Date: 20070730
Docket: IMM-3592-06
Citation: 2007 FC 802
Ottawa, Ontario, July 30, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ANTHONY BAHEERATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant
is a citizen of Sri Lanka who bases his claim for protection on an
alleged fear of persecution by reason of race by the Liberation Tigers of Tamil
Eelam (LTTE or Tigers), the Sri Lankan Army and the Eelam People’s Democratic
Party (EPDP). He is a young, Tamil male who claims to have lived most of his
life, including the period from 1996 to 2004, in Jaffna, in northern
Sri
Lanka.
He left Sri Lanka in 2004 for France, where his claim for refugee protection
was denied. Rather than return to Sri Lanka, he then came to Canada where he
claimed protection.
[2] In a decision
dated June 15, 2006, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) determined that the Applicant was not
a Convention refugee and not a person in need of protection. The Applicant
seeks judicial review of that decision.
[3] In broad
terms, the Board’s decision was based on two conclusions:
- The
Board was not persuaded that the Applicant had lived in Jaffna during
the period of time (1996 to 2004) when he was allegedly persecuted; and
- The
Applicant would not face more than a mere possibility of persecution or be
subjected to a risk to his life if he returned to Sri Lanka and
lived in the government controlled areas.
[4] The Applicant
asserts that the Board erred in respect of each of these conclusions.
[5] The Board’s
conclusions are findings of fact that are directly within the competence and
expertise of the Board. As such, the standard of review for such determinations
is patent unreasonableness. That is, the decision will only be overturned where
the findings are made perversely and capriciously or without regard to the
evidence (De (Da) Li Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 at para. 5
(F.C.A.); Brar v. Canada (Minister of Employment and Immigration),
[1986] F.C.J. No. 346 (F.C.A.); Tekin v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 357 at para. 10).
[6] The burden is
on the Applicant to satisfy the Board of the credibility of his story. In
meeting this burden, it was incumbent on the Applicant to persuade the Board
that he was in the area where he allegedly was persecuted. The Board raised a
number of problems with his testimony in this regard which threw doubt on his
whereabouts during the material time of 1996 to 2004.
[7] In reading
this decision it is important to read the decision in its entirety and to consider
the reasonableness of the overall finding that the Applicant had not
demonstrated that he was in Jaffna for the period when he alleges to have
been persecuted. All of the individual issues addressed by the Board should be
read in that light. Two examples are as follows:
- The
Board did not conclude that every citizen of Jaffna carried
an army identity card. Rather, the Board noted that the Applicant did not
have a card that he was required by law to carry and that he did not
appear to know about the requirement. It was not unreasonable for the
Board to rely on these facts to support its conclusion that the Applicant
was not in Jaffna.
- In
questioning why the Applicant would only know the manager of the store
where he allegedly worked by only one name, the Board was not ignoring the
fact that persons in Sri Lanka are most usually
known by one name only. Instead, the Board was reasonably stating that,
where someone was your manager for 10 years, it is reasonable to expect
that you would be able to identify the manager by more than one name. Once
again, this, coupled with evasive and hesitating answers in oral testimony
on his employment, casts some doubt on whether the Applicant was being
truthful about his employment.
[8] Other alleged
errors can be similarly situated within the decision as a whole. Despite the
efforts of the Applicant to show errors in the individual areas addressed by
the Board, I am satisfied that the overall conclusion was open to the Board on
the evidence before it. The combination of contradictions, inconsistencies,
evasive or non-responsive answers and lack of specific details on the situation
in Jaffna at the
relevant time is supportive of the Board’s conclusion that he was not in Jaffna during the
material time. Put simply, due to the cumulative impact of the numerous
problems with his testimony and evidence, the Applicant was unable to weave
together a story that met the test for claiming protection. While parts of the
decision dealing with particular aspects of the testimony and evidence may not
be written as carefully as they should be, the Court’s intervention is not
warranted.
[9] Even though
the Board found the Applicant’s story to lack credibility, the Board considered
whether the Applicant would, objectively, be at risk. The Board’s analysis in
this consideration is very brief and concludes by saying, in effect, that the
Applicant would be able to live relatively safely if he were to live “in the
government controlled area”. The Applicant asserts that the Board failed to
have regard to the evidence that shows that Tamils are at risk in government-controlled
areas.
[10] It is well
established that the tribunal is not bound to refer in its reasons to each
piece of evidence that it considered (Hassan v. Canada (Minister of Employment
and Immigration) (1993), 147 N.R. 317 (F.C.A.); Zhou v. Minister of
Employment and Immigration, [1994] F.C.J. No. 1087 (F.C.A.) (QL); Martinez
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1615
(F.C.) (QL)). There is a presumption that the tribunal considered all of the
evidence before making a decision (Woolaston v. Minister of Manpower and
Immigration, [1973] S.C.R. 102; Hassan, above).
[11] In my view,
the Board considered the context and totality of the evidence regarding the
Applicant’s fear. The Board acknowledged that, since the ceasefire agreement in
February 2002, problems have surfaced. The Board pointed out that there are
still isolated incidents, even though the ceasefire has been effect, but found
that there was not more than a mere possibility the Applicant would face harm
in a government controlled area of Sri Lanka. Having reviewed the evidence, I
am satisfied that the Board’s conclusion was open to it. Although the Applicant
can highlight certain evidence from the evidence that shows that Tamils
continue to be subjected to risks, even in government-controlled areas, there
is no indication that this evidence was ignored. I do not find a reviewable
error.
[12] Neither party proposed a question for
certification. I agree that the issues in this case do not raise a question of
general importance and will not certify a question.
ORDER
THIS
COURT ORDERS that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
_____________________________
Judge
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