Date: 20071023
Docket: IMM-3270-06
Citation: 2007 FC 2003
Toronto, Ontario, October 23, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
SINNARASA
SINNATHURAI
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant (claimant) is an elderly adult male Tamil citizen of Sri Lanka who is
seeking refugee protection in Canada pursuant to section 96 and 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (IRPA). The
Applicant’s wife and six children have been accepted into Canada as
Convention refugees. A Hearing was held by the Immigration and Refugee Board
as to the Applicant’s claim and on April 20, 2006 a Member of the Board gave a
written decision in which it was determined that the Applicant was not a
Convention refugee or person in need of protection, thereby denying the
Applicant’s claim. Judicial review is now sought by the Applicant in respect
of that claim.
[2]
The
Applicant has raised the following issues:
1. Were
the findings of the Board patently unreasonable in determining that the lack of
documentary evidence to corroborate the Applicant’s assertions as to beatings
and requirements to report lead to a conclusion of lack of credibility? (Patent
Unreasonableness)
2. Was
there a breach of a duty of fairness in finding that there was no corroboration
of the Applicant’s assertions as to a requirement to report weekly to the army
without calling upon Applicant’s wife for corroboration? (Duty of Fairness)
3. Did
the Board err in not considering the Applicant’s subjective fear of living in
Columbo as a reasonable Internal Flight Alternative? (IFA)
1) Patent
Unreasonableness
[3]
The
first issue is whether the findings of the Board patently unreasonable in
determining that the lack of documentary evidence to corroborate the
Applicant’s assertions as to beatings and requirements to report lead to a
conclusion of lack of credibility?
[4]
The
findings of the Board Member in this respect are set out at paragraph 2 of his
Analysis:
2. The claimant
alleges that the army accused him of giving his house to the LTTE. They
detained him at Nelliady army camp, beat him on his back with batons, and
ordered him to sign every week in camp. When he was asked if he suffered
injuries from those beatings, he replied negatively. He said “Why should I
want to tell a lie?” At the time of the alleged incident, the claimant was 67
years-old. The tribunal let it be known that it was unaware of documentary
evidence corroborating that the army beat senior citizens, more particularly
someone of the claimant’s age. The tribunal is also not aware of documentary
evidence that would corroborate that the army would ask someone of the
claimant’s age to come and sign every week. The army is known to have been
weary of young Tamils (Exhibit A-1, 2.6 at 2.3). After considering the entire
evidence, the tribunal does not believe, on a balance of probabilities, that
the army detained the claimant, beat him or made him sign on a weekly basis.
This is an embellishment to a weak claim.
[5]
The
Board stated that it had considered the entire evidence noting in particular
the lack of documentary evidence that would corroborate the Applicant’s assertion
that a person of 67 years of age would be beaten by the army. Counsel have
reviewed the most pertinent documentary evidence with the Court and while there
is documentary evidence to indicate that young male Tamils and those of some
political profile may be sought out for abuse, nothing supports an assertion with
respect to an elderly Tamil person. The Board is entitled to look for
corroboration where a claimant’s evidence is in question and otherwise
unsupported. Justice Blanchard of this Court in Khan v. Canada (MCI),
2002 FC 400 at paragraph 17 and 18 reviewed and summarized the pertinent
jurisprudence:
17 While
there is no legal requirement to produce corroborative evidence, it was not
unreasonable in the particular circumstances of this case for the CRDD to
consider, as one of the several factors in assessing the well-foundedness of
the applicant's fear, the complete absence of any evidence suggesting that the
Taliban were targeting members of the Gadoon tribe. I believe the statement of
Mr. Justice Hugessen in Adu v. Canada (M.E.I.), [1995] F.C.J. No. 114 (C.A.),
online: QL (FCJ) is applicable to the circumstances of this case:
The
"presumption" that an Applicant's sworn testimony is true is always
rebuttable, and in appropriate circumstances, may be rebutted by the failure of
the documentary evidence to mention what one would normally expect it to
mention. (Emphasis added).
