IMM-4224-96
BETWEEN:
TUAN
NIZAM OSSEN
Applicant,
-
and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS
FOR ORDER
WETSTON J.:
The applicant, a 36 year old citizen
of Sri Lanka, is a Muslim Moor -- one of the three main ethnic groups of which
the Sri Lankan population is composed. The applicant is from a village in the
Kurunegala District of central Sri Lanka (approximately 93 kms from Colombo).
He and his family have lived in Colombo and surrounding areas, as well as
Vavuniya. The applicant was serving as a crew member on board a cargo ship when
he jumped ship and applied for refugee status at the Port of Québec.
The Board determined that the
applicant had not been subjected to past persecution in Sri Lanka, based on
documentary evidence, the testimony of a witness (Hemantha Jayanetti, who had
employed him to work on the cargo ship), a private investigator's report
commissioned by the witness, the fact that he was not Tamil, as he had claimed,
and its evaluation of the applicant's testimony. The Board concluded that the
applicant's testimony was not credible, and that he did not have a well-founded
fear of persecution in Sri Lanka.
The Board also determined that
certain portions (if not all) of the applicant's personal information form
(PIF) had apparently been disclosed to the private investigators hired by his
former employer, Jayanetti, without his consent. However, the Board
nonetheless concluded that the applicant was not a refugee "sur place"
as a result of the disclosure. The Board found that, because the applicant's
claim was false, he would be under no greater risk of persecution at the hands
of Sri Lankan authorities even if the details of his PIF were disclosed to
them.
There are three issues in this
application for judicial review:
1.whether
disclosure of some, or all, of the information contained in the applicant's PIF
should lead to the granting of an extra-ordinary remedy;
2.whether
such disclosure renders the applicant a refugee sur place; and
3.whether
the Board erred in failing to make a reasonable assessment of all the evidence
before it.
Effect of the Disclosure of PIF Information
The applicant alleges that an
official in the Citizenship and Immigration Department was responsible for
disclosing certain information in the PIF to Mr. Jayanetti, who provided this
information to the private investigators he hired in Sri Lanka.
It is clear that some or all of the
PIF was released to the private investigators. The Board made no finding as to
how or by whom the PIF was released. It is likely that Mr. Jayanetti contacted
the Minister's officials and it was released by them to him. However, there is
no evidence that the information contained in the PIF was released to Sri Lankan
police authorities.
In my opinion, this is not a case for
the application of a Charter remedy. It has not been established that
disclosure of contents of the applicant's PIF materially affected the
applicant's right to fundamental justice under s. 7 of the Charter.
I have considered the applicant's
argument for application of section 7 of the Charter. While there may
be cases in which the life, liberty and security of a person may be affected by
an inappropriate and untimely disclosure of information, this is not one of
them. Applicant's counsel argues that it is likely that Sri Lankan authorities
were contacted and informed of the information contained within the applicant's
PIF. However, there is no evidence to substantiate this submission.
Moreover, the provisions relied upon
by the applicant do not provide an unqualified right to confidentiality.
Rather, section 69 of the Immigration Act establishes a procedure for
Board hearings to be held in camera "wherever practicable."
Even if disclosure of the applicant's
PIF did constitute a breach of s. 69 of the Act, it does not necessarily follow
that the applicant is entitled to a remedy, per se, for this breach.
The Immigration Act does not provide any specific remedies as a
consequence of such a breach.
Obviously, there may be a risk in
releasing information contained in a PIF. It may be inappropriate for the
Minister to do so. However, I do not find, in this case, that the release has
resulted in a violation of the Charter, nor that its release resulted
in an unfair hearing into the applicant's refugee claim.
Whether Disclosure Renders the Applicant a
Refugee sur place
The Board's finding that the
applicant was not a refugee, sur place, as a consequence of the
disclosure of information contained within his PIF was a conclusion open for it
to make. There was ample evidence before the Board to support this finding.
The applicant submits that the
Court's decision in G.F.Q. (Re), [1996] CRDD No. 18 (Q.L.), is analogous
to the case at bar, and should therefore be applied. I do not agree. The case
of G.F.Q. (Re) is clearly distinguishable from this case. In that case,
a Canadian Consular Officer contacted the Nigerian police about the claimant
and disclosed that he had made a refugee claim. There was also evidence that,
as a result of this breach of confidentiality, the Nigerian authorities were
harassing the applicant's family and extorting money from them.
