Date: 20050810
Docket: IMM-7995-04
Citation: 2005 FC 1069
OTTAWA, ONTARIO, THE 10th DAY OF AUGUST 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RAVINDRA LAKMAHAL PERERA
ROSHANA PERERA
MILURI ANIRA PERERA
DIMITRI KSHEMAL PERERA and
DEEPAK DULJITH PERERA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "Act"), against a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated July 20, 2004, wherein the Board determined that the Applicants were not Convention refugees, or persons in need of protection pursuant to sections 96 and 97 of the Act.
ISSUES
[2] The issues are as follows:
1. Did the Board improperly reject, ignore or misunderstand the evidence?
2. Did the Board commit a patently unreasonable error in concluding that the Applicants were not credible?
3. Was there a reasonable apprehension of bias in the manner by which the Board conducted the hearing?
[3] For the following reasons, I must answer the first two questions raised above in an affirmative manner. The answer to the third question is no. The application for judicial review will be allowed .
BACKGROUND
[4] The Applicants are all citizens of Sri Lanka who came to Canada on September 4, 2002, on visitors' visas issued by the Canadian High Commission in Sri Lanka. The principal Applicant is a Sinhalese male who married a Tamil woman. They allege fear of persecution and claim to be persons in need of protection, subject to unusual treatment and risk to their life. The Applicants fear persecution at the hand of local thugs and of Sinhalese political parties, who perceive them to be supportive of Tamils in the north of Sri Lanka.
[5] The principal Applicant met his wife in 1980, while working as an accounts supervisor in Jaffna, in the north of Sri Lanka. They married in 1981, and lived in Jaffna until 1983, when they moved south because of the principal Applicant's job.
[6] Through the 1980s and the 1990s, the family lived in the south of Sri Lanka. They lived in numerous places, as the principal Applicant's job required him to travel on a regular basis. Because of the tension between the Tamil and the Sinhalese, the principal Applicant's wife was approached on numerous occasions by the security forces. In addition, the family was questioned about the Liberation Tigers of Tamil Eelam (LTTE) and her family living up north. The principal Applicant and his wife believed they would always be under suspicion because of the principal Applicant's wife's ethnic background.
[7] The principal Applicant and his family moved to Colombo in 1991. In March 1995, the principal Applicant's wife's father was killed in Jaffna. They made several requests to the Defence Ministry to travel north but the requests were refused because of state tension.
[8] Finally, in March 2002, after the peace process was underway, the Applicants were able to travel north to pay their respects to the Applicant's wife's family. Shocked by the devastation the war caused to the principal Applicant's wife's home village, they collected donations (food and clothing) to hand over to the members of her family.
[9] Following their return to Colombo, they received a phone call from an unknown person stating that they would, as "tigers", be killed soon. They did not call the police as they hoped it would only be an isolated incident. However, on the same day, the family's home was stoned and damaged by a group of ten people shouting that their family were "tigers" and that they did not belong in the south region of Sri Lanka. Due to the extensiveness of the damages, they reported the incident to the police. The Applicant testified that the police refused to help them, because they had not respected a Sri Lanka law, which required the registration of every Tamil with the local police.
[10] In June 2002, they received the visit of the principal Applicant's wife's aunt. She had brought with her letters of appreciation from the people of Jaffna. On July 2002, the family returned to Jaffna with more donations. Upon their return to Colombo in August 2002, the principal Applicant's wife was attacked by three men. She was able to escape with the help of neighbours. Fearing for the safety of his family, the principal Applicant made the decision to leave Sri Lanka. They applied for Canadian visitors' visas and left for Canada on September 3, 2002.
CONTESTED DECISION
[11] The Board concluded the Applicants are not Convention refugees or persons in need of protection. The Board found that they are not credible and their fear of persecution is not well-founded. Alternatively, the Board concluded that state protection would be available if they were to return to Sri Lanka. The Board based its decision on the fact that Sri Lanka is a democratic republic, and that thousands of Tamils live peacefully in Colombo.
[12] The Board found the Applicants' explanation of why the police refused to help them in May 2002 not to be credible. The Board preferred to rely on the documentary evidence, which shows that the Colombo registration requirement was officially discontinued in July 2001. The evidence also indicated there have been no further complaints regarding police officers demanding registration requirements since February 2002. The Board mentioned that the documentary evidence directly contradicts the Applicants' allegation.
[13] As regards the issue of state protection, the Board concluded the documentary evidence illustrates there are numerous mechanisms in place by which the Applicants could have obtained help. Based on Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm.L.R. (2d) 130 (F.C.A.) and Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Board indicated that since Sri Lanka is a democratic state in control of its territories and even if state protection is not perfect, the Applicants had other courses of action available prior to claiming asylum in Canada.
ANALYSIS
(1) Did the Board improperly reject, ignore or misunderstand the evidence?
(2) Did the Board commit a patently unreasonable error in concluding that the Applicants were not credible?
[14] The Board's role to assess evidence and the credibility of an applicant is widely recognized for being part of its primary function. In this regard, the Federal Court of Appeal has determined that the standard of review when dealing with a question of credibility is patent unreasonableness.
[15] 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 (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.)).
