Date: 19990902
Docket: IMM-5152-98
BETWEEN:
VEERASINGHAM SATHANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] This judicial review application, leave having been granted, concerns a September 15, 1998 decision by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board finding the applicant was not a Convention refugee.
[2] The applicant is a 29-year-old Tamil Sri Lankan citizen who was raised in the northern part of that country in a town a few miles away from Jaffna.
[3] The basis for his well-founded fear of persecution is a familiar one involving problems with the LTTE in the North, suspicion by the Sri Lankan army of his involvement with the LTTE, flight to the capital Colombo, arrest and beatings by the police in Colombo and the seeking of refuge in Canada.
THE CRDD'S DECISION
[4] The CRDD found, on the balance of probabilities, there was not a reasonable chance or serious possibility the claimant would be persecuted if he were to return to Sri Lanka. The CRDD based its determination on two grounds: credibility and the existence of an internal flight alternative (IFA).
(a) Credibility
[5] At page 2 of its decision, the CRDD found "certain relevant areas in the claimant's testimony to be lacking in trustworthiness and, therefore, are not credible". Two aspects of the applicant's testimony are mentioned. The first relates to the extent of a beating at the hands of the Sri Lankan army who suspected him to be an LTTE supporter. In his Personal Information Form (PIF) narrative, the applicant wrote he was badly beaten and suffered a broken leg. When he testified, he said, as a result of the beating, he suffered only bruises and swelling on his body. The CRDD drew a negative inference from this discrepancy and found the claimant was "making up this story to bolster his claim". The second aspect of the applicant's evidence which the CRDD did not find favourable focussed on the number of days the applicant was in hiding after his release from detention in Colombo. In his PIF, the applicant said he went into hiding for four days. In viva voce testimony, he indicated he was in hiding for seven days in Colombo. He was confronted with this discrepancy. The CRDD concluded at page 2 of its decision:
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The claimant's explanation for this discrepancy was that he had meant to say that he was in hiding for four days but in the succeeding three days, people came to be aware of his presence. The panel rejects the claimant's explanation and finds he was making up his story with regard to his alleged hiding as he went on with his oral testimony. In reaching this conclusion, the panel also notes that the claimant failed to mention, in his PIF, that his presence in Colombo became known to people. |
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[6] At page 3 of its decision, the CRDD panel found the claimant "was misleading the panel with regard to his actual experiences in Colombo".
(b) The IFA
[7] The CRDD said, even if it were to accept that the applicant had a well-founded fear of persecution in the northern region of Sri Lanka, he has a viable IFA in Colombo. The CRDD reasoned:
| (1) That the totality of the applicant's experiences with the police in Colombo did not amount to persecution. The panel referred to documentary evidence which shows "that hundreds of newly-arrived Tamils from the North are brought in for questioning with regard to their identity" and "that such arrests and brief detentions for the purpose of checking the identity of Tamils who are in Colombo are perfectly legitimate measures by a government that is trying its best to restore order in a city that is vulnerable to terrorist attacks"; the panel found "the authorities' decision to arrest, briefly detain, and interrogate Tamils is a reasonable and responsible one, which in turn reflects the government's resolve to protect its citizens from terrorism". |
| (2) The panel said even if it were to accept the police told the claimant to leave Colombo immediately, it determined such did not constitute sufficient persuasive evidence to support his claim the applicant faced a reasonable chance of being persecuted in Colombo if he were to relocate there now. The panel cited the Sri Lankan Constitution which guarantees "freedom of movement and of choosing his residence within Sri Lanka" and "freedom to return to Sri Lanka" saying these provisions are generally honoured. |
| (3) The panel took into consideration the applicant's testimony he was released through the payment of a bribe. However, the panel said no amount of bribe would have convinced the authorities to release the applicant if they truly suspected him to be a Tiger supporter or a Tiger himself. |
| (4) The panel said it had taken into consideration the applicant's testimony that he was "assaulted" while in detention. The panel reasoned, even if it were to accept the applicant was indeed mistreated, the "assault" did not seem serious enough to warrant professional medical assistance let alone hospitalization. The panel, therefore, determined, without condoning any act of violence, the applicant's one-time experience at the hands of the police does not establish, on a balance of probabilities, a significant period of systematic infliction of threats or personal injury, such as to amount to persecution. |
[8] Taking into account other documentary evidence, recognizing the human rights situation in Colombo is not perfect, acknowledging "it is very likely that the claimant would be questioned with regard to his identity and whereabouts if he were to return to Colombo", assuming the claimant would be able to prove his identity, given he is in possession of a valid national identity card and birth certificate, there was no reasonable chance of his being persecuted, for Convention reasons, and there existed "sufficient and strong measures that reduce the chances of the claimant being persecuted to a mere possibility".
ANALYSIS
(a) The credibility issues
(i) Whether a general finding of lack of credibility was made
[9] As noted, the CRDD found "certain relevant areas in the claimant's testimony to be lacking in trustworthiness and, therefore, are not credible". The two areas mentioned are the issue of the applicant's broken leg or not and how long did the applicant remain in hiding after being detained by the police in Colombo.
[10] Counsel for the respondent, while conceding the "CRDD did not explicitly make a general finding that the Applicant lacked credibility" and recognizing "it would have been preferable for the Refugee Division to state explicitly that the Applicant's want of credibility in 'certain relevant areas' led to a general determination the applicant lacked credibility", he argued the reasons of the Refugee Division explain the basis for its decision and leave no doubt as to their determination of the applicant's credibility.
