Date:
20130208
Docket:
IMM-3332-12
Citation:
2013 FC 145
Ottawa, Ontario,
February 8, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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GANESAVEL THARMARAJH
(a.k.a. GANESAVEL THARMARAJA)
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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
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a Sri Lankan Tamil, sought protection from the Sri Lankan police and
army who consider him to be a member of the Liberation Tigers of Tamil Eelam
[LTTE]. The claim for protection was rejected by a member [Member] of the
Refugee Protection Division [RPD]. This is the judicial review of that
decision.
II. FACTS
[2]
The
Applicant, a 31 year old Tamil, outlined in his narrative a series of events
from 2001 to 2005 in which the Sri Lankan army either questioned, stopped or
detained him because of his alleged involvement with the LTTE.
[3]
The
Applicant went to Singapore and worked there at a Hindu temple until May 2011.
At that time, with his work visa expiring, the Applicant returned to Sri Lanka, and travelled from Colombo to his home village in the north. With the help of an agent,
he went first to the United States and then to Canada.
[4]
The
Member rejected the Applicant’s claim finding him not to be a credible witness
nor had he provided sufficient trustworthy evidence to support his claim. The
Member identified a number of significant inconsistencies and omissions between
his PIF and his evidence at the hearing.
[5]
There
were five areas of concern to the Member which the Applicant raised with the
Court:
•
the
Applicant’s return to Sri Lanka from Singapore (re-availment) was not included
in his PIF;
•
he
was arrested twice and there was a major inconsistency in the dates of the
arrest;
•
he
was unable to provide a detailed description of his second arrest;
•
there
were a number of other omissions and inconsistencies between his PIF and his
evidence at the hearing; and
•
the
use of the term “authorities” in relation to the temple in Singapore.
III. ANALYSIS
[6]
It
is accepted that the standard of review of credibility findings is
reasonableness (Wu v Canada (Minister of Citizenship and Immigration),
2009 FC 929, 2009 CarswellNat 2913).
[7]
The
Applicant’s failure to mention re-availment is a significant matter. Even if he
was travelling with an agent, it was a critical event which should have been
mentioned in his PIF. It was not unreasonable for the Member to consider this
failure as negatively affecting credibility.
[8]
More
importantly, re-availment significantly undermines the Applicant’s claim of
fear. It negatively affects the subjective and objective components of the risk
analysis.
[9]
With
regard to the discrepancy between the dates of arrests, it was reasonable for
the Member to view this negatively. The Applicant first claimed a five-month
gap between the first and second arrest and then claimed it to be one week.
[10]
The
Applicant argues that he should have been confronted with his inconsistency per
Estrada v Canada (Minister of Citizenship and Immigration), 2002 FCT 60,
111 ACWS (3d) 985 [Estada]. In my view, Estrada, above, is
distinguishable as the inconsistency or perceived inconsistency was not
apparent. In that case, fairness was considered to require that the applicant
be confronted with this inconsistency. In the present case, the inconsistency
was apparent and significant. The Applicant outlined the events which were
inconsistent. It was the Applicant’s obligation to explain the inconsistency
and he had a full opportunity to do so.
[11]
The
Applicant complains that the misdescription of the second arrest was due to the
phrasing of the Member’s question. This is a wholly unsustainable claim. The
Applicant was given three opportunities to give a clear account which he failed
to do. It was not unreasonable to draw a negative conclusion.
[12]
The
Applicant suggests that the Member was overly zealous in finding
inconsistencies in the evidence. He referred to Justice Barnes’ decision in Feradov
v Canada (Minister of Citizenship and Immigration), 2007 FC 101, 154 ACWS
(3d) 1183, that PIFs are not an encyclopedia.
[13]
This
is not a case of microscopic examination. The inconsistencies are numerous and
important. In a credibility analysis, the strength of a claim is undermined by
repeated omissions and inconsistencies just as any story unravels through
compounding omissions and inconsistencies.
[14]
Finally,
the Applicant testified that he left Singapore because the priest was retiring
but his PIF related that he left because he was subject to an interview by
immigration authorities. It is apparent that the Member did not believe the
Applicant’s evidence about the retiring priest. It was reasonable, in the
context of this whole case, not to accept that explanation.
IV. CONCLUSION
[15]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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