Date: 20070504
Docket: IMM-3568-06
Citation: 2007 FC 484
Ottawa, Ontario, May 4, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
BALACHANDRAN
PANCHALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dated March
20, 2006, finding that the applicant was not credible and was neither a Convention
refugee nor a person in need of protection.
ISSUES
[2]
The
applicant raises the following two issues:
a) Did the Board
err in law by
failing to do a proper assessment based on the evidence that it found to be
credible?
b) Did the Board err in law with
respect to its credibility finding?
[3]
For the
following reasons, the answer to each question is negative and the present
application shall be dismissed.
BACKGROUND
[4]
Born
on February 20, 1971, the applicant is a Hindu, northern Tamil, citizen of Sri
Lanka who was forced to work for the Liberation Tigers of Tamil Eelam (LTTE) at
various times between 1993 and 1997.
[5]
In
1995, during Operation Leap Forward, the applicant’s village was attacked and
he had to take refuge for two weeks. In October 1995, after the failure of the
peace talks, fighting erupted again and the applicant was injured during the
shelling. He fled to Kilinochchi and stayed in a refugee shelter. In August of
the following year, the army attacked Kilinochchi and the applicant took refuge
in a bunker with his young family.
[6]
In
1997, the army began to harass the applicant on several occasions, forcing him
to act as a human shield at checkpoints near Elephant Pass. He was
assaulted by army officers in August 1997, when he refused to go with the army.
In September 1997, the applicant fled with his family to Chilaw, where they
stayed with the applicant’s sister. However, her Sinhalese neighbour complained
and the 18 occupants of the house were arrested and accused of being members of
the LTTE. The applicant’s wife and children were released one week later.
[7]
Along
with a number of other suspects, the applicant was held in detention for three
months. He was released by court order and ordered to attend a hearing. After five
or six court appearances, the applicant was released on condition that he had
to report to the police every day. After a period of three months, the
applicant was told he did not have to report further because there was insufficient
evidence to charge him (translation of a letter from the Attorney
General's Department from Colombo, dated July 18, 2001, Tribunal's
Record, page 146).
[8]
In
August 2004, the Karuna, a splinter group of the LTTE began targeting northern
Tamils. For fear of being killed, the applicant relocated to his local village,
where he was interrogated and harassed by the army and the LTTE. The army
accused him of being a supporter of the Tigers. On January 1, 2005, the army threatened
that if he did not cooperate with them, he would be tortured. As a result of
this, the applicant fled the north on January 16, 2005. With the aid of an
agent, he left Sri Lanka for Malaysia, then on to France and
ultimately arrived in Canada on February 13, 2005.
[9]
On
March 11, 2005, the applicant claimed refugee status on the basis of his fear
of persecution at the hands of the Sri Lankan authorities, the LTTE and the
Karuna Faction. The Board concluded that the applicant was not credible as a result
of the implausibility and incredibility of his embellished stories. As a result,
his claim was denied and it forms the basis of this application for judicial
review.
DECISION UNDER REVIEW
[10]
After
examining both the oral and documentary evidence, the Board concluded that the
applicant was not credible. In particular, the tribunal doubted the applicant’s
credibility in the following matters:
a) inconsistent
and evasive testimony regarding the 1997 court case and his related fears;
b) inconsistencies
in his testimony regarding the nature of the work he did for the LTTE and the
period in which he worked;
c) inconsistencies
in his story as to why the LTTE forced him to work for them in 1993-1995 but
not in 1996 or 1997;
d) inconsistencies
in his testimony regarding when he left Sri Lanka and where he stayed before
coming to Canada;
e) implausible
parts in his testimony regarding claiming asylum in France and
behaviour inconsistent with a genuine fear.
[11]
The
Board also considered the documentary evidence before it and noted the fact
that plenty of problems have surfaced in Sri Lanka since the
February 2002 ceasefire agreement. Nonetheless, the Board concluded that the
applicant did not provide credible evidence, which would establish a well
founded fear of future persecution or that he faces a danger of torture, a risk
to life, or risk of cruel or unusual treatment or punishment. Consequently, the
applicant was found to be neither a “Convention refugee” nor a “person in need
of protection.”
ANALYSIS
Standard of review
[12]
The
standard of review for issues of credibility is patent unreasonableness as was
established by the Federal Court of Appeal in Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL).
Failure to provide proper assessment of
evidence deemed credible
[13]
The applicant
filed a considerable amount of documentary evidence, including personal
documents, court documents and several newspaper and country reports detailing
the escalation of violence in Sri Lanka. While it is expected that the Board would have considered
these documents, the applicant submits that the Board made not a single
reference to these documents. The only reference to the country conditions and
one would assume to the documentary evidence in this regard, is as follows:
The
panel is aware that, since the ceasefire agreement in February 2002, plenty of
problems have surfaced. The road to final peace between the belligerents is not
an easy one. Although there are still isolated incidents, the ceasefire has
been in effect for more than three years now, which is a tremendous achievement
in itself. […]
[14]
The
applicant argues that the Board erred by failing to properly assess this
documentary evidence that it deemed credible. It makes no references to the
various reports documenting the changing country conditions except in the brief
passage cited above. The applicant argues that his past court appearances and
harassment at the hands of the LTTE and the army, would heighten the risk to
him in light of the surge of violence in his country. Had it properly
considered his 1997 charges and court case, the Board would not have discounted
this evidence simply because no charges were laid against him in 2001.
