Date: 20030425
Docket: IMM-5645-01
Neutral citation: 2003 FCT 523
Ottawa, Ontario, this 25th day of April, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PUVANESWARY NAVARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated November 5, 2001, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board and referring the matter back for reconsideration by a different Board.
Background
Introduction
[3] The applicant is a citizen of Sri Lanka. She alleges a well-founded fear of persecution because of her Tamil Nationality and membership in a particular social group, namely, family.
[4] The applicant claims that her four daughters and one son live in Canada and that her husband died in 1992. She claims her family was harassed by warring parties in the Sri Lankan civil war.
[5] In 1995, the applicant claims she and her two daughters were displaced in the Vanni region. She claims that the Liberation Tigers of Tamil Eelam ("LTTE") extorted money from them. The applicant alleges she returned to Jaffna because there were no medical facilities in the Vanni region.
[6] The applicant claims she encouraged her daughters to leave Sri Lanka and that one came to Canada in 1999 and the second in 2000. The applicant claims money was extorted from her.
[7] In the latter part of 2000, the situation in Jaffna deteriorated. In January 2001, the applicant claims she went to Colombo. She claims she was harassed by the police and money was extorted from her.
[8] On February 20, 2001, the applicant allegedly left Sri Lanka. On March 18, 2001, the applicant arrived in Canada. She claimed refugee status ten days later.
[9] On October 22, 2001 a hearing was held. With the consent of the applicant, the claim was heard by one member. In a decision dated November 5, 2001, the Board found the applicant was not a Convention refugee. The Board determined that the applicant was not credible and there would not be a reasonable chance for her to be persecuted for Convention reasons if she were returned to Sri Lanka. The Board's reasons are as follows.
Reasons of the Immigration and Refugee Board (Refugee Division)
[10] Taking into consideration the evidence in its entirety, the Board concluded the applicant was not credible. The Board did not believe that the applicant's home in Pungudutivu had been ransacked and looted in 1991 as this was not mentioned in her narrative and she did not know why. In 1995, the applicant declared that she was living with her daughter and the family of her daughter in Jaffna and that her other children were living elsewhere. The LTTE then asked them to leave. She advised in her narrative that she left with two daughters. She responded that her second daughter left the day before she did. The Board did not see how the second daughter could leave the day before if she was living elsewhere. There was also a discrepancy as to when the applicant stated she returned to Jaffna, and how long she spent in Colombo before leaving for Canada.
[11] The applicant testified her husband had a store in Pungudutivu from 1945 to 1985, which conflicted with her son's PIF saying her husband had a store in Colombo. The applicant explained that her husband was in Colombo from 1980 to 1983 and that the store belonged to her husband's younger brother. She explained that during her husband's absence she was running the store in Pungudutivu with other people. When advised of her son's story, she said her husband went to Colombo in 1975 and the main family store was in Pungudutivu. This still did not match the son's version. It was also pointed out that if she did run the store, she failed to refer to any professional activity in her PIF. She replied that people in Pungudutivu would never say she worked in a store because she had people working with her.
[12] The only personal identity document the applicant produced was a register of birth, as well as the birth certificate of two of her children. The applicant testified she had an identity card issued in 1981, but that she misplaced it when she fled the Jaffna Peninsula in 1995. When asked how she managed to live without an identity card during a civil war, she alleged she was issued a letter containing her picture and a passport when she was in Jaffna in 1996 and 1997. This went beyond her earlier testimony that she was in the Vanni region since 1995.
[13] The Board found that the applicant was also not able to establish that she was familiar with the situation in Jaffna since her return. As such, the Board stated that it had no idea where the applicant resided during the last 20 years and it did not believe she was persecuted as alleged.
[14] The Board also stated that it understood memory problems could play a role, but not to the extent claimed. The Board noted that the applicant was ready to give the exact date she left her country and when she arrived in Canada.
[15] This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee.
Applicant's Submissions
[16] The applicant submits that the Board is obliged to base its decision on the totality of the evidence before it and has a duty to justify credibility findings. It is submitted that the Board erred in determining that the applicant was not a Convention refugee because it erroneously decided that certain aspects of the applicant's evidence were not credible or trustworthy, despite documentary evidence which supported the testimony of the applicant. As such, it is submitted that the Board erred in law.
[17] The applicant submits that the Board set an unreasonable threshold for evidence by not allowing for the effect of the passage of time on memory, especially in a senior applicant who has been traumatized by the effect of long term war.
