[1]
This is an application for judicial review under section 72 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a
decision of the Refugee Division of the Immigration and Refugee Board (the
Board) dated February 3, 2004 wherein the applicant was found not to be a
Convention refugee or a person in need of protection pursuant to sections 96
and 97 of the Act.
[2]
The present application must fail. The applicant has not convinced me
that the Board’s
findings of fact are arbitrary or capricious, that the Board ignored relevant
evidence, or that it otherwise erred in law in dismissing the applicants’ claims for protection.
[3]
The Board is entitled to conclude that an applicant is not credible
because of implausibilities in his or her evidence, so long as its inferences
are not unreasonable and its reasons are set out in "clear and
unmistakable terms" (see Hilo v. Canada (Minister of Employment and
Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister
of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Zhou v.
Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087
(F.C.A.) (QL)). Furthermore, the Board is entitled to make reasonable findings
based on implausibilities, common sense and rationality (see Shahamati v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415
(F.C.A.) (QL)). The Board may reject uncontradicted evidence if it is not
consistent with the probabilities affecting the case as a whole, or where
inconsistencies are found in the evidence (see Akinlolu v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 296 (F.C.T.D.) (QL); Kanyai
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 850, [2002]
F.C.J. No. 1124 (F.C.T.D.) (QL)).
[4]
In my view, the Board rightly concluded that the applicant is not a
credible and trustworthy witness. As the Board has a well-established expertise
in the determination of credibility, and it properly set out in the impugned
decision the numerous inconsistencies and implausibilities in the applicant’s evidence, this Court
should not interfere with those determinations (see Akinlolu, supra;
Kanyai, supra; and the grounds for review at
subsection 18.1(4)(d) of the Federal Court Act).
[5]
In the case at bar, the Board clearly explained why it did not give
credibility to the applicant’s
story. On this matter, the Board found that the applicant failed to provide
credible or trustworthy testimony or alternate evidence to establish the
material aspects of his claim, that is that the thugs, the Liberation Tiger of
Tamil Eelam (LTTE) or the security forces would be interested in him if he
returns to Sri Lanka. In fact, the applicant did not even provide evidence that
he was threatened by the thugs or their family after he returned from Oman in
1994. Moreover, the applicant failed to mention in his narrative that the LTTE
attempted to kidnap him when he did not comply with their request. Furthermore,
the explanations offered by the applicant, were not convincing. In my opinion a
person claiming refugee status would not forget to include in his narrative the
fact that the LTTE attempted to kidnap him. In addition, I cannot conceive why
a person in his position would not at least try to warn his employer that the
LTTE wanted the floor plans for their building nor alert the security personnel
that he was aware of threats to kidnap him. On another note, the applicant did
not provide any evidence that he was harassed after he returned from Bangkok in
1996 nor did he provide credible evidence which could support his allegation of
fear of security forces in general in Sri Lanka.
[6]
Indeed, it is well established that a general lack of credibility can
affect all relevant evidence submitted by the applicant and ultimately cause
the rejection of a claim. On this matter, in Sheikh v. Canada, [1990] 3
F.C. 238 (C.A.) the Federal Court of Appeal held that:
I would add that in my view, even
without disbelieving every word an applicant has uttered, a first‑level
panel may reasonably find him so lacking in credibility that it concludes there
is no credible evidence relevant to his claim on which a second‑level
panel could uphold that claim. In other words, a general finding of a lack of
credibility on the part of the applicant may conceivably extend to all relevant
evidence emanating from his testimony.
[7]
This brings us to the issue of “indirect
persecution” which is
raised here by the applicant. The applicant submits in this regard that the Board
erred in finding that:
I sympathize with a father who is
worried about his son, however, this cannot be used as a basis for a refugee
claim.
Reasons,
page 4, Application Record, page 10.
[8]
That said, the applicant points out that the Board clearly accepted this
evidence:
They are interested in recruiting his
son, however, as mentioned before there are venues to avoid that problem.
Reasons,
page 7, Application Record, page 13.
[9]
In his first memorandum, the applicant submits that, as a matter of law,
the Board’s finding is
incorrect. Persecution visited upon one’s
loved ones, can be persecution on the relatives, i.e. the applicant. There is
nothing more basic that feeling anxiety and pain because a loved one is at
risk. In his supplementary memorandum the applicant now raises this rhetorical
question: “if the
applicant is required to return to Sri Lanka can anyone doubt that the LTTE
will bring violent pressure to bear on the head of the family to force the son
into the LTTE.”
[10]
The applicant has not proven that he suffered persecution on that basis
nor did he establish that there is a clear nexus between the persecution that
is being levelled against his son and that which is allegedly taking place
against him. Claims for refugee or protected person status cannot be based on
persecution or threats of persecution on relatives. Indirect persecution does
not constitute persecution within the definition of Convention refugee and a
claim based on it should not be allowed (Pour-Shariati v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 810 (F.C.A.) (QL) at
para. 3; Castellanos v. Canada (Solicitor General), [1995] 2 F.C.
190 (F.C.T.D.) at paras. 17, 28, 33-36; Rafizade v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 359 (F.C.T.D.) (QL) at
paras. 8-16; Molaei v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 107 (F.C.T.D.) (QL) at paras. 26-27; Nithiyakanthan v.
Canada (Minister of Citizenship and Immigration), [1997] F.C.J.
No. 136 (F.C.T.D.) (QL) at paras. 5-8; Marinova v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 178 at para. 18).
