Date: 20080130
Docket: IMM-2567-07
Citation: 2008 FC 93
BETWEEN:
Hettiarachchige TISSERA
Naharanpitage S TISSERA
Hasagani Chathurangi TISSERA
Hiromi Chalanayani TISSERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), in which it
concluded that the applicants were not “Convention refugees” or “persons in
need of protection” as defined in sections 96 and 97 respectively of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The
applicants are a husband, wife, and two daughters, who come from Sri Lanka. The
applicants’ claim is based on Hettiarachchige Tissera’s (the “principal
applicant”) alleged fear of persecution on the basis of his political opinions.
* * * * * * *
*
[3]
After
summarizing the facts and determining that the identity of the applicants was
not in issue, the Board proceeded to analyze the principal applicant’s claim.
“Although the panel accepts that the main claimant is a well-known personality
in Sri
Lanka,
the claimant having adduced many documents to that effect [. . . ], the panel
finds that the main claimant’s allegations of kidnapping and beating are not
credible.”
[4]
In
particular, the Board found inconsistencies between the principal applicant’s
and his wife’s interviews with an Immigration Officer, and between the
principal applicant’s interview and his narrative on his Personal Information
Form. The
principal applicant tried to explain these inconsistencies by stating that he
had not revealed the details of the incidents he alleged to his wife, and that
he had trouble understanding the interpreter when he was interviewed. The Board
found these explanations to be unsatisfactory. It found it implausible that the
principal applicant would not tell his wife about the danger to prevent her
from returning to Sri Lanka when she was in the United States, or to explain why they
had to leave Sri Lanka so quickly, or, at the very least, in preparation for
their refugee claim in Canada. Additionally, the
Board noted that the principal applicant was a well-traveled individual who was
able to speak English, and had said that he had been able to understand the
interpreter.
[5]
Furthermore,
the Board noted that the applicants had obtained Canadian visas in March 2005,
and that it believed, in light of the principal applicant’s explanation that he
had wanted to be prepared to flee the country, “that the claimants intended to
leave their country well before July 2005, when the incidents the main claimant
alleged were the reasons for their departure, occurred.”
[6]
The
Board accepted that the principal applicant did openly criticize the Government’s
actions, and that the documentary evidence demonstrates that the Government
does not tolerate criticism:
. . . it is possible that they would
greatly be displeased when a well-known businessman takes it upon himself to
criticize their management of goods sent from abroad and realized what it could
mean to their reputations in the donor countries. The Government and the
organizations he belonged to and spoke for, (his remarks reflecting on them)
could have seen him as a liability and made life unpleasant for him.
However,
the panel does not believe this equates to persecution as defined by the
Convention.
[7]
Finally,
the Board addressed two medical reports filed by the applicants, but noted that
they “cannot be considered bona fide psychological evaluations” as they
were not prepared by a psychologist, and the family doctor had only referred
the principal applicant to a social worker.
* * * * * * *
*
(1)
Did the Board err
in its credibility finding?
[8]
In
rejecting the principal applicant’s allegations of kidnapping and beating, the
applicants submit that the Board failed to recognize that sworn statements are
presumed to be true, and unreasonably dismissed his explanations. According to
the respondent, however, the Board’s determination was perfectly justified.
[9]
The
Board has complete jurisdiction to make findings on credibility, and the Court
is not to intervene in these findings in the absence of an erroneous finding of
fact that the Board made in a perverse or capricious manner or without regard
to the material before it (see, for example, R.K.L. v. Minister of
Citizenship and Immigration, 2003 FCT 116, [2003] F.C.J. No. 162 (T.D.)
(QL) and Azad v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 136 (T.D.) (QL)). A sworn statement is presumed to be true,
but only in the absence of evidence to the contrary, which can include
omissions, inconsistencies, and implausibilities (Maldonado v. Canada
(Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315;
Shahamati v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 415 (C.A.) (QL); Kairouz v. Minister of Citizenship and
Immigration, 2004 FC 158, [2004] F.C.J. No. 206 (T.D.) (QL)). While the
Board must take account of the applicant’s explanations for any such omissions,
inconsistencies or implausibilities, it is up to the Board to determine whether
these explanations are convincing (Hosseini v. Minister of Citizenship and
Immigration, 2002 FCT 402, [2002] F.C.J. No. 509 (T.D.) (QL); Kasdali v.
