Date: 20031020
Docket: IMM-5958-02
Citation: 2003 FC 1216
BETWEEN:
SUSAN PATHMAWATHY SIVAGNANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[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 22, 2002, in which the Board determined that the Applicant was neither a Convention Refugee nor a person in need of protection.
BACKGROUND
[2] The applicant is a 60 year-old woman from the north of Sri Lanka. In the early 1990s, the LTTE controlled the region in which she lived. During this time, the applicant claims that she and her family were subject to extortion, harassment and attempted recruitment by the LTTE. In the mid 1990s, control of the region passed to the Sri Lankan Army ("SLA"). The applicant claims that SLA officials who took control of the region suspected her family of being sympathetic to the LTTE. As a result, she claims that she, along with other family members, was arrested and beaten by government officials.
[3] The applicant and her family decided to leave Sri Lanka in October 2000. In testimony before the Board, the applicant stated that they first travelled to Colombo, where they stayed at the home of an agent whom they had hired to help them to leave the country. The family then travelled to Singapore where they were separated. The applicant claims that members of her family now live in several countries, including Canada.
THE DECISION OF THE BOARD
[4] The Board found that the applicant had failed to provide sufficient credible and trustworthy evidence that she would face persecution if returned to Sri Lanka. There were two bases to this finding. First, the Board determined that inconsistencies and implausibilities existed in the applicant's story. These included :
- The applicant failed to state on her personal information form that she had entered Canada on a visitor's visa in 2000 and that, in 1995, she had been granted another visa to visit her father.
- In her personal information form, the applicant stated that two friends of her son had been killed in front of her, however in testimony, she stated that they had been arrested with her family.
- The applicant testified that she had not attempted to leave the north of Sri Lanka when granted a visa to Canada in 1995 because she did not know how to bribe LTTE fighters to allow her to do so, however the Board found this implausible given her other experiences.
In addition, the Board drew a negative inference from the fact that the applicant had told a visa officer in Colombo that she had lived in that city since 1995, whereas, while giving testimony, she stated that her family had remained in the city only a few weeks before fleeing to Singapore.
[5] The Board also found that the applicant did not have a well-founded fear of persecution because, as an elderly woman, she did not fit the profile of Tamils targeted for extortion, conscription and violence by either the LTTE or government forces.
ISSUES
[6] The applicant raises the following issues:
1. Did the Board err by basing its negative credibility finding on insignificant and minor inconsistencies in her story?
2. Did the Board err when it concluded that the applicant had failed to establish that she had a well-founded fear of persecution?
ANALYSIS
Issue 1: Did the Board err by basing its negative credibility finding on insignificant and minor inconsistencies in the applicant's story?
[7] The applicant submits that the Board's credibility finding was based upon three errors. First, the applicant submits that the Board either misunderstood or misconstrued her testimony regarding the death of two of her son's friends and regarding the LTTE'S attempts to recruit her and her son. As a result, she submits that the Board erred when it found that inconsistencies existed between statements which she made in testimony and those made on her personal information form ("PIF"). She also submits that the Board failed to consider her age and cultural circumstances when it concluded that it was implausible that the applicant would not have known that she might have used bribes in order to leave Sri Lanka before 2000.
[8] The applicant further submits that the Board erred by drawing a negative inference from her failure to tell the truth to a visa officer in Colombo as to where she had been living before 2000. It is submitted that this situation is analogous to situations in which an applicant fails to disclose to a visa officer outside of Canada that she will be making a refugee claim on arrival. Therefore, the applicant urges the court to find that her misrepresentation was irrelevant to the refugee determination process.
[9] Finally, the applicant submits that the Board erred by failing to provide her counsel with a full opportunity to explain why she did not disclose on her PIF that she had been granted visas to Canada on two separate occasions.
[10] The standard of review for credibility findings by the Board is patent unreasonableness. The Court will only intervene if the finding is made capriciously, without regard to the evidence or based upon erroneous findings of fact (Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315 (F.C.A.)). While the Board cannot base its credibility determination on irrelevant and minor inconsistencies, findings related to internal contradictions, inconsistencies and evasions form the "heartland" of its discretion (Giron v. Canada (M.E.I.), [1992] 143 N.R. 238 (F.C.A.)). Therefore, this Court accords a high degree of deference to a credibility finding made by the Board on the basis of inconsistencies in an applicant's story.
[11] In this case, there is no evidence that the Board's credibility finding should be overturned. The applicant's first claim is unsubstantiated. The Board drew negative credibility inferences from inconsistencies at the heart of the applicant's story, namely whether the LTTE had attempted to recruit her or her son and whether she had been present when two of her sons's friends were shot. It was open to the Board, having heard all of the evidence, to find that the applicant's testimony on these issues was not consistent with her PIF statements.
