Date: 20050128
Docket: IMM-1854-04
Citation: 2005 FC 141
BETWEEN:
MARY PHILOMINA NESARATNAM ANTHONIMUTHU
(a.k.a. MARY PHILOMINA ANTHONIMUTHU)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DE MONTIGNY J.
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act (IRPA) S.C 2001, c. 27, of the decision made by an Officer of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 3, 2004. The Officer found that the applicant was not a Convention refugee, or a person in need of protection.
BACKGROUND
[2] The applicant, Mary Philomena Nesaratnam Anthonimuthu, is a 76-year-old citizen of Sri Lanka. She bases her well-founded fear of persecution on her ethnicity, and membership in a particular social group, namely Tamils who are extorted by the Liberation Tigers of Tamil Eelam (LTTE).
[3] The applicant came to Canada in July of 2003, and applied for refugee status twelve days later. She has eight children: three who are deceased, two sons and a daughter who are Canadian Citizens, another son who was accepted as a Convention refugee, and a daughter, presumably still in Sri Lanka (her PIF says 'unknown' beside her daughter's name). She also has four siblings in Sri Lanka. Her parents and her husband are deceased. Her husband died in 2001.
[4] The applicant says her family suffered a lot due to ethnic conflict in Sri Lanka. Her children faced recruitment by the LTTE and arrest by security forces. Her husband was detained by the LTTE in 1994, after refusing to pay money demanded of the family.
[5] In 1995, the army attacked Jaffna, where the applicant was living. The applicant and her family were displaced to St. Thomas Church at Point Pedro, where there was a shortage of food and medicine. The applicant's husband became very ill.
[6] At this point, the applicant's son attempted to help her and her husband, and tried to sponsor them so that they could come to Canada. They went to Colombo to await the result of the sponsorship application. The sponsorship was rejected because the son did not have enough income.
[7] In June 2001, the applicant took her husband to India for medical treatment. He died in July 2001, and the applicant returned to Colombo thereafter.
[8] She was approached by the LTTE in Colombo, in May 2003, for the sum of twelve lakhs (approximately CDN$16,000) because she had children living abroad. She was told that, if she did not pay, she would be taken to Vanni and put in a bunker, just as they did to her husband in 1994.
[9] The applicant came to Canada on July 5 2003, and filed for refugee protection on July 17, 2003.
[10] The Board found her not to be a Convention refugee, or a person in need of protection, on February 3, 2004.
DECISION UNDER REVIEW
[11] The Board found the applicant not to be a Convention refugee, or a person in need of protection, for the following reasons:
a. Credibility;
b. Well-Founded Fear of Persecution - Internal Flight Alternative (IFA); and
c. Consolidated Grounds.
[12] The Board challenges the applicant's credibility on two grounds: (a) a delay in claiming refugee status, and (b) plausibility of the applicant's story.
[13] The delay in claiming is related to the 12 days between the applicant's arrival, and her refugee claim. The Board says it accepts the applicant's explanation of medical reasons.
[14] On the second ground, the Board finds it not plausible that the LTTE would demand such a large amount of money, even if the applicant had children living abroad. The Board claims that there is no reliable evidence that the LTTE was extorting large sums of money in Colombo during the period of time alleged by the claimant, nor was there evidence that elderly Tamils were mistreated by any authority. The Board finds that the applicant's allegation of extortion is not supported by the documentary evidence. The Board finds that the applicant came to Canada to be with her children.
[15] After credibility, the Board goes on to analyze the possibility of an IFA in Colombo, where the applicant resided prior to coming to Canada. The Board notes that the documentary evidence pertaining to Colombo has changed over the last two years. The Board cites the Directorate Information and Refugee Board Issue Paper on Sri Lankan developments since the February 2003 cease-fire, issued in March 2003. The Board bases the Colombo IFA on two points: (1) the Colombo registration requirements are no longer in effect, which means that since 2002, there has been no complaints of police officers demanding registrations; and (2) In Colombo, most checkpoints and roadblocks were dismantled by January 2003, which in turn means that there were no reports of "round-ups" of Tamils in Colombo between October 2002 and March 2003.
[16] The Board also notes that there are teaching hospitals in Colombo, with medical staff fluent in Tamil, Sinhala, and English. Colombo also has a functioning legal system.
[17] The Board finds that there is no more than a mere possibility that the applicant would be persecuted in Colombo because of her Tamil ethnicity.
