Docket: IMM-4706-13
Citation:
2015 FC 598
Ottawa, Ontario, May 7, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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J.M.
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
(Confidential
Reasons for Judgment and Judgment issued April 21, 2015)
[1]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). He now applies for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a citizen of Sri Lanka, of
Tamil ethnicity. He grew up in [redacted], Jaffna in the Northern Province.
[4]
In the 1990s, the applicant and his family
experienced problems after the Liberation Tamil Tigers of Eelam [LTTE] took
control over Jaffna. There was pressure on the applicant’s older brother to
join the LTTE and when the applicant’s family was displaced to [redacted] in
1995, his brother disappeared and was never seen again.
[5]
In 1996, the applicant and his family returned
to [redacted]. Between 1997 and 1999, the applicant’s parents were questioned about
his brother’s disappearance. In 2001, the applicant left high school and then
worked on his family farm until July 2012.
[6]
On [redacted] 3, 2009, six people who appeared
to be paramilitaries came to the applicant’s home and after their demand for
money was unsuccessful, they beat the applicant’s father. On [redacted] 4,
2009, the applicant’s father reported the incident to the police. On [redacted]
5, 2009, the applicant’s father’s body was found [redacted]. A post-mortem on
the applicant’s father showed signs of beating. The applicant believes these
men were from the Eelam People’s Democratic Party [EPDP]. Later, a case was
filed at the Magistrate’s Court in [redacted].
[7]
The case dragged on without any apparent police
action after the identification parade. The applicant was harassed by EPDP
supporters about dropping his father’s case. At one point, false charges were
brought against him but were later dismissed when he established an alibi.
[8]
In order to move forward with the case, the
applicant’s family retained a lawyer named [redacted]. In early 2012, the case
was transferred to the Supreme Court which put the police under more pressure
to produce people for identification.
[9]
[redacted] In July [redacted], 2012, four people
came to the applicant’s home and took money and jewellery. Within an hour, the
army came and questioned the applicant regarding who these people were and if
the applicant had given money to them. The army then detained the applicant for
eight days. During this time, the applicant was beaten and was advised that he
would be released if he dropped his father’s case. On the eighth day of his
detention, the applicant’s mother came and told him to drop the charges. The
applicant agreed and was released but had to return each day to the army camp
to sign in. This went on for about 20 days.
[10]
[redacted] In August [redacted], 2012, the
applicant went to Colombo and made arrangements to leave Sri Lanka. On August [redacted],
2012, he fled the country and travelled through Singapore, Japan and Mexico
before entering the United States of America (the U.S.), filing no refugee
claims in any of these countries. He was caught being in the U.S. illegally and
was detained from October [redacted], 2012 until January [redacted], 2013.
[11]
On January [redacted], 2013, the applicant came
across the border as an exception to the Safe Third Country Agreement because
of his sister, who is a permanent resident of Canada, and filed a claim at the
port of entry on arrival in Canada.
II.
Decision Under Review
[12]
The Board hearing took place in Toronto, Ontario
on March [redacted] and March [redacted], 2013. The Board issued its written
decision on June [redacted], 2013, ruling that the applicant is not a
Convention refugee because he does not have a well-founded fear of persecution
for a Convention ground in Sri Lanka and that the applicant is not a person in
need of protection. Accepting the applicant’s identity and acknowledging his
mental health condition, the Board analyzed the applicant’s credibility and his
residual profile as a young male Tamil from the North.
[13]
Pertaining to the negative credibility findings,
the Board made observations in the following areas: i) the applicant’s risk in
Sri Lanka; ii) the case regarding the applicant’s father’s death; and iii) the
applicant’s lack of knowledge for his involvement in the case.
III.
Credibility Findings
[14]
First, the Board found the applicant’s
allegations of risk in Sri Lanka due to his involvement in the active court
case of his father’s murder lacks credibility. It noted at the port of entry,
the applicant made reference to his father’s death, but he did not mention the
court case which caused his personal troubles in Sri Lanka. Instead, he linked his
problems to money demands.
[15]
Also, the applicant did not mention that he
agreed to withdraw as a witness from the court case of his father’s death to
gain release as he did during the hearing and in his basis of claim (BOC). He
did not provide details in one of the immigration forms at the port of entry
for reasons of his 2012 detention by the Sri Lankan army.