[12] The applicant has drawn an inaccurate analogy in making her second submission. In certain cases, a refugee claimant, due to an understandable desperation and fear of public officials, may decide not to disclose her purpose for coming to Canada when she meets with a visa officer overseas. When a credible explanation for the misrepresentation is later provided, it has been held that the mere occurrence of the misrepresentation is irrelevant to the refugee determination process (Bhatia v. Canada (M.C.I.), 2002 F.C.T. 2010). The situation is different in this case. The applicant has provided little explanation as to why she lied to the visa officer about where she was living between 1995 and 2000. Moreover, the applicant has failed to convincingly argue that there was a connection between any fear which she might have felt and the misrepresentation. Under these circumstances, it was open to the Board to draw a negative inference from the misrepresentation.
[13] With regards to the third submission, a review of the record discloses that the applicant was provided with the opportunity to explain why she had failed to state on her PIF that she had previously been granted two visas to Canada. Moreover, there is no evidence that counsel for the applicant was inhibited from providing an explanation for his client's actions. Therefore, having considered the explanations put forward by the applicant and her counsel, it was open to the Board to conclude that the omission of this information was sufficiently grave as to merit a negative inference.
Issue 2: Did the Board err when it concluded that the applicant had failed to establish that she had a well-founded fear of persecution?
[14] The applicant submits that the Board failed to consider documentary evidence related to the threat to the elderly and to Tamil women when it concluded that she would not face a specific threat of conscription, extortion and sexual violence if returned to Sri Lanka. In addition, it is submitted that the Board erred by focussing upon whether the applicant would be specifically targeted in Sri Lanka rather than considering evidence related to similarly situated Tamils in that country.
[15] The standard of review for findings of fact by the Board, such as whether or not a well-founded fear exists, is patent unreasonableness (Sivasamboo v. Canada (M.C.I.), [1995]_1 F.C. 741; Singh v. Canada (M.C.I.) (1999), 2 Imm. L.R. (3d) 191). It is not the role of the Court to substitute its judgment for that of the Board unless the Board has ignored evidence or otherwise reached a decision which is without basis in the record.
[16] The issue in this case is whether the applicant has met the onus of establishing that she faces more than a mere possibility of persecution if returned to Sri Lanka (Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680 (C.A.)). The role of the Board when reviewing evidence of a threat to a claimant in a situation of civil war was described by Mr. Justice Nadon in Mohamud v. Canada (M.E.I.) (1994), 72 FTR 309 at para. 8 as follows:
...As the Court of appeal stated in Salibian, indiscriminate fear is not sufficient; the Board must still be able to attribute the fear of persecution to one of the grounds.... in order to declare an applicant to be a Convention Refugee. As stated by MacGuigan, J. in Rizkallah v. M.E.I..... at pages 1 and 2 of that decision:
To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively. Although the Refugee Division in the case at bar expressed itself incompletely in emphasising only personal targeting, the evidence, as it is presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from general victims of the tragic and many-sided civil war.
The question for the Court in this case is whether the Board ignored evidence or reached an otherwise patently unreasonable decision as to whether the applicant would be targeted for persecution if returned to Sri Lanka.
[17] The applicant's submission that the Board failed to consider argument and documentary evidence related to similarly situated persons is unsubstantiated. In its reasons, the Board discussed the evidence related to threats to the elderly from the LTTE but concluded that the applicant would not face these threats in a government controlled region. It also found that Tamils, in general, face a threat of extortion in the country but concluded that the applicant would not face more than a mere possibility of this threat if she was returned to Sri Lanka. Finally, the Board concluded that the applicant had failed to provide evidence that she fit the profile of those targeted by the LTTE or the government for other forms of violence. While there are undoubtedly Tamils in Sri Lanka who currently face a threat of persecution, the Board was not required to accept the applicant's unsubstantiated assertion that she is one of these people.
[18] The applicant has urged this Court to find that the Board specifically erred when it failed to discuss evidence relating to the threat of sexual violence facing Tamil women. While it would have been helpful for the Board to explain why it concluded that there was no compelling evidence that the elderly applicant was not at the same risk of this violence as young Tamil women undoubtedly are, this Court is mindful of judgment of the Court of Appeal in Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (C.A.) at para 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown....
Even though the Board did not explicitly address the issue, it may be presumed that it weighed the evidence and concluded that the applicant had failed to establish that she would be targeted for sexual violence if returned to Sri Lanka. It is not the role of this Court to re-weigh the evidence and substitute its judgment for that of the Board.
[19] For these reasons, the application for judicial review will be dismissed.
"K. von Finckenstein"
JUDGE
Ottawa, Ontario
October 20, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5958-02
STYLE OF CAUSE: SUSAN PATHMAWATHY SIVAGNANAM
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 8, 2003
REASONS FOR ORDER : von FINCKENSTEIN J.
DATED: OCTOBER 20, 2003
APPEARANCES:
Mr. Kumar S. Sriskanda FOR APPLICANT
Ms. Ann Margaret Oberst FOR RESPONDENT
SOLICITORS OF RECORD:
Kumar S. Sriskanda FOR APPLICANT
209-3852-Finch Ave. E.
Scarborough, Ontario
M1T 3T9
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario