Date: 20030127
Docket: IMM-1-02
Neutral citation: 2003 FCT 78
BETWEEN:
PUSHPARAJAH KANAGASABAPATHY
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD"), dated December 6, 2001, wherein it found the Applicant not to be a Convention refugee. The Applicant seeks an order quashing that decision and remitting the application to a differently constituted tribunal.
[2] The Applicant, a 52 year old citizen of Sri Lanka and a Tamil, was born, has resided and raised his family in Trincomalee, in the Eastern Province of Sri Lanka. His wife and two children have been living in Canada since 1997, when they had successfully claimed refugee status.
[3] It is alleged that in 1988, the Applicant was arrested and detained for a week by the Eelam People's Revolutionary Liberation Front (EPRLF) on suspicion of sheltering Tamil Tigers. In 1990, two of his wife's relatives were arrested by the army and their whereabouts are still unknown. The Tigers extorted money from him and his wife for their war efforts. The Applicant had completed a two-year employment contract in Dubai and returned to Trincomalee and opened a grocery store. On one occasion, his wife was detained by the Tigers for four days and was forced to do hard labour.
[4] In 1995, when the Tigers attacked the security forces, the Applicant and his family fled their home seeking safety. The Tigers forced him into digging bunkers and his wife was ordered to supply meals to them.
[5] In November 1996, the army arrested him, accused him of helping the Tigers, mistreated him and detained him for three months. His wife secured his release and in February 1997, they fled to Colombo with their children with the intent of leaving Sri Lanka. They contacted an agent at the lodge where they stayed to assist them in leaving the country. Two days after their arrival in Colombo, the Applicant and his wife were arrested by the police, accused of being supporters of the Liberation Tigers of Tamil Eelam (LTTE) and detained for five days. On payment of a bribe, the Applicant was released on condition to report to the police every Friday.
[6] In March 1997, the Applicant and his family went into hiding at the home of the agent and on March 4, 1997, they attempted to leave for Canada. His wife and children were able to flee Sri Lanka and successfully make refugee claims in Canada. However, the Applicant was stopped and questioned at the Colombo airport. He was permitted to board a later flight to Singapore where he and his agent were detained for ten days before being released. They then went to China and Thailand where he spent 14 months. In May 1998, while trying to leave Bangkok, the Applicant was found to have false documents and was deported back to Sri Lanka.
[7] Upon his return, the Applicant was allegedly detained at the airport and then for two weeks at Negombo where he was interrogated and manhandled. The agent secured his release with a bribe and the Applicant was ordered to return to Trincomalee, which he did. Whenever there were encounters between the security forces and the Tigers, the Applicant was picked up in the round-ups that followed, taken to makeshift camps and was physically assaulted.
[8] His wife tried to sponsor him to immigrate to Canada and he went to the Canadian High Commission in Colombo for an interview in 1999. However, he never received a reply.
[9] In February 2000, in the wake of an LTTE attack on the army during which there were army casualties, the Applicant was arrested and taken to the Fort army camp in Trincomalee on suspicion of having helped the Tigers. During his one-month detention, he was interrogated, beaten and had his head dunked into a bucket of water. After paying a bribe and being fingerprinted and photographed, the Applicant was released on condition that he report every other day to the army camp. However, he did not report to the camp since the Tigers threatened to kill him if he did. In this precarious situation, he went into hiding in Trincomalee and with the help of the agent he was able to get to Colombo without incident. After spending one night there, the agent was able to get him out of Sri Lanka.
[10] The Applicant arrived in Canada on April 29, 200 and claimed refugee status based on his perceived political opinion and membership in a particular social group - Tamil males from the east of Sri Lanka. He identified the Sri Lankan security forces, including the army and the police, as well as the LTTE as the agents of the persecution he fears.
[11] The Applicant's refugee claim was heard on April 26 and August 28, 2001. The CRDD panel rejected the claim because it found that the Applicant was not credible and he "simply could not get his story straight". The panel's determination was supported by many findings of inconsistencies and implausibilities in the Applicant's oral evidence, written evidence and sponsorship interview, relating to all facets of his refugee claim. Without attempting to summarize all of the panel's inferences and conclusions which are thoroughly set out in its 27-page decision, the following are its most important findings.
