Date: 20010913
Docket No.: IMM-2649-00
Neutral Citation: 2001 FCT 1018
Ottawa, Ontario, this 13th day of September 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SUBAJINY SIVALINGAM-YOGARAJAH
Respondent
REASONS FOR ORDER AND ORDER
[1] The respondent, Subajiny Sivalingam-Yogarajah, entered Canada as a permanent resident on March 9, 1997, on a visa which was subject to the condition that within 90 days of landing, she marry the person who had sponsored her application. Shortly after arriving here, she discovered that he had a girlfriend which he was not prepared to give up. She declined to marry him and moved to another city. The rejected sponsor wrote to the authorities to claim that she had left him without notice or cause and that if necessary, he would pay to have her returned to Sri Lanka. Some two years after her arrival in Canada, the respondent announced, in the course of an Adjudication Division hearing which was considering the terms of her removal from Canada, that she intended to make a refugee claim. This attracted the attention of the Minister who exercised her right to participate in her refugee hearing. When the Convention Refugee Determination Division (CRDD) found that she was a refugee, the Minister launched this application for judicial review. The principal ground of review is that the CRDD erred in its assessment of credibility as a result of ignoring evidence or failing to give it consideration. A second ground of review is that the CRDD failed to properly consider the possibility that the respondent had an internal flight alternative in Colombo.
[2] The respondent is a Tamil from the north of Sri Lanka. She wished to marry an individual she had known in Sri Lanka who had moved to Canada. Her parents were initially opposed to the match but she persisted and they eventually came to approve. Her parents and his parents engaged in the customary formalities and eventually the arrangements for the marriage were complete. This was played out against the background of the continuing violence of the civil war in Sri Lanka.
[3] In April 1996, the respondent and her father went to Colombo to make the arrangements for her visa to enter Canada. They cleared an army checkpoint on the way south and after some delay were granted a pass to go to Colombo for one week. The respondent's evidence is that the pass was renewed on a monthly basis while they were in Colombo, largely on the strength of the documentation she had which established that she was in the process of obtaining a visa to emigrate.
[4] In the course of her evidence, the respondent first testified that she had lived at only one address while in Colombo. She was then confronted with correspondence which she had signed which indicated that she had in fact lived at another address. The respondent explained that the second address was the address of the sister of her sponsor which she used as a mailing address. The letter in question said that she had moved from one address to the other because the landlord would not continue to rent to her.
[5] The respondent complained of harassment while in Colombo. The police came through the lodge where she was staying but they did not arrest her. In October of 1996, she says she was detained on the road to her lodge but was able to bribe her way out of any difficulties. That month, her mother and her brother joined her in Colombo due to the illness of her father, to which he succumbed on October 20, 1996. In December 1996, the respondent and her brother were arrested and taken to the local police station. She was kept overnight, interrogated, in the course of which she was slapped, and released the following day. Her brother was kept for three days. The respondent and her mother were stopped and questioned by the Criminal Investigation Division while they were on their way to the Canadian embassy in February 1997. They were not detained because the respondent was able to show her "sponsor papers". In March 1997, the respondent came to Canada and her mother returned to the north. Her brother had left for Australia in January 1997.
[6] The respondent was dismayed that her intended did not trouble himself to meet her at the airport upon her arrival in Canada. She found that he was distant and not inclined to spend much time with her. Within two weeks, she discovered that he had a girlfriend when she saw her fiancé and the "other woman" walking hand in hand in the park. She confronted him with this but he denied any involvement with the woman other than saying that she was a friend. The respondent decided that she would not marry him under those circumstances, informed him of her decision and moved from Montréal to Toronto where she promptly found work.
[7] In November of 1998, she met another man and by December 14, 1998, they were married. Some of the customary practices were followed but others were not.
[8] As a result of the jilted sponsor's correspondence, immigration authorities initiated the procedure for an inquiry which ultimately took place in June 1999. At that time, the respondent admitted that she was in Canada in breach of the conditions of her landing. The adjudicator was therefore left only with the issue of the form of removal order which he should make. In the course of the proceedings, the respondent announced for the first time that she intended to make a refugee claim. When questioned as to whether she would leave the country voluntarily if an order was made against her, the respondent answered that she would not leave her husband alone. Under the circumstances, the adjudicator had no option but to make a conditional deportation order as the respondent left him no doubt that she would not report voluntarily for removal, one of the conditions of the issuance of a conditional departure order.
