Date: 20030613
Docket: IMM-2503-02
Citation: 2003 FCT 727
Between:
JEYANANTHAN THARMALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 7, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of Sri Lanka who alleges a well-founded fear of persecution because of his Sri Lankan Tamil race and nationality, imputed political opinion and membership in the following social groups: young Tamil males from Jaffna, university student activists and family.
The Board's conclusion is found at page 5 of its decision, and reads as follows:
For all the above reasons, the panel believes that the claimant's evidence is not credible and there would not be [sic] reasonable chance for him to be persecuted for Convention reasons if he were to return to Sri Lanka.
To the extent that the Board's decision is based on a negative credibility finding, I am not prepared, upon reviewing the evidence, to intervene. In my opinion, the applicant has failed to demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard to the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). It is well established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). Finally, as the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status may effectively amount to a finding that there is no credible evidence for that claim.
To the extent that the Board's appreciation of the documentary evidence is concerned, the applicant had to meet the heavy burden of establishing that such an appreciation was patently unreasonable. Here, the Board accepted the applicant's identity as a young Tamil male from the north of Sri Lanka. After explaining its negative credibility finding, it went on to state that it had carefully considered the documentary evidence indicating that young Tamils from the north of Sri Lanka are potential targets for recruitment by the Liberation Tamil Tigers of Eelam ("LTTE") and for suspicion by the Sri Lankan security forces. The Board correctly interpreted Mylvaganam v. Minister of Citizenship and Immigration (July 24, 2000), IMM-3457-99, as requiring the Board to assess the entire evidence, and that it does not stand for the principle that, as a matter of course, young Tamils from the north of Sri Lanka are to be accepted as Convention refugees.
The applicant takes issue with the following excerpt of the Board's decision:
. . . Furthermore, it is this panel's opinion that the civil war in Sri Lanka is not to be over-simplified. Indeed, neither the Sri Lankan authorities nor the LTTE would engage in systematically targeting young Tamils unless their objective is to antagonize this category of the population. Hence, one would reasonably expect that a young Tamil might as well have reasons or be in circumstances to side with one party or another. Consequently, the panel is of the opinion that a young Tamil from the north has to demonstrate on a balance of probabilities that there are good grounds for fearing persecution.
The applicant submits that with respect to the overwhelming documentary evidence concerning the targeting of Tamils either by the LTTE or the Sri Lankan security forces, the Board underestimated the objective basis of his risk of persecution.
As both parties made it clear that being a young Tamil male from the north of Sri Lanka does not suffice, in itself, to qualify as a refugee under the Act, I am not convinced that the Board's assessment of the objective basis for the applicant's claim is clearly irrational. The Board was correct in requiring the applicant to establish that there are good grounds for fearing persecution and properly took into account the latter's particular circumstances. In such a context, the fact that the Board may not have gone as far as it could have in its assessment of the documentary evidence concerning young Tamil males from the north in Sri Lanka is not sufficient to warrant the intervention of this Court.
For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2503-02
STYLE OF CAUSE: JEYANANTHAN THARMALINGAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 20, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: June 13, 2003
APPEARANCES:
Ms. Preevanda Sapru FOR THE APPLICANT
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Preevanda Sapru FOR THE APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario