Date: 20030424
Docket: IMM-4143-02
Citation: 2003 FCT 500
Ottawa, Ontario, this 24th day of April, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GOWRY SIVANATHAN
and AARANI SIVANATHAN by her
Litigation Guardian, Gowry Sivanathan
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Gowry Sivanathan (the "principal Applicant") is a Tamil citizen of Sri Lanka. Her daughter, Aarani,( the "minor Applicant") was born in Norway, but does not have Norwegian citizenship. The principal Applicant lived in Norway with her husband, who died in 1998, from September 1997 until April 2000. The Applicants arrived in Canada on April 4, 2000 and submitted a claim for refugee protection. In a decision dated July 24, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") determined that the Applicants were not Convention refugees. The Applicants seek judicial review of that decision.
[2] After addressing each claim separately, the Board determined that neither of the Applicants were Convention refugees. In respect of the minor Applicant, the Board assessed her claim against Norway her country of former habitual residence. On that basis, the Board had no persuasive evidence before it to indicate, on the balance of probabilities, that the minor Applicant was persecuted or would be persecuted, in Norway for a Convention reason. With respect to the principal Applicant, the Board found several areas where her testimony was either not credible or was implausible. In addition, the Board found many inconsistencies and contradictions that lead it to draw negative inferences. On this basis, the Board concluded that there was no credible basis for her claim.
Issues
[3] The Applicants raised the following issues:
1. Should this application succeed on the basis that a portion of the transcript of the Board's proceedings was missing?
2. Did the Board err in law by determining that the minor Applicant's claim was against Norway and not against Sri Lanka?
3. Did the Board err by ignoring or misinterpreting the evidence of the principal Applicant?
Analysis
Issue #1: Should this application succeed on the basis that a portion of the transcript of the Board's proceedings was missing?
[4] The Applicants' refugee claim was heard by the Board on September 19, 2001, January 23, 2002 and April 23, 2002. The principal Applicant testified on January 23, 2002 and April 23, 2002. Unfortunately, some of the tapes of the hearing from April 23, 2002 were inaudible and could not be transcribed.
[5] Although the Applicants did not raise the missing transcript as an issue in their written submissions, it was a matter of discussion during the oral presentations. The Applicants argued that the failure to have a full transcript prejudiced the Applicants and denied them natural justice, relying on Tung v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 292 (C.A.) (QL) and Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 (T.D.) (QL). In response, the Respondent referred to the reasons of Lutfy A.C.J. in Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 where he stated at paragraphs 4 and 5:
Even where there exists a statutory right to a recording of a tribunal hearing, the applicant must show a "serious possibility" of an error concerning which the absence of a transcript effectively removes the right of judicial review: Canadian Union of Public Employees, Local 302 v. Montreal (City) [1997] 1 S.C.R. 793 at paragraph 77.
Neither the Immigration Act [R.S.C. 1985, c. I-2] nor the Convention Refugee Determination Division Rules [SOR/93-45] requires the recording of the refugee hearing. In the absence of a statutory right to a recording, the Court must determine whether the available record, including affidavit evidence concerning the hearing, allows a proper disposition of the application for judicial review.
[6] I note, in this case, that the official transcript is complete for the first day of the principal Applicant's testimony. An unofficial version of much of the second day's transcript is contained in the Applicants' Record and its veracity was not the subject of dispute before me. I note that the affidavit of the principal Applicant makes reference to various submissions made during the course of her oral testimony. Accordingly, while the absence of a portion of the transcript is regrettable, I do not believe that its omission from the record is serious enough in this case to constitute a denial of natural justice to the Applicants.
Issue #2: Did the Board err in law by determining that the minor Applicant's claim was against Norway and not against Sri Lanka?
[7] Although the minor claimant was born in Norway, she is not a Norwegian citizen since neither of her parents had Norwegian citizenship.
[8] The Applicants submit that the Board erred in assessing the minor Applicant against Norway. In their view, the evidence before the Board was that the minor Applicant, although not properly registered, was a citizen of Sri Lanka.
[9] Article 5 of the Sri Lanka Citizenship Act, provides that a child of a Sri Lankan father obtains citizenship "if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner". Since this was not done, I am of the view that the minor Applicant was not a citizen of Sri Lanka, although she could likely rectify that situation through registration. Accordingly, the Board was correct in assessing the child based on her country of habitual residence, Norway.
[10] In any event, this finding of the Board, even if in error, is immaterial, as the claim would have been based on the same factors as that of the principal Applicant. Where a child's claim is based on that of a parent, and evidence adduced is the same for both, a lack of credible and trustworthy evidence that defeats the adult claim would do the same for that of the child (Kamalraj v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1536 (T.D.) (QL)).
