Date: 20070706
Docket: IMM-3692-06
Citation: 2007 FC 714
Ottawa, Ontario, July 6,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PIRIYATHARSAN
KENGKARASA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
On
a credibility finding, it is not for an applicant to substitute his
interpretation of a credibility determination for that of a specialized
tribunal, nor is it for this Court, within its jurisdiction in a judicial
review application, to substitute its interpretation of a credibility
determination for that of a specialized tribunal unless the determination is
perverse, capricious or made without regard to the evidence.
[2]
[24] …The tribunal is uniquely situated to assess the credibility
of a refugee claimant; credibility determinations, which lie within "the
heartland of the discretion of triers of fact", are entitled to
considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence…
(Siad v. Canada (Secretary of State)
(C.A.), [1997] 1 F.C. 608, [1997] F.C.J. No. 1575 (QL).)
JUDICIAL PROCEDURE
[3]
This
is an application pursuant to s. 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review under the Federal
Courts Act, R.S.C. 1985, c. F-7, to review and set aside a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board), dated
June 16, 2006, wherein the Board determined that the Applicant was neither a
convention refugee nor a person in need of protection.
BACKGROUND
[4]
The
Applicant, Mr. Piriyatharsan Kengkarasa, is a Sri Lankan Tamil born in the Jaffna peninsula. Mr.
Kengkarasa claimed Canada’s protection, alleging he had been targeted for
forced recruitment by the Liberation Tigers of Tamil Eelam (LTTE).
[5]
The
Board determined that Mr. Kengkarasa’s claim of targeting by the LTTE in Sri Lanka was not
credible. The Board found that the Applicant gave inconsistent evidence and
changed his evidence when challenged. The Board also found that the Applicant
gave inconsistent evidence. On the basis of all of the evidence, the Board
found that the Applicant had not demonstrated the he was living in the LTTE
controlled area he claimed to be, and determined that there was no more than a
mere possibility that the Applicant would suffer persecution or be at risk were
he to return to Sri Lanka and live in a government controlled area.
ISSUE
[6]
Did
the Board err in its credibility finding by which it determined that the
Applicant is not a convention refugee or a person in need of protection?
STANDARD OF REVIEW
[7]
The
Court should not interfere with the findings of fact and the conclusions drawn
by the Board unless the Court is satisfied that the Board based its conclusion
on irrelevant considerations or that it ignored evidence. Furthermore, where
any of the Board’s inferences and conclusions are reasonably open to it on the
record, this Court should not interfere, whether or not it agrees with the
inferences drawn by the Board. (Miranda v. Canada (Minister of
Employment and Immigration) (F.C.A.), [193] F.C.J. No. 437 (QL).)
[8]
In
order for any alleged error of fact to be reviewable, the finding of fact must
be truly erroneous, the finding must be made capriciously or without regard to
the evidence, and the decision must be based on the erroneous finding. (Rohm
and Haas Canada Ltd. v. Canada (Tribunal Antidumping), (1978), 22 N.R. 175,
91 D.L.R. (3d) 212 (F.C.A.); Federal Courts Act, s. 18.1; Bhuiyan v. Canada (Minister of
Employment and Immigration), (1993), 66 F.T.R. 310, [1993] F.C.J. No. 906
(QL).)
ANALYSIS
1) The
basis of the finding of credibility
[9]
The
Board is entitled to decide adversely with respect to an Applicant’s
credibility on the basis of contradictions and inconsistencies in the
Applicant’s narrative and between the Applicant’s narrative and other evidence
before the Board. (Aguebor v. (Canada) Minister of
Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.) (QL); Leung
v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 908 (F.C.A.)
(QL); Alizadeh v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 11 (F.C.A.) (QL).)
[10]
In
the present case, the Board found that the Applicant’s account did not occur.
This is a finding of fact. In Singh v. Canada (Minister of
Citizenship and Immigration) (1999), 173 F.T.R. 280, [1999]
F.C.J. No. 1283 (QL), it was held that the patent unreasonableness standard of
review applies to the Board’s finding of fact.
