Date: 20040526
Docket: IMM-3036-03
Citation: 2004 FC 771
Toronto, Ontario, May 26th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
VAKEESWARAN MARKANDU
AMIRTHASRI VAKEESWARAN
VRUKSHA KAREN VAKEESWARAN
STEEVE SANJAY VAKEESWARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently
written for precision and clarification)
[1] The principal applicant, Markandu Vakeeswaran, is a 39 year-old Tamil man from Sri Lanka. He claims to face persecution on grounds of race, nationality and imputed political opinion. The other adult applicant, his wife, and the couple's two children, aged eight and four, base their claims on that of the principal applicant.
[2] The applicant, a Tamil Colombo storekeeper claims that from 1994 to 2001 he was harassed, subject to extortion, arrested and tortured by members of the police, armed forces and the Tamil Tigers ("LTTE"). He alleged that he received threats that his child would be kidnapped by the LTTE, that he was arrested and tortured. As a result of these threats, the applicant and his family fled Sri Lanka, spending one month in the United Sates before they arrived in Canada in October 2001.
[3] The Immigration Refugee Board ("Board") found that the applicants were neither Convention Refugees nor Persons in Need of Protection finding In essence the Board did not believe the applicant and found he had not presented it with credible evidence.
[4] Determination of credibility, of course, are at the core of the Board's functions and the Court will only disturb them if they are patently unreasonable or contrary to the facts adduced. As Martineau J. Stated in R.K.L. v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43 at para. 7:
"The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant."
[5] One of the key tools available to the Board to test the credibility of an applicant is to compare his PIF and POE statements and question him about any discrepancy during the hearing.
[6] This is precisely what the Board did in this instance. The testimony of the applicant explained some inconsistencies but not all. The Board found that his overall testimony lacked credibility.
[7] For instance it became clear that the applicant embellished his story considerably and undermined his credibility by claiming in his POE to have been "brutally tortured twice in 1998 and 2001" and then "correcting" matters in his oral testimony by pointing out that he was tortured in 2001 and merely detained in 1998.
[8] Equally he could not explain whether date of the kidnap threats was March 2001 or August 2001. This date being particularly relevant as he claimed it was the kidnap threats that finally drove him to leave Sri Lanka and given the fact that he visited Australia in June without claiming refugee status there. In addition he and spent one month in the US before coming to Canada and failed to explain why he did not seek refugee status there.
[9] On examining the totality of the evidence and the decision of the Board I cannot find that the decision of the Board is patently unreasonable or contrary to the facts adduced.
[10] Consequently this application for judicial review is denied.
ORDER
THIS COURT ORDERS that this application be denied.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3036-03
STYLE OF CAUSE: VAKEESWARAN MARKANDU, AMIRTHASRI VAKEESWARAN, VRUKSHA KAREN VAKEESWARAN, STEEVE SANJAY VAKEESWARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 26, 2004
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: MAY 26, 2004
APPEARANCES BY:
Ms. Brena Parnes
FOR THE APPLICANTS
Ms. Catherine Vasilaros
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040526
Docket: IMM-3036-03
BETWEEN:
VAKEESWARAN MARKANDU
AMIRTHASRI VAKEESWARAN
VRUKSHA KAREN VAKEESWARAN
STEEVE SANJAY VAKEESWARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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