Sivasambo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 206

                                                                                                                                             Date: 20020226

                                                                                                                                  Docket: IMM-5918-00

                                                                                                                   Neutral Citation: 2002 FCT 206

Between:

                                              Varatharajah SIVASAMBO,

                                                                                                               DEMANDEUR;

                                                               - et -

                                     LE MINISTRE DE LA CITOYENNETÉ

                                               ET DE L'IMMIGRATION,

                                                                                                                DÉFENDEUR.

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated October 20, 2000, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[2]         The applicant is thirty-six years old and a citizen of Sri Lanka. He claims to have a well-founded fear of persecution based on his race, membership in a particular social group (young Tamils from the Northern Province), and imputed political opinion. He alleges a fear of persecution at the hands of the Liberation Tigers of Tamil Eelam (LTTE), the army, and the police because he is a young Tamil from the Northern Province.

[3]         The Board determined the claimant not to be a Convention refugee by concluding that he was not credible. The following reasons were noted:

-           It has not been demonstrated by credible evidence that the LTTE, the army, or the police ever mistreated him and that he would be at risk of persecution if he returned to Sri Lanka.

-           Documentary evidence and specialists on Sri Lanka demonstrate doubts about the need for the LTTE to apply forced recruitment as they had access to a large pool of young volunteers. This evidence contradicts the applicant's testimony.

-           The applicant claims he was tortured in Vavuniya, however he has not adduced any medical document that would support his allegation of mistreatment. As well, in spite of such mistreatment and the necessity of medical help, the applicant has not yet pursued this option.

-           The applicant alleges that he was arrested and beaten in Colombo. When asked to clarify this allegation, the applicant offered two diverging explanations. As well, this fact was not indicated in the Port of Entry notes (POE notes).

-           Basing its reasoning on documentary evidence, the Board concluded that the harassment caused by the need of the authorities to verify that the young Tamils are not Tigers does not amount to persecution.

[4]         The fundamental issue raised in this application is whether the Board erred in finding the applicant not to be credible.

[5]         In my view, the Board clearly and unequivocally determined the applicant not to be credible and offered detailed reasons for its decision, citing inconsistencies and implausibilities in the applicant's oral testimony, the POE notes, his Personal Information Form and in the documentary evidence. After reviewing the evidence, I am not persuaded that the inferences of the Board, which is a specialized tribunal, could not reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)).

[6]         Furthermore, it is argued that the Board ignored its own and more recent evidence as well as that filed by the applicant. In that regard, it is well established that the Board is presumed to have considered all of the evidence before it (see, i.e., Hassan v. M.E.I. (1992), 147 N.R. 317 at 318 (F.C.A.)), and that it is reasonable for it to prefer documentary evidence to that of a claimant (see, i.e., Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91 (F.C.A.)). In the present case, after having read the oral and written testimonies as well as reviewed the evidence, I do not feel that evidence was ignored by the Board whose decision appears to be well- founded both on the applicant's testimony and the documentary evidence.

[7]         As for the other conclusions of the Board concerning the harassment of the applicant caused by the authorities, the absence of a medical document to support the applicant's allegations of mistreatment by the army and the reliability of the applicant's birth certificate, I have not been satisfied that the Board committed any reviewable error. It rather seems to me that the applicant in this case is merely asking this Court to substitute its assessment of the evidence for the decision of the Board. However, this is not the role of the Court in an application for judicial review (see, i.e., Tawfik v. M.E.I. (1993), 137 F.T.R. 43 at 46 (F.C.T.D.)).

[8]         For the foregoing reasons, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

February 26, 2002