Date: 20050210
Docket: IMM-1916-04
Citation: 2005 FC 213
BETWEEN:
SITHY AZEEMA NAJEEBDEEN
NUZRAN NAJEEBDEEN
NUSHTAQ NAJEEBDEEN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] The Applicant and her children were unsuccessful in their application for refugee and protection status because a member of the Immigration and Refugee Board (IRB) did not find the Applicant's evidence credible. The Applicant claimed that she was persecuted by both the Sri Lankan Army and the Tamil Tigers after her husband's departure from Sri Lanka.
[2] The Applicant's husband came to Canada in 1998 where he filed a refugee claim based on the allegation that the Sri Lankan Army believed him to be working for the Tigers and that the Tigers believed he supported the Sri Lankan forces. His application failed because of lack of credibility.
BACKGROUND
[3] The Applicant claimed that after her husband left Sri Lanka, Sri Lankan forces came to her home twice, searched the house and threatened her if her husband did not surrender to the authorities. As a result, she assumed her maiden name, removed her children from school and went into hiding, changing location at least twice.
[4] The Applicant said that the culminating event was a police search for her husband conducted at friends' home while she was absent. The friends were assaulted and one friend was detained, questioned, tortured and released only after the payment of a bribe.
[5] The IRB questioned a number of features of the Applicant's story. Of particular significance was the inability of the Applicant to provide a convincing response to the question of why she did not inform the authorities that her husband was in Canada. The only response was that the authorities would beat her.
[6] The husband was called as a witness. The IRB described him as "even more evasive than his wife". The IRB found that his evidence of the extent of communications with his wife while he was in Canada was inconsistent with her testimony. The IRB also found that the husband's responses, as to why he had told his wife not to tell anyone he was in Canada, did not make sense.
ANALYSIS
[7] The Applicant argues that there are two issues: (1) whether the IRB's credibility finding was patently unreasonable; (2) whether the IRB erred in its assessment of certain documentary evidence.
[8] The Applicant argues that the IRB erred, not in assessing the testimony, but in assuming that once the Sri Lankan authorities were told that her husband was in Canada, they would leave the Applicant alone.
[9] The IRB's finding turns particularly on whether the Applicant did what she said she did - go into hiding. The question about what she feared, why she did not tell where her husband was, and what level of communication she had with her husband were all relevant areas of inquiry.
[10] The failure to cogently answer these questions cast a pall over the central premise of her story - that she went into hiding for fear of Sri Lankan authorities.
[11] Having reviewed the IRB's transcript, and given that the IRB member was in a better position to assess credibility of the witnesses than this Court, I can find nothing patently unreasonable about the IRB's conclusions on credibility. The areas of inquiry were relevant, the answers on their face were unhelpful and there were other areas of credibility (for example, her inability to answer the Sri Lanka forces because she had no documents confirming her husband's location because she could not contact him) which both individually and cumulatively gave the IRB a reasonable basis for finding lack of credibility.
[12] The Applicant argues that the IRB erred in its assessment of two pieces of documentary evidence - a letter from the family's solicitor and an affidavit from the Applicant's father.
[13] The IRB clearly put more weight on the oral evidence of the Applicant and her husband, and the frailties of that evidence than on the documentary evidence. The lawyer's letter, while somewhat confirmatory of the husband's story (which had previously been rejected by the IRB) did not answer the question of why the family had been targeted, after the husband had left.
[14] The IRB is under no obligation to accept as true a letter from a lawyer. It is noteworthy that the lawyer did not file an affidavit particularly as Sri Lanka has a legal system closely similar to that of Canada.
[15] The father's affidavit was not given significant weight because it too did not address the central questions in this application.
[16] The IRB had a reasonable basis for treating this documentary evidence as it did.
CONCLUSION
[17] For these reasons this application for judicial review will be dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1916-04
STYLE OF CAUSE: SITHY AZEEMA NAJEEBDEEN, NUZRAN NAJEEBDEEN, NUSHTAQ NAJEEBDEEN v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 26, 2005
REASONS FOR ORDER BY: Phelan J.
DATED: February 10, 2005
APPEARANCES:
Ms. Maureen Silcoff FOR THE APPLICANTS
Mr. Ladan Shahrooz FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Maureen Silcoff
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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