Date:
20061221
Docket:
IMM-1339-06
Citation:
2006 FC 1543
Ottawa, Ontario, December 21, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THANUKKODY
PUVANESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1] Mr.
Puvaneswaran brings this application for judicial review of the decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board) that
dismissed his claim for refugee protection. The determinative issue was the
Board’s finding that Mr. Puvaneswaran’s evidence was not credible. This
application is dismissed because I find no reviewable error in the Board’s
decision.
[2] In his amended, further memorandum of argument the
following five issues were raised by Mr. Puvaneswaran:
1. Did the
panel err in law by failing to consider and apply the objective evidence as to
the Applicant’s central theme of his claim – LTTE extortion & fear [of]
being killed by the LTTE as he was suspected to be a spy of the army?
2.
Did the panel err in law in failing to consider the past
persecution of the Applicant?
3.
Did the Board err in law in considering the POE [port of entry]
notes that were obtained in violation of the Operation Manual?
4.
Whether the RPD member misconstrued the evidence before it and
made findings of fact related to credibility that were so patently unreasonable
and perverse as to constitute a reviewable error?
5.
Was the Applicant denied procedural fairness and the due process
of law as to whether there was a fair hearing before the RPD by directing the
RPO first to conduct the cross-examination of the Applicant before the
Applicant presented his case to the panel, especially when the Applicant was a
victim of violence?
[3] During oral argument, counsel for Mr. Puvaneswaran advised
that he was not pursuing the fifth issue, relating to Guideline 7. At the
conclusion of that oral argument, the Court advised that the application for
judicial review would be dismissed. These are the reasons for that decision.
[4] As noted above, the determinative issue before the Board was
credibility. The
Board took issue with the fact that Mr. Puvaneswaran, upon making
his claim, said in both the Background Information questionnaire and in his
interview with an immigration officer that he had never been arrested.
However, at the Refugee hearing Mr. Puvaneswaran testified to being arrested
six times. When
asked about this discrepancy, Mr. Puvaneswaran said when he arrived in Canada he was tired, nervous and afraid of being deported. The Board did not accept this
explanation, finding it to be a major contradiction going to the core of the
claim, as it was the alleged arrest by the army in March 2005 that triggered Mr.
Puvaneswaran’s decision to flee to Canada in May 2005.
[5] In oral testimony, Mr. Puvaneswaran
testified to being afraid of the Liberation Tigers of Tamil Eelam (LTTE), the People’s
Liberation Organization of Tamil Eelam (PLOTE), the police, the army and the
Eelam People’s Democratic Party. However, in his immigration documents Mr. Puvaneswaran
only indicated that he was fearful of the LTTE. When asked to explain this
omission, Mr. Puvaneswaran, again, claimed that he was tired and nervous when
he filled out his immigration papers. The Board did not find this explanation
sufficient because the fear from the army and PLOTE went to the root of the
claim.
[6] The Board also found a contradiction to
exist as to the whereabouts of Mr. Puvaneswaran’s wife and children. In his
Personal information Form (PIF), it was indicated that his wife and children
were in Vavunyia, but in the Background Information form, he had written that
his wife’s “present address” was in Jaffna. During the oral hearing, Mr.
Puvaneswaran testified that his family lived with a friend in Vavunyia for
about two weeks and then returned to their home.
[7] Mr. Puvaneswaran also alleged
that he was told in mid-June 2005 that the LTTE had come to collect the 500,000
rupees it had demanded as a result of its allegation that Mr. Puvaneswaran
provided information about the LTTE to the army. However, his PIF (signed June
24, 2005) made no mention of this event. Mr. Puvaneswaran explained that his
wife told the LTTE that he had fled the country and that afterwards the LTTE
did not bother his wife anymore. Given the way the LTTE operates, and having
regard to the fact that the two stores Mr. Puvaneswaran owned in Sri Lanka remained open, the Board found it implausible that the extortion attempts from
the LTTE would stop simply because Mr. Puvaneswaran had fled.
[8] The Board also took issue with the
“confused and contradictory” testimony as to how and when Mr. Puvaneswaran
travelled to Canada. Mr. Puvaneswaran testified that he left Sri Lanka with a Canadian passport and went to an unknown country in Europe via Malaysia or Thailand, whereupon he waited for four days with an agent. He then took the train to Geneva, whereupon he met another agent and received a different Canadian passport in
exchange for the one he had already used. Mr. Puvaneswaran then flew to Canada on May 28, 2005.
[9] The Board found that Mr. Puvaneswaran’s
testimony was inconsistent as to what date he switched passports with the agent.
First, he testified that it was when he arrived in the unknown country and subsequently
he testified that this event occurred in Geneva.
[10] The Board also was concerned over the
“strange coincidence” that the last name on the second passport was the same as
Mr. Puvaneswaran’s last name and was also identical to the name of a man
granted Canadian citizenship in 1999. However, according to Mr. Puvaneswaran the
Canadian citizen was an unrelated person.
[11] The Board was concerned that Mr.
