Date: 20020128
Docket: IMM-6406-00
Neutral Citation: 2002 FCT 86
BETWEEN:
Rupika Nirmalie DANKOTUWAGE and
Shehan Malith JAYASINGHE
Plaintiffs
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from the decision of the Immigration and Refugee Board (hereinafter "the tribunal") on October 31, 2000 that the plaintiff does not meet the definition of a "Convention refugee".
FACTS
[2] The principal plaintiff, Rupika Nirmalie Dankotuwage, is a Singhalese Sri Lankan, born in Colombo on July 24, 1968.
[3] On October 23, 1990 she married George Prasad Jayasinghe, also a Singhalese Sri Lankan, and a son was born of that union, Shehan Malith Jayasinghe.
[4] The claim of the minor son, the other claimant in the case at bar, is based on the same facts.
[5] In 1992 the plaintiff alleged she joined the United National Party (UNP) so that party would help in her home clothing manufacture.
[6] In May 1995 her husband was arrested by the police and charged with training Tamils belonging to the Liberation Tigers of Tamil Eelam (LTTE). He was tortured. On July 6, 1995, he escaped thanks to a bribe paid to the police.
[7] He then left Sri Lanka on July 6, 1995 and claimed refugee status in Canada.
[8] The police were looking for the plaintiff's husband at her home and harassed her,
threatened her and demanded that she come to the police station three times so they could continue their inquiries.
[9] Fearing the consequences of arrest by the police, and because of the harassment she suffered from another political party, the People Alliance (PA), the plaintiff went into hiding and decided to leave her country.
[10] On December 15, 1999 the plaintiff left Sri Lanka. She claimed refugee status on December 18, 1999 on the ground that she had a well-founded fear of persecution for her political opinions.
POINT AT ISSUE
[11] Was the tribunal in error in questioning the credibility of the plaintiff's testimony?
ANALYSIS
[12] No, the tribunal was not in error in questioning the credibility of the plaintiff's testimony.
Applicable standard of judicial review
[13] In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans said:
[45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratham test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[14] Subsequently, in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. concluded:
[5] The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.LR. (4th) 193.
[15] The conclusions drawn by the tribunal about the plaintiff's credibility in the case at bar were based on facts. Consequently, the applicable standard of judicial review is patent unreasonableness.
Plaintiff's credibility
[16] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated the circumstances justifying judicial intervention in the findings of a tribunal about a plaintiff's credibility:
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.
[17] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), it was stated:
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.
[18] Finally, in Cepeda-Gutierrez v. M.C.I., [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. confirmed that the Court should not intervene in a decision by the Refugee Division unless it is patently unreasonable:
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" [before it] . . .
Important contradictions between plaintiff's initial interview at port of entry and her Personal Information Form (PIF)
[19] The tribunal found that there was a significant contradiction between the plaintiff's evidence, in particular between her initial port of entry interview, and her Personal Information Form (PIF) regarding her husband's status. The tribunal ruled, at p. 2 of its decision:
. . . In the claimant's Port of Entry interview, when asked about her husband and his whereabouts, the claimant testified that he was living in Gampa, Sri lanka. This however contradicts the entire premise of her refugee claim, which is based upon difficulties her husband had in 1995 and his departure from Sri Lanka.
The claimant in her PIF (Answer to Question 37) at the end of the question states as follows:
. . . On my entry to Canada, at the port of entry I gave some incorrect information about my husband, as I was scared that I would be refuse [sic] to enter Canada. I am really terrified to return to my country.
When confronted by the Presiding Member as to what she meant the claimant recited a whole series of events, none of which had anything to do with the incorrect location of her husband which she gave in the Port of Entry. When confronted on that issue, the claimant indicated that she thought this was a different question. The panel does not accept such a vague explanation.
[20] At the hearing the plaintiff testified as follows, at p. 11 of the transcript:
Q. Why did you say in your Personal Information Form that you gave incorrect information about your husband?
A. My knowledge of English was not that good. And so I answered the question in the way that I understood. And when I was asked about his date of birth, I gave that date of birth as I understood it. And also about his address and residence and other details, I didn't know much about it at the beginning, so I gave the name Gampha, G.A.M.P.H.A.
Q. What do you mean you didn't know much about his residence at the beginning, what do you mean by that?
A. He was living in Gampha, that I knew, but before that the question about his date of birth, so I thought the subsequent question was about his date of birth place.
[21] This quotation illustrates the vague reply referred to by the tribunal in its decision. According to Cepeda-Gutierrez, supra, this Court is not authorized to substitute its opinion for that of the tribunal on the facts in the case. The plaintiff did not establish that the tribunal made a patently unreasonable error in weighing the plaintiff's explanations and the Court accordingly should not intervene on this point.
Contradictory reasons for plaintiff joining UNP
[22] The tribunal found the reasons for the plaintiff joining the UNP to be contradictory. The tribunal again doubted her credibility because of this. At p. 3 of its decision, the tribunal stated:
The claimant gave two different explanations as to why she joined the UNP. She initially stated it was to help her husband return home as they would do so if they gained power. Later in the testimony, she indicated that she joined the party in order to help her get some grants to help her business.
[23] At the hearing the plaintiff testified on this point, at p. 17 of the transcript:
Q. First of all, could you tell us why you got into politics and why you chose UNP?
A. I joined the United National Party or started helping them, I wanted to bring my husband back to my country. And I thought that if I help them, they would help me, because they would improve the human rights situation in the country.
[24] And then, at p. 38 of the transcript, the plaintiff gave a new reason for joining the UNP:
Q. Okay. So what exactly were you doing with either human rights groups or the UNP from December 97 to December 99? What was your reason, raison d'être for doing this?
A. So because they did not help me until that time, my plan was to have some kind of future for me and my child.
Q. Do you wanna maybe explain to me or what you mean by that?
A. I did not get enough money from my home sewing business, so I wanted to join the United National Party. I wanted to help the United National Party and through them I wanted to get a business place from where I could work
Q. You're hoping for them to give you employment basically?
A. They told me that if I work actively for the party, if they come to power, they would find a place in the area of Kotahena, K.O.T.A.H.E.N.A. for my work, for my business.
[25] The tribunal was confronted by disagreement in the plaintiff's account of this matter. Once again, Cepeda-Gutierrez, supra, is instructive. This Court cannot substitute its impression of the facts in the case for that of the tribunal.
Inconsistent information about contacts between plaintiff and her husband
[26] The plaintiff alleged that the tribunal erred when it found a contradiction in her testimony, when she was questioned as to when she had last contacted her husband. The tribunal said, p. 3 of its decision:
The claimant also gave contradictory evidence in her testimony. When she initially asked when she last contacted her husband the claimant testified that she had not heard from her husband since he left Sri Lanka. Then, when she was asked how she was aware that he came to Canada and made a refugee claim, the claimant testified that she had last heard from her husband in December 1997. Later in her evidence, it appeared that the claimant had regular contact on the telephone with her husband until December 1997.
[27] The defendant maintained that it was quite clear from the reasons that when she was asked when the plaintiff contacted her husband for the last time she replied that she had not heard of her husband since she left Sri Lanka. If the plaintiff did not agree with this statement by the tribunal, she should at least have denied in her affidavit that she testified to this effect, which she did not do here, and then the tribunal doubted her credibility on this part of her story.
Lack of credibility regarding husband's refugee status claim
[28] Finally, the tribunal questioned the plaintiff's credibility regarding her husband's claim to refugee status in Canada. At p. 3 of its decision, the tribunal said the following:
Finally, the panel finds the claimant's explanation concerning her husband's claim to be implausible and non-credible. The claimant testified that she last spoke to her husband in December 1997. The claimant was asked what attempts she made following that date to contact her husband. The claimant could not provide any details. The panel finds it strange that in her conversations with her husband during 1995 and 1997, there was no discussion of the claimant coming to Canada to join her husband . . .
The panel has serious doubts that if the claimant's husband made a refugee claim in Canada, she would not have been able to obtain news on his whereabouts since 1997. As a consequence, the panel finds that the basis of the claimant's overall story lacks credibility and trustworthiness.
Allegation of breach of rules of natural justice
[29] The plaintiff alleged she was the victim of a breach of the rules of natural justice as she had not been given an opportunity to have a fair and impartial hearing. Paragraphs 7 and 9 of the applicant's memorandum, found at p. 18 of the plaintiff's record, read:
[TRANSLATION]
7. . . . The IRB member should have considered the question of whether the plaintiff had a valid fear of persecution.
9. . . . At no time was the question raised of whether the uncontradicted events related by the plaintiff could be a basis for a reasonable fear of persecution.
[30] What the plaintiff is ignoring is the fact that her testimony was riddled with contradictions, inconsistencies, disagreements and discrepancies and that accordingly the tribunal no longer trusted the evidence she was presenting.
[31] The tribunal dealt at sufficient length with the essential aspects of the plaintiff's account. The tribunal went over all the relevant facts with painstaking attention. The tribunal gave reasons for all aspects of its decision, referring to specific and clear examples. In view of the quantity of details in the story that were not credible, the tribunal found that the plaintiff's case did not deserve further analysis.
[32] Moreover, in Re Human Rights Tribunal and Atomic Energy Canada Ltd., [1986] 1 F.C. 103, MacGuigan J.A. said at 113 that a plaintiff must make his allegation of a breach of the rules of natural justice at the earliest practicable opportunity, otherwise there will be a presumption that he has waived his rights:
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.
(My emphasis)
[33] The question of a breach of the rules of natural justice was not raised for the first time before the tribunal, but on judicial review. By not raising these arguments at the earliest practicable opportunity, the plaintiff waived them.
[34] The Court consequently dismisses the application for judicial review.
[35] The parties submitted no question for certification.
|
|
Pierre Blais
Judge
|
OTTAWA, ONTARIO
January 28, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6406-00
STYLE OF CAUSE: DANKOTUWAGE RUPIKA NIRMALIE ET AL.
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 16, 2002
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: JANUARY 28, 2002
APPEARANCES:
DAN M. BOHBOT FOR THE PLAINTIFF
CAROLINE DOYON FOR THE DEFENDANT
SOLICITORS OF RECORD:
DAN M. BOHBOT FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA
Email this Content