[12] First, the Applicant stated he presented himself at the Canadian High Commission on March 25, 1999 for an interview. He stated that his wife was on welfare and he had not seen her and his children since 1994. However, his wife claimed she was in Sri Lanka between 1994-1997. Furthermore, the Applicant stated in his Personal Information Form (PIF) that he assisted his wife and children to leave Sri Lanka in 1997. When questioned at the hearing, the Applicant could not provide a satisfactory explanation for this contradiction.
[13] At the refugee hearing, in a effort to explain the inconsistencies which arose between the High Commission interview and his testimony in the refugee proceedings, the Applicant stated he did not speak English except "to a certain extent, if they ask me, what is your name, I will answer my name". However, in his application for permanent residence, he declared he was fluent in English while at the interview, he stated he spoke English. At the hearing, he first said he did not answer the questions put to him by the visa officer in Colombo and then when it was pointed out to him by his own counsel that he did answer some questions, he stated that "for certain question, which I understood, I answered". He said that he was told by others who faced interviews of this nature that he was summoned essentially "to find out whether I am the real husband" of the sponsor. The CRDD panel rejected this explanation and noted the Applicant's demonstrated usage of colloquial English and the fact that his responses to questions he did answer were entirely on point - regardless of their truthfulness.
[14] In addition, under examination by the Minister's representative, the Applicant stated that although he was invited to bring an interpreter to the interview, he chose not to because experienced friends and relatives told him he would only get a visa if he spoke English. When asked by the panel: "does it make sense for, in your mind for the Canadian High Commission to offer you an interpreter or to offer you, to recognize the need for an interpreter, but that they wouldn't accept you if you used the interpreter? Does that seem fair?", the Applicant did not answer the question but stated that he "wanted to leave the country at any cost" and that this might be the reason for differences in his oral testimony, PIF and immigration visa form.
[15] On his application form, the Applicant declared on two separate occasions that the information given is "truthful, complete and correct". Under examination at the hearing, he was asked: "Did you tell the truth when you filled out the application form for an immigrant visa?" and replied that "to my knowledge I said the truth". However, when the discrepancies concerning his education, language fluency and detention were pointed out to him, he stated that "I thought that to my knowledge it was adequate or enough...".
[16] During the High Commission interview, when asked whether he left Dubai voluntarily, the Applicant stated that after his two-year contract had expired he asked for more money but did not get it, and since he was not making enough he returned to Sri Lanka. In his oral testimony at the refugee hearing, the Applicant stated that his company told him to return to Sri Lanka. He added that "he thought of going to another country but did not have enough time to do anything about it and thus had no alternative but to return to Sri Lanka". When asked why he did not provide this response to the High Commission, the Applicant evaded the question, saying that he did not anticipate questions in this area.
[17] The Applicant stated that his wife's brother was arrested by the police in 1997 whereas in his PIF, he stated that his wife's brother was arrested on July 16, 1990. When confronted with this contradiction, the Applicant stated that the incident must have taken place in 1996. The Applicant could not provide a satisfactory explanation for his inconsistent evidence. Further, when asked when he finally left Sri Lanka, the Applicant first said that it was in 1999, then April 2001. When asked to explain these inconsistencies, he said that sometimes he is able to remember dates but that he was very tense during the previous immigration sitting and that is why he thought his brother-in-law was arrested in 1997 or 1996. The panel found this explanation to be unsatisfactory.
[18] The Applicant obtained a passport in September 1998 in Colombo. He initially testified that he could not remember how long he stayed in Colombo to get the application form, only that he stayed at the house of someone he knew from his own home area. He said he did not register with the police because it is not really the law and that registration is required only if one stays a week or longer. When confronted with the CRDD panel's understanding of the documentary evidence regarding registration in 1998, the Applicant stated that it depends on the prevailing situation and that he learned that from the friend he was staying with. The panel found it implausible that the Applicant could remain in Colombo on at least 2 occasions without registering with the police and, after having contact with the police, not be asked to show his Colombo registration or having any other problems with them.