[11] I cannot accept the respondent's argument for two reasons. First, in my view, when the CRDD's reasons are read as a whole, they cannot be properly understood as leading to the conclusion the Refugee Division made a general finding the applicant lacked credibility so as to make applicable the principle stated by MacGuigan J.A. in Sheikh v. Canada, [1990] 3 F.C. 238 at 244, that a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. The CRDD explicitly said it was only certain relevant areas in the claimant's testimony which it did not find credible. The CRDD drew a negative inference on the issue of the applicant's leg; that negative inference was the applicant was making up "this story [the broken leg] to bolster his claim". The CRDD did not make a finding that other aspects of the applicant's six-month army detention were not true. The same can largely be said of the other area where the CRDD had difficulty with the testimony of the applicant"the number of days in hiding. Other important aspects of the applicant's evidence of what happened in Colombo were not rejected.
[12] The second reason for rejecting the respondent's argument is based on legal principles discerned from the case law and, in particular, as found in Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (F.C.A.). In that case, Heald J.A. quoted the Board's finding in terms of credibility at page 238:
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The claimant's testimony lacked detail and was sometimes inconsistent. He was often unable to answer questions and sometimes appeared uninterested in doing so. While this may be partly due to the claimant's young age, the panel was not fully satisfied of his credibility as a witness. |
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[13] In respect of this passage quoted above, Heald J.A., on behalf of the Court, said this at page 238:
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That passage is troublesome because of its ambiguity. It does not amount to an outright rejection of the appellant's evidence but it appears to cast a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted, supra, is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise, particulars of his inability to answer questions should have been made available. |
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In my view, the CRDD's reasons in this case suffer the Hilo defects. The CRDD did not, in clear and unmistakable terms, find that the applicant's testimony in its entirety was false.
(ii) Specific findings of credibility
[14] Counsel for the applicant reviewed the transcript of the applicant's testimony before the CRDD in order to persuade me that their findings were based on a mischaracterization of the applicant's evidence which, if read as a whole, would demonstrate no contradiction at all between his written PIF and his viva voce evidence. Underlying the submissions of applicant's counsel were the words of Hugessen J.A. in Attakora v. Canada (M.E.I.) (1989), 99 N.R. 168, indicating the Board should be leery (not over-zealous) to find instances of contradiction in testimony. Hugessen J.A. acknowledged the Board's task is a difficult one but it should not be over-vigilant in its microscopic examination of the evidence.
[15] I agree with counsel for the applicant on this point. In my view, the contradictions cited by the CRDD are not substantive"they are more apparent than real. The CRDD criticizes the applicant for not being sure, in his testimony, whether his leg had been broken or not. This criticism is not appropriate. The applicant testified he had pains in his bones, could not walk for a year, consulted with a native physician who applied native splinters and then herbal medicine, could not obtain a confirmatory diagnosis with an x-ray because the hospital was near an army bivouac. The point here is that the applicant testified he believed his leg was broken. There was no inconsistency with his PIF and none of such a nature which would justify an inference that he was making up his story. The evidence on this point did not go to the centre of his claim.
[16] The same can be said of the number of days in hiding in Colombo. This issue was a peripheral one. The CRDD did not, as counsel for the applicant pointed out, doubt or make adverse comment on other aspects of the applicant's description of events in Colombo and, in particular, his one-week detention (with two beatings) by the police and his evidence, upon being released, of his being ordered back to the North within 48 hours.
(b) The IFA
[17] As noted, the applicant's evidence was that he was ordered by the police in Colombo to go North within 48 hours"a place where, for purposes of the IFA finding, the CRDD was prepared to accept the applicant had a well-founded fear of persecution.
[18] Counsel for the respondent acknowledged a series of recent judgments from this Court allowing judicial review applications where the CRDD had denied Convention refugee claims based on the availability of a viable internal flight alternative in Colombo which has a large Tamil community and this, despite evidence authorities in Colombo had declared the claimant could not remain there either because the claimant was under orders to return to northern Sri Lanka or would be sent there if he returned to that country.
[19] This line of authority is represented by:
| (1) Mylvaganam v. Canada (M.C.I.), IMM-3378-97, Muldoon J., October 20, 1998; |
| (2) Kanthavanam v. Canada (M.C.I.), IMM-3678-97, Rothstein J., as he then was, October 27, 1998; |
| (3) Yoganathan v. Canada (M.C.I.), IMM-3588-97, Gibson J., April 20, 1998; and |
| (4) Srithar v. Canada (M.C.I.), IMM-158-97, Tremblay-Lamer J., October 10, 1997. |
[20] The rationale of this Court in these cases is that such a CRDD finding is grounded on faulty analysis amounting to a reviewable error being based either on a contradiction (one can stay in Colombo but if one does one will be breaking the law and will be arrested) or ignoring the particular circumstances of a young Tamil male most vulnerable and most at risk in Colombo particularly if terrorist activities accelerate there.
[21] This line of authority, in my view, is persuasive to the case at hand. In my view, in this case, the CRDD failed to analyze the impact of the no-safe place in Colombo edict from the Sri Lankan authorities in respect of the applicant. Such an order vitiated the premise upon which an IFA is based.
[22] Counsel for the respondent urged Gregory v. Canada (M.C.I.), IMM-3750-97, Heald D.J., May 5, 1998, as a distinguishing element. In that case, Heald D.J. upheld the CRDD's finding of a viable IFA in Colombo which he said was reasonably open on the facts to the Board.
[23] The claim in Gregory, (supra), as I see it, was essentially a proxy claim by the applicant alleging persecution of her husband and her sons which the Board had determined were generalized and speculative. Moreover, as I see it, the Gregory case did not involve any realistic implementation, in the circumstances, of a return to the North order from the safe haven of Colombo which the CRDD had considered.
DISPOSITION
[24] For all of these reasons, the judicial review is allowed, the decision of the CRDD in this case is set aside and the matter is remitted to a differently constituted panel for re-hearing and determination.
[25] No question for certification was proposed and therefore no question is certified.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 2, 1999
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