Date: 20080729
Docket: IMM-4489-07
Citation: 2008
FC 927
Ottawa, Ontario, July 29, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
SARANGA
KODITHUWAKKU M. WEERASINGHE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, a 27 year old Sinhalese citizen of Sri Lanka, seeks judicial review of a Refugee
Protection Division (the Board) decision dated September 2007, in which he was
found to be neither a Convention refugee nor a person in need of protection.
The Board concluded that the applicant did not establish sufficiently the
credibility of his allegation. For the reasons that follow, I will dismiss
this application for judicial review.
I. Facts
[2]
The
applicant left Sri
Lanka to work in
the United Kingdom in April 2004 and returned to Sri Lanka in February 2006. Upon his return, and
following in the footsteps of his family’s political activism, the applicant
started working for the municipal campaign of Sirisena Cooray, an ex-minister
for the United National Party (UNP) and a good friend of the applicant’s
father. Since the UNP was barred from participating in the municipal elections
by the Election Commission for a technicality, the UNP made an alliance with
the Independent Party and all the political workers of the UNP worked for the
Independent Party.
[3]
The
applicant alleges that he began to receive threats as soon as the agreement was
negotiated. On March 15, 2006, the police came to his house at night and beat
him severely. The applicant claims that they were accompanied by the thugs of
Mr. Silva, the Minister of Labour and a member of the Sri Lanka Freedom Party
(SLFP) that has ruled Sri
Lanka since
1994. He further explained that he could not obtain a medical report, because
he needed a police report which he could not get as the police were precisely
the ones responsible for his injuries. On the advice of Mr. Cooray, he moved
to Kolonnawa.
[4]
On May 20,
2006, the Independent Party won the municipal elections for Colombo. Shortly thereafter, the
applicant was again beaten up by Mr. Silva’s thugs; he lost consciousness, only
to wake up at Mr. Cooray’s residence.
[5]
In August
2006, the applicant went to the Municipal Council Office where he overheard a
conversation between the mayor and one of Mr. Silva’s thugs. The latter
apparently bribed the mayor to break his party’s alliance with the UNP and form
a new one with the SLFP. They noticed that the applicant had overheard their
conversation. The applicant left the office running and immediately went to
see Mr. Cooray.
[6]
Mr. Cooray
telephoned the mayor, who denied taking any money from the thug. Nevertheless,
the mayor told Mr. Cooray that he would break his alliance with the UNP and
form a new one with the SLFP, as he feared for his life. He also told Mr.
Cooray that if he or Mr. Silva’s men ever saw the applicant again, they would
kill him. As a result, the applicant went into hiding as instructed by Mr.
Cooray. After his departure from Kolonnawa, Mr. Silva’s thugs came to his
residence and beat his family members.
[7]
The
applicant left Sri
Lanka on October
5, 2006 to come to Canada where he asked for refugee
status thirteen days later.
II. The impugned decision
[8]
The Board
member had a number of credibility concerns that lead her to reject the
applicant’s claim for refugee status.
[9]
Although
the letters sent by Mr. Cooray and his staff confirmed that the applicant
worked for them, the Board member pointed out that they did not corroborate the
problems that the applicant allegedly had with his party’s opponents.
Therefore, she questioned the credibility of these events that caused the
applicant to leave Sri
Lanka. The
Board member could not understand why Mr. Cooray’s letter did not mention
anything that happened or the special role that the applicant had for him. She
rejected the applicant’s explanations in this regard as she expected that,
given their special relationship, Mr. Cooray would have written more than a
generic note of thanks. She also doubted that Mr. Cooray, even if he went into
hiding in Australia, was difficult to find and
thus she believed that the applicant should have obtained a more detailed
letter.
[10]
The Board
member drew a negative inference from the applicant’s inability to explain why
he knew the name of Mr. Silva’s thug who bribed the mayor. She considered that
the applicant’s explanations were incoherent and insufficient. Therefore, she
concluded that the thug was a fictional character of a made-up story.