[16]
The Board found it unreasonable that these
details were omitted at the port of entry because they were the very crux of
the applicant’s claim and were not minor. Noting the Federal Court’s cautions
with respect to relying on port of entry omissions, it drew a negative
inference as to the applicant’s credibility.
[17]
Second, the Board stated although the evidence
provided by the applicant establishes the applicant’s father’s death, it did
not corroborate his alleged risk related to the case. It noted the post-mortem
report stated the cause of death was drowning in the water. When asked why the
report had no mention of the beating, the applicant answered because his father
suffered internal injuries. The Board noted this detail would reasonably be
expected in the more than ten pages of post-mortem report.
[18]
Then it noted that the letter from the Gramma
Officer and the two letters from the applicant’s family’s lawyer indicate the
case was referred to the high court. The Board observed this contradicts the
applicant’s claim that the case is being stalled by the police.
[19]
Next, the Board noted that although the
applicant provided documents from the initial investigation into his father’s
death in 2009, he did not provide more recent court documents to suggest the
case was still active and ongoing. It found, if the applicant’s mother was able
to obtain the 2009 documents in early 2013, the court would also have provided
more recent documents. Therefore, the Board found this lack of corroborating
evidence diminished the applicant’s credibility.
[20]
Third, the Board found the applicant was not
able to provide details in his answers to the questions about the processing of
the case and his lack of knowledge regarding the case is unreasonable. During
the hearing, the applicant stated the ongoing case was a murder case and it was
the EPDP members who were on trial for the case; however, he did not know who
they were specifically. The Board found this inconsistent and stated “either the case is stalled and can’t move forward as the
suspects aren’t being identified or the suspects have been identified and the
case is continuing in the courts.” Also, the Board noted the applicant’s
other evidence also were lacking in details for the case. Therefore, the Board
ruled negatively for the applicant’s credibility.
IV.
Residual Profile
[21]
The Board then analyzed the applicant’s residual
profile as a young male Tamil from the North. It cited the Eligibility
Guidelines for Assessing the International Protection Needs of Asylum-Seekers
from Sri Lanka from the United Nations High Commissioner for Refugees [UNHCR
Guidelines] and determined that although everyone living in areas under LTTE
control necessarily had contact with the LTTE and its civilian administration.
Originating from an area that was previously controlled by the LTTE, does not
in itself result in a need for international refugee protection. It noted that
the applicant did not allege and establish the special links to LTTE under the
UNHCR Guidelines that might expose him to the higher risk on a balance of
probabilities.
[22]
Therefore, the Board determined that the
applicant has not established, on a balance of probabilities, that he is of
such a profile as to face a personal risk due to the conditions as described in
either section 96 or subsection 97(1) of the Act.
V.
Issues
[23]
The applicant raises four issues:
1.
What is the standard of review?
2.
Did the Board err in fact and law in its
assessment of the applicant’s credibility?
3.
Did the Board err in law in making veiled
credibility findings against the applicant’s lawyer in Sri Lanka and the Gramma Officer who wrote a letter in support of the applicant’s case?
4.
Did the Board err in its assessment of the
evidence before it and err in its application of sections 96 and 97 to the
applicant’s claim?
[24]
The respondent submits that the applicant has
failed to demonstrate that there is an arguable issue of law upon which the
proposed application for judicial review might succeed.
[25]
In my view, the issues are:
A
What is the standard of review?
B
Was the Board decision reasonable?
C
Did the Board breach procedural fairness?
VI.
Applicant’s Written Submissions
[26]
The applicant submits the standard of review is
reasonableness on questions of fact or mixed fact and law and correctness on
questions of law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 50
and 51, [2008] 1 S.C.R. 190 [Dunsmuir]). The applicant further reviewed Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses], Canada (Attorney
General) v Kane, 2012 SCC 64, [2012] 3 S.C.R. 398, and Pathmanathan v
Canada (Minister of Citizenship and Immigration), 2013 FC 353, [2013] FCJ
No 370 in support of his position.
[27]
The applicant structures his submissions in two
main categories: 1) credibility findings; and 2) the assessment of his residual
profile as a young Tamil from the North.
