089, [2000] FCJ No 1195 (FCTD) (QL); Kanesaratnasingham v Canada (Minister
of Citizenship and Immigration), 2008 FC 48).
[12]
On
the other hand, sometimes the Board’s concerns about the credibility or
trustworthiness of the claimant’s evidence causes it to doubt the very essence
of the claim. In those circumstances, the Board need not look to general
country condition evidence to determine whether the claim was well-founded: Mathews
v Canada (Minister of
Citizenship and Immigration), 2003 FC 1387 at para 7-8. That was the
case here. The question, then, is whether the Board had a reasonable basis for
its concerns about the evidence presented by Ms. Joseph.
[13]
In
my view, the Board’s conclusion was reasonable in light of the evidence before
it. Ms. Joseph’s account of her travel to Canada was, at
best, incomplete. It cast doubt on her testimony relating to other aspects of
her claim. She lacked documentary evidence that would have corroborated her
claim to have lived and worked in northern Sri Lanka for many
years. The letter from her parents’ lawyer and the affidavit from her friend
were weak evidence of her life in Sri Lanka. And her 2004 birth
certificate could have been acquired outside Sri Lanka. There
remained, of course, her oral testimony but, in key areas where one would have
expected corroborative documentary evidence, (e.g., relating to her residence
and business) none was offered. The Board is entitled to make an adverse
credibility finding in those circumstances: Adu v Canada (Minister of
Employment and Immigration) (1995), 53 ACWS (3d) 158, [1995] FCJ No
1114 (FCA) (QL), at para 1.
[14]
In
my view, the Board’s treatment of this evidence and its conclusion were
reasonable. Taking account of its doubts about Ms. Joseph’s narrative of events
and the paucity of evidence confirming that she had actually been resident in
northern Sri
Lanka
during the relevant time period, the Board’s conclusion that her claim was not
supported with reliable and trustworthy evidence was clearly open to it.
IV. Conclusion and
Disposition
[15]
Having
found that the Board’s conclusion was reasonable on the evidence, I must
dismiss this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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