[19] The above examples are but some of the contradictions, inconsistencies, implausibilities and evasive or specious explanations proffered by the Applicant. In light of all the general negative credibility findings that it made, the panel extended them to all the material aspects of the Applicant's claim. It concluded that the Applicant failed to provide persuasive or credible evidence on which it could base a finding that any of the parties to the conflict in Sri Lanka had any persecutory interest in him.
[20] Though it stated it did not have to do so, the CRDD panel then went on to find, based on the documentary evidence, that the Applicant was outside the profile of those most at risk in Sri Lanka. As a 52 year-old married Tamil male, he did not fit the profile of those at risk. The panel noted that the abundance of the documentary evidence suggests that young Tamil men from the North and east of Sri Lanka are most at risk of security force attention.
[21] The issues in this application can be summarized as follows:
1) Whether the CRDD panel erred in finding the Applicant's evidence not credible or trustworthy;
2) Whether the CRDD panel erred by failing to consider the totality of the evidence in determining the objective basis of the Applicant's fear:
3) Whether the CRDD panel erred by failing to make a proper determination on the question of persecution, more specifically by failing to consider the principles laid down by this Court in conjunction with the guidelines issued by the Immigration Refugee Board (IRB) on the determination of the fear of persecution of civilian non-combatants in civil war situations
[22] Until such time as the applicant is declared to be a Convention refugee pursuant to section 2 of the Act, the burden rests upon him or her to provide clear and convincing proof of the well-foundedness of his or her claim for Convention refugee status. The underlying premise of the Applicant's application for judicial review in the case at bar is that the CRDD panel ought to have accepted his entire testimony as credible because there were no "significant" internal inconsistencies or implausibilities in what he said.
[23] Assessing a claimant's credibility is crucial to the decision-making function of the CRDD. It would not be able to perform its function at the hearing if it could not assess and decide adversely with respect to the credibility of the oral testimony of the claimant on the basis of contradictions and inconsistencies in the applicant's story, or on the basis that the evidence is simply implausible. Thus, where such negative findings are clearly made, and reasons given in clear and unmistakable terms, this Court should not interfere, even if the evidence could conceivably lead to a different conclusion, unless an overriding error has been made by the CRDD: Lin v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 263 (QL) (F.C.T.D.); Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (QL) (F.C.A.).
[24] Further, in order for any alleged error of fact to be reviewable, the findings of fact must be truly erroneous, the finding must be made capriciously or without regard to the evidence, and the decision must be based on the erroneous finding: Rohm and Haas Can. Ltd. v. Anti-Dumping Tribunal (1978), 91 D.L.R. (3d) 212 (F.C.A.); Kuang v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1157 (QL) (F.C.T.D.). Having considered all the evidence, the submissions of the parties and the Certified Tribunal Record, I am satisfied that all three conditions precedent have not been met in the present case. In fact, although some of the findings of fact made by the panel may be questionable, many others were reasonably open to it on the record and, on the whole, could support its negative credibility assessment.
[25] The Applicant contends that the CRDD panel "manufactured" evidence in concluding that he contradicted himself by first stating that his wife had typed his visa application before stating that it was someone else whom he knew. This is a very serious allegation. The relevant excerpts from the transcript of the proceedings state (Certified Tribunal Record, pp. 325-326):
COUNSEL: Did you type this form yourself.
CLAIMANT: Somebody else.
COUNSEL: Do you know who?
CLAIMANT: It's my wife's.
COUNSEL: I'm sorry, it was your wife who typed it?
CLAIMANT: No, it's mine.
COUNSEL: (inaudible) do you know who typed it?
CLAIMANT: Somebody whom I knew typed it out for me.
[26] My reading of the transcript does not support the Applicant's contention. From the Applicant's answers (It's my wife's...No, it's mine), it is quite possible that he in fact thought that counsel was asking him whose visa application they were referring to, though there is much confusion on this point. While the panel may have misunderstood what the Applicant actually meant when giving his answers, I believe that this error is made entirely in good faith. One should not lightly accuse the panel of having "manufactured" evidence absent any clear indication to that effect.