Puvaneswaran did not completely destroy the second Canadian passport. Rather,
only a few non-sequential pages were torn out. Mr. Puvaneswaran testified that
he was nervous and did not have sufficient time to destroy the passport. The
Board rejected this explanation as it also appeared that the biometric page was
missing and that while Mr. Puvaneswaran testified that he “tore out one
page after another”, this did not explain why certain intervening pages remained.
The Board believed that Mr. Puvaneswaran chose to destroy some pages because
they contained information he wished to hide from immigration officials.
[12] Also, in his PIF and immigration documents, Mr.
Puvaneswaran omitted to refer to any stop over from his fight to Canada from Geneva, and had listed the date of departure as May 27, 2005. However, he later
testified there was a stop over.
[13] When asked about an internal flight
alternative Mr. Puvaneswaran said he did not have the correct travel
documentation and could not move to Colombo. The Board did not accept this explanation
because there has been no need for army travel passes since the 2002 ceasefire.
The Board was of the opinion that a businessman who was allegedly living in Sri Lanka in 2005 should be aware of this fact.
[14] Consequently, the Board
determined Mr. Puvaneswaran’s story had been “invented.”
[15] Those findings are reviewable on the standard of patent
unreasonableness. See: Mugesera v. Canada, (Minister of Citizenship
and Immigration), [2005] 2 S.C.R. 100 at paragraph 38.
[16] In my view, the Board's credibility findings were based upon
the evidence before it and they cannot be characterized as being patently
unreasonable. There is, therefore, no basis for intervention by the Court.
This is determinative of the fourth issue raised by Mr. Puvaneswaran.
[17] Turning to the other issues, as noted above, the Board found
Mr. Puvaneswaran's failure to mention in his PIF the June 2005 extortion
attempt by the LTTE to be a material omission. It also found his testimony to
be implausible that the extortion attempts by the LTTE (that flowed from the
accusation of spying) ceased after he left Sri Lanka, notwithstanding that his
wife remained and his businesses continued to operate. In view of those
findings, it cannot be said, as Mr. Puvaneswaran asserts, that the Board failed
to consider Mr. Puvaneswaran’s fear of the LTTE due to the accusation of spying.
[18] Similarly, in view of the credibility findings of the Board
with respect to Mr. Puvaneswaran's failure to mention his six prior
arrests, his failure to mention any agent of persecution other than the LTTE,
and the Board's conclusion that his story was invented, it cannot be said that
the Board failed to consider Mr. Puvaneswaran's allegations of prior
persecution.
[19] Finally, Mr. Puvaneswaran complains that the Board erred by
relying upon omissions in the port of entry notes. He relies upon the prior
decision of this Court in Sawyer v. Canada (Minister of Citizenship and
Immigration), 2004 FC 935 to argue that "notes taken at the border in
violation of the Operations Manual could not be admitted in a subsequent
refugee hearing".
[20] With respect, Sawyer is not authority for this
proposition, and to suggest that it is, grossly distorts the Court’s reasoning
in Sawyer.
[21] In Sawyer, the Board had drawn a negative inference
from the fact that the officer’s notes prepared when Mr. Sawyer made an inland
refugee claim failed to record certain information. The following portions of
the reasons in Sawyer are relevant:
[5] As to any
omissions in the notes taken by the immigration officer when Mr. Sawyer claimed
refugee status, Mr. Sawyer testified that he told the immigration officer that
he was identified by rebels on the basis of a photograph and he testified that
he believed that he told the officer that he had been beaten but that the
immigration officer told him “you
don’t have to tell me
everything” and that
he had to put things in his PIF. The panel rejected this testimony because it
did not accept that an immigration official would not record Mr. Sawyer’s evidence.
[6] However,
the Minister’s
operations manual dealing with “Processing
Claims for Protection in Canada”
contains the following instructions to officers to whom a claim for refugee
status is made:
Appropriate
questions
The
officer should ask the claimant the standard questions on the refugee claim and
the answers must be recorded. However, the officer should not ask the
claimant to elaborate on the basis of the claim unless the information relates
to admissibility and eligibility. It is not the officer’s responsibility to determine the credibility of the
claim for refugee protection.
-
Officers are encouraged to use the interview template created by NHQ (see
Appendix A below)
-
Claimants must explain how they entered Canada. [underlining added, Appendix
omitted]
[7] In the face of this
instruction it was in my respectful view, at least with respect to the evidence
about mention of the photograph, patently unreasonable for the panel to reject
summarily in the manner it did Mr. Sawyer’s
evidence that the officer told him that it was not necessary for him to give
her his full story and this was why she did not record everything that he told
her.
[22] Further, in Mr. Puvaneswaran's case the omissions relied upon
by the Board were omissions with respect to standard questions on the refugee
claim form. The notes taken were, therefore, consistent with the instructions
given to officers in the Inland Processing Manual.
[23] For these reasons, the application for judicial review is
dismissed.
[24] Counsel posed no question for certification, and I agree that
no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
Email this Content