Date : 20020909
Docket: IMM-4181-01
Neutral citation: 2002 FCT 945
Ottawa, Ontario, this 9th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
ENTRE :
JAYAMARY FERNANDO
ANTIONETTE BRITTO
Applicant
- et -
MINISTER OF IMMIGRATION AND EMPLOYMENT
Respondent
REASONS FOR ORDER AND ORDER
1. This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "Refugee Division") dated August 7, 2001, wherein the applicants Jayamary Fernando ("applicant" ) and her daughter Antoinette Johanna Britto ("minor applicant") were found not to be Convention refugees.
Facts
2. The applicants are citizens of Sri Lanka and claim a well-founded fear of persecution on the grounds of race and imputed political opinion. The minor applicant bases her claim on that of her mother who was appointed designated representative of the minor applicant.
3. The applicants are Tamils who were born and raised in Columbo. The applicant and her husband were employees of Eswaran Brothers Export Ltd. in Sri Lanka up until October 2000. The applicant's sister, Jasmine Fernando, and her brother-in-law applied for refugee status in Canada in 1985 and were accepted. Her other sister, Ramani, was also granted the same status in 1999.
4. The applicants' evidence is that between 1995 and 1999, she and her family had several incidents with the police. In June 1995, the applicant was questioned and verbally abused by the police, who accused her family of sheltering Tigers. In November 1995, her husband was arrested and detained for three days following the attack on Kollonnawa Fuel Depot. In March 1998, the applicant and her husband were taken by the police and detained for a few hours, as their house was located in the vicinity where an attack took place. They were questioned, beaten and humiliated. Following this incident, the applicants state that the police checked their homes on several occasions. In 1999, there was a bombing in front of the applicants' home and this led to an arrest and detention of the applicant and her family.
5. According to the applicant, the critical incident that precipitated her departure from Sri Lanka related to an incident on October 3, 2000, when fertilizers were found missing at her workplace. Both the applicant and her husband were taken into custody and suspected of having given the fertilizers to the Tigers. The applicant states that she was stripped nude during the interrogation and was beaten in the presence of her husband. Her husband was also tortured. With the help of a lawyer and their priest, the applicant was released after four days. She was instructed not to leave the city.
6. While the applicant's husband was still in detention, she contacted an agent to flea the country. The agent first made arrangements for the applicant and her daughter to come to Canada. Her husband was expected to reunite with them in Canada later
7. The applicants arrived in Canada on November 13, 2000, and claimed refugee status on the same day.
8. The applicant claims that since her arrival in Canada, she received news from home that the police are now looking for her and her husband.
Refugee Division's Decision
9. The Refugee Division found that the applicant had failed to demonstrate her subjective fear by credible and trustworthy evidence. The Refugee Division based its finding of no credibility on a number of discrepancies between the applicant's testimony and her Personal Information Form (PIF) as well as omissions in her written narrative regarding the incidents she allegedly had with the police.
10. The following is a summary of the discrepancies and omissions found by the Refugee Division:
(1) With respect to the incident of November 1995, the applicant's evidence is that the police insulted her and her father, that they were angry and kicked the chair. However, in her PIF, she stated that she was "questioned" and "slapped" by the police.
(2) With respect to the June 1995 incident, the Refugee Division found that the applicant was not consistent in that her PIF she stated that she faced "questioning" and "verbal abuse" from the police, which evidence was not found in her oral testimony. When confronted, the applicant asserted that she did testify to such police mistreatment. However, a review of the record of the hearing proceedings did not support her contention.
(3) When the applicant was asked when her next personal experience with the police was after March of 1998, she immediately referred to October of 2000. Her PIF, however, reveals that she had police problems before that date. At this point of the hearing, the refugee claims officer intervened and asked the applicant if there was anything between March of 1998 and October of 2000. It is at this point that she testified about her arrest, that of her husband, sister and brother-in-law, in connection with the explosion of a transformer in front of their house in February of 1998.
(4) The Refugee Division also found that the applicant contradicted herself in stating that her sister Marika Ramani left Sri Lanka in May of 1999. The Refugee Division found that this contradicts her sister's PIF which states that she fled the country in March of 1994.
(5) The Refugee Division also found that the applicant was not consistent in her testimony with regards to the alleged arrest in February of 1999. While the applicant alleged that she and her sister were fingerprinted and photographed and that a lawyer's intervention was instrumental in their release, her PIF made no mention of these elements. The Refugee Division did not accept the applicant's clarification that these were "normal procedures" because she wrote about a lawyer's intervention in her October 2000 detention, and made no reference to fingerprinting or photographs taken at that particular time.
(6) The Refugee Division also found that the applicant had contradicted herself when asked if there was any conditions set for her release. The Refugee Division found that she provided two different answers, first, she said that she was not to leave the country, then she was to stay in the house. Secondly, in her PIF, she stated that she was ordered not to leave the city. The Refugee Division did not accept her explanation that, in her view, both conditions carried the same meaning.
(7) The Refugee Division also found implausible that the applicant would be questioned by the authorities shortly following her release by the police in October of 2000. The Refugee Division found that if security forces still had doubt about the applicant, they simply would have kept her in custody.
11. The Refugee Division found that the cumulative effect of the defects in the applicant's testimony led it to conclude that the applicant did not experience the police incidents in Sri Lanka as she alleged.