[28]
He submits the Board erred in assessing his
credibility. First, he argues the discrepancies relied on by the Board must be
real (Rajaratnam v Canada (Minister of Employment and Immigration),
[1991] FCJ No 1271, 135 NR 300 [Rajaratnam]; Attakora v Canada
(Minister of Employment and Immigration), [1989] FCJ No 444, 99 NR 168 [Attakora];
and Owusu-Ansah v Canada (Minister of Employment and Immigration),
[1989] FCJ No 442, 98 NR 312 [Owusu-Ansah]) and the Board should not
conduct a microscopic examination of the evidence (Attakora). He argues
in this case, the Board relied on minor discrepancies that were not material to
the applicant’s credibility. He takes issue with the Board’s reliance on the
port of entry notes, arguing that he did mention the court case at the port of
entry but the interviewing officer said he or she had enough information for
now. The applicant argues that the Board needs to accept reasonable explanations
for omissions at the port of entry and this Court has warned against using port
of entry notes as a reason for finding a lack of credibility (Cetinkaya v
Canada (Minister of Citizenship and Immigration), 2012 FC 8 at paragraph
51, [2012] FCJ No 13 [Cetinkaya]; Sawyer v Canada (Minister of
Citizenship and Immigration), 2004 FC 935 at paragraphs 6 and 7, [2004] FCJ
No 1140 [Sawyer]; Samarakkodige v Canada (Minister of Citizenship and
Immigration), 2005 FC 301 at paragraph 50, [2005] FCJ No 371 [Samarakkodige];
Ali v Canada (Minister of Citizenship and Immigration), [2000] FCJ No
1035 at paragraph 8, 98 ACWS (3d) 648 [Ali]; Kanapathipillai v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1110 at paragraph
8, 81 ACWS (3d) 859 [Kanapathipillai]; Thambirasa v Canada (Minister
of Citizenship and Immigration), [1999] FCJ No 205 at paragraph 3 [Thambirasa]).
[29]
Second, the applicant submits the Board erred in
its treatment of the post-mortem report, arguing it was unreasonable to expect
the applicant to explain the results of the report and it should have considered
the post-mortem report for what it did provide in corroborating the applicant’s
father’s death.
[30]
Third, the applicant argues the Board was
overzealous in finding instances of contradiction (Attakora) and these
contradictions are not real. The Board’s finding of inconsistency about the
court case was unreasonable because it failed to consider the explanation that
the case had been stalled but was now moving forward. He cites Mr. Justice Max Teitelbaum’s
direction respecting corroboration in Ahortor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 705 at paragraph 45, 65 FTR 137,
that the failure to offer documentation cannot be related to the applicant’s
credibility in the absence of evidence to contradict the allegations. Here, the
applicant did offer corroborating evidence and in the absence of contrary
evidence, the Board’s negative credibility finding is therefore unreasonable.
[31]
Fourth, the applicant submits the Board erred in
making veiled credibility findings. He states the letters from his family’s
lawyer explain the background of the case and the current case status. He
argues the Board’s finding that the letters did not provide sufficient detail
was unreasonable and this was an indication that the Board did not believe
there was an ongoing court case and by giving the letters little weight, the
Board did not believe the lawyer. Also, the applicant submits the letter from
the Gramma Officer was requested by the applicant’s mother as a confirmation of
events and this is why the officer did not go into great detail because he was
not asked to. The Board’s assignment of little weight to this evidence is
therefore also an indication of its veiled credibility findings.
[32]
Then, the applicant submits the Board erred in
assessing the evidence before it and erred in its application of fact to the
section 96 and section 97 analysis of his residual profile. He points out multiple
areas of ignored evidence.
[33]
First, the applicant argues the Board failed to
consider whether the harassment, detention, and torture amounted cumulatively
to persecution (Alfred v Canada (Minister of Employment and Immigration),
[1994] FCJ No 463, 76 FTR 231 and Rahman v Canada (Minister of Citizenship
and Immigration), 2009 FCJ 945 at paragraph 67, [2009] FCJ No 945). He also
argues the Board failed to engage in an analysis of whether his profile placed
him at risk upon return. In specifics, the applicant argues the Board did not
properly consider and apply the UNHCR Guidelines because it ignored the
evidence that showed the applicant as a potentially perceived LTTE supporter,
such as the evidence of his brother’s disappearance and evidence of accusations
of the applicant giving money to the LTTE during his detention at the army
camp.
[34]
Second, the applicant submits there was evidence
on the record that returnees from Western countries may be perceived as LTTE
supporters whether or not they have actual links to the organization (National
Document Package, Item 9.5, Freedom from Torture, Out of Silence: New Evidence
of Ongoing Torture in Sri Lanka 2009-2011) (NDP).