The Board did not err in concluding
that the disclosure of some or all of the contents of the applicant's PIF did
not materially affect its finding that he did not have a well-founded fear of
persecution, if returned to Sri Lanka. Even if an employee of the Minister did
disclose information to Mr. Jayanetti, who in turn disclosed it to his private
investigators, such disclosure would still be insufficient to render the
applicant a refugee sur place. I am not satisfied that the evidence
provided establishes that, in the event that the applicant's PIF information
has fallen into the hands of the Sri Lankan authorities, there is a serious
chance of persecution.
Whether the Board Failed to Make a Reasonable
Assessment of the Evidence Before It
The applicant submits that the Board
ignored documentary evidence concerning the relationship between the Muslim
Moor and Tamil communities. It is clear from its reasons for decision that the
Board did consider the relationship between the Tamil and Muslim Moor
communities in Sri Lanka.
The remainder of the applicant's
argument can be summarized as follows; that the Board improperly weighed the
testimony of the applicant against the remainder of the evidence. In
particular, the applicant argues that the Board should have assigned much less
weight (if any) to the evidence provided by Mr. Jayanetti.
The applicant argues that the Board
erred in failing to consider that Jayanetti's evidence was clearly motivated by
self-interest. Jayanetti's firm is subject to an assessment of administrative
penalties when its employees jump ship. Mr. Jayanetti's actions, it is
argued, are directed to preserving his company's reputation and deterence of
ship jumping. Similarly it is submitted that there is no credible basis for
the Board to have accepted the truth of the investigator's report, provided at
the request of Mr. Jayanetti.
Mr. Jayanetti may have had these
reasons for retaining private investigators in Sri Lanka, but none of the
reasons suggested by the applicant are sufficient for this Court to set aside
the Board's decision. As the Court of Appeal stated in Brar v. M.E.I.
(A-987-84, 29 May 1986, F.C.A.), questions of credibility and weight afford no
legal basis upon which this Court could properly interfere with the Board's
decision. It is not the role of this Court, upon review, to second-guess the
factual findings of the Board.
Similarly, it is submitted that the
apparent contradictions in Jayanetti's evidence, such as whether the results of
criminal record and "good character" checks for prospective employees
are provided to his firm orally, or on written certificates, are sufficient for
the Court to interfere with the Board's decision. In this regard, I do not
agree that they are sufficient. Further, where the applicant's evidence
contradicted that of Mr. Jayanetti, it was for the Board to determine which it
preferred. The presumption that an applicant's sworn testimony is true is
rebuttable: Adu v. M.E.I. (A-194-92, 24 January 1995, F.C.A.).
It is also argued that the Board
erred in relying on Jayanetti's offer to deposit a sum of money with the
Canadian High Commission in Sri Lanka, on behalf of the applicant (should he
encounter problems with the authorities), because the Board had indicated,
during the hearing, that it would assign little or no weight to the offer. However,
it is clear that, while the Board did note Jayanetti's offer in its reasons, it
did not rely on it to conclude that the applicant did not have a well-founded
fear of persecution, should he be returned to Sri Lanka. The Board had
sufficient evidence before it without reliance on Jayanetti's offer.
The applicant also argues that the
Board erred in preferring findings in the investigator's report to the
documentary evidence of the applicant. It is clear, however, that the Board
properly evaluated and weighed the totality of the evidence before it,
assigning weight as it saw fit: Hassan v. M.E.I. (1992), 147 N.R.
317 (F.C.A.). For example, the Board relied, in part, upon the death
certificate supplied by the applicant to find that the applicant was attempting
to mislead the panel by claiming to be a Tamil Muslim, when he was, in fact, a
Ceylon Moor (or Muslim). As such, the Board drew an adverse inference
concerning the applicant's credibility, as it was entitled to do: Aguebor
v. M.E.I. (1993) 160 N.R. 315 (F.C.A.).
Accordingly, the application for
judicial review shall be dismissed.
No question for certification was
proposed.
Howard
I. Wetston
______________________________ Judge
Ottawa, Ontario
October 21, 1997
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