[9] The respondent's refugee claim came on for hearing on February 24, 2000. Following a brief pre-hearing conference, the hearing was convened and the Presiding Member explained the issues which would be canvassed in the hearing to the respondent in these terms:
Now, Ms. Sivalingam, we've had a short pre-hearing conference and I'm going to summarize for you what we discussed. The panel wanted to be sure in its mind why the Minister was intervening in your claim. The Minister is concerned at the manner in which you are claiming refugee status. Unlike other claimants from Sri Lanka who generally leave their country in a hurry and make their claim as soon as they come to the airport, you came here with the intention of marrying someone, then for whatever reasons you changed your mind about that. So you were granted entry into the country on one presumption and then that changed and you married somebody else. There is quite a delay from the time you came into this country and when you decided to make your refugee claim. The point about the Minister's interest is that the panel should be concerned about your credibility.
The Minister also believes that you may have an internal flight alternative in Sri Lanka, that you've shown yourself capable of staying in Colombo for some period of time and that it should be possible for you to return there. Your counsel disagrees with the Minister's position.
Have I summarized the pre-hearing, Mr. Munro, to your satisfaction?
MINISTER'S REP: Yes, thank you very much sir.
[10] A few moments later, the Presiding Member returned to the outstanding issues:
Madam, we're going to review the issues in your claim. You have provided a number of primary identity documents, so we're satisfied that you are a young Tamil woman from the north. So identity is not an issue. ...
So your identity is not an issue, so there is a question of your subjective fear, because there's a considerable delay in you making your refugee claim. You'll be asked to explain that. There is the objective component of your well-founded fear. We'll be asking who you fear in Sri Lanka and why. We'll be examining whether you can live in Colombo if you had to go back to Sri Lanka. That's called internal flight alternative. And any credibility issues that may arise from your testimony.
Any discussion on the issues, Mr. Munro?
MINISTER'S REP: I believe you've covered everything. Thank you.
[11] In the course of the hearing, the Minister's representative was able to establish that the respondent had not resided at only one address in Colombo, as she had represented, but rather at two different addresses. He was also able to establish that the respondent had an uncle in Colombo though this turns out to be a relative of her maternal grandmother's. The significance is that the respondent had said that there was no one to whom she could turn in Colombo. The Minister's representative also established that the respondent's marriage was not arranged strictly in accordance with the customary practices.
[12] The Minister's Representative took the position that this refugee claim should be opposed on the grounds that it offended the integrity of the refugee system. It was his view that the refugee claim was made in circumstances which made it clear that it was simply a means of avoiding or delaying the respondent's removal from the country. Furthermore, the respondent's entry into the country was deceitful in that she never intended to marry her sponsor. In the opinion of the Minister's Representative, this was simply a means of getting into the country and obtaining landing.
[13] The Minister's Representative argues that the best evidence of the absence of a genuine fear of persecution is the fact that the refugee claim was not made until some two years after the respondent entered Canada. This is inconsistent with a credible fear of return to Sri Lanka. The fact that the intention to make a refugee claim was first disclosed in the course of an inquiry as to whether the respondent should be removed from Canada speaks volumes about the good faith of the claim for refugee status. The failure of the CRDD to properly consider these issues was grounds for judicial review on the basis that it acted without regard to the evidence.
[14] Furthermore, the fact that the respondent was able to remain in Colombo for a year or so on the strength of an expired one-week pass is evidence that the respondent could return to Colombo. Despite her assertions that she has no one there to assist her, she does have the person she identified as her uncle, whatever the degree of relationship. The fact that she was shown to be dissimulating, if not untruthful, about this person leads to the conclusion that her evidence as to her situation in Colombo should be disregarded.
[15] Counsel for the respondent is of the view that the respondent did exactly what the system permits her to do and that the CRDD did exactly what the system requires it to do. The refugee system is designed to offer protection to those who are at risk of persecution. The timing of such a claim is made cannot be determinative of whether protection is required, though it is a factor to be considered. In this case, the respondent's history and profile place her squarely within the group of individuals who are at the greatest risk of persecution. As for the questions of credibility and delay, the CRDD took these issues into account and concluded that they did not go to the heart of the respondent's claim and ruled that she was a refugee.