18 The
jurisprudence of this Court has clearly established that it is within the
specialized jurisdiction of the CRDD to decide how much weight to assign to the
evidence. It is also well established that the CRDD is entitled to rely on
documentary evidence in preference to the testimony provided by a claimant.
Furthermore, the tribunal is also entitled to give more weight to the
documentary evidence, even if it finds the applicant to be trustworthy and credible.
[Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.) online: QL].
[6]
It
was reasonably open to the Board to weigh the Applicant’s evidence as against
the documents pertinent to the case and make its assessment of the evidence as
a whole. The decision of the Board is not patently unreasonable and will not
be set aside on this basis.
2) Duty of
Fairness
[7]
The
second issues is whether there a breach of a duty of fairness in finding that
there was no corroboration of the Applicant’s assertions as to a requirement to
report weekly to the army without calling upon Applicant’s wife for
corroboration?
[8]
The
Applicant was represented by Counsel at the hearing. The Applicant was free to
present such evidence as he chose and to lead the evidence of such witnesses as
he chose. His Counsel was free to examine and cross-examine. The Applicant
bears the burden to make out his case; he cannot assume or require the Board to
present his case for him. This point was made by the Federal Court of Appeal
in Ranganathan v. Canada (MCI), [2000] 2 FC 164 per Letourneau JA. for
the Court at paragraph 10:
10 I
am of the view that the Board cannot be faulted for not having addressed in its
reasons the fact that Tamils are not allowed to reside in Colombo
for more than three days. It appears from a version of the transcript of the
hearing before the Board that the respondent was represented by counsel at the
hearing and never raised that issue with the Board. The burden was on the
respondent to establish that living in Colombo
was not an internal flight alternative because of the alleged three-day policy.
One would have expected her to raise that issue if it was really a serious
concern to her. But she did not and the Board was entitled to assume that this
was a non-issue especially as she had lived there for four years before
departing for Canada in 1997.
[9]
A
review of the Tribunal Record, and in particular the transcript of the hearing
demonstrates that there was no failure of any duty of fairness to the
Applicant.
3) IFA
[10]
The
third issue was Did the Board in not considering the Applicant’s subjective
fear of living in Columbo as a reasonable Internal Flight Alternative?
[11]
Counsel
for the parties were agreed at the hearing that while the Board has a duty to
raise the issue as to whether there exists in the Applicant’s country a
suitable Internal Flight Alternative (IFA), once that issue is raised, the
Applicant has the burden of demonstrating that the IFA is not reasonable.
[12]
Applicant’s
Counsel argues that Columbo is not a reasonable place of refuge within Sri Lanka given that
the Applicant is elderly, a Tamil and without any family there to support him.
While there is sympathy for the Applicant’s situation, a situation which should
be given serious consideration should the Applicant make a claim under
humanitarian and compassionate (H&C) grounds; such a situation does not
make Columbo an unreasonable flight alternative. As Letourneau JA. said at
paragraph 15 of Ranganathan supra:
15 We
read the decision of Linden J.A. for
this Court as setting up a very high threshold for the unreasonableness test.
It requires nothing less than the existence of conditions which would
jeopardize the life and safety of a claimant in travelling or temporarily
relocating to a safe area. In addition, it requires actual and concrete
evidence of such conditions. The absence of relatives in a safe place, whether
taken alone or in conjunction with other factors, can only amount to such
condition if it meets that threshold, that is to say if it establishes that, as
a result, a claimant's life or safety would be jeopardized. This is in sharp
contrast with undue hardship resulting from loss of employment, loss of status,
reduction in quality of life, loss of aspirations, loss of beloved ones and
frustration of one's wishes and expectations.
Conclusion
[13]
Accordingly,
the application will be dismissed. No counsel requested certification and none
will be given. There is no special reason to award costs.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1. The
application is dismissed;
2. There is no question
for certification;
3. There is no order as
to costs.
"Roger
T. Hughes"
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