Date: 20020709
Docket: IMM-2382-01
Neutral citation: 2002 FCT 758
Ottawa, (Ontario), this 9th day of July, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CHAMINDA LOLITHE WIJEKOON,
PRIYANI ATTANAYAKE MUDIYANSELAGE,
and CHAMIRKA SHARAN WIJEKOON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 82.1(1) or the Immigration Act [the "Act"] for judicial review under the Federal Court Act of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board [the "Board"] dated April 11, 2001 wherein the Board determined that the applicants are not Convention refugees.
ISSUE
[2] Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
[3] My answer to this question is no.
FACTS
[4] The applicants are all citizens of Sri Lanka.
[5] The principal applicant makes this claim on behalf of himself, his wife and his son for fear of persecution at the hands of the police by reason of imputed political opinions and membership in a particular social group (family members).
[6] The principal applicant alleges he worked in Oman from 1992 to December 1999, returning periodically to Sri Lanka.
[7] In December 1997, the principal applicant claims that while in Sri Lanka, the police took him from his house, accused him of sheltering terrorists and asked him for a bribe.
[8] With the assistance of a lawyer, the principal applicant filed a complaint in regards to this incident with the police headquarters.
[9] However, the police officers involved in the incident begged the principal applicant to withdraw his complaint. In order to avoid problems for his parents, the principal applicant did exactly that.
[10] On December 12, 1999, another incident occurred with the police. The police raided the principal applicant's house and found radio equipment owned by a Tamil friend named Sivasubraminiam, arrested him, and the principal applicant a few hours later. In addition, the police assaulted and humiliated the principal applicant's wife.
[11] It would seem that the Tamil friend had admitted under torture that, in Oman, he gave money to the collectors for the Liberation Tigers of Tamil Elaam (LTTE).
[12] The police beat the principal applicant badly, accusing him as well of helping the LTTE.
[13] The principal applicant's father and lawyer obtained the applicant's release on December 15, 1999 with the order for him to report to the police on a weekly basis.
[14] When the principal applicant had to consult a doctor for medical attention, he was late in reporting to the police and was apparently abused.
[15] On January 7, 2000, the applicants fled Sri Lanka for Canada and claimed refugee status on January 12, 2000.
DECISION OF THE BOARD
[16] The Board concluded that all the applicants were not Convention refugees because they were not credible.
APPLICANT'S POSITION
[17] The applicants submit that the Board committed errors of law and errors of fact that warrant intervention by this Court.
[18] The applicants base much of their argument on erroneous factual findings made by the Board.
[19] The applicants claim that the Board members were partial to their counsel, thereby depriving them of their right to a fair and impartial hearing.
RESPONDENT'S POSITION
[20] The respondent contends that this Court cannot intervene with the finding of facts made by the Board, unless it is demonstrated that the conclusions drawn are unreasonable or that they are capricious, made in bad faith or not supported by the evidence.
[21] The respondent alleges that the applicants' argument that they did not have a fair and impartial hearing is ill-founded since such argument was not raised in due time and cannot be made now to express dissatisfaction with the Board's negative decision.
ANALYSIS
Standard of Review
[22] The standard of review for questions of fact is patently unreasonable, fact and law, unreasonable simpliciter, whereas for questions of pure law, it is correctness. Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (T.D.), Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (QL) (F.C.T.D.), Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (QL) (F.C.T.D.).
[23] In the present case, the issues raised by the applicants are those related to facts. Therefore, the standard of review to be applied is that of patent unreasonableness.
Allegations of bias against the Board members
[24] The applicants make an allegation of bias against the Board members. At page 38 of the Memorandum of Applicant, it can be read:
The applicants therefore did not have a fair and impartial hearing. [...]
[25] This allegation stems from an event that occurred during the course of the hearing. The Board wrote in this regard at pages 3 and 4 of its decision:
Counsel objected vigorously to presentation of the document. The panel overruled his objection. The document, being trustworthy, was admissible. The proper way to refute that documentation in a professional manner was not by trying to suppress it, but by presenting other documentation, if available, in reply, and making appropriate submissions. Counsel did not accept the ruling and continued to dispute in a heated manner. Such behaviour is unacceptable. The presiding member told counsel that he should maintain his self-control and took a short recess. [...]
[26] To which, in the Memorandum of Applicant, the applicants respond at page 35:
[...] Yet counsel was trying to clearly situate the context of the document, not to deny it. The Board member's impression is therefore a wrong and aggressive one towards the applicant's counsel.
[27] And later at pages 37 and 38:
The IRB members voluntarily chose out of context evidence to support their arguments that the applicant's testimony was not credible. They misunderstood answers given as being vague when they were not. They expressed criticism towards the applicant's counsel by doubting his professionalism when he objected to their abusive use of out of context documentary evidence.
[28] It is interesting to read the tribunal's record on page 349 and 350:
BY PRESIDING MEMBER (addressing Counsel)
Q. Counsel, I don't know why you don't reserve your comments which is on another document at the proper time.
A. You think it would be justified for you to deduce in error the Claimant in his testimony? You think I'm going to sit here just smiling at you like pretend nothing is wrong in your questions?
Q. Counsel, I think you should get control of yourself. When I read the documents, you can challenge the document in your submissions. That's the professional way of doing it, and at that time, you can certainly come up with whatever documents you present to counteract what we find here. However at this time, I think perhaps it's best we should take a break to...
A. I would like to... you're saying something about me not being professional here and that I should control myself. Is that what I hear?
Q. I said you should control yourself, Counsel, and I said there is a professional way of doing it, and it is to present other documentation at the proper time, it is not to object to the documentation we read.
A. I think you misunderstand what I'm saying, and if you misunderstand what I'm saying, it shows to me that you giving yourself an idea of the reason why I'm doing this, and then assuming that I am not doing my job properly.
Q. Okay, Counsel, say what you wish to say and we'll take a break.
A. I was just explaining to you that your reading of the document seemed to indicate that, according to your own reading, generally they're held for a month and this is not what... it doesn't mean that it's a minimum requirement for the PTA, and I refer you to the U.S. country report that gives more details in your documents about requirements of the PTA and ER (phonetic). That's what I had to say.
Q. Thank you Counsel. We are going to take a break. [emphasis added]
[29] In Re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (F.C.A.), MacGuigan J. held at page 113:
However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object. [emphasis added]
[30] It is trite law that alleged violations of natural justice must be raised at the earliest possible opportunity. If the applicants were in fact concerned that their rights may have been violated, they should have raised their objection at the outset.
[31] This was confirmed again in the case of Kostyshyn v. West Region Tribal Council [1992] F.C.J. No. 731 (QL) (F.C.T.D.) where Muldoon J. held that the aggrieved party must "allege promptly" and in the case of Hernandez v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 607 (QL) (F.C.T.D.), where Pinard J. made reference to the case of Del Moral v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 782 (QL) (F.C.T.D.). In Del Moral, supra, Dubé J. concluded that:
The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. [emphasis added]
[32] In my opinion, therefore the applicant's allegations of bias does not present itself to be a serious issue which warrants the intervention of this Court.
Credibility of the principal applicant
[33] The jurisprudence of this Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility of an applicant. This Court cannot intervene with the findings of fact made by the Board, unless it is demonstrated that the conclusions drawn are unreasonable or that they are capricious, made in bad faith or not supported by the evidence.
[34] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (F.C.A.), the Court held at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [...] [emphasis added]
[35] As was stated in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (QL) (F.C.A.), by Stone J.:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility. [...]
[36] In Razm v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 373 (QL) (F.C.T.D.), Lutfy J. (as he was then) affirmed at paragraph 2:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances. [emphasis added]
[37] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) (F.C.T.D.) Evans J. stated at paragraph 14:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence". [...] [emphasis added]
[38] In Boye, supra, Jerome A.C.J. wrote at paragraph 4:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it. [...] [emphasis added]
[39] The Board found the testimony of the principal applicant to lack credibility. This becomes apparent from many of the Board's comments. At page 2 of the Board's decision, the opening paragraph of the decision reads as follows :
The claimant's testimony was at times ambiguous, vague, packed with long replies from which often were absent the answers to questions asked.
[40] Further down at page 2, in reference to the police bribes extracted from the principal applicant, the following is written:
[...] This [sic] claimant's ambiguity did not enhance his credibility.