[18] The Board then goes on to quote an excerpt from the Issue Paper pertaining to the United Nations High Commissioner for Refugees (UNHCR) Branch Office for Canada, which states that:
UNHCR maintains its position that although peace talks between the Sri Lankan government and the LTTE are taking place it is premature to promote large scale voluntary repatriation. However, UNHCR has not called for a moratorium on the return of unsuccessful asylum-seekers. Asylum-seekers individual needs for protection must be assessed on their own merits, in the course of full and fair procedures, before their removal is effected to Sri Lanka.
[19] The Board also notes that the security checks on returnees arriving in Sri Lanka are "no longer as strict".
[20] The Board then goes on to the second prong of the two-prong test in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (FCA) is met. The second part of the test is that conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there. The Board says that the applicant has previously resided in Colombo, could receive medical care, and would be able to worship at a religious facility of her choice. The Board also notes that the applicant receives a government pension through her deceased husband's employment. The Board says there is no documentary evidence to indicate that hostilities between the LTTE and the government have recommenced.
[21] The Board's final issue is consolidated grounds. The Board finds that, since it did not find the applicant's well-founded fear of persecution to be credible or objectively well-founded, it must also fail on the grounds of a risk to life or to a risk of cruel and unusual treatment or punishment and danger of torture.
ISSUES
[22] The applicant raises a number of issues, and sets out for the Court's consideration, whether the issues, singly or in combination, are serious ones. The issues are as follows:
a. Did the Board err in determining that it was not plausible that the LTTE would demand an exorbitant sum from the Appellant, or would commit extortion on an elderly person in Colombo;
b. Is the test at law, for an IFA, different under s. 97(1)(b) of the IRPA;
c. Did the Board err in law or exceed jurisdiction or make errors of fact in relation to the IFA finding;
d. Did the Board err in finding that the applicant did not have a well-founded fear;
e. Did the Board err by failing to provide a separate analysis under ss. 97(1)(a) and 97(1)(b) of the IRPA;
f. Did the Board err in law vis-à-vis the test under s. 97(1)(b); and
g. Did the Board err in law vis-à-vis the test under s. 96 of the IRPA.
ARGUMENT
Credibility
[23] The applicant argues that there are a number of errors in the Board's decision. The first is that the Board relied on the finding that the applicant was not credible, because she came to Canada to be with her children.
[24] The applicant says there is no doubt that she came to Canada to be with her children; the applicant, in her PIF, sets out that her children invited her to Canada. The Applicant's personal information form ("PIF") reads, "I asked for help. My children asked me to come to Canada."
[25] The applicant says that the Board's finding that the applicant came to Canada to be with her children does not contradict her evidence, and, therefore, cannot be used to impugn her credibility. The applicant says that the finding accepts her evidence. The applicant says, in the absence of contradictory evidence, her evidence must be considered as persuasive.
[26] The applicant goes on to argue that the finding that the extortion was not plausible was also erroneous. The applicant says that the Board's ground for finding that the extortion did not take place was that the amount was too high. She says that the Board erred because there was no evidence of the quantum of money that the LTTE extorts from people in Sri Lanka. She testified that the LTTE knew she had four children abroad, and she submits that approximately CDN$ 16,000 is not an 'exorbitant' amount of money among four Children living in Canada.
[27] The applicant says that the Board narrowed the test too much, when it found that there was no evidence of elderly Tamils being extorted in Colombo. The applicant notes that the Board did not say that (a) there was no extortion by the LTTE, or (b) there was no extortion in Colombo. The applicant says that the qualifiers used (elderly Tamils) narrow the test too much, and the Board erred by being microscopic. In addition, the applicant submits that documentary evidence, in the form of the U.S. Department of State (DOS) report on Sri Lanka, corroborates the extortion and kidnapping for ransom by the LTTE, and also shows that the LTTE is now free to operate in government controlled territories.
[28] The applicant also points out that sworn statement by an applicant are presumed to be true, unless there is a juridical reason to find otherwise, and submits that absence of corroboration is not such a reason.
[29] She says that the Board erred in assessing all the grounds for credibility, and goes on to argue that, if the Board erred in the credibility finding, the decision cannot stand, since the extortion took place in the location of the proposed IFA, Colombo. She also notes that the Board's decision cited the UNHCR passage which states that removal to Sri Lanka should only occur after each case is examined on the merits of the applicant's own circumstances.
[30] The respondent replies that the Board is entitled to make findings regarding plausibility of a claim, and it is in the best position to do so, having had the opportunity to see and hear from the applicant, and to assess the evidence as regards the allegations and assessments, which lie within the expertise of the Board. The respondent says the applicant has failed to show that the Board's findings were perverse of capricious.