[15]
The
respondent rejects the notion that the Board erred in its assessment of
the 1997 legal proceedings against the applicant. He was charged under the Emergency
Powers Act and detained for three months but later the police was advised
by the Attorney General that there was insufficient evidence to file a charge
against him. The Board did not err since the actual basis of risk assessment is
forward looking, a notion the applicant does not contest. There was no need to
take into consideration a normal court proceeding where there was no evidence
that the applicant was tortured or mistreated during his detention or was
denied due process of law. Moreover, he benefited from a complete discharge and
declared during his testimony that he had no fears related to the 1997 charges
and court case. There was no future prospect of risk from these legal troubles,
such that the Board could arrive at the conclusion that the applicant’s
experience in court would support a prospective fear of persecution.
[16]
In
support of its position, the respondent cites Professor James C. Hathaway who
stated in The Law of Refugee Status (Toronto: Butterworths, 1991) p. 65:
The
concept of well-founded fear […] was intended to restrict the scope of
protection to persons who can demonstrate a present or prospective risk of
persecution, irrespective of the extent or nature of mistreatment, if any,
that they have suffered in the past.
[my
emphasis]
[17]
Similarly,
the respondent asserts that the Board did not misapprehend the facts contained
in the documentary evidence regarding the tenuous ceasefire. The Board does not
have to make reference to each document before it and where it did so with
respect to the ceasefire, there was no evidence to show in the articles
referred to by the applicant that the ceasefire has been lifted. While there
are fears that the skirmishes between the belligerents may jeopardize the peace
talks and the ceasefire, there is no evidence to suggest that the applicant
would face a danger of torture or risk to his life upon returning to Sri Lanka even if the ceasefire
is dissolved.
[18]
Having
reviewed the said documents including the court documents and the newspaper
clippings, along with the reports of Amnesty International, I am satisfied that
the Board did not err in its assessment of the documentary evidence.
Habitually, there is jurisprudence that encourages refugee claim decision
makers to make more than a passing reference to country conditions where there
are changes that may affect the outcome of the claimant’s status.
[19]
In
this regard, I rely on the decision of Chief Justice Isaac of the Federal Court
of Appeal in Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228
(QL), who stated at paragraphs 7 and 8:
Before
us, the Appellants contend that the Board failed to consider adequately or at
all the objective basis of their fear. First, the Appellants say that the
documentary evidence, which was considerable, if properly assessed, could well
have enhanced the Board's appreciation of the objective basis of their claim.
They say, secondly, that beyond a bare acknowledgment that the evidence
presented at the hearing consisted of documentary evidence which constituted
background information on Sri
Lanka, the reasons of the
Board were bereft of any further reference to the documentary evidence, let
alone any consideration of their claim in light of that evidence. Next, they
say that the Board's assessment of their claim might well have been different,
if they had considered it in that light and, further, that by failing to do so,
the Board fell into reversible error.
We
agree. Where, as here, documentary evidence of the kind in issue here is
received in evidence at a hearing which could conceivably affect the Board's
appreciation of an Appellant's claim to be a Convention refugee, it seems to us
that the Board is required to go beyond a bare acknowledgment of its having
been received and to indicate, in its reasons, the impact, if any, that such
evidence had upon the Applicant's claim. As I have already said, the Board
failed to do so in this case. This, in our view was a fatal omission, as a
result of which the decision cannot stand.
[20]
In
applying this line of jurisprudence, I must distinguish Mahanandan from
the facts in this case. In Mahanandan, the Board had failed to consider
the documentary evidence. That is not the case here. In the present matter, the
Board did consider the court documents regarding the 1997 charges and court
case. Because of the applicant’s changing testimony and the inconsistencies and
backtracking during oral evidence, regarding the court case and the prospective
fear of persecution, it was reasonable for the Board to not specifically cite
these documents but assess weight in the context of all the evidence. I do not
believe that these are circumstances such as those found in Mahanandan,
where the Board erred by not making specific reference to the court documents.
The 2001 letter from the Attorney General is clear “there are no
sufficient evidence to be filed action against the applicant”, and this is well
before he left Sri
Lanka in
2005.
Did the Board err in its credibility
findings?
[21]
The Board’s credibility
findings are fact based and are therefore reviewable on a standard of a patent
unreasonableness.
[22]
The
applicant argues that the Board committed reviewable error in its various credibility
findings as enunciated earlier in these reasons. The respondent submits that
the Board did not find the applicant to be a credible witness because of the
number of instances where he was forced to backtrack to account for
inconsistencies between his testimony and information provided both on his
Personal Information Form (PIF) and during his interview with the Immigration
Officer on February 14, 2005. The respondent argues that the Board is in a
better position than this Court to gage the credibility and plausibility of the
applicant and his embellished story. As such the Board’s credibility findings
should remain undisturbed.
[23]
I agree.
I am not satisfied that the Board’s findings were patently unreasonable in that
they were not based on a capricious disregard or a misapprehension of the material
before it. Moreover, I find nothing in the transcripts that would suggest that
the Board erred in its decision. That is why, I am satisfied that there is no
reason for the Court to intervene.
[24]
There
were no questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS that:
1.
The application
for judicial review is dismissed.
2.
No
question is certified.
“Michel Beaudry”
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