Date: 20061013
Docket: IMM-1407-06
Citation: 2006 FC 1204
Ottawa, Ontario, October 13, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SELVARAJAH
NADARAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dated
February 16, 2006, finding that the applicant was not credible and was neither a
Convention refugee nor a person in need of protection.
ISSUES
[2]
Did the
Board err by making adverse findings of credibility in a perverse and
capricious manner, on irrelevant considerations, or without regard to the totality
of the evidence before it?
[3]
For the
following reasons, the answer to this question is negative and the present
application shall be dismissed.
BACKGROUND
[4]
The
applicant is a young Tamil, citizen of Sri Lanka who was
forced to work for the Liberation Tigers of Tamil Eelam (LTTE) following an
attack by the army that killed several people from his village in 1992.
[5]
In
April 1995, he was arrested and beaten by the army for working with the LTTE. Similarly,
in October 2000, he was arrested, detained and beaten. One month later, he was
again victim of persecution at the hands of the army. This would continue at various
times during subsequent years.
[6]
With
the aid of a smuggler, the applicant left Sri Lanka for Malaysia
on October
10, 2004
and arrived in Canada on October 26, 2004. He was detained upon
arrival. His claim for refugee status was denied, which forms the basis of
this application for judicial review.
DECISION UNDER REVIEW
[7]
After
examining both the oral and written evidence, the tribunal concluded that the
applicant was not a trustworthy person. In particular, the tribunal doubted
the applicant’s credibility in the following matters:
1. The applicant
contradicted himself in that he testified that he had received documents a few
days prior to the hearing and when asked why it had taken him so long to obtain
the documents, he gave two different and inconsistent explanations. On the one
hand, he told the tribunal that they were in another part of the country and
his wife had to get them and on the other hand, he testified later that the
documents had been lost and had to be reprinted;
2. The
applicant’s testimony revealed discrepancies in his travel itinerary, more
notably the applicant indicated that he remained in Jaffna until 2004. When
pressed on the matter to be more specific, the applicant said he was in Jaffna in September
2004 then he testified that it was in October 2004;
3. The applicant
gave blatantly contradictory testimony about the time and place he first met
the smuggler who assisted him when he left Sri Lanka. The
applicant testified that he first met the smuggler in a hotel in Malaysia yet also
testified that the smuggler paid a bribe to airport authorities in Sri Lanka in order for
him to leave the country. The applicant further contradicted his evidence that
he did not experience any problems with authorities and left Sri Lanka under
his passport from Sri Lanka;
4. The applicant
testified that he travelled to Canada on an Indian passport yet he did not know
the name in the passport. Moreover, there was no Indian national listed on the flight
of the Swissair plane from which he disembarked at Dorval Airport;
5. The tribunal
found it implausible that the smuggler would not have known or would not have
discussed with the applicant that he traveled with his own identity card and
his birth certificate;
6. Finally, the
tribunal found the applicant was not credible in that he indicated in his Port
of Entry (POE) report, as well as on his Personal Information Form (PIF) that
he left Sri
Lanka
because of fear of persecution by the Sri Lankan army. Yet the applicant
testified that the real reason he left Sri Lanka was because
of his fear of the LTTE.
[8]
In
each of these six instances, the tribunal gave the applicant an opportunity to
explain the contradictions, discrepancies and inconsistencies in his evidence. The
tribunal was not satisfied with the applicant’s explanations. Rather, the
tribunal found the applicant was vague, hesitant and evasive throughout most of
his testimony and seldom answered directly to the questions posed. At times, he
did not answer the questions and they had to be repeated.
ANALYSIS
Standard of review
[9]
The
standard of review for issues of credibility is patent unreasonableness as held
in Aguebor v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 732 (C.A.) (QL). The Federal Court of Appeal stated as
follows:
In his memorandum, counsel for the appellant
relied on the decision of this Court in Giron v. Minister of Employment and
Immigration [(1992), 143 N.R. 238 (F.C.A.).] in support of his argument
that a court which hears an application for judicial review may more easily
intervene where there is a finding of implausibility. Because
counsel are using Giron with increasing frequency, it appeared to us to
be useful to put it in its proper perspective.
¶ 3
It is correct, as the Court said in Giron, that it may be easier to have
a finding of implausibility reviewed where it results from inferences than to
have a finding of non-credibility reviewed where it results from the conduct of
the witness and from inconsistencies in the testimony. The Court did
not, in saying this, exclude the issue of the plausibility of an account from
the Board's field of expertise, nor did it lay down a different test for
intervention depending on whether the issue is "plausibility" or
"credibility".
¶ 4
There is no longer any doubt that the Refugee Division, which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of
testimony: who is in a better position than the Refugee Division to
gauge the credibility of an account and to draw the necessary inferences? As
long as the inferences drawn by the tribunal are not so unreasonable as to warrant
our intervention, its findings are not open to judicial review. In
Giron, the Court merely observed that in the area of plausibility, the
unreasonableness of a decision may be more palpable, and so more easily
identifiable, since the account appears on the face of the
record. In our opinion, Giron in no way reduces the burden
that rests on an appellant, of showing that the inferences drawn by the Refugee
Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden.