[35]
Third, the applicant points out the Board
ignored the evidence that he fits the profile of witnesses to human rights
violations - a category of person whom the UNHCR believes is “likely to be in need of international refugee protection on
account of their (perceived) political opinion” (applicant’s record at
page 297). He argues the Board did not consider the applicant’s risks of
torture, extrajudicial killings, arbitrary arrest, detention and especially the
risks he faces at the hands of the paramilitary group EPDP which is documented
by the NDP.
[36]
Lastly, the applicant argues the Board did not
address whether he would be at risk as a returning failed asylum seeker which,
according to an Australian non-governmental organization, people who are
returned are questioned and may be detained for up to months.
VII.
Respondent’s Written Submissions
[37]
The respondent submits the standard of review
should be reasonableness and this Court should not intervene in this decision
because the Board’s decision falls within the range of possible acceptable
outcomes which are defensible in respect of the facts and law (Newfoundland
Nurses at paragraph 15; Dunsmuir at paragraphs 47, 53, 55 and 62; Khosa
at paragraph 59; Mwaura v Canada (Minister of Citizenship and Immigration),
2008 FC 748 at paragraphs 10 and 11, [2008] FCJ No 951; Mejia v Canada
(Minister of Citizenship and Immigration), 2009 FC 354 at paragraphs 25 to
29 [2009] FCJ No 438 [Mejia]). It argues that the Refugee Division Board
is a specialized tribunal and the Board is entitled to determine the weight to
be assigned to each piece of evidence (Medarovik v Canada (Minister of
Citizenship and Immigration), 2002 FCT 61 at paragraphs 15 and 16, [2002]
FCJ No 64; Ramirez v Canada (Minister of Citizenship and Immigration),
2012 FC 809 at paragraph 30, [2012] FCJ No 820; and Mejia).
[38]
First, the respondent argues the applicant
failed to meet his onus to establish a claim. Here, the applicant’s evidence
lacked credibility due to the inconsistencies between his BOC and the port of
entry notes and between his statements and the documentary evidence. It urges
this Court that the Board’s reasons should be read as a whole (Newfoundland
Nurses, at paragraphs 15 and 18).
[39]
Second, the respondent argues that the Board’s
credibility findings are not unreasonable. It states that this Court should not
interfere with the Board’s assessment of credibility because the Board has had
first hand experience seeing and hearing the witness during an oral hearing.
Also, as long as the Board’s inferences and conclusions are reasonably open on
the record, this Court should not interfere (Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732, 160 NR 315 [Aguebor];
Chen v Canada (Minister of Citizenship and Immigration), [1999] FCJ No
551 at paragraph 7, 49 Imm LR (2d) 161 (FCA) [Chen]; Ambros v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 299 at paragraphs
1 and 2, 78 ACWS (3d) 778 [Ambros]; Karanja v Canada (Minister of
Citizenship and Immigration), 2006 FC 574 at paragraph 8, [2006] FCJ No 717
[Karanja]; Krishnapillai v Canada (Minister of Citizenship and
Immigration), 2007 FC 563, [2007] FCJ No 760 [Krishnapillai]; Li
v Canada (Minister of Citizenship and Immigration), 2008 FC 751 at paragraph
21, [2008] FCJ No 954 [Li]; and Ramirez v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 335 [Ramirez]). It
further argues that the Board can make reasonable findings based on common
sense and rationality.
[40]
Third, the respondent submits the applicant’s
evidence was inadequate and inconsistent as to cast doubt on his testimony and
this resulted in the general negative credibility finding (Sheikh v Canada
(Minister of Employment and Immigration), [1990] 3 FC 238 at paragraph 8,
[1990] FCJ No 604). It argues a failure to provide documents that could be
obtained to support an otherwise doubtful claim can impact negatively on
credibility (Reyna Flores v Canada (Citizenship and Immigration), 2010
FC 874 at paragraph 9, [2010] FCJ No 1081 [Reyna Flores]). It argues in
this case, the applicant’s inability to explain his lack of up to date
information on the court case impacted negatively on his claim.