[16] The substance of the Minister's position is that the applicant should not have been believed because of the clear deficiencies in her evidence on the subject of her address in Colombo and the presence of family in that city. The Minister relies on authority which says that where a claimant is shown to have lacked credibility in one respect, the balance of that claimant's evidence can be put to one side. The following passage from Sheikh v. Canada [1990] 3 F.C. 238, (1990), 112 N.R. 61, is apposite:
[para8] I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[17] The fact that the CRDD may disbelieve the whole of a claimant's story on the basis of demonstrable deficiencies in some parts of the claimant's testimony does not mean that the CRDD must disbelieve the claimant. It is a given that it is for the CRDD to determine issues of credibility which means that it is as free to overlook contradictions and inconsistencies as it is to rely upon them.
[18] The same is true of delay in making a refugee claim. When this Court says that the CRDD is entitled to consider delay in making a claim as an indicator of lack of fear, as it did in Huerta v. Canada [1993] F.C.J. No. 271 (F.C.A.), (1993), 157 N.R. 225, it is not directing the CRDD to reject all claims in which there has been a delay in the making of a claim. Delay may, in a common sense kind of way, be an indicator of lack of fear of return to one's country of origin. But delay may also be explained by ignorance or reliance upon other means of securing the right to remain in Canada. It is for the CRDD to decide, on the basis of the evidence before it and its assessment of the claimant, the significance of delay in the case before it.
[19] Counsel for the Minister argues that it is one thing to consider delay and decide that it is not determinative of the issue; it is another not to consider it at all. The CRDD's Reasons for Decision make no mention of any consideration of the issue of delay. It is clear from the comments made to the respondent at the beginning of the hearing that the issue of delay was one of concern to the CRDD. However, by the end of the hearing, it appears that the issue had resolved itself for when written submissions were being discussed, only two areas were identified as of interest, credibility and internal flight alternative. While delay might be considered as an aspect of credibility, it was not raised in the written submissions of the Minister's Representative nor in those of counsel for the Respondent. In the circumstances, I am not persuaded that the CRDD overlooked delay anymore than did the parties.
[20] The Minister objected strongly to the CRDD's decision on the issue of internal flight alternative, that is, the ability of the respondent to live in safety in Colombo. Notwithstanding the respondent's position that there is no one to whom she can turn in Colombo, it appears that her "uncle" may in fact be able to assist her. Having lived in Colombo for one year on an expired pass, she can hardly be heard to say that it is not safe for her there.
[21] In fact, the respondent's evidence is that her pass was renewed monthly during the time she was in Colombo. It appears that it was renewed on the strength of her documentation showing here imminent departure for Canada. It is simplistic to suggest that the respondent would be treated no differently were she to return to Colombo now.
[22] The status of Colombo as a safe haven for northern Tamils has varied over time. In Murugappah v. Canada [2000] F.C.J. No. 1075, (2000), 184 F.T.R. 267, I was presented material in which a panel of the CRDD concluded that Colombo was no longer a viable internal flight alternative for northern Tamils. Other cases have held that a finding that Colombo was a valid internal flight alternative were not properly made: see Soosaipillai v. Canada, [1999] F.C.J. No. 1064 para 19 per Campbell J., Gengeswaran v. Canada, [1999] F.C.J. No. 768 para 16 and 17, (1999), 169 F.T.R. 148, per Rouleau J., Sathananthan v. Canada, [1999] F.C.J. No. 1345 at para 19 et seq., (1999), 175 F.T.R. 144, per Lemieux J. The latter case contains a review of other cases coming to the same conclusion.
[23] There is nothing unreasonable about the CRDD's conclusion as to the lack of an internal flight alternative for this woman in Colombo.
[24] In the end result, it has not been shown that the CRDD's decision is unreasonable. Consequently, the application for judicial review is dismissed.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated May 10, 2000, reasons for which are dated May 5, 2000, is hereby dismissed.
"J.D. Denis Pelletier"
Judge
Email this Content