[11]
The applicant’s
argument that his concern for his son amounts to personal persecution of the
father, is neither cogent nor supported by the jurisprudence of this Court. In
Packiam v. Canada (Minister of Citizenship and Immigration), 2004 FC 649 at
paras. 8-10, a case referred to by the applicant, the Court was referring to
the direct effect in the applicants (not their children), who were victims of
particularly violent beatings, detentions, threats and extortion. On the facts
of the case at hand, the applicant has provided no evidence that he has or will
face similar treatment (such as beatings, detentions, threats and extortion) as
a result of the LTTE’s
interest in recruiting his son, who is still in Sri Lanka. The applicant does
not mention that he will face any risk at the hands of the LTTE because his
son, in his Personal Information Form, at his hearing, or in his affidavit
filed in support of his application for leave and for judicial review.
Further, the applicant has not established, either by way of affidavit evidence
or by way of documentary evidence, that the applicant will be targeted and face
violence at the hands of the LTTE because of their interest in his son.
[12]
As for the applicant’s
allegation that the 3-day detention amounts to a “crime
against humanity”, I
find that it is unfounded. The applicant has not convinced me that the Board
was in error when it concluded that the said detention was not committed as
part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack. In my view, the Board rightly
concluded that it was an isolated act since there was no documentary evidence
that there was of arbitrary large-scale or massive detention of Tamils at that
time. Anyhow, this is not material in the case at bar since the applicant does
not plan to return to the particular town where he was detained, there is no
longer a requirement to register with the police in Colombo, road blocks and
checkpoints were largely lifted in Colombo and the applicant can clearly still
live in Colombo or prevail himself of the protection of the state of Sri Lanka
in Colombo.
[13]
As for the applicant’s
allegation regarding the lack of separate analysis under section 97 of the Act,
I find that it is clearly unfounded. I am satisfied that the Board’s reasons address the issue
covered by section 97 of the Act. Apart from the evidence that the Board found
to be not credible, there was no other evidence before the Board in the country
documentation, or elsewhere that could have led the Board to conclude that the
applicant was a person in need of protection. Anyhow, as long as the Board’s findings in connection
with state protection are correct, the Board cannot be said to have erred in
law in its determinations on this point, and thus the Applicant's claim must
fail.
[14]
On another note, the Federal Court of Appeal stated on January 5, 2005,
in Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1,
[2005] F.C.J. No. 1 (FCA) (QL), that the standard of proof for the purpose of
section 97 of the Act is proof on a balance of probabilities. The Federal Court
of Appeal also found that the requisite degree of risk under paragraphs 97(1)(a)
and 97(1)(b) of the Act is “more
likely than not”.
Consequently, the applicant argument regarding this issue must fail since the
Board correctly decided, on a balance on probabilities, that the applicant
would not be more likely than not personally facing a risk of cruel and unusual
treatment or punishment upon return to Sri Lanka.
[15]
In short, the Board found that the applicant has not satisfied his
burden of establishing that he has a well-founded fear of persecution upon
returning to Sri Lanka. Despite the noble efforts made by his counsel at the
hearing, the applicant has not convinced me that the Board made an error of law
or based its decision on an erroneous finding of fact made in a perverse or
capricious manner or without regard to the material before it.
[16]
The applicant has proposed the following question for certification:
If there is a
finding of “indirect
persecution”, as
defined in the Pour‑Shariati v. Canada (Minister of Employment and
Immigration), [1995] 1 F.C. 767 (F.C.T.D.) decision, is there a duty for
the Refugee Division to consider the underlying evidence under paragraphs
97(1)(a) and 97(1)(b) of the Act?
[17]
A certified question must transcend the interests of the immediate
parties, contemplate issues of broad significance and be determinative of the
appeal at hand (Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.) (QL)). I find the text of the
question unclear and I doubt that a positive answer would serve a useful purpose
and would be determinative of the appeal. The concept of indirect persecution
was first thought to be part of Canadian refugee law in Bhatti v. Canada
(Secretary of State), [1994] F.C.J. No. 1346 (F.C.T.D.) (QL) (Bhatti).
In other words, indirect persecution was thought to be a valid basis for
granting refugee claim. However, the Federal Court of Appeal has overruled
Bhatti's recognition of the concept of indirect persecution as a principle of
our refugee law (Pour‑Shariati, supra). Furthermore, the
Federal Court of Appeal found that the concept of indirect persecution went
directly against the decision of that Court in Rizkallah v. Canada (Minister
of Employment and Immigration), [1992] F.C.J. No. 412 (F.C.A.) (QL), where
it was held that there had to be a personal nexus between the claimant and the
alleged persecution on one of the Convention grounds. Moreover, the Federal
Court of Appeal stated that since indirect persecution does not constitute
persecution within the meaning of Convention refugee, a claim based on it
should not be allowed. In my opinion, the Board does not have a duty to
consider the underlying evidence under paragraphs 97(1)(a) and 97(1)(b)
of the Act solely because it found that indirect persecution is affecting the
applicant. Indeed, regarding the analysis under section 97 of the Act, the
Board already has a duty to consider all relevant evidence and did so in the
present case. Therefore, no question shall be certified.
ORDER
THIS COURT
ORDERS that the present application for judicial review be dismissed.
“Luc Martineau”
Judge
FEDERAL
COURT
NAMES OF COUNSEL AND SOLICITORS OF
RECORD
DOCKET: IMM-1563-04
STYLE OF CAUSE: SAMBASIVAM
SIVAMOORTHY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: FEBRUARY
2, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: FEBRUARY 8,
2005
APPEARANCES:
MR. MICHEAL CRANE FOR
THE APPLICANT
MS. ANSHUMALA JUYAL FOR THE
RESPONDENT
SOLICITORS OF RECORD:
MR. MICHEAL CRANE FOR THE
APPLICANT
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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