[11]
The Board
member did not believe that the applicant had witnessed the conversation
between the mayor and the thug. She could not understand how it could have
taken place in the presence of the applicant. In her view, these men would not
have had a loud secret conversation in front of a window of a busy mayor’s
office.
[12]
As the
applicant’s passport shows that he entered Sri Lanka on February 8, 2006 but
not that he left in October 2006, the Board member concluded that there was no
evidence to prove that the applicant was residing in Colombo when he witnessed the mayor being bribed
in August 2006. The applicant did not have any travel documents and his
driver’s license and National Identity Card were both issued before 2004.
[13]
The Board
member then concluded that his three attempts to obtain a visitor visa to come
to Canada confirmed the lack of
credibility of his story. Although it is not sufficient in itself, the Board
member stated that, in light of the general lack of credibility, this element
was relevant.
[14]
As she
found that there was an absence of credibility on central elements of the
applicant’s story, the Board member rejected the applicant’s claim for refugee
protection.
III. Issue
[15]
While
counsel for the applicant challenged quite a number of the Board’s findings,
the issue to be determined on this application for judicial review can be
broadly summarized with the following question: Did the Board err in assessing
the applicant’s credibility and the plausibility of his story?
IV.
Analysis
[16]
Prior to
the decision reached by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, 329 N.B.R. (2d)
1, findings of fact were reviewed by this Court on a standard of patent
unreasonableness. As a result of that decision, however, the standards of
patent unreasonableness and reasonableness have been collapsed into a single
standard of reasonableness, in recognition of the fact that these standards
were often difficult to distinguish in practice. That being said, the Court
stressed that this move towards a single reasonableness standard did not pave
the way for a more intrusive review by the courts and that deference was still
inherent to the standard of reasonableness. To quote from Justice Bastarache’s
reasons (at para. 47):
[…] Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.
[17]
There is
all the more reason to heed this warning since section 18.1(4)(d) of the Federal
Courts Act ( R.S., 1985, c. F-7 ) was not displaced by the decision
of the Supreme Court in Dunsmuir; indeed, the interplay between that
section and the common law standards of review was not addressed by the Court,
as it was not at issue in Dunsmuir. As a result, this Court can
intervene only if it
considers that the tribunal based its decision or order on an erroneous finding
of fact that was made in a perverse or capricious manner or without regard for
the material before it. See Da Mota v. Canada (MCI), 2008 FC 386, [2008]
F.C.J. No. 509 at paragraph 14 (QL); Obeid v. Canada (MCI), 2008 FC 503,
[2008] F.C.J. No. 633 (QL); Naumets v. Canada (MCI), 2008 FC 522, [2008]
F.C.J. No. 655 (QL); Mendez v. Canada (MCI), 2008 FC 584, [2008]
F.C.J. No. 771 (QL).
[18]
There is
no need to go individually through the various reasons given by the Board
member to conclude that the applicant was not credible. While there is no
doubt a presumption of truth attaching to the allegations sworn to be true by
an applicant (Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302, 31
N.R. 34), it is entirely reasonable for the Board to decide adversely with
respect to the applicant’s credibility on the basis of contradictions and
inconsistencies in his story or on the basis that it is simply implausible.
[19]
The Board
examined the two letters produced by the applicant written by Mr. Cooray and
his private secretary. Although the applicant claimed to have been a special
assistant to Mr. Cooray, these letters were nothing more than generic thank-you
letters sent to all of the participants who helped with the campaign.
[20]
The
applicant, in his own narrative, explains that he moved his residence on the instructions
of Mr. Cooray, that he was somehow taken to Mr. Cooray’s residence after having
been attacked by thugs, and that he went into hiding until he fled Sri Lanka again
as instructed by Mr. Cooray. Given this allegedly special relationship between
the applicant and Mr. Cooray, and the fact that he was a close family friend,
the Board could find it implausible that these letters made no mention of the
particular events faced by the applicant in August or of the role that he allegedly
played for Mr. Cooray.
