Date: 20071105
Docket: IMM-4093-06
Citation: 2007 FC 1148
Ottawa, Ontario, November
5, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SASITHARAN
SUNDARARAJAH
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Sasitharan
Sundararajah is a refugee claimant from Sri Lanka. He brings
this application for judicial review from a negative decision of the
Immigration and Refugee Board (Board) that was rendered on July 4, 2006.
Background
[2]
Mr.
Sundararajah is an unmarried 39-year-old Tamil. He arrived in Canada on October
16, 2004 and immediately claimed refugee protection. His story of persecution began
in 1983 when he was allegedly arrested by the Sri Lankan Army on suspicion that
he was a member of the Liberation Tigers of Tamil Eelam (LTTE). He alleged
that he was held without charge for two years in a prison in Colombo and that
during that incarceration he was mistreated and tortured.
[3]
In
1988, Mr. Sundararajah's brother joined the LTTE. This, he said,
led to a heightened level of harassment of the family by government
authorities.
[4]
In
early March 2004, the LTTE split into opposing factions and an internecine
conflict arose. Because Mr. Sundararajah's brother was a member of one of the
warring factions, Mr. Sundararajah and his sister were targeted by the
opposite faction. Mr. Sundararajah claimed that, on July 25, 2004, his sister and
his niece were assaulted and a threat to his life was issued if he failed to
surrender to the LTTE. Mr. Sundararajah claimed that, after this, he and a
friend, Yoga, fled to Yoga’s parents’ home in Batticaloa. Nevertheless, the
LTTE located him and raided the home. Although he and Yoga managed to escape
out the back, Yoga's mother was allegedly shot to death. Mr. Sundararajah
then traveled to Polonnaruwa and later to Colombo where he
stayed out of sight. He asked another friend, Balla, to help him get out of Sri Lanka but within 8
days Balla was also murdered by the LTTE. Mr. Sundararajah stayed in hiding
for another 10 days and fled the country on August 28, 2004 with the help of an
agent.
The Board Decision
[5]
The
Board did not believe Mr. Sundararajah and its decision identifies a number of
problems with his evidence.
[6]
The
Board's first concern had to do with Mr. Sundararajah’s delay in departing for Colombo once a risk
to his life became apparent. Despite the fact that family members of the
warring LTTE factions were being killed and Mr. Sundararajah was aware that he
was a target, he did not attempt to escape the area until the third occasion
that his sister was approached and warned. The Board also expressed concern
that he had neglected to mention in his Personal Information Form (PIF) the first
two attempts by the LTTE to locate him through his sister - visits which were
supposedly sufficiently troubling that he moved out of her home.
[7]
A
number of discrepancies in the evidence were also cited by the Board. One
notable example of this concerned inconsistencies about the point in time that
Mr. Sundararajah decided to leave Sri Lanka. The Board also noted
his “mixed and vague testimony" about how he learned about the killing of
Yoga’s mother. His explanation for the inconsistencies between his testimony
and a belated newspaper account of that killing were also found to be unlikely.
[8]
The
Board expressed another credibility concern about Mr. Sundararajah's failure to
include in his PIF the fact that the LTTE and the Sri Lankan Army had been
aggressively searching for him since his departure from Sri Lanka. Because he
admitted being aware of these events before he completed his PIF, the Board
found that this omission was particularly significant.
[9]
Finally,
the Board expressed doubts about Mr. Sundararajah's testimony concerning a letter
from the Minister of his church in Sri Lanka which attested only to
the quality of his volunteer work. When he was questioned about the absence of
any corroborating details in this letter, Mr. Sundararajah confirmed
that the Minister was aware of the problems he had experienced with the LTTE.
His explanation for not seeking corroboration from the Minister was that
"it's not proper
to ask the religious person, and to write about all these things."
[10]
In
the end, it is quite clear that the Board did not believe Mr. Sundararajah. It
described his testimony variously as exaggerated, untrustworthy, unclear,
confusing and vague.