[16] This was recently reiterated by the Federal Court in Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 at para. 31, where Justice Martineau confirmed, after applying the pragmatic and functional approach, that the appropriate standard of review when dealing with the assessment of documentary evidence and the plausibility of the Applicant's testimony is patent unreasonableness:
¶ 31 In light of the above, in the particular case before us, I would find that the balancing of the above-mentioned four factors militates in favour of the application of two standards of judicial review: (1) the patent unreasonableness standard in the case of the analysis of the documentary evidence and the assessment of the applicant's credibility; [...]
[17] In the present case, the assessment of the evidence and of the Applicants' credibility are linked. The Board's decision to reject certain elements of the evidence was based on the credibility of the story of the principal Applicant.
[18] In the case at hand, the Applicants argue the Board should not have drawn negative inferences from the new information added during the Applicant's testimony. The Applicants outline that this new information was brought out through the refugee officer's more detailed questioning. Referring to the tribunal's record, I agree with them. There are no inconsistencies with the Personal Information Form ("PIF"). It is useful to cite Reed J. in Singh v. Canada ( Minister of Employment and Immigration) [1993] F.C.J. 1034:
¶ 20 It is difficult to understand why the Board drew adverse inferences from these facts. The PIF is supposed to be a brief recitation of the applicant's claim, not a documentation of his whole case. [...]
[19] The Applicants also argue that the Board improperly rejected their testimony about who had attacked the principal Applicant's wife on the basis that it constituted hearsay. The Applicants allege the Board was required to consider such evidence.
[20] In response, the Respondent submits that it is within the Board's primary functions to assess the evidence and to attribute it the weight it considered appropriate.
[21] In the case at bar, the Applicants were informed that the principal Applicant's wife's assailants and the thugs who vandalized their house, were members of the People's Liberation Front ("JVP") and the People's Alliance ("PA") party. The Applicants obtained the information from neighbours who had seen the same thugs in JVP rallies. The Applicants gave a reasonable explanation why they could not identify their assailants. First, they had to hide in their basement while their house was stoned, and secondly, when the Applicant's wife was attacked, she had to move fast to escape her assailants. Consequently, it appears the Board decided to attribute no weight to this information because there was no evidence to support it. Again, I do not agree. There is corroborating evidence (medical report, tribunal record, page 176) of the August 16th 2002 assault. Although administrative tribunals have more flexibility concerning the rule of evidence, I find that it is patently unreasonable for the Board in this case to reject the evidence on the basis of hearsay and speculation while there was enough evidence to support the Applicants' allegations.
[22] The Board found that the Applicants should have consulted a lawyer and obtained help before deciding to claim asylum in Canada. I find this conclusion patently unreasonable due to the circumstances of this particular case.
[23] The Board referred to some of the documentary evidence on country conditions. It ignored or did not comment on contradictory evidence (tribunal's record, pages 342, 347, 386). It did not give reasons why it preferred the one it cited.
[24] I am of the opinion that the Court's intervention is warranted here.
(3) Was there a reasonable apprehension of bias raised by the manner in which the panel member conducted the hearing?
[25] As a separate issue, the Applicants argue the Board did not maintain the impartiality needed to make a fair determination by taking control of the examination.
[26] Despite the Applicants' able arguments, I must find that the circumstances do not raise a bias or a reasonable apprehension of bias. I read and reread the transcript of the hearing and I note the Board played an active role in examining the Applicant. I have also noted that the Board did ask the same question on a few occasions.
[27] The Board was entitled to conduct its own questioning of the Applicant in the proper discharge of its duties as it perceived them. It is only at the end of the hearing that Applicants' counsel filed an objection on the way his client was questioned by the Board. After a careful review of the transcript, I must respectfully disagree with counsel's criticisms of the questioning by Mr. Groos. I would characterize his questioning as being an energetic exercise in attempting to obtain some clarifications of the evidence. I am also unable to conclude from this record that Board member Groos has demonstrated a reasonable apprehension of bias.
CERTIFICATION
[28] The Applicants posed the following questions:
Where an applicant, in response to questions asked at an oral hearing, provides additional details in oral testimony about an event, which has not been mentioned in the narrative of the applicant's Personal Information Form, although the occurrence of the event itself is mentioned, is this a valid basis for rejecting the credibility of the applicant ?
Is the narrative of an applicant's Personal Information Form supposed to contain significant events in all the details concerning the listed events, such that the giving of additional details in oral testimony may properly be a ground upon which a panel of the Refugee Protection Division may conclude that an applicant is not credible ?
[29] The respondent objects to such a question and argues that it does not transcend the interest of the immediate parties to the litigation. I agree. Accordingly, certification is denied.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed, the decision of the Refugee Protection Division of the Immigration and Refugee Board is set aside and the matter is remitted for reconsideration by a differently constituted Board.
2. No question is certified .
"Michel Beaudry"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7995-04
STYLE OF CAUSE: PERERA et al. and MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 20, 2005
REASONS FOR ORDER
AND ORDER : The Honourable Mr. Justice Beaudry
DATED: August 10, 2005
APPEARANCES:
Barbara Jackman FOR APPLICANTS
Unit 3 - 596 St. Clair Ave W.
Toronto, Ontario M6C 1A6
tel.: (416) 653-9964
fax: (416) 653-1036
Mr. Stephen Gold FOR RESPONDENT
Department of Justice
Toronto, Ontario
fax.: (416) 954-8982
SOLICITORS OF RECORD:
Barbara Jackman
Toronto, Ontario FOR PLAINTIFF/APPLICANT
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada