Date:
20130521
Docket:
IMM-6995-12
Citation:
2013 FC 522
Vancouver, British Columbia,
May 21, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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MATHIYALAGAN THIRUCHELVAM
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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]
Mathiyalagan
Thiruchelvam (the Applicant) seeks judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act)
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated June 6, 2012, wherein the Board determined that the
Applicant is neither a Convention refugee nor a person in need of protection
(the Decision).
[2]
For
the following reasons, the application will be dismissed.
[3]
The
Applicant is a 37-year-old male and a citizen of Sri Lanka of Tamil ethnicity
from Jaffna. He left Sri Lanka on September 20, 2010, due to his fear of
persecution by the Sri Lankan armed forces and paramilitary groups.
[4]
The
Applicant decided to leave Sri Lanka when a paramilitary group demanded that he
pay 300,000 rupees. When he told them that he could not pay this amount,
he was told to contact his sister in Canada to ask for the money. He was
given two weeks to meet this demand. The Applicant states that he knew that his
life would be in danger if he did not pay, so he contacted an agent and
fled on September 20, 2010. He reached Canada in January of 2011.
[5]
The
Port of Entry Notes (POE Notes) dated January 18, 2011, show that the Applicant
said that his only previous arrest or detention occurred in 2007 when he was
arrested and detained for one day during a general roundup (the 2007 Arrest).
Although the Applicant subsequently filed a Personal Information Form (the
First PIF) and an amended PIF, the 2007 Arrest was not mentioned in either
document.
[6]
The
Applicant’s First PIF is dated February 14, 2011. As noted above, it does not
refer to the 2007 Arrest but it does provide new information about a detention
by the army at a checkpoint (the Checkpoint Detention). This incident was not
referred to in the POE Notes.
[7]
Ten
months later, in an amended PIF dated December 20, 2011, the Applicant provided
a lengthy list of previously undisclosed events which included an assault,
three detentions, torture and two murders. Details follow:
October
2005: At a funeral of his murdered school principal, the Applicant
was assaulted by members of a paramilitary group.
December
2005: The Applicant witnessed the explosion of an army tractor. Army personnel
from a nearby camp ran towards the explosion and started shooting
indiscriminately. The Applicant was captured and was left kneeling by the side
of the road for over three hours. His parents eventually secured his release.
May
5, 2006: Army personnel and paramilitaries forcibly entered the
Applicant’s home and ransacked the house. The Applicant was taken to a camp
known as a “torture camp”. There, he was stripped naked, assaulted and
tortured. He was locked in a dark room with other people and was not given food
or water (the Torture Detention). After eight days, his father paid 75,000
rupees for his release. He was ordered not to associate with the Tamil Tigers
and was told that he would not be released if arrested again.
July
2006: The Applicant saw men on motorcycles shoot his cousin
and another young man.
February
2007: The army found human arms buried in the teacher’s training
school in the Applicant’s neighbourhood. The Applicant and others were rounded
up and brought to the school grounds where he was made to kneel on the ground
with his hands behind his back. He was required to look up at the sun for an
entire day. A church pastor negotiated their release.
[8]
The
Applicant’s father swore an affidavit on December 12, 2011 in support of his
son’s refugee claim (the Father’s Affidavit). However, even though the amended
PIF said that the Applicant’s father had paid for his release from the Torture
Detention and had secured his release in 2005, neither event was mentioned
in the Father’s Affidavit (the Father’s Omissions).
[9]
The
Applicant explained the long delay in disclosing the New Events in several
ways. He said he was afraid harm would have come to him and to his family
if he had disclosed the New Events at an earlier time (the Fears). He also
said that he disclosed the New Events because an interpreter reassured him
that it was safe (the Interpreter’s Assurance). Lastly, he filed a Psychiatric
Report prepared by Dr. Richard S. Stall, dated January 16, 2012 (the Report) to
explain the delay.
[10]
The
Report followed one interview with the Applicant. It recited the New Events and
the Applicant’s reasons for delaying their disclosure. The Report
concluded that in Sri Lanka, and during his early time in Canada, the Applicant had suffered from severe symptoms of Post Traumatic Stress Disorder
(PTSD). However, at the time of the interview, they had decreased to
a mild level. Dr. Stall also concluded that the Applicant was credible.
[11]
The
Report concluded that it was “likely” that at the time of his POE interview and
First PIF, the Applicant could not disclose “details” about his past traumatic
experiences due to the PTSD. Notably, the Report does not say that the PTSD
precluded the Applicant from recalling and describing the New Events. It only
explains that details might have been omitted. In other words, the Report does
not explain the Applicant’s failure to mention the New Events until he prepared
his amended PIF.
The Decision
[12]
The
Board rejected the Applicant’s explanations for his failure to make timely disclosure
of the New Events. It said that his Fears did not make sense because in
the POE Notes and the First PIF he had already described the 2007 Arrest
and the Checkpoint Detention. The Board also concluded that the Interpreter’s
Assurance did not justify the disclosure of the New Events because the same
interpreter had assisted with the preparation of the First PIF.
[13]
Because
these explanations were not satisfactory, the Board concluded that the
Applicant’s amended PIF was not credible and this conclusion was supported by
the Father’s Omissions.
[14]
It
is significant that these conclusions were reached independently of any
consideration of whether or not the Applicant suffered from PTSD.
[15]
The
Board ultimately discounted the Report because it was based on the New Events
which it found, for the reasons described above, not to be credible.
[16]
In
my view these conclusions were open to the Board and the negative credibility
finding was reasonable.
[17]
I
am also satisfied that the language used in paragraph 65 of the Decision
involves a finding of fact about the Applicant’s profile and does not show that
the Board mistook the test to be used when deciding an application under
section 96 of the Act. The test is correctly stated in paragraph 71 of the
Decision.
[18]
There
is no question for certification pursuant to section 74(d) of the Act.
ORDER
THIS
COURT ORDERS that upon reviewing the material filed and
hearing the submissions of counsel for both parties in Toronto on May 1, 2012,
the Application is hereby dismissed.
“Sandra J. Simpson”
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