Date:20010308
Docket: IMM-1762-00
Neutral Citation: 2001 FCT 159
BETWEEN:
SIVATHARSHINI SIVANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] Sivatharshini Sivanathan (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Convention and Refugee Determination Division (the "Board") made on March 7, 2000. In its decision, the Board determined that the Applicant is not a Convention refugee.
FACTS
[2] The Applicant is a young Tamil from northern Sri Lanka. She claims to fear persecution in her homeland on the basis of ethnicity.
[3] Although the Applicant was born in Jaffna, she resided in Colombo for a number of years. She claims that her family started having problems in Colombo in 1994, when her uncle and her brother were arrested. Her uncle was accused of smuggling fuel to Jaffna and her brother was questioned and then released. Her uncle was detained for some two months during which time he was severely beaten and later died from the effects of the beating.
[4] Although the Applicant was stopped on the streets on several occasions and questioned by the police, she was detained for the first time in December 1998. She alleged that while out walking with two other girls, she was detained for two days when the police discovered that she was from Jaffna. She claimed that during her detention she was threatened, slapped and questioned about possibly being a contact for the Liberation Tamil Tigers Elam (the "LTTE"). She was released when her mother arrived at the Wellawatte Police Station and informed the police that they were in Colombo awaiting sponsorship to Canada.
[5] The Board did not accept her story about her detention as being credible. The Board did not find her account plausible on the basis that she had previously been stopped and questioned but not detained, and if the reason for her arrest had been that she was from Jaffna, she would have been arrested at some time prior to December 1998, since she had been living in Colombo for some seven years.
[6] The Board also found that even if she had been detained for a period of two days while the authorities determined if she posed a security risk, that such a detention is not tantamount to persecution, having regard to the interest of the state in protecting its citizens from acts of terrorism. Furthermore, the fact that she was released after a relatively short period of time would suggest that the police did not think that she was a security risk.
[7] Finally, the Board also found numerous inconsistencies between her oral evidence and her Personal Information Form ("PIF").
ISSUES
[8] In her application for judicial review, the Applicant raised two issues:
| 1. Did the Board err in making an adverse credibility finding against the Applicant? |
| 2. If so, did the Board err in finding that the Applicant failed to establish a well-founded fear of persecution. |
APPLICANT'S SUBMISSIONS
[9] The Applicant argued that the Board failed to consider the evidence of her brother, whose claim for refugee status in Canada was accepted by the Refugee Division. The brother's PIF was submitted as part of the Applicant's claim for refugee status and this corroborated her evidence up to the time of the brother's departure in June 1998. The Applicant says that the Board was required to indicate why this evidence was not accepted or whether the Board even considered this evidence. In that regard, the Applicant relies upon the decision in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
[10] Next, the Applicant submits that the Board erred in its definition of persecution. The Board stated that vulnerability to mass arrests by virtue of one's ethnicity is not persecution. The Applicant submits that the Board erred in law in drawing a distinction between security measures and persecution, and says that this distinction is not supported by the jurisprudence of this Court. In this regard, the Applicant relies upon the decision in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 where the Federal Court of Appeal found that abuses committed during an emergency can be persecution.
[11] Next, the Applicant argues that the Board exceeded its jurisdiction and fettered its discretion in that it failed to consider whether she might be at risk, even on the basis of her identify as a young Tamil woman from the north returning to Sri Lanka. In the present case, the Board accepted the Applicant's identity as a young Tamil woman from the north. At the time of the hearing before the Board, there was a real question as to whether the Applicant would be allowed to remain in Colombo. This Court has held that the Board must consider whether residency controls in Colombo prevent Tamils from being allowed to remain there; see Kandiah v. Canada (Minister of Citizenship and Immigration) (1998), 75 F.T.R.166; Alvapillai v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 150.
[12] The Applicant further argues that there was a breach of natural justice and an excess of jurisdiction in that while she consented to have one member of the Board make the decision on her claim, it appears from a plain reading of the reasons that the presiding member took into account both members' opinions as appears from the repeated references to "we" throughout the reasons. The Applicant submits that since she consented to a single member making the decision, that member must decide on his own and is obliged to discount the opinions of the other member who removed herself from the decision-making process, due to illness. The Applicant relies upon the decision of the Federal Court of Appeal in Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 127.
[13] Finally, the Applicant submits that the Board committed a further breach of natural justice in finding that there was no duty to confront her with apparent contradictions in her evidence and more importantly, that the Board erred by relying on a contradiction which was discovered after the hearing to impugn her credibility.
RESPONDENT'S SUBMISSIONS
[14] First, the Respondent submits that the Board had ample evidence to support its negative credibility findings.
[15] The Respondent notes that the Applicant alleged that she had lived in Colombo from 1991 to 1998. During that time, and especially during the years 1997-1998 there was much evidence of civil strife in Sri Lanka which led to cordon and search operations by the authorities, raids on Tamil residences and arrests of Tamils. The Applicant alleged that she had been stopped and questioned, and the police would have known that she was from Jaffna. In these circumstances, it was reasonably open to the Board to find it implausible that the Applicant was stopped and questioned, but not arrested, during the seven years she lived in Colombo. It was implausible that the authorities would suddenly show an interest in her in December of 1998.
[16] Second, the Applicant admitted that her brother had been questioned at their home by the police. She was easily accessible to the police in those circumstances, but she was not arrested. Therefore, it was reasonably open to the Board to find that it was not plausible that the police were ever interested in her.
