Date: 20020627
Docket: IMM-3462-01
Neutral citation: 2002 FCT 725
BETWEEN:
VHARIYWATE VIDANHNYLAGADALIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] Vhariywate Vidanhnylagadalin (the applicant) is a 38 year old Sinhalese Christian woman who lived in the Central Province of Sri Lanka of which she is a citizen. She was refused recognition as a convention refugee on the stated ground of her imputed political opinion by the June 22, 2001 decision of the Refugee Division (the tribunal).
[2] She claimed persecution by both the LTTE (Tamil Tigers) and by the Sri Lankan Army (SLA). She says the Tamil Tigers suspect her of giving information about them to the SLA after they found out she visited, in May 2000, her brother who was in the SLA. She fears the SLA because they are looking for her after they found, in July 2000, a box of explosives in her house allegedly left there by the Tamil Tigers who had forced her to deliver it.
[3] The tribunal's conclusion was that the applicant was neither credible nor trustworthy.
[4] To arrive at this conclusion, the tribunal used an array of well-known techniques to gauge whether she was a truthful witness: (1) her demeanour - she was neither forthcoming nor spontaneous in the tribunal's opinion because she followed closely her PIF and required numerous and leading questions in order to obtain details; (2) her hesitant and sometimes exaggerated testimony; (3) a number of implausibilities such as the implausibility the Tamil Tigers would suspect her to be a SLA informant after her one visit to her brother in the army camp. The tribunal drew this implausibility in the context of her profile and lifestyle, that of a single mother who worked as a housemaid and who had no particular problems with the police or the Tigers. The tribunal also found it implausible the Tigers would use her as a messenger for delicate work such as carrying explosives and gun parts because she was Sinhalese, had two brothers in the army and the Tigers themselves suspected her of giving information to the army; (4) failure in the applicant's point of entry (POE) notes to mention that the Sri Lankan police and army were looking for her; (5) contradictory evidence as to when she learned that the army and police were seeking her. She first indicated that she was aware of this in Sri Lanka, to then testify she only knew of it after her arrival in Canada. The tribunal commented that after her counsel retracted his statements, she adjusted her testimony; (6) a contradiction between her POE notes and testimony at the hearing between an indication she was a widow because the father of her child had died and an indication in her PIF that she never married; (7) her confused testimony as to the disappearance of her daughter's father at the hands of the Tamil Tigers; (8) confused testimony as to the alleged kidnapping of seven members of her family by the Tamil Tigers and her unclear testimony as to the reason behind these alleged kidnappings, that is a land dispute between the Tamils and the Sinhalese in the village they lived or political motives; (8) internal contradictions in her testimony as to why she stopped working, a request allegedly made by the Tamil Tigers; (9) a further PIF omission that while being detained at the army camp she was beaten.
Analysis
[5] There were two facets to the tribunal's finding the applicant was not a credible nor trustworthy witness: (1) the tribunal observed her demeanour and the way she testified. The tribunal is in a privileged position in this respect; (2) the tribunal examined the evidence and based its credibility findings making findings of fact which, under section 18.1(4)(d) of the Federal Court Act cannot be overturned unless those findings are made in a perverse or capricious manner or without regard to the material before it which equates to a standard of review of patent unreasonableness.
[6] Counsel for the applicant has not been able to show me the tribunal erred in the observation it made about the way the applicant testified nor has he demonstrated the findings of fact upon which it based its credibility findings were made without an evidentiary foundation or by ignoring the evidence. Indeed, counsel for the applicant did not seriously challenge these findings.
[7] Rather, he argued three main issues. First, he argued I should set aside the credibility findings based on contradictions between her POE and her testimony because the applicant did not have the benefit of an interpreter when she filled her POE; she did have the help of a Sri Lankan person.
[8] Counsel for the applicant drew my attention to four areas in the POE which he said demonstrated confusion notwithstanding the finding of the tribunal that it "noticed that the entire POE form was mostly filled out in an consistent fashion; therefore, we concluded that the claimant had understood the questions".
[9] I do not retain two of the four instances drawn to my attention because they were simple spelling errors. However, the two others are more important: (1) to the question "are you wanted by the police or army in any country", she ticked yes but also ticked no and (2) to the question "is the police or army looking for you in your country", she ticked no.
[10] I am not prepared to endorse counsel for the applicant's suggestion principally for the reason that the tribunal extensively questioned the applicant on when or whether the army or police were looking for her thus giving her the opportunity to clarify any confusion which may have arisen. My transcript review shows confusion remained.
[11] I find the inconsistency drawn by the tribunal between her POE and her testimony and her PIF on being a single mother or having a common-law husband, her reference to being a widow and the tribunal's conclusion that she did not explain what changed later on when she completed her PIF where she stopped calling herself a widow to be substantiated by the evidence.
[12] Counsel for the applicant argued that the tribunal's profile of the applicant (not a young Tamil person from the North) constituted a screen or a test through which the tribunal filtered all of the applicant's evidence.
[13] My reading of the transcript does not bear out counsel's argument. I agree with counsel for the respondent the tribunal considered the applicant's story on its merits, applied the correct test of whether she had a well-founded fear of persecution in Sri Lanka, assessed the evidence but did not believe the applicant for clearly stated reasons which have not been demonstrated to be patently unreasonable as findings of fact are required to be under section 18.1(4) of the Federal Court Act.
[14] Finally, counsel for the applicant argued the implausibility drawn by the tribunal that the Tamil Tigers would not force the applicant to be a carrier of explosives was unreasonable. I cannot accept this argument. The tribunal's implausibility finding had an evidentiary basis and to intervene would simply be to substitute my view for that of the tribunal which I cannot do.
[15] For all of these reasons, this Application for Judicial Review is dismissed. No certified question was proposed.
"François Lemieux"
Judge
Montreal, Quebec
June 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020627
Docket: IMM-3462-01
BETWEEN:
VHARIYWATE VIDANHNYLAGADALIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3462-01
STYLE OF CAUSE:
VHARIYWATE VIDANHNYLAGADALIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 26, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: June 27, 2002
APPEARANCES:
Mr. Stephen Fogarty FOR THE APPLICANT
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stephen Fogarty FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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