Issues
[11]
(a) What
is the appropriate standard of review for the issues raised by the Applicant?
(b) Did
the Board err in its analysis of the evidence?
Analysis
[12]
All
of the issues raised on behalf of Mr. Sundararajah in this application are
evidence-based. For the sake of argument, I am prepared to accept that these
are all matters for which the intermediate standard of reasonableness
simpliciter applies.
[13]
Mr.
Sundararajah challenges the Board’s decision and, in particular, the
credibility conclusion on the strength of an argument that the Board
misconstrued the evidence and drew speculative inferences. The Memorandum of
Fact and Law submitted on behalf of Mr. Sundararajah advances
the following points:
(a) it
was not unreasonable that Mr. Sundararajah would have waited until the third
visit by the LTTE to decide to leave;
(b)
Mr.
Sundararajah offered a reasonable explanation for his failure to mention the two
prior LTTE visits in his PIF;
(c)
it
was unreasonable to expect Mr. Sundararajah to explain why the newspaper
article reporting the death of Yoga's mother was printed several weeks after
the event and, in any event, Mr. Sundararajah did offer a reasonable
explanation for the delayed report; and
(d)
it
was unreasonable for the Board to be concerned with a discrepancy between
Yoga’s mother's name as
reported by Mr. Sundararajah and the name of the murder victim reported in the
newspaper.
[14]
The
above points were urged upon the Court in argument along with the further criticism
that the Board took a "building block" approach to credibility by
essentially piling one adverse finding upon another.
[15]
Finally,
Mr. Sundararajah criticized the Board's failure to refer to the evidence of the
murder of Balla a few days after Mr. Sundararajah arrived in Colombo.
[16]
All
of the arguments advanced on behalf of Mr. Sundararajah are unmeritorious.
[17]
There
is nothing wrong with the Board’s overall approach to the assessment of
Mr. Sundararajah's credibility. It is rare that a person's
credibility will turn on a single point of evidence. More often, the exercise
of judging credibility is based on a cumulative assessment of the evidence and
that is precisely what the Board did here.
[18]
Mr.
Sundararajah characterizes as reasonable his various explanations for the
credibility concerns identified by the Board. It is not, however, the task of
the Court on judicial review to reweigh the evidence or to substitute its views
on the evidence for those of the Board. The Board's concerns
about delay and the PIF omissions were reasonably supported by the evidence and
cannot be disturbed. It is also of some significance that the Board had
several other legitimate concerns with Mr. Sundararajah’s testimony that he
does not now seek to challenge but that also support the Board’s credibility
conclusion.
[19]
I
agree with counsel for Mr. Sundararajah that that part of the decision which
deals with the belated newspaper account of Yoga’s mother's death is awkwardly
written; however, I cannot identify an error in the Board’s analysis of this
evidence. It appears to me that the Board’s primary concern with this
newspaper article was that it appeared not to relate to the incident reported
by Mr. Sundararajah and thus failed to corroborate his testimony. This
was a reasonable inference to draw from the inconsistencies between the
newspaper account and Mr. Sundararajah's testimony, including differences in the
name of the victim and the time of the event. While the Board’s further
concern about the reasonableness of Mr. Sundararajah’s explanation for the
delayed reporting of this event is somewhat tenuous, this was only a secondary
basis for the Board's rejection of this evidence and it is not of sufficient import
to justify interfering with the overall conclusion.
[20]
Finally,
the Board cannot be faulted for its failure to acknowledge the evidence of the
murder of Balla in Colombo. Mr. Sundararajah did not establish any nexus
whatsoever between that event and the risk he allegedly faced. Indeed, his PIF
narrative stated very clearly that he was not aware of any connection between
his contact with Balla after his arrival in Colombo and Balla's
murder there a few days later. It is not an error for the Board to ignore
evidence that has no probative value.
[21]
In
summary, I can find no reviewable error in the Board's decision
and this application for judicial review is dismissed. Neither party proposed
a certified question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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