Date: 20010514
Docket No.: IMM-4086-00
Neutral Citation: 2001 FCT 473
Ottawa, Ontario, this 14th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SINNATHAMBY, NAGESWARARAJAH
NAGESWARARAJAH, LEELAVATHY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, hereinafter the CRDD, dated April 19, 2000, determining
that the applicants are not Convention refugees pursuant to subsection 2(1) of the Immigration Act.[1]
Facts
[2] Nageswararajah Sinnathamby, the main applicant is 73 years of age and his wife Leelavathy Nageswararajah is 66 years old. They are both citizens of Sri Lanka and Tamil by race/nationality and have three children of their marriage.
[3] The main applicant was working as a budget officer in the finance ministry and later with his wife opened a bookstore and managed to live, for the most part, a hassle free life in Sri Lanka.
[4] The applicants claim to have a well founded fear of persecution in Sri Lanka by reason of their nationality/race, perceived political opinions, and membership in a particular social group, the Jaffna Tamil.
[5] The alleged events which caused the applicants to flee Sri Lanka began with a visit from the applicants' brother-in-law, an irrigation engineer and civil servant. The visitor, was from the uncleared area, an area controlled by the LTTE, and was in Colombo for an official visit to the irrigation office. The visitor stayed with the applicants at their residence. It is noted that any person who comes from North or East of Sri Lanka must register with the police if their intention is to stay in Colombo overnight. The applicants submit that they went to the Narahenpita police station but the registering officer was not available and they were asked to come back on May, 1, 1999. Again, on May 1st, for the same reason, they failed to register their guest. On the third day, the visitor left Colombo. The very same day the police were at their doorstep inquiring about the visitor. They refused to accept the applicants' explanation and verbally abused them and left after giving the applicants a strong warning not to have any visitors in the future.
[6] On May 4, 1999, the applicants submit that an explosion damaged an electrical transformer near their residence. It is alleged that the explosion was caused by a bomb planted by LTTE terrorists. On May 5, 1999, the police checked all the Tamil houses including the applicants. The police were suspicious about the applicants' visitor since he had not registered with the police while he was in Colombo. The police therefore suspected that the applicants' brother-in-law was connected to the explosion of the electrical transformer. They searched the applicants' house and arrested their daughter and son-in-law. The authorities had a strong suspicion that the applicants were involved in the explosion.
[7] The applicants submit that their daughter and son-in-law were detained at the police station and questioned. After two days the police came back to the applicants' house and arrested them. They were taken to the police station for interrogation and were requested to sign a confession relating their involvement in the explosion. The applicants refused to sign, the officers became furious and beat the main applicant severely.
[8] The applicants' further submit that they were released on May 15, 1999, on condition that they report weekly to the police station. The same conditions were imposed to their daughter and son-in-law who were released on May 17, 1999 and left Sri Lanka on May 20, 1999.
[9] On July 29, 1999, the applicants claim that their house was raided in their absence by the police and the army, who did a thorough search of the applicants' residence and seized documents including documents relating to the explosion, such as letters which the applicant wrote to the President of the Indian High Commission, and any replies received, as well as documents about the main applicant's brother-in-law's killing by the army. The applicants contend that after seizing all the documents, the police were convinced that the applicant was a LTTE supporter.
[10] Following these events, the applicants submit that they went in hiding, and were convinced that if found by the police they would definitely be killed.
[11] On September 18, 1999, the applicants fled Sri Lanka arrived in Montréal on September 21, 1999, and claimed Convention refugee status on the same day.
[12] The applicants' brother-in-law who visited on April 30, 1999, still lives in Sri Lanka with his wife and family, and works in a government department.