[18] In regard to the testimony that one of the applicant's daughters left Jaffna the day before she did, the applicant submits that the daughter was living in the same area, but in a different home, and that the Board misconstrued the evidence at the hearing. Further, it is submitted that the timing of the departure of the applicant and her family from Jaffna, as well as the length of her stay in or near Colombo, do not go to the crux of the refugee claim.
[19] In regard to the dates the applicant's husband owned a store, it is submitted that the applicant is very bad with dates and that the substance of her testimony was correct. The applicant submits that the Board erred in misconstruing or ignoring the evidence before it in regard to the applicant's testimony with respect to dates, as well as the applicant's identification.
[20] The applicant submits the Board did not take into account the effect of trauma on memory when the applicant could not relate certain recent occurrences that had taken place at the end of her stay in Jaffna.
[21] The applicant submits that the Board had credible evidence before it that the applicant was from the North and that all of her children had a well-founded fear of persecution as they had been accepted as Convention refugees. It is submitted that the Board erred in ignoring relevant government-produced documentary evidence and thus, erred in law.
[22] The applicant submits that she would suffer persecution by being detained by the police in Sri Lanka and beaten, simply because of the suspicion of her background as a Tamil and because her children had fled the country. It is therefore submitted that the Board erred in failing to consider relevant evidence or in misconstruing the evidence before it.
[23] The applicant submits that her testimony and the events set out in the PIF were in harmony with the generally known circumstances of the area and were consistent with all the documentary evidence that was produced.
[24] The applicant submits that there was evidence before the Board showing she had experienced a subjective fear of persecution and that this was supported by objective evidence. It is further submitted that the applicant demonstrated that her fear of persecution was serious and that there existed a reasonable possibility of persecution should she return to Sri Lanka. It is submitted that the evidence before the Board was that Northern Tamils continue to suffer harassment, arrests and beatings at the hands of the government.
[25] The applicant submits that given the documentary evidence before the Board and the identification of the applicant as a Northern Tamil, there was credible evidence upon which the Board could have found the applicant was a Convention refugee.
Respondent's Submissions
[26] The respondent submits that the Board made findings regarding the credibility and plausibility of the evidence, which were reasonably open to it on the record.
[27] The respondent submits that there is no evidence to suggest the Board refused to consider any evidence, that it ignored evidence, or that it made an erroneous finding with respect to any evidence.
[28] The respondent submits that the standard of review in this case is whether the Board acted in a patently unreasonable manner. It is submitted that the primary question to be asked is whether the finding was one that could reasonably have been made on the evidence before the Board. It is submitted that the Board did not make findings that were perverse in nature and that there was evidence before it to support its conclusions.
[29] The respondent submits that the Board understood that memory problems could play a role, but not as a means of excusing all of the inconsistencies in the applicant's evidence. It is submitted that it was open to the Board to conclude that the applicant had not established that her memory problems would explain all the difficulties in her testimony, given the lack of psychological or psychiatric evidence presented that would have assisted the Board in putting the applicant's inconsistencies into context. The respondent submits that the Board considered the effect of trauma on memory, in addition to considering the totality of the evidence.
[30] The respondent submits that the applicant failed to meet the onus of proving that she had a well-founded fear of persecution should she return to Sri Lanka. The respondent submits the applicant failed to demonstrate that she was similarly situated to relatives who were found to be Convention refugees.
[31] The respondent submits it was open to the Board to make the overall finding that the applicant's testimony was not credible because of her implausible and inconsistent testimony on several issues that cast doubt on the totality of her testimony. The respondent submits that the timing of the departure and return of the applicant and the departure of her family members from Jaffna in 1995 and the length of time spent by the applicant in Colombo are relevant and material to the consideration of her refugee claim. The respondent submits that the Board weighed and considered evidence and found it to be neither credible nor consistent. The respondent submits that this case is similar to Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (QL) (T.D.) where it was held that it was reasonable for the Board "to take a dim view of the fact that the applicant had omitted several significant facts".
[32] The respondent submits that documentary evidence of Sri Lanka was before the Board during the hearing and that the Board properly considered and weighed this evidence against the testimony of the applicant. The respondent submits that the fact the written reasons do not summarize all of the evidence that was introduced does not constitute a reviewable error of law. The respondent submits that it was the totality of the evidence, with its inconsistencies and discrepancies taken together, that led to the finding that the applicant was not a credible witness, and that this finding is not so unreasonable as to warrant the intervention of the Court.
[33] The respondent submits that the Board understood the facts of the applicant's claim and found the evidence in support of it insufficient to support a positive determination.
Issues
[34] The issues as stated by the applicant are as follows:
1. Did the Board err in that it made findings of fact which misconstrued or ignored evidence before it, and by relying on these findings, made an adverse determination as to the credibility of the applicant?
