Docket: IMM-1933-11
Citation: 2011 FC 1158
Toronto, Ontario, October 13,
2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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RATHINI KANDIAH
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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
present Application concerns a claim for refugee protection made by a woman of
Tamil ethnicity born in Colombo. The Applicant claims protection from persecution
under s.96 and risk under s.97 from Sri Lankan government para-military forces
in Sri Lanka. The Refugee Protection Division (RPD) rejected the Applicant’s
claim on a global finding of negative credibility due to perceived inconsistencies
between the Applicant’s statements at the port of entry, her Personal
Information Form (PIF), and her evidence given during the hearing of her claim.
[2]
Counsel
for the Applicant’s primary argument is that, not only is the global negative
credibility finding fundamentally flawed, but also it is improperly used with
respect to the determination under s.97. The RPD’s findings on s. 97 are as
follows:
I once again reject the
claimant’s explanation as unsatisfactory and from all of the omissions and
inconsistencies that have not been satisfactorily explained I consequently draw
a negative inference against the credibility of the claim. My analysis on
credibility applies to Section 96 and 97 of IRPA. I reject this
claim, finding a lack of credibility. I do not find a credible objective basis
to her fear nor do I believe the existence of subjective fear. I find that the
claimant failed to establish on a balance of probabilities that she has a
reasonable chance of facing persecution for a Convention ground if returned to
Sri Lanka.
I turned by mind to whether
the claimant would be personally subject to risk to her life or to cruel and
unusual treatment or punishment if returned to Sri Lanka and find she would
not. I do not find the claimant to be more at risk of extortion or threats than
other Sri Lankans. I find based on the foregoing analysis that it is not more
likely than not that she will be personally subject to a risk to life or cruel
and unusual treatment or punishment if returned to her country. As a result I
reject the claim pursuant to Section 97 of IRPA.
[Emphasis added]
(Decision,
paras. 11 and 12)
I agree with Counsel for the Applicant
that, lack of credibility for an applicant pursuant to s. 96 is not
determinative for the s. 97 test (see: Bouaouni v. Canada (MCI) 2003 FC
1211, para. 41).
[3]
Counsel
for the Applicant also argues that a factual finding, which is a major
component of the global negative credibility finding, is erroneous. In reaching
its negative global credibility finding, the RPD conducted a critical analysis
of the Applicant’s evidence with respect to her statements of employment in Sri
Lanka. When the Applicant was first interviewed by immigration authorities approximately
a month after her arrival in Canada, to the requirement that she list all
occupations that she held during the last ten years, she complied by reporting
that between January 1, 1999 and November 11, 2009 she was “unemployed”
(Tribunal Record, p.83). To the requirement in her PIF that she state her work
experience “including full time, part time, temporary and self employment” she
reported that “I have never worked outside of home” (Applicant’s Application
Record, p. 22). Prior to the hearing conducted before the RPD, the Applicant’s
PIF was amended to include the following entries in hand writings on the original:
under the education entry she added that from March 1992 to September 1992 she
attended the Charliament Institute in Colombo and received recognition as a Montosori
[sic] Trainer; and under the work experience entry she added the statement that
from 1993 to 2009 she listed her name of her employer as “home daycare” in
Colombo, with the type of work being conducted as “daycare” (Applicant’s
Application Record, p. 22). There is no issue that the PIF amendment was made
in the course of ordinarily accepted practice before the RPD.
[4]
Counsel
for the Applicant makes the following argument with respect to the RPD’s
finding:
It is submitted that the
negative decision was based on erroneous credibility findings. At paragraph 8
of the reasons Member Lewis states that the Applicant never mentioned until
giving oral evidence that she ran a daycare from her home for many years. That
finding is completely erroneous. Starting at line 11 of her narrative in the
Personal Information Form (hereafter “PIF”) the Applicant states:
After I finished in 1991, I did child
care. I looked after many children of families from Jaffna and the Eastern
Province. I got to know these people very well.
It is submitted that this
evidence, presented in the PIF from the very first was ignored by Member Lewis.
Her further analysis of this issue is an overzealous and microscopic search to
justify a negative credibility finding. At question 7 of the PIF the Applicant
stated “I have never worked outside of the home.” That is a correct statement.
The response to the question was amended at the commencement of the hearing to
reflect that she ran a daycare from the home for sixteen years. It is submitted
that there is no valid reason why Member Lewis can be justified in focusing on
one part of the PIF to emphasize an omission and then ignore a very clear and
unambiguous statement made in that same form. This was a finding central to the
negative decision. Despite her lengthy discussion of the alleged omission,
Member Lewis does not once refer to the Applicant’s statement cited above
clearly set out in the narrative to her PIF. Member Lewis has impugned the
Applicant’s credibility on an alleged material omission that exists only
because Member Lewis ignored the clear statement in the Applicant’s narrative.
(Applicant’s Application
Record, pp. 208 – 209)
[5]
I
agree with Counsel for the Applicant that the RPD made a critical error in fact
on the daycare issue, and find that it is sufficient to undermine the whole of
the global negative credibility finding.
[6]
As
a result, I find that that the decision is indefensible in law and in fact.
ORDER
For the
reasons provided, I set aside the decision under review and refer the matter
back to a differently constituted panel for re-determination, on the direction
that all aspects of the Applicant’s claim be re-determined including
credibility and the engagement of s. 96 and s.97 of the IRPA.
There is no
question to certify.
“Douglas
R. Campbell”
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