[41]
Further, the respondent states it was open for
the Board to consider inconsistencies between the port of entry notes and the
BOC, and the Board in doing so did acknowledge the caution with which omissions
from the port of entry notes were to be treated. It points out since the
post-mortem report did not mention the applicant’s father was beaten to death,
it is therefore somewhat inconsistent with the applicant’s version of the cause
of death. Lastly, it argues assigning little weight to the lawyer’s letters and
the Gramma Officer’s letter was not unreasonable because these letters lacked
specificity in order to provide corroboration to the applicant’s testimony.
[42]
Fourth, the respondent submits the applicant
failed to establish his fear of EPDP and the Sri Lankan Army was well founded
or forward looking. Also, the Board was entitled to prefer the documentary
evidence indicating that the applicant, solely by virtue of being a young Tamil
from the North, had not established a well-founded fear of harm going forward (Doka
v Canada (Minister of Citizenship and Immigration), 2004 FC 449 at
paragraphs 37 and 38, [2004] FCJ No 554 [Doka]; and Szucs v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 1614 at paragraph
11, 100 ACWS (3d) 650 [Szucs]).
VIII.
Applicant’s Further Submissions
[43]
The applicant continues to rely on his submissions
from the original memorandum and submits in his reply that the Board’s decision
does not fall within a range of possible and acceptable outcomes.
[44]
As for the issue of credibility, the applicant
argues the Board is not owed a high degree of deference in this case because it
erred in basing its credibility findings on irrelevant considerations and
ignored corroborating evidence. He quotes Burgos v Canada (Minister of Citizenship and Immigration), 2006 FC 1537 at paragraph 23, [2006] FCJ No
1924 [Burgos] that “triers of fact are not in a
better position to assess credibility on the basis of criteria that are
extrinsic to testimony.”
[45]
Regarding the applicant’s port of entry
omissions, the applicant argues that just because the Board acknowledged that the
caution from this Court does not mean that it actually heeded it. Also, the
port of entry interview should not be expected to contain all the details of
the claim. As for the documentary evidence, the applicant argues that the
evidence was not inconsistent with his claim and that he did provide a
significant amount of corroborating evidence.
IX.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[46]
The applicant raises two broad issues in the
present case: 1) the reasonability of the decision; and 2) procedural fairness
in the area of veiled credibility findings.
[47]
First, for the reasonability of the Board’s
decision which involves questions of fact or mixed fact and law, it should be
reviewed on the standard of reasonableness. The standard of reasonableness
means that I should not intervene if the Board’s decision is transparent,
justifiable, intelligible and within the range of acceptable outcomes (Dunsmuir
at paragraph 47).
[48]
Here, I will set aside the Board’s decision only
if I cannot understand why it reached its conclusions or how the facts and
applicable law support the outcome (Newfoundland Nurses at paragraph
16). As the Supreme Court held in Khosa at paragraphs 59 and 61, a court
reviewing for reasonableness cannot substitute its own view of a preferable
outcome, nor can it reweigh the evidence.
[49]
Second, for the issue of veiled credibility
findings, this concerns procedural fairness. It is a question of law and
pursuant to Khosa at paragraph 43, it is reviewed on a standard of
correctness.
B.
Issue 2 - Was the Board decision reasonable?
[50]
The applicant submits the Board’s decision is
unreasonable in two areas: 1) the Board’s credibility findings and 2) the
Board’s assessment of the applicant as a young Tamil from the North for the purposes
of section 96 and subsection 97(1) of the Act. My analysis will be focused on
these two areas.
[51]
Insofar as the credibility findings are
concerned, I agree with the respondent that these findings are reasonable.
[52]
Here, the Board made a negative determination on
the applicant’s credibility based on the following evidence: port of entry notes,
post-mortem report, letters from the Gramma Officer, letters from the
applicant’s family’s lawyer and the court documents about the applicant’s
father’s case. On one hand, the applicant submits that the inconsistencies
among these documents and his claim are microscopic and regarding the port of
entry notes, the Board should not even have used the notes for determining its
credibility findings. On the other hand, the respondent is of the view that I
should not interfere with these findings because the Board has had first hand
experience seeing and hearing the witness during an oral hearing and as long as
the Board’s inferences and conclusions are reasonably open on the record, I
should not interfere.
