Date: 20020419
Docket: IMM-3232-01
Neutral Citation: 2002 FCT 445
Entre:
Santhakumar KRISHNAN,
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 May 28, 2001, 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, Santhakumar Krishnan, is a citizen of Sri Lanka. He claims to have a well-founded fear of persecution by reason of race, membership in a particular social group: young Tamil males from the North, and imputed political opinion.
[3] The Board determined the applicant not to be a Convention refugee because he is not credible.
[4] The applicant alleges that the Board erred by making adverse findings of credibility arbitrarily and capriciously or without regard to the evidence before it. It has been confirmed by this Court on many occasions that the Board is entitled to infer that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and that its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (M.E.I.), 15 Imm.L.R. (2d) 199 (F.C.A.)). As well, where the Board has concerns about an applicant's credibility , it is obliged to alert the applicant to these concerns and to give the applicant an opportunity to explain the alleged inconsistencies in his or her evidence (see Gracielome v. Canada (M.E.I.) (1989), 9 Imm.L.R. (2d) 237 (F.C.A.)).
[5] Here, the Board gave the applicant several opportunities to explain facts that are extremely pertinent to his application such as the following: had the Liberation Tigers of Tamil Eelam come to his house from the time of the first refugee decision in November 1998 and the year 2000; what efforts had been made to try to find his siblings' whereabouts and finally, if his life would be in danger upon returning Sri Lanka for having travelled on false documents. Considering the often vague and indirect answers in the applicant's oral testimony, I am not convinced that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[6] With respect to documentary evidence, the following was confirmed by the Federal Court of Appeal in Minister of Employment and Immigration v. Zhou (July 18, 1994), A-492-91:
We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. . . .
[7] 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 and its decision appears to be well-founded both on the applicant's testimony and the documentary evidence. I am of the view that the conclusions reached by the Board that the conditions caused by the civil war in Sri Lanka do not amount to persecution, the probative value of the documentary evidence and the credibility of the applicant were open to it considering the material before it (see Tawfik v. Canada (M.E.I.) (1993), 137 F.T.R. 43). Finally, I am of the impression, that given the circumstances that the Board's perception that the applicant is not credible in fact amounts to a conclusion that there was no credible evidence to justify his claim to refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.)).
[8] With regards to the psychological report filed in support of the applicant's claim to refugee status, although it is submitted that the Board failed to give it due weight, the applicant's evidence was wholly disbelieved and considered implausible on several issues. This therefore means that the factual foundation for the psychological report which described post-traumatic stress disorder was rejected, and, of necessity, the diagnosis became irrelevant (see Kalia v. Minister of Citizenship and Immigration (December 5, 1997), IMM-3717-96, Chahal v. Minister of Citizenship and Immigration (October 10, 2001), IMM-368-01 and Gyamfuah v. Canada (M.E.I.) (1994), 80 F.T.R. 58).
[9] Finally, counsel for the applicant argues that it was unfair for her client that the Board allowed the filing, on the day of the hearing, of two documents taken from the Internet, which were relied upon by the Board in the impugned decision. I find this argument without merit as the former counsel for the applicant at the hearing before the Board did not object to the filing of the documents, nor did he seek any adjournment. Furthermore, the record shows that former counsel for the applicant did in fact have the opportunity to make representations with regard to what he considered the lack of probative value of the concerned documents.
[10] For the foregoing reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 19, 2002
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