Date: 20040818
Docket: IMM-5722-03
Citation: 2004 FC 1141
Toronto, Ontario, August 18th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
PRASANTHI SHIRONIKA AMALI ALUTHGAMA GURUGE DE SILVA
(a.k.a. Prasanthi Shiro De Silva)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the Refugee Protection Division (RPD) that the applicant is neither a Convention refugee nor a Person in Need of Protection.
[2] The applicant is a 33 year old woman from Sri Lanka. She claims to have a well-founded fear of persecution primarily from government officials due to her perceived support for the LTTE (Tamil Tigers).
[3] The applicant first came to Canada on April 6th, 1998. Since this time, she has been rejected for refugee status three times. The allegations made in her third claim, which is the subject of these proceedings, were largely similar to those made in her previous two claims. However, the applicant filed one new piece of evidence with this claim, namely, a police summons dated February 22nd, 2001 relating to assistance which she allegedly provided to terrorists in Sri Lanka.
[4] In Reasons dated June 9th, 2003, the RPD concluded that the principle of res judicata applied to the applicant's sections 96 and 97(1)(a) claims and that, therefore, it would only be considering the period after her second claim was decided. With regards to this period, it rejected the applicant's claim that country conditions had recently changed and concluded that she had provided no credible evidence to support her allegations. The RPD also concluded that it was not obliged to consider the applicant's section 97(1)(b) claim given that there was a clear nexus of imputed political opinion which brought the applicant's claim with section 96 of the Act. Accordingly, it concluded that the applicant was neither a Convention refugee nor a Person in Need of Protection.
[5] The applicant raises two issues:
1. Did the RPD err in its interpretation of section 97 of the Act?
2. Did the RPD err in relying upon credibility findings made in the applicant's previous refugee claims?
RELEVANT LEGISLATION
[6] Immigration and Refugee Protection Act, R.S.C. 2001, c. 27
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for Reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence nd is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally....
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards....
STANDARD OF REVIEW
[7] In Conkova v. Canada (M.C.I.), [2000] F.C.J. at para. 5 Pelletier then J. concluded that:
The standard of review of decisions of the CRDD [now RPD]_is generally patent unreasonableness except for questions involving the interpretation of a statue when the standard becomes correctness.
[8] Accordingly, the standard of review for issue 1 is correctness and the standard of review for issue 2 is patent unreasonableness.
Issue 1. Did the RPD err in its interpretation of section 97 of the Act?
[9] The applicant submits that the RPD has drawn an artificial distinction between section 97(1)(a) and (b) of the Act. It is submitted that the RPD was obliged to consider her claims under both subsections regardless of the existence of a nexus ground under section 96 of the Act.
[10] At page 3 of its Reasons, the RPD indicated that it was not considering the applicant's claim under section 97(1)(b) of the Act due to the existence of nexus grounds which brought the applicant's claim under section 96 of the Act.
[11] In Bouaouni v. Canada (M.C.I.), [2003]_F.C.J. No. 1540, Blanchard J. considered a case in which the RPD had failed to consider both of the section 97 grounds. He concluded at para. 42:
Apart from the evidence that the RPD found to be not credible, there was no other evidence before the RPD in the country documentation, or elsewhere, that could have led the RPD to conclude that the applicant was a person in need of protection. I find that the RPD did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the RPD's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence.
[12] The same reasoning is applicable to this case. Although the RPD erred by failing to consider the applicant's section 97(1)(b) claim, this did not constitute a material error given its finding that the applicant had provided no credible and trustworthy evidence to support her claim that she would be at risk in Sri Lanka.
Issue 2. Did the RPD err in relying upon credibility findings made in the applicant's previous refugee claims?
[13] The applicant submits that the RPD erred by adopting the credibility findings of previous panels. It is submitted that the applicant was entitled to exercise her rights under the former immigration scheme and to make repeat claims based upon the same evidence. It is submitted that the RPD erred in drawing a negative inference from the fact that she chose to do so.
[14] In Vasquez, supra, Rothstein, then J. concluded that the principle of res judicata meant that an applicant could not relitigate issues decided in a previous refugee claim. This decision was recently considered with regards to the RPD's credibility findings by Dawson J. in Joseph v. Canada (M.C.I.), [2004] F.C.J. No. 838 at para. 5 where she concluded that:
A prior finding that a witness' evidence was not credible or reliable does not pre-determine the credibility or reliability of the witness' later testimony upon different events by virtue of the doctrine of res judicata.
[15] The implication of this judgement is that the RPD cannot find a claimant's current story, based upon different events, not to be credible simply because that applicant was found not to be credible in the past.
[16] However, this is not what occurred in the case at hand. The applicant's claim was based upon all of the same events as put forward in past claims. The only addition to the Record was a police summons which the RPD found not to be reliable. As a result, the circumstances of this case are different than those in Joseph, supra. The RPD did not err by relying upon the credibility findings of previous panels.
[17] Accordingly this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5722-03
STYLE OF CAUSE: PRASANTHI SHIRONIKA AMALI ALUTHGAMA GURUGE DE SILVA (a.k.a. Prasanthi Shiro De Silva)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 17, 2004
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: AUGUST 18, 2004
APPEARANCES BY:
Mr. Robert Israel Blanshay
FOR THE APPLICANT
Ms. Leena Jaakkimainen
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Israel Blanshay
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040818
Docket: IMM-5722-03
BETWEEN:
PRASANTHI SHIRONIKA AMALI ALUTHGAMA GURUGE DE SILVA
(a.k.a. Prasanthi Shiro De Silva)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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