[53]
When examining the evidence, the Board should
not conduct it microscopically (Attakora) and the discrepancies relied
on must be real (Rajaratnam; Attakora; and Owusu-Ansah). Chief
Justice Edmond Blanchard stated in Burgos at paragraph 23, that this
Court does not owe a high level of deference to the Board’s credibility finding
when it is based on criteria that are extrinsic to the testimony:
However, the Federal Court of Appeal
determined there was a difference in the way conclusions on the issue of
credibility must be considered, depending on whether they are based on
contradictions in the evidence or on implausibilities. Although the Board may
conclude that a story is implausible, its conclusion must “be based on the
totality of the evidence and must be clearly supported in the Board’s reasons.”
Moreover, upon judicial review, the Court is not required to show as much
deference, because triers of fact are not in a better position to assess
credibility on the basis of criteria that are extrinsic to testimony (Leung
v. Canada (Minister of Employment and Immigration), [1994] FCJ No 774 (FCA)
(QL); Giron v Canada (Minister of Employment and Immigration), [1992]
FCJ No 481 (FCA) (QL)).
[Emphasis added]
[54]
First, an examination of the port of entry notes
reveals that although the applicant did not mention about his father’s case
when he was first asked why he was afraid of returning, he did subsequently
mention his father’s death in the following related questions. The Board should
exercise caution when using the port of entry notes for assessing credibility (Cetinkaya;
Samarakkodige; Ali; Kananpathipillai and Thambirasa).
Here, I do not find it reasonable that the Board would consider this as a form
of crucial omission, especially when the applicant did mention his father’s
death in his answers to the subsequent questions during the port of entry
interview. This alone would not make the entire decision unreasonable.
[55]
Second, about the post-mortem report, the Board
noted the details of the beating are absent in the report and this detail would
reasonably be expected. The Board found the applicant’s explanation
unsatisfactory. It was in its right to question the content of the evidence and
since it had first hand experience listening to the applicant’s explanation, I
am not going to second guess its determination.
[56]
Third, about the Gramma Officer’s letter and the
lawyer’s letters, I will first examine the applicant’s argument on veiled
credibility. The Board found these letters lack details about the applicant’s
father’s case. The applicant argues the letter from the Gramma Officer was
requested to confirm the ongoing court case and that the applicant had to flee
the country. By not accepting it, the Board in essence, did not find the letter
credible. I disagree. Here, the Board gave it little weight because it was
unsatisfied with this piece of evidence in corroborating the applicant’s claim.
This does not necessarily mean the Board found the letter not credible. The same
thing can be said about the letters from the applicant’s family’s lawyer.
[57]
However, the Board’s rationale in assigning
these letters little weight is troubling. The Board found them not sufficiently
corroborating because of the inconsistencies that the details in the letters
contradicted the applicant’s claim that the police stalled the case. The
applicant correctly argues that the Board’s finding of inconsistencies about
the court case was unreasonable because it failed to consider the explanation
that the case had been stalled but was now moving forward. Therefore, the rationale
of the Board’s finding of inconsistencies is unreasonable. In light of the
Board’s cumulative credibility findings though, this mistake alone would not
make the entire decision unreasonable.
[58]
Fourth, about the Court documents concerning the
applicant’s father’s case, I agree with the respondent that the onus is on the
applicant to produce sufficient evidence. On one hand, the applicant argues the
failure to offer documentation cannot be related to the applicant’s credibility
in the absence of evidence to contradict the allegations (Ahortor at
paragraph 45). On the other hand, the respondent is of the view that a failure
to provide documents that could be obtained to support an otherwise doubtful
claim can impact negatively on credibility (Reyna Flores at paragraph
9).
[59]
Here, a review of the transcript reveals that
the applicant was given an opportunity to explain but did not provide
satisfactory rationales as to why the documents were not provided. The
applicant only stated that when his mother requested the court files, these
were all that were received. I do not see this as a matter of whether or not
there was evidence to contradict the applicant’s testimony; rather, it is
whether or not the Board had sufficient evidence to believe the applicant.
[60]
Mr. Justice Roger Hughes explained the role of
corroborating evidence in Reyna Flores at paragraph 9:
As to corroboration, it is argued that,
particularly since the new Act in 2001, corroboration may not be essential
however where there is doubt as to the evidence given it is not improper for
the Board to ask for corroboration or to take lack of corroboration into account
where assessing credibility.
[61]
It seems to me that in the present case, the
Board had doubt about the applicant’s father’s case. Therefore, I find it was
not unreasonable for the Board to demand more recent court documents to prove
the applicant’s father’s case was still active and ongoing.
[62]
The Board’s reasons need to be read as a whole (Newfoundland Nurses at paragraphs 15 and 18). Here, in reaching its negative
credibility findings, the Board based them on the following: the applicant’s
allegations of risk in Sri Lanka due to his father’s murder lacked credibility;
although the evidence provided by the applicant established the applicant’s
father’s death, it did not corroborate his alleged risk related to the case;
and the applicant was not able to provide details about the processing of the
case and his lack of knowledge regarding the case is unreasonable. Even in
light of the errors the Board made, I do not find them being significant enough
to render its decision on the applicant’s credibility cumulatively
unreasonable.
[63]
Insofar as the Board’s assessment of the
applicant’s residual profile is concerned, I agree with the respondent that the
Board’s determination is reasonable.
[64]
The applicant submits that in making this
determination, the Board ignored evidence of harassment, detention, torture and
cumulative persecution. On the other hand, the respondent is of the view that
the Board is entitled to prefer documentary evidence in its analysis. In my
view, the applicant is at issue with why the Board relied upon the documentary
evidence but not the other evidence of the applicant.
[65]
It is well established that an officer is not
required to mention every piece of evidence in the analysis (Akram v Canada
(Minister of Citizenship and Immigration), 2004 FC 629, [2004] FCJ No 758).
Here, the Board determined that according to objective documentary evidence
such as the UNHCR Guidelines, the applicant did not allege and establish the
special links to LTTE that might expose him to the higher risk on a balance of
probabilities. In doing so, it did not mention all the evidence submitted by
the applicant and it did not explain why it preferred documentary evidence over
the applicant’s evidence. However, I am of the view that the Board is not
required to mention or give all evidence equal weight.
[66]
In Doka at paragraphs 37 and 38, Mr. Justice
James Russell examined the use of documentary evidence over subjective evidence
provided by an applicant:
37 In my opinion, the Applicant is
raising similar objections on this issue to those that were raised in Pehtereva
v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1491 (T.D.)
and that were dealt with by MacKay J. in the following manner:
13. Finally, the tribunal’s
decision does not set out in precise terms why it preferred certain documentary
evidence and not other evidence, but that does not constitute error. Here,
the applicant’s concern is primarily that the documentary and other evidence
offered by the RHO was relied upon without specifying why evidence of the
applicant was not. But that preference of the tribunal, related to evidence of
the general circumstances within Estonia, of which the applicant’s experience
was but an example. The general circumstances based on documentary evidence
from recognized sources provided the basis for objectively assessing the
applicant's expressed fear. In my opinion, the tribunal did not err by
ignoring evidence offered by the applicant, or by failing to specify reasons
for preferring other sources of evidence, particularly in seeking an objective
overview of circumstances within Estonia. Nor am I persuaded that the tribunal
misunderstood or misstated the evidence of the applicant in any way significant
for its ultimate finding that the applicant is not a Convention refugee,
because it found no serious possibility or reasonable chance she would be
persecuted for any reason set out in the definition of Convention refugee
should she return to Estonia.
38 In essence, the Applicant is
asking the Court to reweigh the evidence before the Board and reach a different
conclusion. However, the following words of Blanchard J. in Khan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 520 (T.D.) provide
concise and elegant reasons why this Court should decline to engage in such an
exercise:
18. The jurisprudence of this Court
has clearly established that it is within the specialized jurisdiction of the
CRDD to decide how much weight to assign to the evidence. It is also well
established that the CRDD is entitled to rely on documentary evidence in
preference to the testimony provided by a claimant. Furthermore, the
tribunal is also entitled to give more weight to the documentary evidence, even
if it finds the applicant to be trustworthy and credible. [Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.) Online: QL].
[Emphasis added]
[67]
Similarly here, the applicant is asking me to
reweigh the evidence in order to reach a different conclusion. It is not my
role to reweigh the evidence. It is well established in the jurisprudence that
the Board is entitled to give more weight to the documentary evidence.
Therefore, I am satisfied that the Board’s determination on the applicant’s residual
profile is reasonable.
C.
Issue 3 - Did the Board breach procedural
fairness?
[68]
As analyzed above, the Board did not make any
veiled credibility findings pertaining to the Gramma Officer’s letter and the
letters from the applicant’s family’s lawyer. Therefore, it is not necessary
for me to look into whether procedural fairness was breached.
[69]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
[70]
The application for judicial review is therefore
dismissed.
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