2. Did the Board err in failing to make a reasonable assessment of the applicant's credibility, and by failing to put its adverse finding to the applicant to allow her to disabuse herself of the alleged implausibility?
3. Did the Board err in determining that the applicant is not a Convention refugee, in failing to consider up-to-date documentation with respect to the human rights record and the likelihood of persecution should the applicant return to Sri Lanka?
4. Did the Board err in failing to make a reasonable assessment of the evidence before it, and then further err by relying on their assessment to render its decision in this matter?
5. Did the Board err in not determining that the applicant had a well-founded fear of persecution should she return to Sri Lanka?
Relevant Statutory Provisions
[35] The relevant subsection of the Immigration Act, R.S.C. 1985, c. I-2 states:
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"Convention refugee" means any person who
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« réfugié au sens de la Convention » Toute personne:
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(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
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a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
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(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
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(i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
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(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
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(b) has not ceased to be a Convention refugee by virtue of subsection (2),
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b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
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but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi.
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Analysis and Decision
[36] Issue 1
Did the Board err in that it made findings of fact which misconstrued or ignored evidence before it, and by relying on these findings, made an adverse determination as to the credibility of the applicant?
Evidence
The Board stated at page 1 of its reasons:
In determining whether the [applicant] is a Convention refugee, the panel took into consideration the evidence in its entirety, counsel's submissions as well as relevant case law. It also took into consideration the Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations. The panel came to the conclusion that the [applicant's] evidence [was] not credible.
[37] Memory Difficulties
The applicant submits that the Board set an unreasonable threshold for evidence by not allowing for the effect of the passage of time on memory. The applicant also submits that the Board did not take into account the effect of trauma on memory. At page 3 of its reasons, the Board wrote:
. . . The panel can understand that memory problems could play a role, but not to that extent. The panel notes that the [applicant] was ready to give the exact date she left her country and when she arrived in Canada.
No psychological or psychiatric evidence was presented by the applicant to help put the inconsistencies in the applicant's testimony into context. I am satisfied that the Board did take into consideration the effect of the passage of time and trauma on the applicant's memory.
[38] Home in Pungudutivu was Ransacked
The Board concluded that this event did not take place. This event was not mentioned in the applicant's PIF and she did not know why it was not mentioned. This finding by the Board was a finding that was open to it.
[39] Leaving Jaffna in 1995
At page 440 of the tribunal record, the applicant stated in her testimony before the Board:
A. I was with my youngest daughter, [Indradevi].
Q. Who else from your family, if anyone, was with you in 95?
A. Her family and myself.
Q. And was there anyone else left of your family in 95 in Jaffna?
A. No.
This testimony conflicted with the applicant's PIF which indicated that she had two daughters in Jaffna in 1995. The Board did not accept the applicant's explanation of the inconsistency. It was open to the board to use this as a basis for finding the applicant not to be credible.
[40] Return to Jaffna and Stay in Colombo
The Board stated at page 2 of its reasons:
The [applicant] declared that she returned to Jaffna in January 2000 while she indicated at the beginning of the hearing that it was in February 1999. She explained that she forgot everything. At the beginning of the hearing, she indicated that she stayed a week in Colombo before leaving her country for Canada. Later, she said she remained there for three weeks. Confronted with this inconsistency, she explained she was one week in a lodge and two in the agent's house, a place she did not know. It was pointed out to her that if she did not feel safe in Colombo, if the atmosphere there was tense as she alleged in her narrative, why was she unsure about the length of her stay. She declared the agent took her to his house in the city of Kandi or somewhere else. The panel does not find her to be credible.
The applicant submits that this testimony does not go to the crux of the refugee claim and that the Board erred in misconstruing the relevance of the evidence before it. However, I am of the view that these two inconsistencies do provide a reasonable basis for the Board to find the applicant not to be credible.
[41] Husband's Store
The applicant testified that her husband had a store in Pungudutivu from 1945 to 1985
and that he did not have a store in any other place (see tribunal record page 427). When confronted with her son's PIF stating that her husband had a store in Colombo, the applicant explained that from 1980 to 1983 her husband was in Colombo and that the store belonged to his younger brother. The applicant testified that she ran the main store in Pungudutivu with the help of other people. The applicant was then advised that the son's PIF said the family business was in Colombo. The applicant said her husband went to Colombo in 1975 (see tribunal record pages 428 to 432). The Board found that this still did not match her son's version which mentions Colombo as the family business and that the son joined the father in the store in 1974. During the hearing, the Board noted that this issue was "not central to [the applicant's] claim" (see tribunal record page 430).