The CRDD's Decision
[13] On April 19, 2000, the CRDD, determined that the applicants were not Convention refugees. The CRDD was "... not persuaded that the claimants have met the evidentiary burden of demonstrating with credible or trustworthy evidence that they face a serious possibility of persecution should they return to Sri Lanka."[2]
The Standard of Review
[14] In such cases the standard of review is twofold. Firstly, all questions of law determined by the CRDD are governed by the standard of correctness, as stated by Bastarache J. in Pushpanathan[3]. Secondly, all factual findings are regulated by the patently unreasonable standard as stated by Décary J.A. in Aguebor:
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.[4]
Issue
[15] The applicants were granted leave for Judicial review on February 1, 2000, and advance the following issues for the court's determination:
1. Whether the panel erred in law in their credibility findings?
2. Whether the panel erred in law in its assessment of evidence, ignoring evidence and misinterpreting evidence?
3. Whether the CRDD finding is manifestly unreasonable and perverse and cannot stand in law?
4. Whether panel erred in law in its assessment of objective standard of well-founded fear?
Analysis
[16] The applicants' counsel takes issue with two specific credibility findings of the CRDD with respect to the applicants' evidence. Firstly, counsel for the applicants contends that the panel erred in finding not credible the arrest and detention of the applicants after the blowing up of the transformer near their residence, the so-called triggering event. Secondly, counsel contends that the panel based its credibility finding on inference and implausibilities as opposed to inconsistencies in the evidence. The applicants submit that both of these findings are unreasonable and constitute an error of law.
[17] The applicants also contend that the CRDD erred by ignoring evidence when it took into consideration irrelevant evidence and that it misinterpreted evidence.
[18] The applicants further submit that the CRDD decision is manifestly unreasonable and perverse and cannot stand in law. The applicants claim that there was no contradiction or inconsistencies between the oral testimony on oath and their sworn statements in their PIF.
[19] Finally, the applicants contend that the panel erred in law in its assessment of the objective standard of well-founded fear.
[20] It is useful to review the reasons of the CRDD where the panel found the applicants either inconsistent or implausible, namely:
· The inconsistency in that the port of entry notes where their fear of persecution is explained as "we came from Prabaham village, hence haressted (sic) by Police always" and where there is no mention of this singular event in their PIF and oral testimony that they alleged caused them to fear for their lives.
· No persuasive documentary evidence before the panel that Tamils from Valvettiturai are subject to closer scruting from the security forces.
· Their story was sufficiently disjointed and implausible to lead the panel to conclude that the story was contrived to bolster their claim.
· With regards to the applicants' overnight visitor of April 30, 1999, the panel found the applicants' evidence highly suspect that the police would suddenly show a vigorous interest in the visitor since they had often registered overnight visitors before in light of the applicants' other claim that they had attempted two days in a row to register this overnight guest since the police had allegedly turned them away two nights in a row.
· The applicants failed to provide certain reasonably obtainable objective evidence concerning the events that precipitated their departure from Sri Lanka or indeed their very presence in Sri Lanka during the material time particularly where they were able to provide satisfactory evidence for their earlier years.
· The male applicant was unable to corroborate by way of any medical report his story that he had been treated at the National General Hospital in Colombo where X-rays were taken.
· The applicants' story was found to have evolved from their arrival in Canada to the time of the hearing.
· The applicants and their son and daughter were all able to leave Sri Lanka on their own passports through Sri Lankan security without incident notwithstanding that the police were supposedly searching for the applicants for harbouring LTTE terrorists and for involvement in a recent bombing in Colombo.
· Turning to the principal applicant's own experience, his allegation is belied by his evidence that they were able to live in Columbo for so many years without the Valvettithurai factor coming into play except for the isolated incident in 1996.
[21] A careful review of the transcript of oral testimony before the CRDD at pages 339-340 of the Tribunal Record reveals that the panel went to considerable length to question the principal applicant on how his brother-in-law who visited on April 30, 1999, the prime suspect, who allegedly triggered the onset of their problems, still lives and works safely in Sri Lanka. The principle applicant responds that his brother in law "...is safe there. But they were only harassing us and killing us." It is difficult to reconcile how a relative who, according to the applicants' own testimony, is also suspected by the police, can continue to live safely in Sri Lanka, while the applicants allege persecution that causes them to flee the country.
[22] I have reviewed with care the sworn testimony of the applicants in their PIF and their testimony given under oath. I have reviewed all documentation submitted by the parties and having heard counsel for both parties, I have no difficulty concluding that the findings of the CRDD with regards to inconsistency and implausibility are reasonably open to it.