Issue 3: Did the Board err by ignoring or misinterpreting the evidence of the principal Applicant?
[11] As noted, the Board's decision with respect to the principal Applicant was founded on implausibilities and lack of credibility. The Applicants submit that the Board made a number of errors in reaching its conclusions with respect to the principal Applicant. The submission of the Applicants is that, cumulatively, these errors result in a decision that is patently unreasonable.
[12] For the reasons that follow, I do not agree.
Standard of Review
[13] Decisions of the Board made based on credibility findings are to be accorded a high level of deference. The Board has the benefit of hearing the testimony of witnesses and, as a result, the appropriate standard of review is one of patent unreasonableness. This means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of facts (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (Q.L.); Oyebade v. Canada (Minister of Citizenship and Immigration), 2001 FCT 773 [2001] F.C.J. No. 1113 (QL)).
Port of Entry Statement
[14] The principal Applicant claims that she did not testify to the Port of Entry ("POE") officer that she had come from Norway, but rather that she came from Sri Lanka. There is no contradiction in her testimony, only the fact that she lied at the POE. The principal Applicant acknowledged this in her Personal Information Form ("PIF") and her oral testimony and apologized. The Applicant claims that the Board erred in drawing a negative inference from this.
[15] In my view, both the fact that the Applicant changed her story during her testimony and the fact that she lied to an Immigration Officer at the POE were legitimate factors which the Board was entitled to take into account in assessing her credibility.
Differences between POE Statements and PIF Narrative
[16] The principal Applicant told a very different story at the POE than she did on her PIF. The Board drew a negative inference based on these differences. In her Affidavit, the principal Applicant claims that she does not recall being asked about the contradictions or inconsistencies between the POE notes and her PIF narrative. She submits that the Board incorrectly drew a negative inference based on the differences between the POE notes and her PIF narrative without giving her an opportunity to explain those differences.
[17] Although a portion of the principal Applicant's explanation for the apparent inconsistencies relates to the missing transcript, I note that there is other evidence that is on the record before me regarding this matter. Specifically, the notes made by the Immigration Officer at the POE include the following as the basis for her Refugee claim:
· she has no one to help her in Sri Lanka;
· her husband's friend lives in Canada and she wants to live with him;
· she cannot find a job in Sri Lanka and has nowhere to live;
· she cannot stay in one place, too many bombings.
[18] In contrast, the principal Applicant's PIF contains a completely different story. I am of the view that the differences between the POE notes and her PIF are so stark that the Board's conclusion, on a balance of probabilities, that the story she told the Immigration Officer most closely resembled the truth was reasonably open to it. Even if I accept the principal Applicant's explanation set out in her affidavit, which was not before the Board, I am not satisfied that her explanation satisfactorily explains why there is simply no reference whatsoever at the POE to a fear of persecution in Sri Lanka related to a Convention ground. Accordingly, I am of the view that the Board did not err in this finding.
Relocation to LTTE Area
[19] The Board concluded that it was odd that the principal Applicant would leave one area under the control of the Liberation Tigers of Tamil Eelam ("LTTE" or the "Tigers") because of the bombing and shelling and then go to another area under LTTE control, when she stated that she was afraid of the LTTE.
[20] The Applicants submit that the Board's conclusion on this issue ignored the evidence, particularly the evidence given by the principal Applicant at the hearing and outlined in her affidavit (this is part of the missing transcript).
[21] As noted by the Applicants, the Board did not draw any conclusions with respect to this evidence. The Board merely stated that they found it "odd". A review of the decision as a whole shows that these statements were made in the context of a larger question in the minds of the Board members, namely why the principal Applicant feared returning to Sri Lanka and whether that fear was based on a Convention ground. The error alleged by the Applicants in this regard is set out in the middle of a paragraph of the decision that analyzes the principal Applicant's true concerns. The conclusion reached by the Board, which in my view was not patently unreasonable, was that the principal Applicant's main fear was of shelling and bombings, which does not engage Convention grounds. Accordingly, I see no error in the statement related to the relocation to an LTTE area. While the explanation in the affidavit of the principal Applicant might explain this statement of the Board, it does not specifically address the overall conclusion on that point.