[42] The applicant was questioned as to why she never mentioned in her PIF that she had worked in the store in Pungudutivu while her husband was away. The applicant answered that people would never say she had worked in the store because she "had people to work in the store" (tribunal record page 438).
[43] The omission of an important fact from a claimant's PIF can be the basis for an adverse credibility finding. I am therefore of the view that it was reasonable for the Board to use the fact she had not mentioned any professional activity in her PIF as a basis to find her not credible.
[44] Identity Card
The Board stated at pages 2 and 3 of its reasons:
. . . She was asked how for years she managed to live without an identity card in a country torn by civil war. She alleged she was in Jaffna when, respectively, in 1996 and 1997 she was issued a letter containing her picture and a passport. This goes beyond earlier testimony that she was in the Vanni region since 1995. She replied she was disturbed. She was confronted with the documentary evidence, which indicates that to obtain a passport one has to submit his or her National Identity Card and birth certificate as well as an application and pictures. She answered she gave pictures. The panel does not find her to be straightforward and it believes that there is no credible evidence establishing her residence at the time she alleged having been persecuted.
I am of the opinion that the conclusion reached by the Board on this matter was a conclusion that was open to the Board.
[45] Situation in Jaffna
The applicant was asked about the situation in Jaffna since her return. According to the Board's reasons at page 3, she was unable to indicate that certain events had occurred. The Board stated it had "no idea where she resided during the last twenty years and it does not believe she was persecuted as alleged." The applicant submits she has suffered major trauma, having five children flee Sri Lanka and that the Board did not take into account the effect of trauma on memory. However, as discussed above, it appears that the Board did take into account the effect of trauma on memory.
[46] Credibility
In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) at paragraph 4, the Federal Court of Appeal held:
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. . . .
[47] Further, in Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (QL) (C.A.), the Court stated at paragraph 1 that internal contradictions and inconsistencies are "the heartland of the discretion of triers of fact". The Board in this case has found a number of inconsistencies in the applicant's testimony. On the basis of these inconsistences, the Board found the applicant's evidence not to be credible. I am of the opinion that this finding was open to the Board and that it was a reasonable finding based on the evidence before it.
[48] Issue 2
Did the Board err in failing to make a reasonable assessment of the applicant's credibility, and by failing to put its adverse finding to the applicant to allow her to disabuse herself of the alleged implausibility?
I do not find any merit to this argument as the Board did put its credibility concerns to the applicant by pointing out to the applicant various inconsistencies in her evidence.
[49] Issue 3
Did the Board err in determining that the applicant is not a Convention refugee, in failing to consider up-to-date documentation with respect to the human rights record and the likelihood of persecution should the applicant return to Sri Lanka?
This issue is covered at the beginning of the discussion regarding Issue 1.
[50] Issue 4
Did the Board err in failing to make a reasonable assessment of the evidence before it, and then further err by relying on their assessment to render its decision in this matter?
This issue was covered in my analysis under Issue 1.
[51] Issue 5
Did the Board err in not determining that the applicant had a well-founded fear of persecution should she return to Sri Lanka?
The Board noted at page 3 of its reasons:
The claimant was asked about the situation in Jaffna since her return. She was unable to indicate that in late March 2000 the Sri Lankan army suffered heavy casualties when the LTTE launched a massive sea and land assault on the Jaffna Peninsula. Thousands of people demonstrated before the Jaffna government in April 2000 because they were trapped in Palai and Kilali. Also hundreds of civilians who fled this latest upsurge of fighting between government forces and the Tigers have sought refuge in churches, temples, schools and empty houses in different towns in the Jaffna Peninsula. A strike was called by an alliance of forty NGOs including religious organisations and the Jaffna University student union to protest over the civilians who were waiting permission to leave their villages which are situated close to the fighting in the southern part of the Jaffna Peninsula. Finally, the Jaffna town was regaining normalcy as per an article of the Daily News dated July 4, 2000. Consequently, the panel has no idea where she resided during the last twenty years and it does not believe she was persecuted as alleged.
I am of the view that the Board's conclusion with respect to the applicant's fear of persecution is reasonable based on various inconsistencies and omissions outlined in the Board's reasons.
[52] The application for judicial review is dismissed.
[53] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[54] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5645-01
STYLE OF CAUSE: PUVANESWARY NAVARATNAM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, November 21, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, April 25, 2003
APPEARANCES:
Ms. Helen Luzius
FOR APPLICANT
Ms. Alexis Singer
FOR RESPONDENT
SOLICITORS OF RECORD:
Helen P. Luzius
3080 Yonge Street
Suite 5030
Toronto, Ontario
M4N 3N1
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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