Date: 20080226
Docket: IMM-1199-06
Citation: 2008 FC 250
Ottawa, Ontario, February 26, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
SELLACHCHI
KATHIRAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for a judicial review of a decision of the Immigration
Refugee Board of Canada (Refugee Protection Division) (Board) of February 20,
2006, determining that the Applicant is not a Convention refugee and is not a
person in need of protection.
Facts
[2]
The
Applicant is a citizen of Sri Lanka, born there in
approximately 1943. She is a Tamil. She alleges that she has suffered
persecution from both the Tamil Tigers and the Sri Lankan army in the past. Her
Personal Information Form (PIF) says that she first had serious problems in
1999 when she was living in Mallavi, apparently in Tiger territory. The Tigers
demanded that she give up one of her pieces of land to them and after some
abuse and a week in their detention she did so. She further says that in
February 2000 she came to Vavuniya, apparently army controlled territory where
she was harassed by the army because they accused her of having supported the
Tigers. After the cease fire between the Tigers and the army she “returned” to
Manthuvil. It is not clear to me whether that was in Tiger territory or army
territory. According to her PIF she was visited in February 2003 by the Tigers
who demanded 500,000.00 rupees. She told them that she did not have the money
but she had a daughter in Canada and would get money from her. She then
left the country and came to Canada. She was able to extend her initial visa
for Canada. When her
application for a second extension was refused, she claimed refugee status. She
says in her PIF and otherwise that after she was in Canada the Tigers visited
her home several times and threatened her children who said she had cheated
them by not producing the money.
[3]
The
Board did not believe her story of persecution. Although she presented a letter
from her daughter dated August 10, 2004 saying that they were being harassed in
Sri
Lanka
and that if her mother returned she would be in danger, the Board gave this no
weight as not being credible.
[4]
The
Board cited reasons for doubting her credibility. First, it found that her
story was inconsistent as to when she had been harassed by the army and she
could not explain why, if she were to return, the army would still pursue her,
particularly as she had admitted that she had not had any difficulties with the
army while living in their area the last year prior to her departure. The Board
attached some importance to this.
[5]
The
Board treated her claim as a sur place claim, since she testified that
she had originally planned to go back to Sri Lanka. Her
evidence on this point was somewhat contradictory. She said that she had been
bothered by the Tigers in February, 2003 when they made demands on her for
money. She then left Sri Lanka for Canada, but in
applying for a visa for Canada she said that she had no problems in Sri Lanka that would
prevent her return. She confirmed in her evidence before the Board that she
said this so that they would grant her a visa to come to Canada.
[6]
Because
the Board did not believe her story of persecution they gave no probative value
to the documents in the form of country reports on conditions in Sri Lanka. It relied
on Hamid v. Canada (Minister of Employment
and Immigration), [1995] F.C.J. No. 1293 as authority for not giving
credibility to the letter when it doubted the credibility of the Applicant who
relied on it.
[7]
The
Board stated its conclusion as follows:
As for Section 96, the tribunal finds
that the claimant did not discharge her burden of proof as to being a
“Convention refugee”. As for Section 97, is it more probable than not that
there would be a risk to the claimant’s life or cruel and unusual treatment or
punishment, or torture by the authorities? The tribunal finds that the claimant
did not discharge her burden of proof on that either.
[8]
The
Applicant attacks this decision on three grounds. First it is said that the
Board fettered its discretion by failing to consider whether circumstances
warranted permitting counsel for the claimant to question the Applicant first.
Second, she says that the Board made patently unreasonable findings of
credibility. And third, the Board erred by failing to provide adequate and
separate reasons for dismissing the Applicant’s claim for protection pursuant
to section 97 of the Immigration and Refugee Protection Act.