Orders by the LTTE
[22] In its decision, the Board noted that the principal Applicant testified that the event triggering her departure from Sri Lanka was an order from the Tigers to sign cheques from the department where she was a clerk and hand the cheques to the Tigers. The principal Applicant had not specifically mentioned this order, which put her in serious danger, in her PIF. The Board found that her inconsistent testimony on this point impugned her credibility. The Applicants argue that the principal Applicant's explanation was plausible, particularly in light of the Court of Appeal's reasoning in Kassa v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 801 (C.A.) (QL) that a negative inference ought to be drawn solely because a person provides more information on examination than that given before.
[23] In my view, the case of Kassa, supra is not directly applicable. In that case, although the Court of Appeal critized the Tribunal for drawing a negative inference from the fact that the claimant had testified to matters at his hearing which had not been mentioned at an earlier examination, the determinative point was that the Tribunal had erred by attaching no weight to an affidavit.
[24] In my view, the Board saw the testimony given by the principal Applicant at the hearing to be more than an elaboration of the information contained in her PIF; rather, the Board reviewed her statement of duties as set out in her PIF and noted that it was inconsistent with her oral testimony. This conclusion was reasonably open to the Board.
Departure arrangements from Norway
[25] The Board concluded that the principal Applicant had given contradictory testimony about leaving Norway. She said that she made the arrangements to leave and then stated that her brother made these arrangements when he was visiting in September 1998, after her husband died. The Board did not believe that her brother had made the arrangements since the principal Applicant took steps to renew her status in Norway and did not leave Norway until one and a half years later.
[26] The Applicants submit that the principal Applicant did not give contradictory evidence about the arrangements for her to leave Norway. I agree with the Applicants on this point and find that the Board erred in concluding that a contradiction existed when there was none.
Letters to the North
[27] The Board disbelieved the principal Applicant when she testified that, after she had fled the North for Colombo, she sent two letters to people in her home area. The Board found, on a balance of probabilities, that someone fleeing from the Tigers is not likely to write letters to people in a Tiger-controlled area where the risk of the Tigers opening the letters is very real. The Applicants submit that the Board had no evidence before it that the LTTE opens mail and that, accordingly, there was no valid reason for the Board to draw an adverse plausibility finding against the Applicant about these letters (Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (C.A.) (QL)).
[28] Again, I agree with the Applicants that this was likely an error.
Ability to Live in Colombo or Jaffna
[29] In its decision, the Board concluded that there was no persuasive reason for the principal Applicant's claim that the authorities would not allow her to live in Jaffna or that she was precluded from living in Colombo. The Applicants submit that there was no foundation for their conclusions in this regard. Although the Board found that she appeared to have travelled to Colombo easily, in her affidavit the principal Applicant testifies that she told the Board that she was in hiding before she left the North for Colombo. Further, the Applicants submit that the Board erred by not addressing the fact that her two sisters were members of the LTTE, thereby putting the principal Applicant at serious risk.
[30] In my view, the overall conclusion reached by the Board in respect of these matters was reasonably open to it. The Applicants failed to persuade the Board that their fear of persecution was well founded. For example, with respect to the principal Applicant's relationship with her sisters in the LTTE, the record does not show that she highlighted this fear for the Board in any of her written or oral submissions. With respect to specific instances of persecution, such incidences, as set out in her testimony, were very limited. For example, she claimed that she was taken to the police station in Colombo for questioning on one occasion and was questioned two or three times while travelling on a bus. Although, I would not have described her trek from the Tiger controlled area in the North to be "uneventful" as did the Board, there was no critical event of persecution described in that journey.
[31] Finally, I note that, while the Applicants referred me to some documentary evidence that supports their claims, the Respondent was equally able to refer me to passages that refuted those claims. It was, therefore, open to the Board, an expert tribunal, to weigh that evidence as it did. It would not be for the Court to re-weigh the documentary evidence.
Conclusion
[32] Having completed this detailed review of the Board's decision, it appears that there were two clearly identifiable errors. However, each of these errors related to somewhat minor points in the Board's decision and should not, in my view, result in a successful application. Removing these two findings from the Board's decision still leaves in place an overall decision that can be supported by the evidence. Even if I were inclined to look at portions of this evidence differently, I cannot find that there was any error so determinative of the issues before the Board that its decision should be overturned.
Question for certification
[33] Neither party submitted a question for certification. None will be certified.
ORDER
This Court orders that this application for judicial review is dismissed. There is no
question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4143-02
STYLE OF CAUSE: GOWRY SIVANATHAN ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 15, 2003
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, APRIL 24, 2003
APPEARANCES BY: Ms. Barbara Jackman
For the Applicants
Ms. Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Ms Barbara Jackman
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030415
Docket: IMM-4143-02
BETWEEN:
GOWRY SIVANATHAN ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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