Minister of Citizenship and Immigration, 2002 FCT 204, [2002] F.C.J. No.
269 (T.D.) (QL); Muthuthevar v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 207 (T.D.) (QL)). However, in doing so, it
must be careful to recognize the fact that claimants come from diverse cultures
(R.K.L., supra; Valtchev v. Minister of Citizenship and
Immigration, 2001 FCT 776, [2001] F.C.J. No. 1131 (T.D.) (QL)).
[10]
In
this case, the Board pointed to inconsistencies between the principal
applicant’s claim and that of his wife, as well as the fact that the applicants
had already obtained Canadian visas well before the events which they allege
caused them to flee their country. The Board did not accept the applicants’
explanations on these issues. The applicants state that the Board must be
careful when assessing the plausibility of claims from diverse cultures, but do
not point to how the Board has failed to take this into consideration. I do not
find that the Board’s credibility finding was patently unreasonable. The
applicants are essentially seeking to have this Court reweigh the evidence
considered by the Board, which is not the role of this Court in an application
for judicial review.
[11]
The
applicants also submit that the Board erred in its treatment of the medical
reports submitted by the principal applicant, saying that it is not able to
reject a doctor’s diagnosis as it is not a medical expert. The respondent
submits that the Board’s treatment of the medical reports was open to it.
[12]
The
applicants point to Zapata et al. v. Minister of Employment and Immigration
et al. (1994), 82 F.T.R. 34, [1994] F.C.J. No. 1303 (T.D.) (QL), where the
Board’s treatment of a medical report was held to be “cavalier” because it had
not recognized that the diagnosis was based not only on the facts related by
the claimant, but also on the doctor’s psychological observations. In my
opinion, this case is distinguishable. Both medical reports, one from a family
doctor and one from a social worker, rest essentially on the facts as related
by the principal applicant. The Board is entitled to determine what weight to
give to the report, and was not patently unreasonable when it determined that
the reports, “although informative cannot be considered bona fide
psychological evaluations.”
(2)
Did the Board err
when it determined that the principal applicant did not face persecution?
[13]
Despite
the Board’s negative credibility finding with respect to the principal
applicant’s claim that he was beaten and threatened, the Board did accept that
the principal applicant had openly criticized the Sri Lankan Government’s
actions on two occasions, and that the Government “does not tolerate
criticism.” However, the Board found that this does not equate to persecution.
[14]
The
applicants submit that this finding is arbitrary and ignores relevant
documentary evidence. The respondent submits that the onus is on the applicants
to demonstrate a correlation between the documentary evidence and the
particular facts of their case, which the applicants in this case have failed
to do.
[15]
I do
not find that there is any reason to intervene in the Board’s decision,
although the Board’s reasons are brief. The documentary evidence cited by the
applicants, which focuses on the treatment of journalists and the news media by
the Sri Lankan Government, does not establish a link between human rights
violations and the principal applicant’s situation. The principal applicant was
not a journalist, although he has been reported to have been critical of the
Sri Lankan Government. I have reviewed the documentary evidence that was before
the Board and, while it is clear that there are serious human rights problems
in Sri Lanka, I have not found any evidence indicating that the Janatha Vimukthy
Peramuna (a political party in Sri Lanka) or the Sri Lankan Government is
targeting civil society activists or critics of the Government to a level which
amounts to persecution.
[16]
The
clearest indication that civil society might be targeted comes in a letter from
Human Rights Watch to Pope Benedict XVI (page 270 of the Tribunal Record), in
which it states:
The
government has dangerously ratcheted up its criticism of civil society,
especially in the media. In February 2007 Minister for Environment and Natural
Resources Champika Ranawaka of the Jathika Hela Urumaya (JHU), the Buddhist
monk party in the government coalition, advocated extrajudicial methods to deal
with human rights groups, journalists, and others who criticize the state’s
militaristic aims. [. . .]
Human
Rights Watch is concerned that these verbal attacks will lead to physical
assaults. [. . .]
[17]
However,
more recent documentary evidence indicates that “individuals could criticize
the government generally without fear of reprisal” (United States Department of
State, “Sri Lanka”, Country Reports on Human Rights Practices for 2006
(March 6, 2007), under the heading “Freedom of Speech and Press”). In my
opinion, the applicants have not shown that the Board came to an unreasonable,
let alone patently unreasonable, conclusion on the question of persecution.
[18]
For
all the above reasons, the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
January
30, 2008
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