[11]
The
determination in Singh, above, has been consistently followed. (Conkova.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300
(F.C.T.D.) (QL); Chaudhry v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 708 (F.C.T.D.) (QL);
Gnanapragasam v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 786 (F.C.T.D.) (QL); Chow v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 788 F.C.T.D.) (QL); Tvauri
v. Canada (Minister of
Citizenship and Immigration) (2000), 192 F.T.R. 106, [2000] F.C.J. No.
1188 (F.C.T.D.) (QL); Moore v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1772 (F.C.T.D. (QL); Emirbekov
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 391,
[2001] F.C.J. No. 639 (QL); Ehmann v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 108, [2002] F.C.J. No. 137 (QL); Geng v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 275, [2002] F.C.J. No. 488
(QL);
Kirac v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 362, [2002] F.C.J. No. 476 (QL);
Dudar v. Canada (Minister of Citizenship and Immigration), 2002 FCT
1277, [2002] F.C.J. No. 1733 (QL).)
[12]
To
satisfy the patent unreasonableness standard of review, the Applicant must
demonstrate that (a) it is tainted by an immediately apparent defect that
demands intervention, (b) is unreasonable on its face, and (c) unsupported by
evidence, or vitiated by failure to consider the proper factors.
[13]
The
Applicant has failed to meet this test; the Board reasonably arrived at its
determination.
2) Contradictions
and Omissions in Applicant’s Testimony
[14]
The
Board was entitled to rely on its specialized knowledge that the LTTE recruits
young children. Thus, the Applicant’s account of not having been approached
until he was eighteen was considered not credible. Furthermore, the Board found
that the Applicant adjusted his testimony when he was challenged by the Board’s
specialized knowledge. This provided the Board with a further basis for finding
the Applicant not to be credible:
First, he said the Tigers approached them
only when both were 18. It was pointed out to the claimant that it was the
panel’s specialised knowledge from hundreds of Sri Lankan claims that, after
the army took over the Jaffna peninsula… After five years
of constant fighting, Tigers were short of manpower. They forcibly recruited
children as young as nine or ten, and retired people too. Thus, the panel
expressed disbelief that the LTTE waited for the claimant and his brother to be
eighteen before trying to recruit them… He answered that when he and his
brother were very young, they cried when the Tigers asked them to join…
whenever on the road, the Tigers wanted to recruit him. He always told them he
was younger than his actual age and his brother did likewise…
The Board was of the opinion that the
Applicant was adjusting his testimony.
(Certified Tribunal Record (CTR) at p. 5.)
[15]
The
Board further noted that, even if the Applicant had lied about his age, that
would not have had any effect on the LTTE in respect of recruitment. (CTR at p.
2.)
[16]
The
Board was entitled to find the Applicant’s account not to be credible on the
basis of the following:
(1) Its
variance with the Board’s specialized knowledge;
(2) The
Board’s view that the Applicant adjusted his testimony when challenged by the
Board;
(3) The
Board’s view that the Applicant’s adjusted testimony was also not credible;
and,
(4) The
failure of the Applicant to even mention in his Personal Information Form (PIF),
any of the alleged multiple attempts at recruitment by the LTTE.
[17]
Another
difficulty with the Applicant’s testimony was his inconsistency. In testimony
before the Board, the Applicant claimed to have left Sri Lanka on January
10, 2005, but in his PIF, he had indicated he remained in his village until
February 2005. In regard to this inconsistency, the Applicant offered no explanation
to the Board. (CTR at p. 3.)
[18]
A
third aspect of the Applicant’s account upon which the Board relied in finding
the Applicant not to be credible was a marked embellishment of his claim. The
Applicant failed to specify that the LTTE allegedly sought him after he fled;
this was only mentioned for the first time in testimony before the Board. When
asked to give more details, the Applicant made mo mention, whatsoever, of the
LTTE search for him. (CTR at pp. 160-161.)
[19]
Contradictions
or inconsistencies in the evidence of an applicant or witness, for that matter,
are a well-accepted basis for a finding of a lack of credibility. (Dan Ash
v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 571
(F.C.A.) (QL); Rajaratnam v. Canada (Minister of Employment and Immigration),
[1991] F.C.J. No. 1271 (F.C.A.) (QL).)
[20]
Furthermore,
the Applicant stated that in January 2005, he was compelled to join the LTTE and
therefore, left for Colombo. This is inconsistent with the information
given in his PIF, wherein he stated that he lived in Thiruvyaru until February
2005, and it, also, is inconsistent with his port of entry notes, dated
February 28, 2005, in which he stated that he had been detained by the LTTE two
months earlier. The Board found that the Applicant would have known the date on
which he fled from his village due to imminent danger from the LTTE. (CTR at p.
173.)
[21]
The
Board was further entitled to find the Applicant’s testimony surrounding LTTE
recruitment activity at his school, not to be credible. The Applicant testified
that the LTTE visited his school more often in 2004 where he was a student
“until the time he left”. This was also inconsistent with his earlier statement
that he had attended college only until April 2004. Although the Applicant
explained that he had stopped attending classes, he was required to take the
exams he had missed; the Board was not obliged to accept his explanation. (CTR
at pp. 177 and 180.)
[22]
At
the conclusion of the hearing, the Applicant’s counsel conceded that there were
inconsistencies, but, nevertheless, there was sufficient evidence that the
Applicant had, in fact, recently arrived from the north. The Applicant’s counsel,
therefore, urged the Board to give the Applicant the benefit of the doubt. No matter
what the Board was urged to do, on the face of the evidence, the Board was in a
position to arrive at a different view of the evidence than that of the
Applicant or his counsel. (CTR at pp. 204 and 208.)
3) Lack
of Corroborative Documentary Evidence
[23]
In
addition to the Applicant’s unreliable testimony as assessed by the Board, the
Applicant had not submitted any credible documentary evidence to corroborate
his claim of having resided in the north. The Board found that the picture on
the national identity card was not that of the Applicant; and, therefore,
the card was not to be relied upon by the Board. While the Applicant asserts
that he appears younger than his age on his national identity card, no error
arises from the Board’s determination, which, as a first-instance, trier of
fact, it is entitled to do, even in a hearing by videoconference, wherein it
could zoom in, as it did, on the Applicant to see his face. (CTR at p. 4 and
190.)
[24]
On
the basis of the lack of documentary corroboration of the Applicant’s account,
numerous serious credibility concerns, the Board was entitled to dismiss the
claim. The Board determined that there was no objective basis to the Applicant’s
fears of living in Colombo, although the Applicant asserted that he would
be perceived as an LTTE supporter without any identity documents. The Board
found that the Applicant could produce his birth certificate and would not necessarily
attract greater attention to himself than others in his situation. The Board
noted that 400,000 Tamils do live in Colombo.
[25]
The
Board determined that there was no more than a mere possibility that the
Applicant would be persecuted or would be at risk to life or cruel and unusual
treatment or punishment, should he be made to return to Sri Lanka and live in a
government controlled area.
REBUTTAL OF APPLICANT’S
SPECIFC ARGUMENTS
[26]
Contrary
to the Applicant’s submission that there was no assessment of risk by the Board
as to his being a young Tamil born in the north, there was, in fact, an
assessment; the Board found that the Applicant would not be at risk in Colombo and that the
Applicant’s fears of being perceived as an LTTE supporter, were unfounded.
[27]
There
is no merit to the Applicant’s claims that the Board made findings without an evidentiary
basis.
[28]
With
respect to the identity card, the Board dismissed its validity on the basis of
the member’s conclusion that the photograph on the card was not that of the
Applicant. Whether a valid identity card issued to the Applicant would have
included a “V” is secondary, although that finding was, nevertheless, open to
the Board. The Applicant’s claim that it is not implausible that someone who is
almost 18 years of age would be issued a card with the “V”, indicating voting
rights, is dependent on the Board’s specialized knowledge for its specific
assessment in that regard.
