Date: 20080711
Docket: IMM-1326-07
Citation: 2008 FC 863
Ottawa, Ontario, July 11, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
VIGNESRAJAH
NADARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Vignesrajah
Nadarajah is a 27 year old Tamil male from northern Sri Lanka. He claims
he was persecuted and detained by three different groups: first the Sri Lankan
Army (the “SLA”) which imprisoned him for two years from 1996-1998; second, the
People’s Liberation Organization of Tamil Eelam which held him for six weeks in
1999 and third, the Liberation Tigers of Tamil Eelam (the “LTTE”) who detained
him for 16 months. He says he later left his home region of Mannar and hid in
Colombo before
fleeing Sri
Lanka
in 2004. He eventually came to Canada after being held in the United
States
for being illegally in that country. He applied for refugee status upon entry
into Canada.
[2]
The
Board accepted Mr. Nadarajah’s identity and Sri Lankan citizenship but decided
he was not a credible witness. The Board also decided, Mr. Nadarajah as a
young Tamil male, had an internal flight alternative in Colombo. In result,
the Board found Mr. Nadarajah was neither a Convention refugee nor a person in
need of protection and rejected his claim.
[3]
The
issues in this judicial review are:
1.
Did
the Board err in assessing credibility?
2.
Did
the Board err in concluding that Colombo was a viable internal
flight alternative?
[4]
I
conclude that this application for judicial review should be dismissed. My
reasons follow.
Did the Board err in
assessing credibility?
[5]
A
preliminary issue arises because Mr. Nadarajah has submitted by affidavit a new
document, a 2003 Sri Lankan driver’s licence, to counter the Board’s finding
that it had no credible evidence that Mr. Nadarajah was in Sri Lanka during the
period 2001-2003. The 2003 driver’s licence was not before the Board.
[6]
The
short answer to this preliminary issue is that this evidence was not before the
decision- maker. I will disregard this evidence as I must, as well as other
new evidence that arises in Mr. Nadarajah’s affidavit (Lemiecha (Litigation
guardian of) v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 1333 at para. 4). The evidence that is relevant is the evidence
that was before the Board at the time of the hearing.
[7]
Mr.
Nadarajah contends that the Board made three errors in its credibility
findings. He argues that the Board erred in that it:
§
considered
it significant that he failed to mention his detention by the SLA to a
question in his Personal Information Form but ignored the fact that he had
reported his detention by the LTTE elsewhere in the same form;
§
made
note of his failure to produce documents to corroborate his detention by the
SLA despite the fact that his mother had petitioned the International Red Cross
and the National Human Rights Commission to secure his release but did not give
him an opportunity to explain the absence of documents;
§
questioned
his credibility about being subjected to police checks because he had no
difficulty obtaining a Sri Lankan passport without having evidence linking the
process of obtaining a passport with police surveillance.
[8]
Mr.
Nadarajah submits the Board’s credibility assessment is flawed because of these
errors.
[9]
This
application was heard but not decided before the Supreme Court of Canada’s
decision in Dunsmuir v. New Brunswick, 2008 SCC 9.
The decision in Dunsmuir has established that there are now only to
standards of review: correctness and reasonableness (Dunsmuir at para.
34). Where questions of fact and credibility are reviewed, the standard of
review is reasonableness (Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15).
[10]
A
claimant’s testimony is presumed to be true (Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para. 6). The
presumption may be refuted by the presence of inconsistencies and
contradictions in testimony, implausibility and where facts are presented are
not what could reasonably be expected (Jiang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 775 at para. 15). Lastly, the Board
is entitled to deference in regard to its credibility determinations (Lubana
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para. 7).
[11]
Mr.
Nadarajah’s objections are without merit. The Board was examined inconsistencies
and contradictions in Mr. Nadajarah’s evidence and assessed facts presented
which it did not find could reasonably be expected. As the Board’s reasons are
supported by the evidentiary record, it is entitled to deference in its
findings.
[12]
I
find that the Board’s assessment of Mr. Nadajarah’s credibility was neither
perverse or capricious, nor unreasonable.
Did the Board err in
concluding that Colombo was a viable Internal
Flight Alternative?
[13]
Mr.
Nadarajah argues that, as a young Tamil male from northern Sri Lanka, he is at
greater risk than the generalized population in the country. He submits that
the Board ignored the persecution he suffered at the hands of the SLA and the LTTE.
He argues the Board failed to consider evidence of human rights abuses in Sri Lanka and the
evidence of a security crackdown in Colombo.
[14]
The
approach to be taken when evaluating an internal flight alternative was
summarized by Justice Snider in Rincon v. Canada (Minister of
Citizenship and Immigration), 2006 FC 407. She stated:
When the possibility of an IFA is raised,
the onus lies on the claimant to demonstrate that there is a serious possibility
of persecution in the designated IFA area(s) (Thirunavukkarasu v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 589 (C.A.) at para. 9; Ochoa v. Canada (Minister of Citizenship and
Immigration),
[2005] F.C.J. No. 1957, 2005 FC 1577 at para. 12).
An IFA finding requires a two-part test.
To find that an IFA exists, the Board must be satisfied that: (i) there is no
serious possibility of persecution in the IFA region; and (ii) it would not be
unreasonable to expect the claimant to seek refuge in the IFA area (or put
another way, it would not be unduly harsh to relocate to the IFA area) (Thirunavukkarasu,
above at para. 12).
[15]
The
Board concluded that Mr. Nadarajah had not established he was a prisoner of the
SLA or the LTTE and went on to consider his risk, as a young Tamil male, from
persecution by the authorities or LTTE anywhere in the country. It
acknowledged the instability in the north and northeast of Sri Lanka, the
breakdown of the ceasefire agreement and examined the risk to Mr. Nadarajah elsewhere,
notably Mannar and Colombo.
[16]
The
Board canvassed the documentary evidence. It concluded that Mr. Nadarajah may
be subject to some discrimination and some scrutiny by the authorities but,
considering the level of integration of Tamils into Sri Lankan society, he
would not be persecuted by the Sri Lankan authorities merely because he was a
young Tamil male in Colombo or even in Mannar.
[17]
The
Board also considered whether Mr. Nadarajah would be targeted by LTTE. It
decided that the LTTE probably has infiltrated Mannar and may engage in
extortion or forced recruitment of young men under 18 and the killing of
political opponents. The Board decided that if the situation in Mannar was too
tense, Mr. Nadarajah would have an internal flight alternative in Colombo. The Board
noted that the LTTE targets political opponents or critics, but found Mr.
Nadarajah was not involved in activities that would give him a profile that
would cause him to be targeted by LTTE in Colombo.
[18]
Finally,
the Board decided, given that Mr. Nadarajah is young and mobile, that it was
not unreasonable to expect he could settle in Colombo.
[19]
The
Board has clearly satisfied the test for determination of a viable internal
flight alternative. The onus rests on Mr. Nadarajah to show why it would be
unreasonable to expect him to seek refuge in Colombo. Mr.
Nadarajah does not demonstrate that he faces a serious possibility of
persecution in Colombo since he merely repeats his claim to have been detained
by the SLA and cites
human rights abuses which the Board properly considered in its analysis.
[20]
I
find the Board did not err in concluding that Colombo was a viable
internal flight alternative for Mr. Nadarajah.
[21]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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