[41] On page 3 of the Board's decision, in regards to the complaint filed by the principal applicant against the police, it is stated:
[...] These implausibilities indicate to the panel that the claimant lacks credibility.
[42] At page 5 of the Board's decision, in reference to the December 1999 incident, the Board found:
[...] The panel finds that the implausibility that the claimant was made to face led to his confusion. The panel does not believe that any part of this December 12, 1999 incident occurred.
[43] And lastly, at the top of page 6, in regards to the principal applicant's wife having been assaulted and humiliated during the December 1999 incident, the Board concluded:
[...] The panel finds that the female claimant's contradiction and the denial confirm the previous finding that the December 1999 incident did not happen.
[44] In my opinion, the Board correctly relied on the evidence before it to determine that the applicants' allegations of persecution based on imputed political opinions were neither credible nor plausible. Its findings were entirely supported by the evidence and its conclusions were drawn reasonably.
Preference toward documentary evidence
[45] The Board did in fact compare the applicant's testimonial evidence to the documentary evidence and determined that it preferred the latter over the former. The Board did not find the principal applicant's testimony convincing. It was therefore open to the Board members to prefer the documentary evidence to the testimony of the applicant. At page 4 of its decision, the Board wrote:
Since the document is trustworthy and the comments referred to come from more than one source then, unless proven otherwise, there is no reason to doubt its merit. The panel chooses to rely on that evidence, rather than on the claimant's testimony as he was found again lacking in credibility. [emphasis added]
[46] In Tawfik v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 835 (QL) (F.C.T.D.), MacKay J. held at paragraph 9 and 10:
[...] I am not persuaded that the Board here ignored the evidence before it. Its decision may mistakenly represent evidence of the applicant in testimony about the threat of Iraqi action within territory in northern Iraq said to be under Kurdish control but it refers to documentary evidence as well. In so doing, its references are said to be selective, including portions which support its conclusions and ignoring portions which do not. Yet both supporting and non-supporting references are often included in the same document, referred to by the Board, and in my view its conclusions from that evidence cannot be said to be unreasonable. There is no necessity for the Board to refer in detail to all of the evidence before it (Hassan v. M.E.I., (Unreported, Court file A-831-90, October 22, 1992 (F.C.A.)) [Please see [1992] F.C.J. No. 946]. The Board is one with recognized expertise, and unless its conclusions of fact from all the evidence before it can be said to be capricious or perverse, this Court may not intervene.
Had the difficult decision the Board was required to make been mine to make I might have reached different conclusions, but that is not the test in an application for judicial review. The test, so far as this case is concerned, is whether the Board erred in law, or whether its conclusions were erroneous findings of fact made in a perverse or capricious manner or without regard to the material before the Board (paragraphs 18.1(4)(c) and (d), Federal Court Act. Generally the weight to be given to evidence is a matter for the tribunal's proper discretion. Unless that discretion can be said to be unreasonably exercised, this Court will not intervene. [emphasis added]
[47] In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (QL) (F.C.T.D.), Rouleau J. affirmed at paragraph 15:
Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence. [emphasis added]
[48] Also see Ganiyu-Giwa v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 506 (QL) (F.C.T.D.).
[49] The Board found that the documentary evidence to be reliable and preferred this evidence to that of the principal applicant's testimony. As stated clearly by the jurisprudence of this Court, the preference for certain evidence over other evidence is entirely within the jurisdiction of the Board.
[50] The applicants have failed to demonstrate that the findings of fact made by the Board are patently unreasonable and therefore, there is no reason warranting the intervention of this Court.
[51] No question for certification was asked, and no question is certified.
[52] For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
(signed) Michel Beaudry
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2382-01
STYLE OF CAUSE:
WIJEKOON, CHAMINDA LOLITHE,
ATTANAYAKE MUDIYANSELAGE,
PRIYANI and WIJEKOON, CHAMIRKA SHARAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 9, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: July 9, 2002
APPEARANCES:
Mr. Dan M. Bohbot FOR APPLICANTS
Mrs. Sylviane Roy FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Dan M. Bohbot FOR APPLICANTS
Montreal, Quebec
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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