[21]
Considering
the close relationship between the applicant and Mr. Cooray, it also seems
implausible that the applicant could not locate Mr. Cooray in Australia to obtain a more detailed
letter supporting his claim. And failing that, one would think he could at
least have sought a more detailed letter from another official of the UNP. All
of these issues, combined with the absence of any evidence of the treatment the
applicant would have received as a result of the numerous assaults he claims to
have been subjected to, served to impugn his credibility.
[22]
In those
circumstances, it was reasonable for the Board to find that these letters
failed to show that the applicant was anything more than a normal worker for
Mr. Cooray’s campaign and fell far short of corroborating the applicant’s story
of alleged persecution.
[23]
At
paragraph 20 of his memorandum, the applicant cites the case of Amarapala
v. Canada (MCI), 2004 FC 12, 128 A.C.W.S. (3d) 358, in support of his
argument:
It is well established that a panel
cannot make negative inferences solely from the fact that a refugee claimant
failed to produce any extrinsic documents to corroborate a claim. But where
there are valid reasons to doubt a claimant's credibility, a failure to provide
corroborating documentation is a proper consideration for a panel if the Board
does not accept the applicant's explanation for failing to produce that
evidence. See Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 755 per
O'Reilly J. at paragraph 9.
[24]
It is
trite law that the Board has the discretion to evaluate the plausibility of a
story or testimony of a claimant and to make an adverse finding of credibility
on that basis. It is clearly within the purview of the Board to determine the
credibility to be given to an applicant’s testimony as well as that of the
evidence which he produced in support of his case. In the present instance,
the Board’s decision is based on various elements of implausibility, only one
of which is the letter by Mr. Cooray which was considered insufficient to
support the applicant’s claim.
[25]
One of the
other key factors in the Board’s decision was the applicant’s inability to
provide plausible, credible answers with regards to how he knew the name of the
thug who bribed the mayor in his office, and the context in which he would have
witnessed the mayor being bribed. Having carefully read the transcript, I am
unable to find that the Board member’s conclusion on these two points falls
outside the range of possible and acceptable outcomes on the basis of the facts
that were before her. On the basis of that transcript, I must agree with the
Board member that the applicant appeared to get tangled up in his explanations
as to how he found out the thug’s name. Even more implausible is the
applicant’s story that he would have overheard from the mayor’s office waiting
room the thug screaming and threatening the mayor and that he would have seen
the thug open a briefcase full of money. Once again, the Board member can not
be faulted for having found it “hard to believe” that these men would have been
so careless as to have discussed such a secret deal in front of a window, where
the staff and other people waiting to see the mayor could have seen them
through the open blinds.
[26]
In
addition, the Board took issue with the fact that the applicant was unable to
prove that he was actually in Colombo in August 2006, when he would
have allegedly witnessed the mayor being bribed. The applicant’s passport
indicates an entry to Sri
Lanka in
February 2006, but does not show that he left in October 2006, as he claims.
He could provide no plane ticket or boarding pass to support his claim and all
of the identity documents presented were issued before 2004.
[27]
In
evaluating the applicant’s claim the Board considered his general lack of
credibility as well as the context of the applicant’s three failed attempts to
obtain a Canadian visa from within Sri Lanka
in order to visit his brother in Canada.
Considering these facts, it was not unreasonable for the Board to question
whether the applicant had actually returned to Sri Lanka from England in order to establish
himself, as he alleges or whether he might have left Sri Lanka before August 2006, the date of the
alleged persecutory events.
[28]
While the
applicant may not agree with the Board’s assessment of the evidence adduced and
would prefer assessments more favourable to his claim to refugee status, he
failed to demonstrate how the Board’s assessments are perverse, capricious or
unreasonable.
[29]
It is true
that the Board member made a factual error when she stated that the applicant
was persecuted by the JVP instead of the SLFP. However, this error does not in
and of itself warrant allowing the application for judicial review. Indeed, it
is not material to the outcome of the file.
[30]
For all
the foregoing reasons, I accordingly dismiss this application for judicial
review.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
"Yves
de Montigny"
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