[23] I dismiss the applicants' contention that the panel failed to consider all of the evidence properly. In Cepeda-Gutierrez v. Canada (M.C.I),[5] Evans J., as he then was, stated that reasons given by administrative agencies are not to be read hypercritically by a Court, nor are agencies required to refer to every piece of evidence that they received that is contrary to their findings, and explain how they dealt with it. I am satisfied that the CRDD, in the case at bar, did consider the totality of the evidence before it.
[24] I accept the contention that this Court has held that the CRDD may err when it requires corroborating evidence to support the claimant's uncontradicted testimony. However, in the circumstances of this case, given the credibility concerns explicitly put to applicants, I am of the opinion that this principle does not apply. The CRDD noted the abundance of and supportive documentary evidence made available to it by the applicants for the earlier years. Given the credibility concerns expressed by the CRDD, it was open to it to draw a negative inference by reason of the fact that the applicants failed to provide any such evidence.
[25] I need not agree with every inference or finding of the board, that is not my function. I need only determine if the CRDD's assessment of the totality of the evidence is open to it and that their conclusions are not unreasonable. This principle is well established by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada, et al. where the Court stated:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.[6]
[26] As for the final issue raised by the applicants, that the CRDD erred in concluding that discrimination suffered by the applicants did not amount to persecution. It is useful to consider the test set out by the Federal Court of Appeal in Sagharichi v. Canada (Minister of Employment and Immigration). In that case, the Court stated that it was for the Refugee Division to draw the sometimes difficult separation between persecution and discrimination:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.[7]
[27] In the case at bar, the Refugee Division accepted the applicants' story prior to April 30, 1999 but found that what the applicants suffered did not amount to persecution. Indeed the Record establishes that the applicants testified to a lack of fear of persecution prior to the 1999 incidents. With respect to events after April 30, 1999, the Refugee Division found that the applicants' lacked credibility presenting certain aspects of their evidence and could not establish, to its satisfaction, a subjective basis to a well-founded fear of persecution.
[28] The burden is on the applicants to provide clear and convincing proof of the well-founded fear of persecution to establish the validity of their claim for Convention refugee status.[8] The Supreme Court of Canada in Canada (Attorney General) v. Ward, outlines the bipartite test to be applied in determining a well-founded fear of persecution:
...the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.[9]
[29] In my view, the CRDD did analyse the objective basis for a well-founded fear of persecution and found no persuasive documentary evidence that similarly-situated persons to the Applicants would face a serious possibility of persecution. Such conclusion was reasonable and open to the CRDD, based on the record before them.
[30] The Supreme Court of Canada, in Ward, further confirmed that the state's inability to protect should also be considered. This should occur at the stage of demonstrating whether a fear is "well-founded". The Supreme Court held that the objectivity of the test resides with the fact that if the state is able to protect the claimant, then the fear is not, objectively speaking, well-founded. Moreover, the Supreme Court stated that clear and convincing confirmation of a state's inability to protect must be provided in order to conclude to a state's inability to protect. I am satisfied that the CRDD properly concluded that the applicants have not discharged their onus to show lack of state protection in clear and convincing terms.
[31] Having reviewed the material before the Court and hearing counsel for the parties, I am of the opinion that the decision of the CRDD is reasonable and should not be disturbed. The applicants have not convinced me that the CRDD erred in its decision. I therefore find no basis for reconsideration of this matter.
[32] There is no question of general importance which would require certification.
[33] The application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that:
1. the application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated April 19, 2000, is dismissed.
"Edmond P. Blanchard"
Judge
[1]
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Immigration Act, R.S.C. 1985, c. I-2
2. (1) In this Act, "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country,
...
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Loi sur l'immigration, L.R.C. 1985, c. I-2.
2. (1) Les définitions qui suivent s'appliquent à la présente loi. « réfugié au sens de la Convention » Toute personne :
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
[...]
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[2] Applicants' Application Record at page 7.
[3] Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R., 982, at paragraph 50.
[4] Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732.
[5] (1998), 157 F.T.R. 35.
[7] (1993) 182 N.R. 398 (C.A.)
[8] Adjei v. Canada (M.E.L), [1989] 2 F.C. 680, 57 D.L.R. (4th) 153 at page 155.
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