Date: 20110110
Docket: IMM-594-10
Citation: 2011 FC 16
Ottawa, Ontario, January 10, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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JOHN DE BRITO S. ANTHONYSAMY, THAVAMANY
MANICKAM, JANE DE BRITO AND JERARD ANTHONY DE BRITO
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Applicants
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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 JUDGMENT
AND JUDGMENT
I.
Overview
[1]
In
2008, Mr. John De Brito Anthonysamy, along with his wife, Thavamany Manickam,
and their two children, Jane and Jerard, left Malaysia to seek
refugee protection in Canada. Mr. Anthonysamy alleged that he was
persecuted because of his membership in the minority Indian population in Malaysia. In
particular, he says he was harassed and threatened by fellow employees at the
hotel where he worked as a manager.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Anthonysamy’s claim
because he did not show that there was a reasonable chance that he would be
persecuted or seriously mistreated if he returned to Malaysia. In
addition, the Board found that Mr. Anthonysamy had not presented sufficient
evidence of a lack of state protection in Malaysia.
[3]
Mr.
Anthonysamy argues that the Board treated him unfairly and arrived at
unreasonable conclusions regarding his claim. He asks me to order a new hearing
before a different panel. However, I can find no basis for overturning the
Board’s decision and must, therefore, dismiss this application for judicial
review.
[4]
The
issues are:
1. Did the Board treat Mr.
Anthonysamy unfairly?
2. Were the Board’s conclusions
unreasonable?
II. Factual
Background
[5]
Mr.
Anthonysamy and Ms. Manickam are both well educated and were both successful
executives in Malaysia. Still, Mr.
Anthonysamy described circumstances in his employment in which he endured
prejudice and discrimination because of his ethnic Indian background. In
addition, he felt that some of his co-workers had spread the rumour that he was
involved in, or might even be a leader of, a group called HINDRAF, an
organization devoted to advancing the situation of ethnic Indians in Malaysia. Since 2008,
HINDRAF has been an illegal organization in Malaysia. Mr.
Anthonysamy stated that he only attended one HINDRAF rally mainly out of
curiosity, but was not involved in the group. However, he received phone calls
at home in which the callers threatened to reveal his putative involvement in
HINDRAF. Mr. Anthonysamy worried that he might be arrested and detained on the
strength of those allegations without evidence, warrant or charges.
[6]
Mr.
Anthonysamy found the circumstances in Malaysia intolerable
and decided to leave the country. Just before he and his family left Malaysia, he learned
that the police were looking for him. While he was not sure why, he suspected
it was because of the rumours about his involvement in HINDRAF. Mr. Anthonysamy
and the rest of the family had no trouble acquiring passports, and left the
country without incident.
III. The Board’s
Decision
[7]
The
Board noted that the majority population in Malaysia discriminates
against ethnic Indians. However, it went on to find that Mr. Anthonysamy and
his wife, notwithstanding the obstacles they faced, had achieved considerable
success in their respective careers.
[8]
In
respect of the threatening phone calls, the Board noted that Mr. Anthonysamy
did not know their source, but he suspected his co-workers. In any case, in
the Board’s opinion, the phone calls did not, on their own, amount to persecution.
Further, Mr. Anthonysamy did not report the threats to the police. In his view,
the police would probably not have believed him because of his ethnicity.
Still, he had made no attempt to obtain state protection.
[9]
The
Board also found that the police were not pursuing Mr. Anthonysamy. Mr.
Anthonysamy had made no reference to problems with the police in his written
narrative. The Board drew an adverse inference from the fact that Mr.
Anthonysamy mentioned this allegation for the first time at the hearing. In
addition, there was no reason to think that just because the police were
looking for him that they intended to arrest him. They had apparently given no
reason for wanting to speak to him. They did not visit him at home. The Board
doubted the police were pursuing Mr. Anthonysamy merely for having attended a
HINDRAF demonstration more than a year earlier at which there were more than
2,000 other participants.
(1) Did
the Board Treat Mr. Anthonysamy Unfairly?
[10]
Mr.
Anthonysamy submits that the Board treated him unfairly by relying on its
specialized knowledge, and by erring in its assessment of Mr. Anthonysamy’s
credibility.