Adverse findings of credibility
[10]
The
tribunal based its adverse credibility findings on both the internal
inconsistencies in the applicant’s accounts, as well as on the implausibility
of some of the claimant's explanations. I will deal with each separately.
1) Internal
inconsistencies
[11]
A
careful review of the transcripts of the applicant’s testimony indicates that
the tribunal was faced with several inconsistencies and contradictions between
the applicant’s testimony and the information he provided to the Immigration Officer
on the date of his arrival in Canada.
[12]
The
transcripts show also that the tribunal was sensitive to several mitigating
factors that would otherwise cloud the applicant’s credibility. These
mitigating factors include the circumstances under which his port of entry
interview was conducted: through an interpreter by telephone. By the nature
of its questions, the tribunal was also sensitive to the fact that the
applicant was a humble farmer with limited education. The transcripts also show
that the applicant was ably represented by counsel.
[13]
I
find nothing in the transcripts of the proceedings to indicate that the
tribunal was overzealous to discredit the applicant. On the contrary, the
tribunal based its decision on the multiple internal inconsistencies and the
applicant’s evasiveness in providing satisfactory explanations to many of these
discrepancies.
[14]
The
tribunal had valid reasons to doubt the applicant’s credibility. It was
therefore not unreasonable for the tribunal to reach the negative conclusion of
the applicant’s credibility. The tribunal sought explanations from the
applicant for the numerous contradictions and while some explanations were
accepted, the tribunal was not unreasonable in failing to be convinced of the
veracity of some of the applicant’s explanations. The Court is of the opinion
that the tribunal should have granted the benefit of the doubt to the applicant
for example, his stay in Jaffna. This was not a major
element and has been noted by the tribunal as a minor discrepancy. It did not
affect the decision taken as a whole.
(2) Plausibility Findings
[15]
With
respect to the tribunal’s implausibility findings, I agree with the assessment
of Mr. Lorne Waldman (Immigration Law and Practice, 2nd
ed. vol. 1 (Markham: LexisNexis
Butterworths 2006) at 8.87) when he states as follows:
The
distinction that the Federal Court has made between conclusions concerning
credibility that are based on contradictions or inconsistencies in the
claimant’s evidence, and those that are based on inferences drawn from the
evidence before the tribunal, is extremely important. In Giron v. Canada (Minister of Employment &
Immigration) (1992), 143
N.R. 238, [1992] F.C.J. No. 481 (C.A.)), the court indicated that it will be
more willing to intervene in those credibility findings that are based on
inferences drawn by the tribunal:
The Convention Refugee Determination Division of
the Immigration and Refugee Board ("the Board") chose to base its
finding of lack of credibility here for the most part, not on internal
contradictions, inconsistencies, and evasions, which is of the discretion of
triers of fact, but rather on the implausibility of the claimant's account in
the light of extrinsic criteria such as rationality, common sense, and judicial
knowledge, all of which involve the drawing of inferences, which triers of fact
are in little, if any, better position than others to draw.
[16]
In
the case at bar, the tribunal states as follows:
According
to his testimony, the claimant did not know what passport he used to travel
from Malaysia to Canada, except that it was an Indian passport.
He did not know the name that was on it. It is hardly plausible that a
professional smuggler would not tell his client in what name he was traveling
under. The claimant also said that he traveled with his own identity card and
his birth certificate, without the agent’s knowledge. It is hardly plausible
that using the services of a smuggler and having paid for them, and knowing
that he was traveling with a fraudulent passport from Malaysia to Canada, he
did not take the opportunity to discuss with his escort if it was appropriate
or not to carry with him identity documents contradicting the passport. And it
is hardly plausible that a professional smuggler did not brief his client on
such an important matter. Furthermore, although the claimant testified that he
traveled with his identity card and his birth certificate: “I brought my
identity card and my birth certificate with me,” we read in exhibit M-2: “Today,
there was an observer who brought your original birth certificate and his name
is Pathmamohan.”
[17]
I
would distinguish the Giron test in this case when
applied to the facts upon which the tribunal based its implausibility
findings. First, the conduct of professional human smugglers is not a subject
matter that is common to the general public or that would ordinarily be
within the expertise of the Court. Second, because of the nature and specific
characteristics of professional human smugglers, the immigration tribunal could
be said to have greater expertise than the courts in dealing with professional
smugglers matters. Finally, the credibility findings that were based on
the implausibility of the evidence before the tribunal goes to the heart of the
tribunal’s decision and I would accord deference to the findings of the
tribunal on this particular matter.
[18]
Based
on these facts, it was not unreasonable for the tribunal given its expertise in
dealing with professional smugglers matters, to doubt the applicant’s
explanations. Like its credibility findings based on the internal
inconsistencies of the applicant’s accounts, the tribunal’s inferences drawn
with respect to the implausibility of the applicant’s explanations regarding
the professional smuggler were reasonably open to it.
[19]
That
is why the Court finds that the tribunal’s decision was not patently
unreasonable such that it would warrant judicial intervention.
[20]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS that the application for
judicial review is dismissed. No question is certified.
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