[29]
The
Applicant asserted that the Board could not have arrived at its conclusion
based on the Applicant’s appearance as the hearing was conducted by
videoconference; this argument is without merit. The Board was of the view that
the person on the card did not even resemble the Applicant. This was, however,
not its sole finding in respect of the lack of credibility of the Applicant, it
was only one of several key factors that had considerably weakened the
credibility of the Applicant and not, by any means, the sole factor.
[30]
With
respect to the lack of travel documentation of the Applicant, the Board stated
that there was no corroborative evidence of his journey to Canada. This is a
fact, thus, there is no merit to the Applicant’s claim that the Board rejected
“crucial evidence”.
[31]
The
Board also appears to have correctly construed the Applicant’s evidence in
regard to the ultimatum to join the LTTE in January 2005. The Applicant’s
evidence of previous interest by the LTTE appears to be an improvisation which
was not advanced other than in testimony in response to more probing questions
by the Board; therefore, the Applicant cannot impugn the decision of the Board
on that basis.
[32]
With
respect to the Applicant’s explanation that he was “bad with dates”, thus, not
able to clarify information in his port of entry notes, the Board did not make
any credibility findings on the basis of any inconsistency of the Applicant’s
testimony in regard to those notes; the Board did rely on the Applicant’s
inconsistent testimony of having left his village immediately after having been
recruited by the LTTE on January 10, 2005. It is this testimony that is
inconsistent with the allegation made in the Applicant’s PIF that he lived in
his village until February of 2005. As set out by the Board, the Applicant had
no explanation in regard to this actual finding, nor to the period of time in
question. (CTR at p. 6.)
[33]
The
determination in regard to the dates of the Applicant’s school attendance, does
not point to any reviewable error, but simply demonstrates that the Applicant’s
evidence and his explanations in respect of attendance do not appear consistent.
While the Applicant may believe that the explanation is plausible, the Board
was not obliged to agree.
[34]
The
Applicant’s attempt to show an error on the part of the Board in regard to
whether the Applicant lived in the Vanni region is of no merit. It should be
manifestly clear, that for a first instance-trier of fact, the question of
where the Applicant was residing at relevant times is a question of fact and
not of law.
[35]
The
Applicant seeks to have the Court reweigh the evidence. The Board considered
the “numerous documents which supported the grave and quickly deteriorating
human rights situation” in Sri Lanka. There is a presumption
that the tribunal has considered all the evidence on the record.
[36]
The
post-marking on envelopes from Sri Lanka do not corroborate the
Applicant’s evidence. The envelopes are not shown to have originated in the
north, therefore, do not corroborate the Applicant’s most recent residence.
[37]
Finally,
there was no need for the Board to undertake a separate analysis of the evidence
in support of a s. 97 claim of risk to life, or to cruel and unusual treatment
or punishment, as the Applicant did not adduce any independent evidence in that
regard; the evidence which the Applicant claimed made him a Convention refugee
was the same as that adduced to support a claim of a s. 97 risk. The Board did turn
its mind to the issue of the s. 97 risk, as seen in the reasons. Subjective
fear is not required for a s. 97 claim, but that alone is not relevant, as the
Applicant’s Convention refugee claim was not denied on the basis of a lack of
subjective fear, but rather on the basis of serious credibility concerns.
CONCLUSION
[38]
It
is trite law that on an application for judicial review, this Court is not to
substitute its decision for that of the Board. In any judicial review on a factual
determination of a lower tribunal such as the Refugee Division, the primary
question to be asked is whether the finding was one that could reasonably have
been made on the evidence before the Board. If the finding is reasonable, it
must stand. In findings of fact, a judicial review is only in order if the
findings of fact are construed as perverse, capricious or made without regard
to the material before it. (Federal Courts Act, R.S.C. 1985, c. F-7,
paragraph 18.1(4)(d).)
[39]
In
this matter, the Refugee Division did not make findings that were perverse in
nature and its conclusions were all substantiated by the evidence before it. (Aguebor,
above.)
[40]
For
all the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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