Date: 20000921
Docket: IMM-2688-99
BETWEEN:
VASUKI KAMALRAJ
PABITHTHA KAMALRAJ
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicants seek judicial review of a decision of the Convention Refugee Determination Division (the "Board") dated May 11, 1999, in which the Board determined that the applicants were not Convention refugees.
[2] The two female applicants are citizens of Sri Lanka. They are also mother and child (hereinafter referred to as "applicant" and "minor applicant"). The applicants claimed a well-founded fear of persecution on the grounds of imputed political opinion and membership in a particular social group.
[3] There were four main issues argued by the applicant. The first and principle issue here is whether or not the Board erred in its finding regarding the applicant's credibility. Second, did the Board err by failing to take into account both the applicant's and the minor applicant's status as young Tamils from northern Sri Lanka in deciding whether or not they have a reasonable fear of persecution if returned to Sri Lanka? Third, the applicant raised the issue of whether or not the Board erred in not considering the minor applicant's claim separately. The final issue concerns whether or not the Board erred in failing to discuss persecution of the child. I ruled that this last matter was not properly put before the Court because of the lack of any prior notice.
[4] I will now review the Board's findings regarding credibility. Pursuant to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, the appropriate standard of review is reasonableness simpliciter. In my view, the findings of the Board with respect to credibility were open to it on the evidence, and were not unreasonable. The Board did make one erroneous finding when it stated that the applicant testified that she was fearful of the army and the Tamils. That is, the Board omitted to discuss that the applicant had also testified that she was fearful of the police. Nevertheless, this finding was not material to the Board's determinations with respect to credibility.
[5] The Board stated at page 3 of its reasons:
| In the present claim the claimant's overall testimony lacked in credibility. The claimant was neither spontaneous nor forthcoming. There were many inconsistencies, discrepancies and contradictions between the written and oral testimony. The claimants were rather affected by the on-going armed conflict in Sri Lanka than by a fear of persecution for the reasons stated in the definition. |
The Board provided many specifics to support the above finding. I find that there is no reviewable error with respect to the Board's finding on the applicant's credibility.
[6] The next issue is whether the Board failed to treat the applicant and the minor applicant as young Tamils, notwithstanding the finding concerning credibility. In determining whether or not there is a reasonable possibility of a fear of persecution, the Board must look at the subjective fear of the applicant. However, in a rare case, a finding of objective fear of persecution will prevail even if the applicant fails to show subjective fear of persecution. The Board was mindful of the need to look at the human rights conditions in Sri Lanka, as is evidenced by their statement at page 3 of the reasons:
| Moreover, according to the UNHCR, the validity of individual asylum claims needs to be judged on their own merits as in the past, taking into consideration the specific circumstances surrounding the case in question, as well as the human rights conditions in Sri Lanka. |
[7] The panel stated at page 6 of the reasons:
| Given the documentary evidence; the alleged involvement of her family and her husband's family with the Tigers; her alleged difficulties with both the LTTE and the army; and her contradicting and inconsistent testimony, the panel does not find her explanations satisfactory and does not consider the claimant credible and trustworthy. |
[8] It was certainly open to the Board not to accept all of the documentary evidence with respect to young Tamils in light of the applicant's own experience. As stated earlier, the Board specifically found that the claimants were affected by the ongoing armed conflict in Sri Lanka rather than by a fear of persecution for the reasons stated in the definition. I note that this case is distinguishable on the facts from Seevaratnam v. Canada (M.C.I.), [1999] F.C.J. No. 694 (T.D.).
[9] The third issue is whether the Board erred in not considering the minor applicant's claim separately. The Personal Information Form of the minor applicant specifically stated that the minor applicant was relying on the evidence given by her mother, the applicant. The Board specifically dealt with this matter at page 1 of the reasons "[t]he claimant, Ms. Kamalraj, was assigned the Designated Representative of the minor claimant who based her claim on the claimant's story." In addition, there was no evidence before the Board allowing it to judge separately the fear of persecution of the minor applicant.
[10] The application for judicial review is dismissed. The proposed question for certification as submitted by the applicant is not relevant to the facts of this case and would not be dispositive of the case, therefore no question will be certified.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 21, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: VASUKI KAMALRAJ |
Applicants
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: FRIDAY, AUGUST 18, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
DATED: September 21, 2000
| APPEARANCES BY: Ms. Preevanda k. Sapru |
For the Respondent
| SOLICITORS OF RECORD: Max Berger and Associates |
Barristers and Solicitors
1033 Bay Street, Suite 207
Toronto, Ontario
M5S 3A5
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000921
Docket: IMM-2688-99
BETWEEN:
Applicants
| THE MINISTER OF CITIZENSHIP |
Respondent
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