Date: 199903019
Docket: IMM-2481-98
BETWEEN:
MAHALETCHUMY ELEDCHUMANASAMY and
SANGEETHA ELEDCHUMANASAMY (a minor)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
[1] The applicants, mother and daughter, are citizens of Sri Lanka and Tamils from the north of that country. They made refugee claims when they arrived in Canada in June 1997, alleging that they had a well-founded fear of persecution by virtue of their membership of a particular social group, female Tamils from Jaffna.
[2] The mother, whom I shall refer to in these reasons as the applicant, was designated to represent her eleven year old daughter before the Refugee Division of the Immigration and Refugee Board; the daughter's claim depends on her mother"s.
[3] The Board accepted that they had a well-founded fear of persecution in the north at the hands of the Tamil Tigers. However, after finding the applicant"s evidence of mistreatment by the police in Colombo to be non-credible, the Board concluded that Colombo was available to them as an internal flight alternative, and accordingly dismissed their claims.
[4] The applicant testified that, soon after arriving in Colombo in mid-April 1997, she was identified to the police as a Tamil Tiger supporter by someone from the north who recognized her. She stated that the police detained and interrogated her for four days, and beat her. She was released on the payment of a bribe. She also stated that she was rearrested a few days later and accused by the police of arranging to rent accommodation in Colombo as a safe-house for Tamil Tigers. She was released, again on the payment of a bribe.
[5] The only issue pursued by counsel at the hearing of the application for judicial review was the Board"s credibility finding. This Court is extremely reluctant to set aside decisions of the Board that are based on findings of credibility because the Board is better placed than the Court to make them. Even where, as here, the Board bases its finding on the implausibility of a claimant"s evidence, rather than on internal inconsistencies or vagueness in the evidence, or on the demeanour of the witness, the Court may only intervene when the finding was not reasonably open to the Board on the evidence before it.
[6] It has been suggested that less judicial deference may be called for when the finding of credibility depends on inferences about its implausibility that are drawn from "rationality, common sense and judicial knowledge": Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238, 239 (F.C.A.). However, severe judicial restraint is in my view appropriate when the Board determines that evidence is implausible by drawing on its specialized knowledge and familiarity with refugee claims and the publicly available documentary evidence before it pertaining to general conditions in the country from which the claimant is seeking refuge.
[7] The basis of the Board"s credibility finding in this case is contained principally in a single paragraph of the decision. It stated that, as a 51 year old woman in possession of identification documents and a permit issued by the army permitting her to remain in Colombo for an indefinite period, the applicant did not conform to the profile of Tamils who are subject to a serious risk of persecution in Colombo. And, in a sentence to which counsel for the applicant took particular exception, the Board stated:
| Her description of her treatment is inconsistent with what the preponderance of the documentary evidence describes as the treatment of elderly Tamils. |
It then added:
| The documentary evidence indicates that those persons who are overwhelmingly at risk are young Tamil males and females recently arrived in Colombo. |
[8] The Board also observed that if the applicant had really been believed by the police to be setting up a safe-house for terrorists in Colombo, she would not have been released, even on the payment of a bribe.
[9] Counsel for the applicant emphasized that the Board"s finding of credibility was based on implausibility, and that therefore I had more latitude to intervene if I thought it clearly wrong than I would if it were based on inconsistency or demeanour. However, as I have already indicated, since the Board"s conclusion that the evidence was implausible was inevitably informed by the panel"s experience of Sri Lankan refugee claims and country conditions, I can only set aside the decision if I am satisfied that there was no rational basis for the Board's finding on the evidence before it.
[10] Counsel then referred me to several passages in the documentary evidence before the Board indicating that, regardless of their age or gender, Tamils from the north are at risk of detention, torture and even death at the hands of the police and military authorities in Colombo. In contrast, the Board relied, but not exclusively, on a UNHCR "update" of September 1996 which painted a generally rosy picture of life in Colombo for Tamils. However, counsel noted that the accuracy of that "update" has been called into question by some human rights organizations and concerned individuals, and, in any event, is based on information that is now nearly three years old.
[11] In my opinion, the Board committed a reviewable error when it found that the applicant's testimony about her mistreatment in Colombo was not credible. First, in light of the documentary evidence before the Board it was at the very least an exaggeration for it to conclude that the applicant's "description of her treatment is inconsistent with what the preponderance of the evidence described as the treatment of elderly Tamils." If the Board meant by this that age gave Tamils from the north an immunity from persecution in Colombo, then there is no rational basis in the evidence for the Board's conclusion. However, the evidence clearly would support a more nuanced finding that Tamils of the applicant's age are not generally in the category of those most at risk.
[12] Second, if, as the applicant alleged, she was specifically identified to the police as a Tamil supporter when they were checking the residents of the lodge where she was staying, that would surely immediately expose her to a significantly higher risk of police mistreatment of the kind she described than others of her age group are likely to experience. The Board does not address this aspect of her testimony. The reasons given by the Board for not finding credible the evidence of her mistreatment do not undermine the credibility of this part of her evidence.
[13] Third, I regard as highly questionable the Board's conclusion that the applicant's testimony was implausible because, if the police regarded her as a Tiger supporter who was establishing a safe house for Tamil militants in Colombo, they would not have released her from detention. The Board's reasons do not properly capture the possible significance of the payment of the bribe when they describe bribery as
| a matter of corruption on the part of the police and not persecution on a Convention refugee ground. |
[14] Counsel's point here was that it was not implausible that corrupt police officers might release the applicant in return for a bribe, despite suspicions that she might pose a security risk. Moreover, the police could always rearrest the applicant and release her on the payment of another bribe. Indeed, the documentary evidence indicates that individual Tamils have been the subject of serial arrests of this kind.
[15] While the Board's finding of credibility was not necessarily determinative of whether on the balance of probabilities there was a serious risk that in the future the applicant would face persecution in Colombo, it was in my view certainly material.
[16] For these reasons the application for judicial review is granted, the decision of the Board is quashed and the matter is remitted to a differently constituted panel of the Board.
"John M. Evans"
J.F.C.C.
TORONTO, ONTARIO
March 19, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2481-98 |
| STYLE OF CAUSE: MAHALETCHUMY ELEDCHUMANASAMY and SANGEETHA ELEDCHUMANASAMY (a minor) |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: THURSDAY, MARCH 18, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: EVANS J. |
DATED: FRIDAY, MARCH 19, 1999
APPEARANCES: Mr. Michael Korman
For the Applicants
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Otis and Korman
| Barristers & Solicitors |
| 326 Richmond Street West |
| Toronto, Ontario |
| M5V 1X2 |
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990319
Docket: IMM-2481-98
Between:
| MAHALETCHUMY ELEDCHUMANASAMY and SANGEETHA ELEDCHUMANASAMY (a minor) |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER