Docket: IMM-2110-14
Citation:
2015 FC 665
Ottawa, Ontario, May 22, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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KARTHIK MARIO
RAVICHANDRAN
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VINODH MARINO
RAVICHANDRAN
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DIVIYA MARIZA
RAVICHANDRAN
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial
review pursuant to section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the Act] of a decision of a visa officer at the High
Commission of Canada in New Delhi, India in which the officer refused the
applicants’ applications for permanent residence in Canada as members of the
Convention refugees abroad class and the country of asylum class pursuant to
sections 11 and 96 of the Act and sections 139 and 145-147 of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
I.
Facts
[2]
The applicants are three siblings who are Sri
Lankan citizens of Tamil ethnicity.
[3]
They allege that their family was targeted for
persecution by the Sri Lankan authorities in February 2007 after their father
refused to issue a travel ticket to a relative of the leader of the Karuna
paramilitary group. As a result, he was abducted by police and tortured. After
a family friend secured his release by paying a substantial sum he was warned by
friends to get out of the house. He left, taking his younger son with him.
[4]
A few days later, when the two remaining
siblings and their mother were home, the police and Karuna group raided their
house, held them at gunpoint, and demanded to know the location of their
father. At one point, they started to drag the female applicant into a room, at
which time her mother intervened and was shoved. Her older brother then
intervened, and was assaulted and taken outside to a police truck, where he was
beaten. He was taken to the police station and further beaten. The next day,
his mother paid to secure his release, but was instructed that she would need
to pay a further sum within one month of his release. The two applicants and
their mother went into hiding and then fled to India separately in the
following three months.
[5]
The officer interviewed each of the three
applicants individually on March 12, 2014. She found their accounts to be very
similar and confronted them with this, to which one of them explained that this
was likely due to the fact that they had refreshed their memories with a
narrative prior to the interview.
II.
The Impugned Decision
[6]
The officer found that the applicants had failed
to provide sufficient evidence of a well-founded fear of persecution should
they return to Sri Lanka.
[7]
Her principal reason for this finding was that
she found the applicants’ testimony not to be credible. First, the testimony
they provided was extremely similar, suggesting that it was scripted. Second,
they had provided inconsistent information regarding their travel histories.
[8]
She found, in the alternative, that even if some
of the information provided by the applicants was true, she did not accept that
the government was still looking for them due to the refusal of their father,
with whom they no longer had contact, to issue a ticket seven years earlier.
III.
Issues
A.
Are the officer’s affidavits admissible?
B.
Did the officer err in finding the applicants
were not credible?
C.
Did the officer err in finding that even if some
of the evidence provided by the applicants was credible, they had not
established a well-founded fear of persecution?
IV.
Standard of Review
[9]
Whether or not an applicant falls within the
Convention refugees abroad class is a question of mixed fact and law and is
reviewable on a standard of reasonableness (Bakhtiari v Canada (Minister of
Citizenship and Immigration), 2013 FC 1229 at para 22).
V.
Legislative Scheme
[10]
The Convention refugees abroad class is governed
by sections 144 and 145 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations]. A foreign national will be a
member of this class if he or she has been determined by an officer, outside
Canada, to be a Convention refugee as defined by section 96 of the Act.
[11]
The relevant provisions of the Act and
Regulations are included in the Annex to this Judgment and Reasons.
VI.
Analysis
A.
Are the officer’s affidavits admissible?
[12]
The applicants submit that the affidavits sworn
by the officer, dated June 24, 2014 and March 27, 2015, should be disregarded
by the Court on the basis that they are an attempt to supplement the officer’s
reasons (Barboza v Canada (Minister of Citizenship and Immigration),
2011 FC 1420 at para 26).
[13]
While the officer’s affidavits legitimately
speak to her practices with respect to note-taking in interviews and responds
to allegations made by the applicants that certain things were said in the
interview that were not recorded in her notes, I have compared her affidavits
to the reasons provided in the decision letter and Global Case Management
System [GCMS] notes, and am satisfied that her affidavits provide additional
reasons to support the decision.
[14]
As the respondent is not entitled to submit
affidavit evidence on judicial review to supplement the reasons in the decision
under review, I disregard the supplemental reasons provided in the officer’s
affidavits.
B.
Did the officer err in finding the applicants
not credible?
[15]
The applicants argue that the officer erred by
basing her negative credibility finding on similarities in their evidence and
on inconsistencies between their respective testimonies in respect of where
they travelled seventeen (17) years earlier when they were young children. I
deal with each of these grounds in turn below.
(1)
Credibility finding based on similarity of
evidence
[16]
The applicants submit that it was an error for
the officer to find that the evidence they provided at the interview was too
similar and therefore not credible, since consistency is the hallmark of
credibility, particularly in the refugee law context. They argue that the
officer unreasonably failed to accept their explanation that they had re-read
their narratives prior to the interview to refresh their memories. She also
failed to consider that many of the incidents they described had in fact
happened to their father and been recounted to them by their parents, thereby
explaining the similarities in the way they talked about them.
[17]
The respondent, on the other hand, submits that
unwarranted similarities in testimony can serve to undermine credibility, and
that the officer reasonably found that the applicants’ testimony was not
credible because all of their testimony appeared to be rehearsed and scripted.
[18]
I agree with the respondent that unwarranted
similarities in testimony may serve to undermine an applicant’s credibility.
For example, courts have found that it is not unreasonable to draw a negative
inference as to credibility from unwarranted similarities between a refugee
claimant’s narrative and the narratives of other unrelated claimants (Liu v
Canada (Minister of Citizenship and Immigration), 2006 FC 695 at para 39; Shi
v Canada (Minister of Citizenship and Immigration), 2003 FC 1088 at paras
1, 19). Outside of the immigration context, the Ontario Superior Court of Justice
drew a negative inference from the use of the same wording in the affidavits of
two defense witnesses (Simpson v Global Warranty Management Corp, 2014
ONSC 724 at para 52). In another non-immigration case, R v BL, [1998] OJ
No 2522, Justice Hill of the Ontario Court of Justice noted at para 107:
It is generally recognized that some
differences or discrepancies in a witness’ testimony, in particular when
compared to prior statements of that witness out of court, may well be
indicative of a truthful witness -- one who has not provided a scripted and
rehearsed account, but rather one which suffers only from certain human
frailties, for example, the product of a dulled memory, confusion from the
stress of being a witness or other cause too insufficient to significantly
affect the witness’ credibility and reliability.
[19]
However, while decision-makers may rely on their
common sense in drawing negative credibility inferences from unwarranted and
striking similarities between the testimony of applicants, it is equally true
that they must use their common sense to determine whether, in the
circumstances of the case, there is a valid reason for the similarity. If there
is, it would not be appropriate to find that the similarity casts doubt on the
applicant’s credibility (Zhang v Canada (Minister of Citizenship and
Immigration), 2006 FC 550 at paras 25-28, [Zhang]).
[20]
Just as was found by Justice Russell in the
circumstances of Zhang, I do not believe that in the circumstances of
this case common sense dictates that, simply because the three applicants gave
strikingly similar evidence, it was more likely than not that their evidence
was not true. There was evidence before the officer that the applicants had
refreshed their memories of these seven year-old events before the interview
using a narrative. It is also significant that many of the events the
applicants were recounting did not happen to all of them personally. The
younger brother was not present for any of the events in the story, except for
seeing the trauma his dad experienced after his detention. In addition to that,
the sister was present only for the raid of their house. In addition to those
events, the older brother was only present for his detention. All of the other
background and events were told to the applicants by their parents, so very
little of their testimony was first-hand information. These circumstances
provided a strong explanation as to why the applicants might have used similar
wording in telling their stories.
[21]
While it was open to the officer to disbelieve
the applicants’ explanations, the explanations they provided appeared
reasonable on their face and the officer had an obligation to address them in
her reasons and to explain why she did not find them convincing. Instead, she
ignored them.
[22]
Accordingly, I find that it was unreasonable for
the officer to find the applicants not credible on the basis of the
similarities between their accounts.
(2)
Credibility finding based on inconsistencies
with respect to travel when young
[23]
The only inconsistency noted by the officer was
with respect to the applicants’ travel histories when they were young. While
the two brothers did not state that they had visited China, Japan and Thailand
as children when asked about their travel histories, the female applicant testified
that she had been to these places with her brothers:
Have you ever been to any other country?
Since birth till now? Yes Where? Hong Kong, Japan, Thailand. When did you go to
Hong Kong? As a child; don’t remember. How long? I was a baby. Japan? 2 or 3
years old. Thailand? Same thing. Small kid. Who all went to Hong Kong, Japan,
and Thailand? My mother, two brothers, and I.
