Date: 20010216
Docket: IMM-2114-00
Neutral Citation: 2001 FCT 93
BETWEEN:
DAVID FRANCIS
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. David Francis (the "Applicant") seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). In its decision dated April 3, 2000, the Board determined that the Applicant is not a Convention refugee.
FACTS
[2] The Applicant is a forty-two year old male Tamil citizen of Sri Lanka. He was born in Colombo but was educated in Kodikamamm, in Northern Sri Lanka. After his marriage, the Applicant returned to Colombo where he worked until 1991. In his evidence before the Board, the Applicant claimed that following an outbreak of violence in Colombo in June 1991, he moved his family from that city. He claimed that during this period of violence, his wife was raped, his landlord was murdered and his home was burnt down.
[3] At that time, he moved with his family to the northern part of the country and settled in Kodikamamm.
[4] The Applicant claimed that during his residence in Kodikamamm, he was consistently harassed by the Liberation Tigers of Tamil Eelam ("LTTE"). He claimed that he was forced to perform hard labour, was subject to extortion and had produce taken from him.
[5] Following the capture of Kodikamamm by the Sri Lankian Army (the "SLA") in October 1996, the Applicant fled with his family to Oddisudan in April 1999. He continued farming there and claimed that he was arbitrarily arrested by the army in April 1999, while working on a farm. He says that following his arrest, he was detained at the army's camp in Vavuniya for three days where he was falsely accused of being a member of the LTTE, tortured and interrogated.
[6] He claims that he was transferred from that camp after three days to another camp at Anuradhapura where he was again interrogated, assaulted and forced to perform hard labour. He claims that his release was obtained after an uncle paid a bribe and arranged his release. He claims that he then travelled to Colombo with his uncle where he was again arbitrarily arrested and detained upon his arrival at the Maradana Railway Station. He claims that he was detained by the police and after his release, he remained in Colombo for approximately two weeks, during which time he was required to report to police.
[7] Most of this evidence was rejected by the Board. In particular, the Board did not believe that the Applicant had been arrested by the army or by the police. The Board did not believe that the Applicant resided in the northern part of Sri Lanka, having regard to the absence of any formal identification linking him to that part of the country. Finally, the Board did not believe that the Applicant had a well-founded fear of persecution because he did not fit the profile of male Tamils who were at risk in Sri Lanka.
[8] The Applicant raised two issues on this application for judicial review:
| 1. Did the Board err in law in finding portions of the Applicant's evidence to be not credible; |
| 2. Did the Board err in law in determining the Applicant not to be a Convention refugee. |
Applicant's Submissions
[9] The Applicant submits that the Board subjected his evidence to a microscopic analysis, deliberately seeking inconsistencies and contradictions. The Applicant says that this improper approach is demonstrated by the manner in which the Board drew a negative inference about his credibility on the basis of inconsistencies between answers provided at his port of entry interview and the evidence he provided in the hearing before the Board.
[10] The Applicant also argues that the Board erred in its recitation of his uncontradicted evidence. He says that this is apparent from the Board's reasons where the Board recounts that the Applicant and his wife went to Colombo, when in fact he was accompanied by his uncle. As well, the Applicant says that the Board misstated the facts when it found that the Applicant "had agreed" to report to the police following the incident at the Maradana Railway Station.
[11] The Applicant says that these misstatements of the evidence undermine the integrity of the Board's findings on credibility.
[12] Next, the Applicant argues that the Board erred in law by ignoring the documentary evidence which supported his claim to be a Convention refugee. The Applicant says that the reasons of the Board show that the Board did not consider the most recent information available about country conditions in Sri Lanka and if it had considered such information, it would have been aware of objective evidence which supported his claim that he fears persecution at the hands of the LTTE, the SLA and the police in Sri Lanka.
Respondent's Submissions
[13] The Respondent takes the position that the credibility findings made by the Board are supported by the evidence before it. Since credibility findings are key to the Board's exercise of its jurisdiction, those findings are not subject to interference by this court when they are supported by evidence.
[14] The Respondent resists the argument that the Board failed to appreciate the documentary evidence before it and that it erred in law in finding the Applicant not to be a Convention refugee. The Respondent argues that the Board is not required to refer to every piece of documentary evidence considered by it and in the absence of evidence that the Board did not consider the documentary evidence submitted, there is no basis to find that it erred in law in the manner in which it did consider that evidence.
ANALYSIS
[15] Although the Applicant raised two issues in this application for judicial review, in my opinion there is only really one issue and that is the Board's assessment of the evidence, including documentary evidence, in reaching its conclusion that the Applicant is not a Convention refugee.
[16] The issue for determination by the Board when a person claims Convention refugee status is whether that person has a well-founded fear of persecution on one of the enumerated grounds; see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The existence of a "well-founded fear" depends upon the evidence presented. It is the Board's task to assess that evidence and to make findings of credibility.
[17] The court will not interfere with findings of credibility made by a Board when those findings can be reasonably supported by the evidence before the Board. See Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 2011 where Justice Lemieux said as follows at paragraph 43:
| The credibility findings made by the tribunal will not be set aside by this Court unless they are clearly made without regard to the evidence Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 F.C.A.). What this means is that the applicant must demonstrate, on the balance of probabilities, a palpable and overriding error which affected the assessment of the facts. The standard of review on such factual findings of an administrative tribunal are an extremely deferential one, City of Montreal, supra. Put another way, it must be shown the evidence, viewed reasonably, is incapable of supporting the tribunal's finding of fact (which is the nature of credibility findings) Toronto (City) Board of Education v. Ontario Secondary School Teachers' Federation, District 15 (Toronto), [1997] 1 S.C.R. 487. |
[18] In the present case, the conclusions of the Board were open to it, having regard to the evidence before it, including the port of entry notes, the testimony provided by the Applicant at his hearing before the Board and the documentary evidence presented to the Board.
[19] As Justice Rothstein found in Gill v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1199, the Board is not obliged to refer to or footnote every piece of evidence on which it relied:
| While it would have been preferable for the panel to have footnoted its references or made express reference to the documents upon which it relied its failure to do so does not constitute a reviewable error. |
[20] The application for judicial review is dismissed.
[21] While counsel for the Applicant submitted a question for certification, in my view, there is no serious question of general importance arising from this application and no question will be certified.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
February 16, 2001
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