[31] The Respondent also contends that the Board did not err by not accepting the Applicant's testimony as a given. Where the Board does not find the Appellant's allegation plausible and the documentary evidence does not support her assertion either, the Board does not err by not blindly accepting the Applicant's testimony as a foregone conclusion.
Typographical Error
[32] The applicant makes a brief argument regarding a typo (claimants, plural, instead of claimant, singular, in the decision), stating that this section of the reasons may have been taken from another case. The applicant cites Bojaxhi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 516, which states, at para 12, that the Court will not correct an error that goes to the heart of the decision, when the Board has not taken steps to make the amendments required to correct the problem.
[33] The respondent acknowledges the error, but submits that it is of no consequence since it is clearly a typographical error that is immaterial - it does not go to the heart of the decision.
IFA - Well-Founded Fear
[34] The applicant argues that s. 97 of the IPRA requires a separate IFA analysis. The Board found that because there was no more than a mere possibility of persecution, a claim under s. 97 had to be ruled out. The applicant cites Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 1211 as authority that section 97 requires a separate analysis, given that there was credible evidence.
[35] The applicant also goes on to argue that the test for s. 97(1)(a) of the IRPA is different (and lower) from the test for section 97(1)(b) of the IRPA, and definitely lower than the test under section 96. Focusing on the use of the word "risk" in section 97(1)(b), the Applicant contends that it is a standard quite a bit lower than the reasonable chance test that is used in the context of section 96.
[36] As a consequence, the applicant argues that the test for s.96 was inappropriately applied, in that the word "would" was used in the test. The phrase used by the Board is: "The panel finds that there is not more than a mere possibility that the claimants [sic] would be persecuted in Colombo". The applicant says that the use of the word "would" creates the impression that a balance of probabilities test was used.
[37] The applicant goes on to argue that the IFA in Colombo is not valid, because one basis that the Board uses for the finding is the applicant's siblings. The applicant notes that none of her siblings live in Colombo; they are all in the north or in Vanni. The applicant says the Board erred, by taking into consideration factors, the siblings, who are outside the IFA, in doing the IFA assessment.
[38] The applicant closes on the IFA issue by stating that the Board failed to consider a material fact - that she is a 76-year-old woman, who, if returned to Sri Lanka, would be returning on her own, without a male protector. The applicant submits that the Board erred in finding a reasonable IFA in Colombo.
[39] The respondent submits that the test is higher under section 97(1) than under section 96 of the IRPA.
[40] The respondent says that the Board took into account the evidence and provided its findings regarding both sections 96 and 97, having regard to both credibility and current country condition documentation in regard to the applicant's claim.
[41] The respondent also argues that the applicant's argument that the threshold for section 97(1)(b) is lower that the threshold for section 96 is without basis, in the statute, or in the case law.
[42] The respondent says the proper test for s. 96 is more than a mere possibility, which is clearly found in the Board's decision.
[43] The respondent says that the Board did note that the applicant had siblings in Vanni, and the north, but argues that the siblings are not the reason why the Board found a valid IFA in Colombo. The respondent says the Board found an IFA in Colombo based on the documentary evidence, and the applicant's personal circumstances. The personal circumstances included the fact that Colombo was the place where the applicant resided prior to coming to Canada, that the applicant was educated in Sri Lanka at a time when English was one of the languages, and that she could receive medical care, and worship at the religious facility of her choice in Colombo.
[44] The respondent closes the IFA argument by stating that, a claimant will not merit protection if the government of the country of origin is capable of providing the necessary protection within its territory and where it may reasonably be expected that, having taken all the circumstances into consideration, the person can move to that part of the territory. The respondent says the onus is on the applicant to show why the IFA is unreasonable, and submits that the applicant, in this case, has failed to do so.
ANALYSIS
[45] Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. no 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. no 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. no 662 (F.C.).
[46] Having said this, when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.); Sathanandan v. Canada (Minister of Employment & Immigration) (1991), 137 N.R. 13 (F.C.A.); Benoit v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 923 (F.C.A.). As stated by Muldoon J. in Valtchev v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1131 (FCTD), this presumption should not be cast aside lightly, and a tribunal must proceed with caution before relying on documentary evidence to disregard a sworn testimony. Muldoon J. notes at para 7:
A Board must be careful when rendering a decision based on lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judges from Canadian standards might be plausible when considered from the claimant's milieu.
[47] The least that could have been expected from the Board was to give its reasons for casting doubt upon the applicant's credibility (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Mui v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. no. 1294 (F.C. T.D.). In the present case, the Board concluded that the claimant came to Canada in order to be with her children, and rejected rather summarily her allegation of being a victim of extortion. The summary rejection was based on the implausibility of such an "exorbitant" amount of money, and an absence of evidence that elderly Tamils were being extorted in Colombo.
