Date: 20080718
Docket: IMM-1235-07
Citation: 2008 FC 885
Ottawa, Ontario, July 18,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
NICHOLAS
ROSMAN WARNAKULASURIYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Nicholas
Rosman Warnakulasuriya is a fisherman. He is 36 years old, a citizen of Sri Lanka, and of
mixed Tamil-Sinhalese background. He began as a fisherman when he was 18 years
old. In 1992, he went to Saudi Arabia to work on a boat. In
1995 he returned and resumed fishing. In 1996, he worked as a seaman on a
Greek ship. On his return, he again took up fishing. In 1999 he left again
for the sea. In August 2003, he returned to Sri Lanka and to fishing.
In September, Mr. Warnakulasuriya bought a small used boat and other fishing
gear. With the help of an assistant, Mr. Warnakulasuriya began fishing as a
small independent fisherman. In this way, he supported his pregnant wife and
two children. Because he was not catching many fish around Negombo, he shifted
to another location an hour and a half away near the small island of Bathalangunduwa. The island
was, in Mr. Warnakulasuriya’s words, “surrounded one side from the sea and the
other side from a lagoon”, and one side of the lagoon was bordered by a thick
jungle. The two, fisherman and assistant, would go beyond the lagoon, often at
night, to catch fish: a kind of jackfish, seela ula but mostly kumbalau.
[2]
While
fishing on the night of September 18, 2004, Mr. Warnakulasuriya and his
assistant were approached by a high speed boat with five people aboard, armed
with knives and guns. Mr. Warnakukasuriya and his assistant were compelled to
transport four boxes to a designated area in the nearby jungle where associates
waited. Mr. Warnakulasuriya believed that the armed men were members of the
Liberation Tigers of Tamil Eelam (the “LTTE”) who could not enter the lagoon
because of Sri Lankan navy patrols. Out of fear, he warned his assistant not to
tell anyone of the incident.
[3]
Three
days later, Mr. Warnakulasuriya took his boat to Kalpitiya for supplies. He
docked his boat and went into town. While in town, he learned his assistant had
been taken into custody and the navy was looking for him. Mr. Warnakulasuriya suspects
his assistant had talked about the incident when drinking and as a result Sri
Lankan authorities were searching for him in order to arrest him for assisting
the LTTE. Nimal, his informant, told him that his boat was likely impounded.
[4]
Fearing
arrest for helping the LTTE, Mr. Warnakulasuriya fled. He called his wife who
told him that the army had come to their home looking for him. He immediately left
for Weyongoda to hide, staying with his wife’s relations. He took a brief
certificate seamanship course to secure employment on an outbound ship. When
his ship reached Vancouver, he jumped ship and eventually applied for
refugee status.
[5]
The
Refugee Protection Division of the Immigration and Refugee Board (the “Board”)
found that Mr. Warnakulasuriya was not credible. The Board held that Mr.
Warnakulasuriya was unable to establish the well-foundedness of his fear of
persecution. Mr. Warnakulasuriya applies for a judicial review of the Board’s
decision.
Did the Board err in its
credibility findings?
[6]
The
Board’s determination of credibility involves many factual findings. Such
determinations are assessed in accordance with either the statutory standard,
whether they were made perversely or capriciously or without regard to the
evidence (Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)), or on
the standard of reasonableness as set out in the Supreme Court of Canada’s
decision in Dunsmuir v. New Brunswick, 2008 SCC 9.
The Board’s credibility analysis is to be given significant deference by a reviewing
Court. The Board’s decision will stand unless its credibility findings fall
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir at para. 47).
[7]
The
Board is a specialized tribunal that is entitled to decide adversely on a
claimant’s credibility on the basis of inconsistencies and contradictions in the
claimant’s evidence. However, the deference due to the Board is not without
bounds. In Jamil v. Canada (Minister of
Citizenship and Immigration), 2006 FC 792 at para. 24, this Court
stated:
There is a well-recognized line of cases from the Federal
Court of Appeal and this Court which has conveniently been summarized by
Justice Martineau in R.K.L v. Canada
(Minister of Citizenship and Immigration) [2003] F.C.J. No. 162,
2003 FCT 116 that
a Refugee Board must not be zealous to find an applicant not to be credible and
"must not be over-vigilant in its microscopic examination of the evidence
of persons who testify through interpreters and tell tales of horror in whose
objective reality there is reason to believe." See the Federal Court of
Appeal's decisions in Attakora v. Canada (Minister of Employment and Immigration) (1989) 99 N.R. 168,
along with Owusu-Ansah v. Canada
(Minister of Employment and Immigration) (1989) 98 N.R. 312
and Frimpong v. (Canada Minister
of Employment and Immigration) (1989) 99 N.R. 164
(emphasis added).