[11]
Regarding
specialized knowledge, Mr. Anthonysamy notes that the Board concluded that it
was unlikely that the police were looking for him given that he was able to obtain
a passport and leave the country without difficulty. Since no evidence was
before the Board about the practices and procedures in Malaysia for departing
persons, Mr. Anthonysamy asserts that the Board must have been relying on its specialized
knowledge. If so, it was required to inform Mr. Anthonysamy and give him a
chance to respond (Refugee Protection Division Rules, Rule 18).
[12]
In
my view, the Board was not relying on specialized knowledge when it observed that
Mr. Anthonysamy and his family had no difficulty leaving the country even after
learning that the police were looking for him. This statement was factually
correct, and did not figure largely in the Board’s analysis. The Board did not appear
to draw any significant inference from it for which specialized knowledge might
be required. It was simply one of the numerous facts the Board took into
account in arriving at its ultimate conclusion.
[13]
In
terms of its credibility findings, the Board found that Mr. Anthonysamy’s
testimony was vague in some areas. It also drew a negative inference from Mr.
Anthonysamy’s failure to mention in his written narrative that he was wanted by
police. The Board characterized Mr. Anthonysamy’s testimony as being “vague” in
two areas – with respect to his fear of imprisonment by the police, and to his
co-worker’s knowledge that police were looking for him. Mr. Anthonysamy
contends that his evidence was clear, although he necessarily relied on
information provided by others, namely, his co-workers at the hotel.
[14]
Reading
the Board’s decision as a whole, I interpret the Board’s use of the word
“vague” to mean that the alleged source and nature of the persecution Mr.
Anthonysamy feared was not well-identified. It may not have wise for the Board to
associate the uncertainty of the evidence with a negative credibility finding.
In other words, the vagueness of Mr. Anthonysamy’s testimony should not have
suggested that he was being evasive or mendacious. Rather, the evidence of
persecution was merely weak. It involved hearsay, speculation and inferences on
Mr. Anthonysamy’s part, not direct evidence. Accordingly, I find that the
Board’s description of this evidence was apt. However, its assessment of Mr.
Anthonysamy’s credibility in certain areas might have been more precise. Weak
evidence is not the same as untruthful evidence.
[15]
By
contrast, regarding the omission from his written narrative of any reference to
the police pursuing him, the Board’s adverse inference was clearly justified.
While Mr. Anthonysamy notes that he was not represented by counsel when he
prepared his narrative, the Board’s conclusion - that an educated person, even
without legal training would have known that it would be important to mention
the main reason for fleeing Malaysia in his written
application for refugee protection – was not unfair; accordingly, its negative
credibility finding was reasonable.
(2) Were
the Board’s Conclusions Unreasonable?
[16]
Mr.
Anthonysamy says the Board’s conclusions were unreasonable because it failed to
cite important documentary evidence corroborating his claim. In addition, he
maintains that the Board failed to consider the overall factual context of his
application and, in doing so, unreasonably concluded that his fear of
persecution was not well-founded in the circumstances.
[17]
Mr.
Anthonysamy also suggests that the Board made a significant error when it found
that he had only received a total of three to five threatening phone calls when
his evidence was that he received three to five calls a day.
[18]
The
documentary evidence to which Mr. Anthonysamy points shows that arbitrary and
warrantless arrests are commonplace under the Malaysia Internal Security Act,
that some persons involved with HINDRAF were arrested under that authority, and
that Malaysian police are ineffective and linked to human rights abuses.
[19]
In
my view, this evidence could have corroborated the main thrust of Mr.
Anthonysamy’s claim if he had been able to provide reliable evidence that he
was, in fact, sought by Malaysian police for his alleged association with
HINDRAF. Without that evidence, the documentary evidence did not assist him.
Accordingly, the Board’s failure to cite it was not unreasonable.
[20]
Regarding
the number of threatening phone calls, I cannot find a reviewable error on the
Board’s part. Mr. Anthonysamy’s testimony on this point was not clear. It seems
he might have received up to three to five calls on some days, but he did not
say it was every day.
IV. Conclusion and
Disposition
[21]
I
cannot find any basis for concluding that Mr. Anthonysamy was treated unfairly
by the Board or that the Board arrived at unreasonable conclusions in relation
to his claim for refugee protection. Accordingly, I must dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1. The
application for judicial review is dismissed.
2. No question
of general importance is stated.
“James
W. O’Reilly”
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