[48] Bearing in mind the words of caution of Muldoon J. in Valtchev, supra, and considering that terrorist organizations do not always act rationally, I do not find that twelve lakhs (1,200,000 rupees or approximately CDN$16,000) is an implausible amount of extortion. Indeed, the evidence reveals that the LTTE demanded up to 1,000,000 rupees for the release of kidnapped businessmen in 2001; (Country Reports on Human Rights Practices, U.S. Department of State, 2002, at page 6; Application Record, page 47). Since the LTTE knew that the Applicant had four children living in Canada, it is far from obvious that the claimant could not have been threatened with detention unless she paid 1,200,000 rupees.
[49] As to the absence of reliable evidence that the LTTE was extorting large amounts of money in Colombo at the time alleged, nor that elderly Tamils were mistreated, the evidence is at best ambiguous. The U.S. Department of State Report mentions that the LTTE was responsible for extortion without confining this finding to a specific geographical zone. The Research Directorate of the Immigration and Refugee Board also reported in 2003 that, "as a consequence of the ceasefire and the resulting ability of the LTTE to now move freely in government controlled areas, the LTTE has reportedly been able to extend its extortion activity into new territory, particularly the towns of Batticaloa and Karaitivu".
[50] In view of the foregoing, the Board would have been well advised to particularize its reasons before coming to the conclusion that the applicant's sworn allegations are not plausible and ruling adversely on her credibility.
[51] The Applicant also contends that the Refugee Division erred in not assessing her claim under section 97 of the IRPA, taking it for granted that she must fail on the grounds of a risk to like or to a risk of cruel and unusual treatment or punishment and danger to torture if she could not establish a well-founded fear of persecution. This Court has repeated on a number of occasions that the analysis under section 97 is different from the analysis required under section 96 and that claims made under both sections therefore warrant separate treatment. The Court said, in Bouaouni, supra, at paragraph 41:
It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founder [sic] fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate.
[52] The only circumstance in which the Refugee Division may dispense with a separate section 97 analysis is when there is absolutely no evidence that could support a claim that a person is in need of protection: Soleimanian, 2004 CF 1660, at paragraph 22.
[53] Since I have already concluded that the Applicant's allegations with respect to the threat of extortion have not been dealt with adequately by the Board, and were dismissed without much explanation, I can not rule out the possibility that the Applicant may have at least an arguable case under section 97(1)(b) of the IRPA. The deficiencies within the Board's credibility findings, in the context of section 96 undermine its findings under section 97.
[54] Had the Applicant been able to establish a risk to her life or a risk of cruel and unusual treatment or punishment, she would also have to show that this risk exists in the part of Sri Lanka specified in the IFA - Colombo. Again, it is well established that an individual need not pursue an Internal Flight Alternative if it is not objectively reasonable to do so or if it would cause undue hardship. In other words, and to quote Linden JA, "an IFA cannot be speculative or theoretical only; it must be a realistic, attainable option" (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.), at paragraph 14).
[55] In its decision, the Board focused on the fact that the Applicant was previously raised in Colombo, was educated in English (which is still the language of commerce), could receive medical care, would be able to worship in her choice of religious facility, and receives a government pension. But all of this would be of little comfort if she is really at risk of being the victim of extortion at the hands of the LTTE. It must be remembered that the Applicant is an elderly woman of 76, with no relatives in Colombo to protect her.
[56] Finally, there was some discussion as to the proper standard to be used in assessing the risk under section 97(1)(b). This was indeed a question that was certified for an appeal to the Federal Court of Appeal under section 74(d) of the Act. Fortunately, we now have the benefit of the Court of Appeal's views, as they decided in Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, that the degree of risk under paragraphs 97(1)(a) and (b), is "more likely than not". Rothstein J.A., speaking for the Court of Appeal, also noted that the standard of proof to be applied, under both section 96 and section 97 of the IRPA, is the balance of probabilities test. The Board did not err in applying the balance of probabilities test, but, as it erred in the credibility finding, the decision must be set aside.
[57] In conclusion, I am of the view that the Board did not properly assess Mrs. Anthonimuthu's credibility and the plausibility of her claim, and that these findings are sufficiently central to the Board's analysis to require that the decision be set aside. No question will be certified.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1854-04
STYLE OF CAUSE: MARY PHILOMENA NESARATNAM ANTHONIMUTHU (a.k.a. MARY PHILOMENA ANTHONIMUTHU) v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER: de Montigny J.
DATED: January 28, 2005
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Ms. Mielka Visnic FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Michael Crane
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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