[24]
When her brothers were confronted with this
discrepancy, the older brother testified that he had been young at the time and
didn’t realize that the officer was asking about travels he took when he was
young. The younger brother testified that he didn’t know where he had been and
that they didn’t always travel together, which his older brother confirmed. The
officer responded that they were not telling the truth because their younger
sister had testified to having travelled with both of them to these
countries.
[25]
Despite the applicants’ explanations, the
officer concluded on the basis of these inconsistencies that the applicants had
not all been entirely truthful during the interview. In doing so, she failed to
acknowledge that the female applicant was testifying about events that occurred
when she was a baby and a toddler, and that the boys were still fairly young
children at the time as well. She also failed to recognize that these
inconsistencies were on a peripheral and immaterial matter.
[26]
As such, I conclude that the officer
unreasonably relied on the inconsistencies in this peripheral matter to support
her finding that the evidence provided by the applicants was not credible.
C.
Did the officer err in finding that even if some
of the evidence provided by the applicants had been credible, they had not
established a well-founded fear?
[27]
The officer made an alternative finding that the
applicants’ claims would fail even if some of the information they had provided
were accepted as true:
However, even if some of the information is
true, I find it hard to believe that after seven years the government is still
looking for your mother and the three of you because your father refused to
issue a ticket to someone who was related to a Karuna member. As I said, the
incident happened seven years ago. An incident of this nature doesn’t seem to
suggest that the government would be keeping a log with your information. The
war in Sri Lanka has ended. You have not provided me any information that would
suggest that you would be suspected of having any ties to the LTTE, which is
what the government in Sri Lanka would be interested in. Unless there is
something else that happened that you have not told me about, I am not
satisfied that you have provided sufficient evidence for a well-founded fear of
persecution should you return to Sri Lanka or why you continue to be personally
and seriously affected by conflict or human rights violations. […] Many Sri
Lankan Tamils have been returning to Sri Lanka since the war ended.
[28]
The applicants contend that the officer provided
no basis for her conclusion that the incidents they described do not suggest
that the Sri Lankan government would be after them, and that the officer failed
to provide reasons with respect to whether they met the eligibility criteria.
They argue that she failed to assess whether the incidents they described
amounted to persecution based on their connection to their father, and instead
assessed only whether they had demonstrated that they would be suspected of
having ties with the LTTE.
[29]
The respondent, on the other hand, submits that
the officer clearly assessed and expressed why the applicants did not meet the
eligibility criteria, and that the threshold for adequacy of reasons is fairly
low in respect of decisions by administrative officers when compared to
decisions of an administrative tribunal after an adjudicative hearing (Ozdemir
v Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras
9-11; Shali v Canada (Minister of Citizenship and Immigration), 2009 FC
1108 at para 31).
[30]
I agree with the respondent that the fundamental
question in assessing the adequacy of reasons is whether they show that the
tribunal grappled with the substance of the matter (Ghirmatsion v Canada
(Minister of Citizenship and Immigration), 2011 FC 519 at para 88, [Ghirmatsion])
and whether they are sufficiently clear, precise and intelligible to allow an
applicant to know why her application failed and to be able to decide whether
to apply for judicial review (Ogunfowora v Canada (Minister of Citizenship
and Immigration), 2007 FC 471 at para 58, [Ogunfowora]). However, I
do not agree with the respondent that the reasons here met this standard.
[31]
In my view, the officer’s reasons suggest that
in reaching her alternative conclusion, she did not grapple with the substance
of the applicants’ claims.
[32]
First, she stated that she was assessing whether
the applicants would meet the Convention refugee definition if she accepted
that “some of the information is true”, but did
not specify which evidence she accepted as true for the purposes of this
hypothetical analysis.
[33]
Furthermore, she relied on the fact that the
applicants did not have ties with their father anymore to support her
conclusion that the Sri Lankan authorities would no longer be looking for them,
but failed to consider the practical question of whether the Sri Lankan
authorities would still perceive or believe that they were still associated
with him. The same government officials that would put the family at risk were
still in power.
[34]
In conclusion, the officer’s alternative
reasons, even when read in the context of the record, were not sufficiently
clear, precise and intelligible to allow the applicants to know why their
applications would have failed even if their testimony had been accepted, and
to show that the officer grappled with the evidence to determine whether they
met the Convention refugee definition (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras
14-18; D’Errico v Canada (Minister of Human Resources and Skills
Development), 2014 FCA 95 at paras 12-14.
[35]
For these reasons, this application for judicial
review is allowed and this matter is to be remitted to a different officer for
re-determination. There is no question for certification.
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