[17] Third, the Applicant alleged at the port of entry that she lived in Mannar and was jailed there from the end of 1998 through the beginning of 1999. This contradicted all her other evidence that she spent 1991 to 1999 in Colombo. The Applicant fabricated a story that her mother had property in Mannar and that an agent had told her to say that she was from there. The Board did not find this explanation plausible.
[18] Fourth, the Applicant alleged that her mother was poor and accordingly, could not afford to live in Colombo. The Board asked why the mother could not sell the land that she allegedly owned. The Applicant attempted to give three separate explanations to this inquiry, none of which the Board found credible.
[19] Fifth, the Applicant stated at the hearing that her mother arranged to get her out of Sri Lanka. When confronted with her evidence that her mother was very poor, the Applicant changed her story and stated that her brother in Canada had borrowed the money. However, at the port of entry, she alleged that she did not know how much she had paid for her passport because her uncle had arranged it for her.
[20] On the basis of these discrepancies, the Respondent argues that the Applicant has failed to refute the Board's negative finding of credibility or to showed that it is perverse or capricious.
[21] With respect to the alternative argument raised by the Applicant, concerning the Board's alleged error in failing to find that detention of a person on the grounds of ethnicity to determine if she was a security risk is not equivalent to persecution, the Respondent submits that this is an alternative argument. The Respondent admits that the decision of the Board will stand or fall on the basis of the Board's adverse findings of credibility.
[22] The Respondent further argues that the Applicant has failed to substantiate her argument that the Board ignored the evidence in her brother's PIF. The Respondent says that the Board specifically considered the brother's PIF when it said, in its reasons, as follows:
| She said her brother was detained for four days in the last month of 1997, following an explosion at the Ratmalana airport in Colombo. This incident is recorded in her PIF and also recorded in the PIF of her brother who was granted refugee status in March 1999.1 |
[23] The Respondent says that the brother's PIF is of little benefit to the Applicant's position since it does not corroborate the most relevant portions of the Applicant's testimony, that is her alleged detention. The brother left Sri Lanka in June 1998 and the Applicant alleges that she was detained only in December of that year. Therefore, according to the Respondent, there is nothing in the brother's PIF that is relevant to the Applicant's alleged experiences with the authorities.
[24] Next, the Respondent says that there is no compelling evidence that the Applicant would face persecution in the future if she were returned to Colombo. The Applicant has failed to show a nexus between her personal situation and the general situation with respect to human rights in Sri Lanka.
[25] Finally, the Respondent says, in response to the Applicant's submissions on a breach of procedural fairness, that there is no compelling indication in the Board's reasons that the single Board member who made the decision improperly relied on any opinions or findings of the other Board member who had excused herself from participating in the decision. The Respondent submits that the use of "we" instead of "I" is simply the stylistic form the presiding Board member chose to use. There was no evidence that the decision is a "product of two members" and the Respondent says that none of the case law cited by the Applicant on this argument is applicable to the particular facts of this case.
ANALYSIS
[26] The point of departure in this matter is the applicable standard of review. Both the Applicant and Respondent agree that the standard of review of factual findings is "perverse or capricious" as set out in section 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7 as follows:
| 18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
|
18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive u arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de
faux témoignages;
f) a agi de toute autre façon contraire à la loi.
|
[27] The Applicant and Respondent both agree that the standard of review on a question of pure law is that of correctness. However, the parties disagree as to the standard of review for questions of mixed findings of fact and law. The Applicant, relying on Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, argues that the standard is reasonableness. The Respondent says that the standard is patent unreasonableness.
[28] In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 at paragraph 5 Justice Pelletier of this Court stated as follows:
| The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. |
[29] The Board made an adverse credibility finding against the Applicant because it found her story to be implausible and found inconsistencies between her port of entry notes and her testimony.
[30] The Board found it implausible that the Applicant was detained by the police in December 1998, although she had been stopped and questioned on an earlier occasion but not detained. The Board reasoned that if the basis for her arrest was her connection to Jaffna, she would have been arrested at some prior time before 1991 and 1998.
[31] I find it patently unreasonable for the Board to conclude that the fact that the Applicant had not been arrested on earlier occasions inevitably means that she had not been arrested in December 1998, the arrest which gave rise to the Applicant's claim.
[32] As for inconsistencies in her evidence, the Board highlighted a number of apparent inconsistencies, including contradictory statements about living in Mannar and statements about how her passport was arranged and obtained.
[33] In Sheikh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 568, Justice Lemieux of this Court discussed the importance of inconsistencies to a board decision, as follows:
| However, credibility findings by the Refugee Division are not immune from this Court's supervision and this principle has been established in a long series of cases. |
| The discrepancies relied on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300(F.C.A.). The Refugee Division must not display a zeal "to find instances of contradiction in the applicant's testimony... it should not be over-vigilant in its microscopic examination of the evidence" (Attakora v. M.E.I (1989), 99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency must be rationally related to the applicant's credibility (Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.). Explanations which are not obviously implausible must be taken into account (Owusu-Ansah, supra).2 |
[34] In my opinion, the discrepancies relied on by the Board to support its adverse findings of credibility are minor in relation to the substance of the Applicant's claim. For that reason, I am of the opinion that the Board's findings on credibility are patently unreasonable.
[35] Consequently this application for judicial review is allowed since the Board's conclusion on credibility may have coloured its view of the substance of the claim, that is a well-founded fear of persecution.
[36] Although counsel for the Applicant proposed a question for certification, in my opinion the disposition of this application does not justify certification of a question and no question will be certified.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
March 8, 2001
__________________
1 Applicant's Record, page 10
2 Sheikh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 568, paragraphs 22 and 23.
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