Date : 20031110
Docket : IMM-5528-02
Citation : 2003 FC 1319
BETWEEN :
SOCKALINGAM LUXMAN
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated October 18, 2002, wherein it determined that Sockalingam Luxman ("the applicant") is not a Convention refugee and is not a person in need of protection. The applicant seeks an order from this Court quashing that decision and referring the matter to a different member of the Refugee Protection Division.
[2] The applicant is a thirty-year-old citizen of Sri Lanka. He arrived in Canada on March 31, 2001, and made a refugee claim. A hearing was held on July 23, 2002; and on October 18, 2002, the Board determined that the applicant was not a Convention Refugee or a person in need of protection.
[3] The applicant resided in the Colombo area, approximately ten kilometres from the city. In 1990, he began working at the Malhavi grocery store as a salesperson. He was promoted to cashier, and eventually became manager of the store. His boss, the owner of the grocery store, also owned K.K. Nithy Traders and K.K. Nithy Transport in Trincomalee. In 1996, the applicant was made a partner in the Transport business, and in 1999, purchased two of his own trucks.
[4] The applicant alleged that in the course of his trucking business, he had to frequently pay bribes at checkpoints to members of the Sri Lankan Army/Authority ("SRA") and the Liberation Tigers of Tamil Eelam ("LTTE"). He also alleges that the SRA would take his trucks, and then pay him only occasionally upon returning his trucks. Additionally, the LTTE would also retain his trucks. However, the LTTE would not pay him, but rather they would demand that he pay a ransom for the return of his trucks.
[5] In July 2000, the manager of the Trincomallee grocery store quit, and the applicant took over temporarily as manager. In November 2000, members of the LTTE who had extorted food items from the store were caught by the SLA. This led to the arrest of the applicant by the SRA, on allegations of providing items to the LTTE.
[6] While in detention for approximately two days, the applicant was mistreated by the SLA. After "escaping", the applicant went into hiding while the SLA tried to find him by bullying his father and his boss/business partner.
[7] The applicant left Sri Lanka on February 10, 2001, and arrived in the United States on March 18, 2001. He was detained by US Immigration Officials ("INS"), but was released, and later arrived in Canada, where he claimed refugee status. The applicant based his claim on his membership in a particular social group (Tamils accused of helping the LTTE) and his imputed political opinion. He named agents of persecution as the SLA and the LTTE.
[8] The Board found that the applicant had "failed to discharge the burden of proof of a well-founded fear of persecution," and that "his lack of credibility negates his subjective fear". He alleges that the Board made its credibility findings in a perverse or capricious manner or without regard for the material before it.
[9] In its reasons, the Board outlined a number of concerns it had regarding the applicant's credibility. Specifically, that some aspects of his oral testimony did not correspond to the information in his PIF, that there was a lack of corroboration, and that some of his oral statements contradicted with others.
[10] The respondent raises five specific issues which the Board found reflected negatively on the applicant's credibility:
(1) The amendment to the applicant's PIF regarding the refugee claim he made in the United States;
(2) The applicant's "escape" from detention;
(3) When the applicant was informed that his father had been beaten;
(4) How the applicant obtained legal representation in the US; and
(5) Who arranged for an agent to help the applicant leave Sri Lanka.
[11] First, at the commencement of the hearing, the applicant presented an amendment to his PIF. The applicant corrected the information on his PIF which stated that he had not requested to be recognized as a Convention Refugee in any other country. The applicant noted that this was not correct, and that he had in fact made an asylum claim in the US on March 18, 2001.
[12] The Board considered the amendment and concluded in its reasons:
"Given the propensity of the claimant to be untruthful, I find on a balance of probabilities that the claimant's intent from the beginning was to be deceptive and his motive for recanting was not because he wanted to be honest and truthful to the panel. I draw a negative inference from this significant late amendment..."
[13] The applicant submits that the Board erred in concluding that this was a significant late amendment. The fact that the applicant was detained in the US prior to his entry into Canada should have been a "red flag" that he had made an asylum claim in the US. The applicant submits that it is a well-known fact that INS deports "aliens" if they have not made an asylum claim or have otherwise been afforded some kind of status. In any event, the fact that the applicant had made an asylum claim in the US was totally irrelevant.
[14] I agree that this is irrelevant to the question of whether the applicant had a well-founded fear of persecution, however, it is a relevant consideration when examining an applicant's credibility. Nevertheless, I disagree with the Board's finding that this was a significant late amendment, and that the amendment should reflect negatively on the applicant's credibility. What other option was open to the applicant? The Board concluded that he was being deceptive by correcting his PIF, but he would have been presenting false information to the Board had he not corrected it.
[15] The Board speculated that the applicant's motive for recanting was not because he wanted to be honest and truthful to the panel. There is no justification for the Board to jump to this conclusion from the outset, particularly emphasizing that the applicant was trying to be deceptive by correcting his PIF at the opening of the hearing. To the contrary, it does not demonstrate a propensity to be untruthful. He was invited to make changes and did so openly and honestly.
[16] Second, the Board dealt with the applicant's alleged "escape" from being in the custody of the SRA. The Board wrote:
"The claimant testified that he was arrested and detained by the SRA in November 2000 for two days during which he claims he was ill treated. He then qualified the time line of his detention by saying that he was taken at 7 p.m. one day and released at 3 a.m. on the following day, one and a half days later. His testimony on the matter of his release is interesting. He said he was released surreptitiously with the aid of an army officer who staged his release at 3:00 a.m. to make it appear that he had escaped. The story of his detention and release is not consistent with that contained in his PIF wherein he states that he 'managed to escape from their custody after one day.' This inconsistency goes to the claimant's lack of credibility..."
[17] The applicant questions why the Board found his oral testimony to be inconsistent with his PIF information. His oral testimony that he was in detention for thirty-two hours is not significantly different from the statement in his PIF that he was released from detention "after one day." Further, the statement in the applicant's PIF that he "managed to escape" is not contradictory with his oral account that the officer staged his release to make it appear that he escaped. It is clear that he could not have been released lawfully.
[18] Again, I have to agree with the applicant. While the applicant's story may have been somewhat confusing, his testimony corresponded with his PIF. This determination has more to do with semantics than an objective analysis of the evidence.
[19] The third discrepancy the Board determined related to how the applicant retained legal representation while in detention in the US:
"The claimant was asked how he met the lawyer who helped him gain his release from detention in the USA. He at first said that the agent must have come to know that he was in jail and told the lawyer. He then changed to say he got the number of the lawyer from the agent in Sri Lanka. It was posed to him that these were two different statements. A third response now emerged. The claimant said that 'the agent must have told the lawyer that in case someone calls him___.' None of this makes sense and his continuous change of positions on issues leads me to find, on a balance of probabilities, that the claimant fabricated a series of falsehoods in order to form the basis of a claim."
[20] The applicant explains that on his way to the US, his agent gave him the number of a lawyer to call if and when he was arrested in the US, and that the agent had contingently retained the lawyer to represent the applicant if and when he called. As such, the answers given by the applicant at the hearing showed different aspects of the same situation, and it was perverse and capricious for the Board to find that there were contradictions.
[21] Again, I find that although this has no relevance as to whether the applicant had a well-founded fear of persecution, it does relate to the question of credibility. Though the applicant's testimony may have been somewhat disjointed and confusing, it is not contradictory. As such, the Board's conclusion that this leads them to believe that the applicant "fabricated a series of falsehoods in order to form the basis of a claim" is unreasonable.
[22] Finally, regardless of the some minor conflicts the Board was under a duty to assess whether the applicant had an objective fear of persecution as a Sri Lankan Tamil male if he were to return to Sri Lanka.
[23] It is trite law that a reviewing Court should not lightly disturb findings made by a specialized tribunal and should give deference in matters involving the credibility of the applicant. However, in this case, the Board's findings on the issue of credibility were unreasonable; I have determined that there were no serious contradictions in the applicant's evidence. The Board was "nitpicking".
[24] The application for judicial review is granted and the matter is referred to a differently constituted Immigration and Refugee Board for redetermination.
JUDGE
OTTAWA, Ontario
November 10, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-5528-02
STYLE OF CAUSE : SOCKALINGAM LUXMAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 29, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: November 10, 2003
APPEARANCES:
Mr. John Guoba FOR THE APPLICANT
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Guoba
2425 Eglinton Avenue East
Suite 201
Toronto, Ontario
M1K 5G8 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT