Date:
20121024
Docket:
IMM-1305-12
Citation:
2012 FC 1236
Toronto, Ontario, October 24, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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KAJENTHIRAN YOTHEESWARAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
Applicant, a
Tamil male from Jaffna, Sri Lanka, challenges by way of judicial review
the decision of the Refugee Protection Division of the Immigration and Refugee
Board (the RPD), dated January 11, 2012 (the Decision), in which the RPD
determined that the Applicant is not a Convention refugee or a person in need
of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC
2001, c 27.
The Applicant’s claim is based on subjective and objective fear that he will be
abducted and subject to torture, or worse, death at the hands of the Sri Lankan
army if he is returned to Sri Lanka.
[2]
In
the Decision, the
RPD accepts that the Applicant is a 26-year old Tamil male from Jaffna, Sri
Lanka and briefly recounts the Applicant’s evidence of attempts at recruitment
by the Liberation Tigers of Tamil Eelam and multiple arrests and detentions by
the Sri Lankan security forces up until his departure from the country, which
the Applicant states was in February, 2010. However, the RPD rejected
the Applicant’s claim on the basis of a global negative credibility finding,
and evidence of changed circumstances in Sri Lanka.
[3]
The
Applicant’s primary argument in the present Application is that the RPD erred
in law in making the negative credibility finding. For the reasons that follow,
I agree with this argument because the RPD’s credibility analysis does not
adhere to established legal principles.
[4]
In
the credibilty analysis, the RPD makes the following problematic statement:
The claimant’s oral evidence was
generally consistent with his PIF narrative however a witness’s testimony does
not have to be accepted because it was not contradicted and the weight and
credibility to that evidence will be assessed by the Board.
(Decision, Certified Tribunal
Record, p. 5)
The decision in Efremov v Canada (Minister of Citizenship and Immigration), 90 FTR 259 (FCTD) is footnoted in the
Decision as support for the statement. That decision does speak to the
uncontested principle that the weight and credibility to be given to evidence
is a matter for the RPD to determine. However, I read the RPD’s statement to
mean that it is open to the RPD to simply reject consistent and un-contradicted
evidence. This assertion is not supportable in law and it clearly offends the
basic and well understood principle set out in Maldonado v Canada (Minister
of Employment & Immigration), [1980] 2 FC 302 (FCA): when a refugee
claimant swears to the truth of certain allegations, a presumption is created
that those allegations are true unless there are reasons to doubt their
truthfulness.
[5]
Further
with respect to the RPD’s credibility analysis, at paragraph 22 of the Decision
the RPD relies on Sheikh v Canada (Minister of Employment and Immigration),
[1990] 3 FC 238 (FCA) for the following statement:
The concept of “credible
evidence” is not, of course, the same as that of the credibility of the
applicant, but it is obvious that where the only evidence before a tribunal
linking the applicant to his claim is that of the applicant himself (in
addition, perhaps, to “country reports” from which nothing about the
applicant’s claim can be directly deduced), a tribunal’s perception that he
is not a credible witness effectively amounts to a finding that there is no
credible evidence on which the second-level tribunal could allow his claim.
[Emphasis added.]
(Decision, Certified Tribunal
Record, p. 8)
In my opinion, in making this
statement the RPD misses the point that in order for the statement to have any
relevance, a finding must first be made that an applicant is not a credible
witness on the basis of the principle articulated in Maldonado. The RPD
also neglects to mention the requirement established by the Federal Court of
Appeal in Hilo v Canada (Minister of Employment and Immigration),
[1991] FCJ No 228 (FCA), that a credibility finding must be made in clear
and unmistakable terms.
[6]
Some
time ago, in Vodics v Canada (Minister of Citizenship and Immigration),
2005 FC 783 (FC)) at paragraph 11, I stated why the principles stated in Maldonado
and Hilo must be followed:
To say that someone is not
credible is to say that they are lying. Therefore, to be fair, a decision-maker
must be able to articulate why he or she is suspicious of the sworn testimony,
and, unless this can be done, suspicion cannot be applied in reaching a
conclusion. The benefit of any unsupported doubt must go to the person giving
the evidence.
[7]
Thus,
I find that the RPD’s interpretation of the law with respect to the making of credibility
findings is an error in law.
[8]
The
error found was applied to the Applicant’s evidence in the present case. The
Applicant provided a consistent narrative throughout his refugee claim process
and his testimony was found to be free of internal inconsistencies and
contradictions except for one minor feature regarding his family’s residence in
Colombo in 2006. However, this inconsistency was addressed through an
amendment to the Applicant’s Personal Information Form (PIF) prior to the
hearing. As noted by Counsel for the Applicant in argument, the Applicant
provided a consistent narrative as to his risk concerns before US immigration
authorities, at his Port of Entry interview with Canadian authorities, within
his PIF, and as well before the RPD. Thus, I find that it is abundantly clear
that the evidence placed before the RPD by the Applicant contained no material
inconsistencies.
[9]
In
making the negative credibility finding the RPD did not provide clear reasons
for doubting the Applicant’s testimony. Instead the RPD moved on to make the
following erroneous finding that is central to the rejection of the Applicant’s
claim for protection:
The claimant did not disclose
corroborative evidence in support of the allegations of him being arrested or
detained in an army camp or police station. The RPD was not provided with any
corroborative documents of the arrests, detention or mistreatment he alleged by
the security forces. The claimant also did not produce corroborative evidence
as to when he was last in Sri Lanka.
(Decision, Certified Tribunal
Record, pp. 5-6)
[10]
In
Ahortor v Canada (Minister of Employment and Immigration), [1993] FCJ No
705 (FCTD), at paragraph 45, Justice Teitelbaum provides the following
direction respecting corroboration:
The Board appears to
have erred in finding the Applicant not credible because he was not able to
provide documentary evidence corroborating his claims. As in Attakora,
supra, where the F.C.A. held that the applicant was not required to provide
medical reports to substantiate his claim of injury, similarly here the
Applicant is not expected to produce copies of an arresting report. This
failure to offer documentation of the arrest, while a correct finding of fact,
cannot be related to the applicant's credibility, in the absence of evidence to
contradict the allegations.
[Emphasis added.]
The point emphasized has also been
made in Attakora v Canada (Minister of Employment & Immigration)
(1989), 99 NR 168 (FCA) and Mahmud v Canada (Minister of Citizenship and
Immigration),[1999]
FCJ No 729 (FCTD). Therefore, I find that the Decision fails to adhere to the
law respecting corroboration.
[11]
In
the result, I find that the Decision is made in reviewable error in both
findings of law, and in the application of those findings to the Applicant’s
evidence.
ORDER
THIS
COURT ORDERS that:
The RPD’s
decision is set aside and the matter is referred back for redetermination by a
differently constituted panel.
There is no
question to certify.
“Douglas R. Campbell”
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