12. The Refugee Division further considered the objective evidence as to whether Tamils from Columbo would face a risk of serious harm at the hands of the security forces. After reviewing the documentary evidence before it, the Refugee Division concluded that there is no more than a mere possibility that Tamils from Columbo would face a risk of serious harm at the hands of the security forces.
13. In its reasons, the Refugee Division also states that it considered the issue of returned asylum seekers from abroad and that it reviewed the documentary evidence relative to this issue. The Refugee Division concluded on this issue, that although it believes that there should be procedures in place for the safe return of asylum seekers in Sri Lanka, it did not find sufficient evidence to establish that the treatment afforded to return asylum seekers by authorities amounts to persecution.
Issues
14. The applicant raises the two following issues in this judicial review:
(1) Whether the Refugee Division erred in determining that the applicants were not credible?
(2) Whether the Refugee Division erred by failing to consider documentary evidence that was before it in determining that the applicants failed to establish that there existed an objective fear of persecution if returned to Sri Lanka?
Standard of review
15. It is generally recognized that the Refugee Division is best suited to determine questions of plausibility and credibility. Mr. Justice Décary in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, stated at paragraph 4 of his reasons:
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.
Analysis
Credibility
16. The applicant contends that the Refugee Division's negative plausibility and credibility findings were essentially based on minor contradictions that did not go to any central element of the claim.
17. At the hearing of this matter, counsel for the applicant pointed to an error in the Refugee Division's reasons. At page 3 of its reasons, the Refugee Division stated:
In order to have a better understanding of the issue, the claimant was asked when her sister Mary Jerica Ramani left Sri Lanka. She replied "May 1999". This contradicts her sister's PIF, which states that she fled her country in March 1994. Moreover, according to the above quotations from the claimant's PIF, her arrest would have occurred after her sister left Sri Lanka, that is, after either March or May 1999. This is not consistent with the alleged arrest in February as she testified.
18. A review of the applicant sister's PIF reveals that her sister was still in Sri Lanka in early 1999. Consequently, the Refugee Division erred in finding that the sister fled her country in March of 1994. The following is an excerpt from the sister's PIF found at page 180 of the tribunal record:
But the fact I quit my job created even more suspicion because of my ex-fellow employee Manivannan. He was arrested by the police and he told them that I had links with the Tigers during torture. Also he said that I knew all my boss's transactions. Following this I was arrested by the police in January 1999. I was taken to the police station where I again had to face interrogation and beatings to get the truth about my involvement with the Tigers. This time I was held during six days. My parents were not allowed to see me. I was released again with the intervention of our priest. After the release I went into hiding until all travel arrangements were made by my parents and the agent.
19. The Refugee Division therefore erred in finding an inconsistency between the applicant's testimony with regards to the date of her sister's departure and her sister's PIF.
20. I am of the view that the above error by the Refugee Division is not fatal to its decision. I have carefully reviewed the other plausibility and credibility findings of the Refugee Division and conclude that they are not so unreasonable as to warrant the intervention of this Court. In the circumstances of this case, it was therefore open to the Refugee Division to conclude that the cumulative effect of the deficiencies in the applicant's testimony render her story unbelievable.
21. Further, the inconsistencies and omissions upon which the Refugee Division based its finding of no credibility affects elements that are central to the applicants' claim, i.e., the alleged treatment by the police; her inability to relate the details of the conditions of her release by the authorities, to cite but two.
22. It is not the role of this Court to substitute its preferred decision for that of the tribunal. It is rather for this Court to determine whether or not the Refugee Division made its decision with regards to the material before it and not in a perverse or capricious manner. Regard must also be had to the expertise of the Refugee Division in making credibility and plausibility findings. I am satisfied that the findings of the Refugee Division with regards to its credibility and plausibility findings were not patently unreasonable. Therefore I find no reason for this Court to intervene.
Objective fear of persecution
23. I am also of the view that the Refugee Division did not err in finding that there was no more than a mere possibility that Tamils from Columbo would face a risk of serious harm at the hands of security forces.
24. In its reasons, the Refugee Division did consider the documentary evidence before it.
25. I am also of the view with regards to the returned asylum seekers that the Refugee Division did appropriately consider the documentary evidence dealing with this issue, including exhibit P-10, the Sri Lanka Monitor dated March 2000. Upon reviewing the documentary evidence before the Refugee Division, I am satisfied that this evidence reasonably supports the Refugee Division's conclusion that there was not sufficient evidence to establish that the treatment by the authorities on this point amounts to persecution.
Conclusion
26. In my view, the Refugee Division's conclusion was open to it on the evidence. The applicants have failed to establish that there is a "serious possibility" or "reasonable chance" that they would be persecuted for a Convention reason should they return to Sri Lanka. No errors were committed by the Refugee Division that would warrant this Court's intervention.
27. For the above reasons, this application for judicial review will be dismissed.
28. The parties have had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The application for judicial review of the decision of the Convention Refugee Determination Division (the "Refugee Division") dated August 7, 2001, is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4181-01
STYLE OF CAUSE: Jayamary Fernando et al v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 9, 2002
APPEARANCES:
Diane N. Doray FOR APPLICANT
Edith Savard FOR RESPONDENT
SOLICITORS OF RECORD:
Diane N. Doray FOR APPLICANT
6855 de l'Épée, Suite 203
Montréal, Quebec H3N 2C7
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Complexe Guy Favreau
East Tower, 9th floor
200 René-Lévesque West Blvd.
Montréal, Quebec H2Z 1X4
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