[8]
The
overarching story told by Mr. Warnakulasuriya is that when he is home in Sri Lanka he works as
a fisherman and when not at home he works as a seaman. This is the pattern of
his life since he first began to earn a livelihood.
[9]
The
encounter with the LTTE in September 2004 occurred while he was fishing. The
Board did not believe Mr. Warnakulasuriya was a fisherman or that the encounter
with the LTTE actually occurred. In its decision, the Board disputed virtually
all of Mr. Warnakulasuriya’s evidence and found Mr. Warnakulasuriya not
credible on numerous separate points.
[10]
I
find that the Board engaged in a microscopic analysis which raised its prospect
for error. Indeed, three categories of errors were committed. Firstly, the
Board committed errors on fact; secondly, it committed errors relating to the
significance of discrepancies; and most importantly, it committed errors in its
analysis. An illustration of each type of error is provided below.
Error on Fact
[11]
The
Board decided Mr. Warnakulasuriya was not credible because, while he stated
that the LTTE were armed in his PIF narrative and later in response to the
Board’s questions during the hearing, he did not say so when initially describing
the September 2004 encounter with LTTE. The Board stated:
When
asked if five persons (Tigers) in the above incident were armed, the claimant
responded in the affirmative. Asked why he did not provide this detail in
his testimony while describing the incident, he said there was no reason for
it, he only mentioned what happened to him, adding there was a threat given by
them to deliver the parcels (boxes), so he gave no details. He was
adjusting. His PIF says these individuals were armed. This is not
helpful to his credibility
(Tribunal Record at 8).
[12]
However,
the transcript of the hearing reveals that Mr. Warnakulasuriya did say the LTTE
were armed when describing the incident. After being asked by the
Board to explain whom he feared, Mr. Waranakulasuriya stated that he feared
government forces. He then on went to describe the events of September
18, 2004. In describing out how his boat was boarded, he stated
"[and the people who boarded] had sword and other stuff . . .” (emphasis added) (Tribunal Record at 389; see also Tribunal
Record at 393).
[13]
The
Board’s credibility finding, based as it on a factual error committed by the
Board, is perverse.
Error Relating to
Significance of Discrepancies
[14]
The
Board decided that it did not believe Mr. Warnakulasuriya was a fisherman in
September 2004 because, as the Board stated:
When referred to his boat purchase
document indicating it was an 18.5 feet long boat, larger in size than his own
testimony, he agreed. The panel expected him to know this information
correctly if he was owning a boat as fisherman as alleged. The panel does not
believe him.
[15]
Mr.
Warnakulasuriya testified the boat was “about 18 feet long” (Tribunal Record at
403 and 415). To attach great significance to this six inch difference in the description
of the length of Mr. Warnakulasuriya’s boat is to engage in a microscopic
analysis which displays a degree of over zealousness in finding error. To put
it another way, Mr. Warnakulasuriya’s answer about covers the discrepancy.
Error of Analysis
[16]
While
other errors and irrelevancies exist, the most serious error is the Board’s
method of analysis. Upon a careful review of the Reasons and the Transcript, I
find that the Board engaged in a piecemeal analysis. On many of the evidentiary
issues, the Board decided not accept the fact or evidence in question and then
moved on to examine another issue in the alternative. The Board would use the
preceding disbelieved evidence to decide that next evidentiary issue.
[17]
To
give an example, the Board decided that a September 25, 2006 letter from the
Vicksopamatha Fishing Society had no probative value. Specifically, the Board
doubted the letter’s authenticity and as a result found that its content could
not be used to corroborate the Applicant’s testimony relating to his lack of a
fishing permit and identification as a fisherman. The letter in question stated
Mr. Warnakulasuriya did not require a permit to fish in 2004 nor special
identification as a fisherman (Tribunal Record at 12). Later, the Board referred
to the same letter, and relied on its content, for the proposition that the
general identity card issued by the government suffices to be identified as a
fisherman. (Tribunal Record at 15). This is because the general identity card
provides for the description of one’s profession. The Board then decided that
since Mr. Wanakulasuriya’s National Identity card did not indicate his profession
as a fisherman and since he had no other identity card showing he was a
fisherman, it did not believe he was a fisherman.
[18]
One
cannot use evidence it disbelieves to support a finding that other evidence is
unbelievable. In doing so, the Board makes no finding at all. The Board’s
approach to credibility findings in the alternative is an error.
[19]
I
find the Board engaged in a flawed analysis of Mr. Warnakulasuriya’s testimony.
While some of the errors committed by the Board are not necessarily reviewable,
cumulatively, due to their number, they render the decision unreasonable.
[20]
The
application for judicial review is granted. This matter will be referred to a
differently constituted tribunal for re-determination.
[21]
No
question of general importance has been proposed. None will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review is granted. This matter is referred back for
re-determination by a differently constituted Board.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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