Analysis
[9]
On
the first point, the Applicant relied on the decision of this Court in Thamotharem
v. Canada (Minister of Citizenship and Immigration), [2006] FC 16
for the proposition that Guideline 7 of the Board, which states that the
“standard practice” will be for the Refugee Protection Officer (RPO) to start
questioning the claimant at the beginning of the hearing, fetters the
discretion of the Board. Instead the Applicant argues that the Board should
have considered the particular circumstances of this case and allowed counsel
for the Applicant to question the Applicant first. I do not accept this
argument. In the first place the Thamotharem decision has been reversed
by the Federal Court of Appeal: see 2007 FCA 198. Secondly, in the present case
the Board member at the outset asked the Applicant a number of questions as to
whether she felt able to testify and she confirmed that she did. Further,
counsel for the Applicant never asked to be able to question the Applicant
first and in fact counsel, who was present throughout, never asked her client
any questions for purposes of elaboration or clarification of her testimony.
[10]
With
respect to the Applicant’s argument that the Board member made patently
unreasonable findings of credibility, I agree that the standard of review on
questions of credibility is that of patent unreasonability: see e.g. Aguebor
v. (Canada) Minister of Employment and Immigration 1994 160 N.R. 315
(F.C.A.); Sinan v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 188; and Gill v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 58. I do not find the credibility findings
of the Board to be patently unreasonable. First the Applicant’s counsel argues
that the Board gave too much weight to its conclusion that the Applicant’s
assertions about harassment by the army were incredible because of
inconsistencies. Counsel argues that as the Applicant had based her claim for
fear of persecution on her fear of the Tigers, references to her evidence about
the army were irrelevant. I do not accept this. In the first place, in her PIF
she begins by saying that she had suffered at the hands of the security forces
and the Tigers in Sri Lanka over the years. In the seven paragraphs of her
PIF narrative she devotes one paragraph to her persecution by the army. When
she testified there was the following exchange:
Q.
Who do you
fear in Sri Lanka today?
A.
The Tigers
and the Sri Lankan army.
Q.
Since when
do you fear the army?
A.
From
February 2000.
Q.
Okay.
And today, what do you fear they would do to you were you to return to Sri Lanka?
A.
They would
punish me or sometimes, they would shoot me.
Q.
And what
would their reason be today for punishing you or shooting you?
A.
The reason
for the fear to the Tigers was they asked for my land, but I refused to give my
land to the Tigers.
Q.
Okay. I’m
going to actually stop you there, because I’m talking about your fear of the
army.
A.
The
allegation made by the army was that I have given my lands to the Tigers and
helped them, but I have not helped the Tigers.
Q.
I don’t
understand. Could you please summarize for me why the army would punish you
today?
A. Yes. The place where I
lived is in the control of the army. If I go back, I have to live in the
army-controlled area. The army would say that I’m in support of the Tigers and
they would punish me or they would kill me, or they would threaten me.
It was therefore not unreasonable for the
Board to consider that feared persecution by the army was still an element in
her claim. Further, it was open to the Board to conclude that if her evidence
about the army lacked credibility this cast doubt on all of her evidence.
Similarly, there was enough contradiction in the Applicant’s testimony
concerning threats from the Tigers that the Board could reasonably have doubts
as to her credibility. This doubt could have been enhanced by the fact that she
had told quite a different story when first seeking a visa to visit Canada,
namely that there would be no problem in her returning. This would not be
consistent with her later evidence that she might be harassed by the Tigers and
the army because of her past experiences. I am unable to say that there is such
weakness in the Board’s credibility findings here that I should intervene: see Aguebor,
supra, at page 316.
[11]
The
Applicant also complains that the Board did not provide separate reasons for
its conclusion that the Applicant is not a person entitled to protection. The
finding of the Board here was essentially that the Applicant had relied on no
grounds for a need of protection that are not grounds under the Convention. As
the Board has found no adequate proof of reasonable grounds of fear on
Convention grounds, it follows that there are none in respect of the claim
under section 97. While it might have been helpful to elaborate on this point,
it does not amount to an error of law not to have done so.
Disposition
[12]
I
will therefore dismiss this application for judicial review. Counsel did not
request that any question be certified and none will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
This
application for judicial review of the decision of the Immigration and Refugee
Board (Refugee Protection Division) of February 20, 2006 be dismissed.
“B.L.
Strayer”
Email this Content