[27] The Applicant also argues that the CRDD erred in analysing the notes taken in Colombo and ignoring the Applicant's oral evidence. It is noteworthy that the Applicant admitted that the statements he made during his interview at the High Commission were not entirely true. No objection was made to the admissibility of the visa officer's notes at the refugee hearing and in any event the CRDD panel is not bound by any strict rules of evidence. Certainly, the CRDD panel cannot be faulted for having relied on the visa officer's notes to illustrate inconsistencies and implausibilities between the Applicant's oral evidence at the hearing and his evidence at the sponsorship interview: Jumriany v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 683 (QL) (F.C.T.D.). The fact that the Applicant himself had admitted to the discrepancies does not prevent the CRDD from impugning his credibility and basing its decision on all the evidence adduced in the proceedings.
[28] Indeed, the panel's determination to impugn the Applicant's credibility as it related to all the aspects of his refugee claim was supported by no less than ten other credibility findings. The panel noted that in his dealings with Canadian immigration authorities, the Applicant presented contradictory evidence concerning the last time he saw his wife and children and his ability to speak English. He also presented contradictory evidence concerning his departure from Dubai, the timing of his brother-in-law's arrest, his alleged detentions, his departure from Sri Lanka and his stay in Colombo. Further, his account of registration requirements in Colombo was found to be inconsistent with the documentary evidence, his evidence concerning the alleged reporting conditions for his release was inconsistent, and his evidence concerning his educational background was contradictory. None of these credibility findings has been challenged in any significant way, if at all.
[29] Unfortunately, I do not share the opinion of the Applicant that the panel focussed on microscopic details of his testimony in order to discredit him. In its decision, the panel recognized that the Applicant might have made some errors as a result of his nervousness, but more important is the fact that despite that nervousness, the panel simply did not believe him. In my opinion, the panel's findings meet the requirements laid down in Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.) and Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.) by clearly identifying the elements in the Applicant's testimony that were inconsistent and supporting them with examples and specific reference to the evidence. Contrary to Rahnema v. Canada (Solicitor General), [1993] F.C.J. No 1431 (QL) (F.C.T.D.), I am not persuaded that by finding deficiencies or shortcomings in the evidence, the panel was so zealous that it might have erred in fact or in law making it necessary for this Court to intervene.
[30] The CRDD panel found that the Applicant's lack of credibility was replete through his entire story, and I am satisfied that this finding was reasonably open to it based on the record. It is well established that a claimant's lack of credibility, having regard to the fundamental components of his account, may effectively amount to a general finding that there is no credible or trustworthy evidence in support of his claim: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 at 244 (F.C.A.); Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020 (QL) (F.C.T.D.).
[31] With respect to the Applicant's argument that the panel did not consider the totality of the documentary evidence concerning human rights conditions in Sri Lanka in support of its finding concerning the lack of objective basis to his fear, I am of the view that insofar as the Applicant's testimony was generally found not to be credible, such an assessment was not even required: Djouadou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1568 (QL) (F.C.T.D.) at para. 4; Ockana-Owani v. Canada (Minister of Employment and Immigration), [1999] F.C.J. No. 1490 (QL) (F.C.T.D.) at para. 5.
[32] Considering the decision I have reached on the first issue raised in this application, I need not consider the remaining issues.
[33] Accordingly, I would dismiss this application for judicial review.
JUDGE
OTTAWA, Ontario
January 27, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1-02
STYLE OF CAUSE: PUSHPARAJAH KANAGASABAPATHY v. MCI
DATE OF HEARING: December 12, 2002.
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Rouleau, J.
DATE OF REASONS: January 27, 2003
APPEARANCES BY: Mr. Kumar Sriskanda
For the Applicant
Mr. Deborah Drukarsh
For the Respondent
SOLICITORS OF RECORD: Mr. Kumar S. Sriskanda
Barrister & Solicitor
3852 Finch Avenue East
Suite 209
Scarborough, Ontario
M1T 3T9
Tel:416-321-9739
Fax:416-321-9651
For the Applicant
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-952-7262
For the Respondent