Date: 19980505
Docket: IMM-3750-97
BETWEEN:
NANCY GRACE GREGORY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated August 5, 1997. By that decision the Board determined that the applicant is not a Convention refugee.
Facts
[2] The applicant is a Tamil woman from northern Sri Lanka, where she and her husband, along with six sons, successfully operated a farm. They were occasionally harassed by the LTTE until their area was occupied by the Sri Lanka military in October of 1991. The LTTE subjected their family to detention and forced labour. Money was extorted from them and their lives were threatened. The applicant with her family fled to Jaffna and resettled in Poonaryn where the LTTE continued to extort from them. Two of her sons were abducted for forced labour. Her husband was required to provide free food.
[3] In May of 1995, the applicant secured an LTTE pass for herself and her younger sons and travelled south. The husband and the other sons fled south through the jungle. They met in Vavuniya and travelled together to Colombo (southern Sri Lanka). In Colombo the family was arrested during a security sweep after a bomb blast. The husband and two younger sons were released the next day. The other sons were detained for approximately two weeks. A bribe secured their release on October 29, 1995. They were advised that they could not remain in Colombo and must report to the police weekly. They then decided to flee Sri Lanka using the services of an agent. They left on November 5, 1995. The applicant arrived in Canada on April 27, 1996.
The Board's Reasons
[4] The Board made several adverse findings with respect to the credibility of the applicant's testimony. They also concluded that most of the incidents of harassment were directed against the applicant's family rather than against the applicant herself and that, in any event, such incidents do not amount to persecution. Additionally, the Board concluded, on the evidence, that the applicant had an internal flight alternative (IFA) open to her in Colombo.
Issues
| 1. Did the Board err in its findings of adverse credibility? |
| 2. Did the Board err in its consideration of the evidence? |
| 3. Did the Board err in concluding on this record that an IFA in Colombo was available to the applicant? |
Analysis
1. Credibility
[5] The Board made several adverse findings of credibility, some of which were based on what the Board perceived as implausibilities in the applicant's story. Others were based upon contradictions between the applicant's P.I.F. and her oral testimony. Insofar as the "implausibilities" identified by the Board are concerned, I have concluded that the majority of them were reasonably open to the Board on this record. However, I do have a problem with the Board's finding of implausibility with respect to the applicant's evidence that the LTTE "allows people to use escape routes to the south" or "cannot prevent corruption of its own officials". In my view, such a finding is sheer speculation. It is also clearly wrong. It is patently unreasonable to assume without any supporting evidence that the controlling regime in a country is omnipotent or omnipresent and allows people to escape. With this one exception. I have concluded that, overall, the Board's findings on credibility were reasonably open to it on this record. Because this single error by the Board did not go to the heart of its decision, it does not form the basis for judicial intervention1.
2. Consideration of the Evidence
[6] The applicant submits that the Board's finding is patently unreasonable because it is based on the Board's assumption that persecution against family members cannot amount to persecution against the applicant herself. While the applicant's personal experience undoubtedly forms a part of the Board's reasoning on this issue, it is apparent that the Board did not accept the applicant's view that she had established persecution of her husband and sons as well. At page 3 of its reasons, the Board said: "The claimant's account of harassment was generalized and speculative. She was unable to provide specific descriptions of episodes when she (or her husband) were personally beaten or harassed." At page 11 of the reasons the Board said that it "did not find that her account of the alleged mistreatment of her sons was credible." In my view, these findings were reasonably open to the Board on this record.
3. Internal Flight Alternative
[7] My perusal of the record persuades me that in finding an IFA for the applicant in Colombo, the Board did not commit reviewable error. The applicant enumerated several factors that were allegedly overlooked by the Board: She had never been to Colombo before fleeing there temporarily; she had no close friends or relatives there and she had been warned by the police to leave Colombo before she went there. Actually the Board did consider these facts. They are specifically referred to at page 8 of the Board's reasons. The Board concluded that the applicant had an IFA available to her in Colombo. In my view, this conclusion was reasonably open to the Board on this record.
Conclusion
[8] For the above reasons, the within application for judicial review is dismissed.
Certification
[9] Counsel for the applicant suggested four questions for certification pursuant to section 83 of the Immigration Act:
| 1. If a panel has concerns about the credibility of a claimant, arising from issues unrelated to the merits of the refugee claim, can this be a basis for a refusal on the merits? |
| 2. If a mother and wife is precluded from the enjoyment of family life because of persecution against her children and husband, is this sufficient grounds to substantiate a well founded fear of persecution? |
| 3. Did the panel err in law in reaching conclusions on the plausibility of the evidence based on conjecture and speculation? |
| 4. Is the panel required to provide reasons as to why it has not applied guidelines issued by the Chair of the Board under section 65(3) of the Immigration Act? |
[10] In respect of question no. 1, I agree with respondent's counsel that this question has been settled by existing jurisprudence2.
[11] In respect of question no. 2, this question relates to indirect persecution and this issue had been decided by the Federal Court of Appeal in the case of Pour-Shariati v. Minister of Employment and Immigration3.
[12] Insofar as question no. 3 is concerned, I agree with counsel for the respondent that this question is case specific to the circumstances at bar and does not raise any issue of general importance as mandated by section 83 of the Immigration Act.
[13] Coming now to question no 4, it is clearly not a proper question since it would not be determinative of the appeal4.
[14] Accordingly, none of the questions suggested by applicant's counsel are proper questions for certification.
"Darrel V. Heald"
D.J.
Toronto, Ontario
May 5, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3750-97
| STYLE OF CAUSE: NANCY GRACE GREGORY |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MAY 5, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: MAY 5, 1998
APPEARANCES:
Mr. Francis Xavier
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD:
Francis Xavier
Barrister & Solicitor
2401 Eglinton Avenue East
Suite 210
Toronto, Ontario
M1K 2M5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980505
Docket: IMM-3750-97
Between:
| NANCY GRACE GREGORY |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Compare Miranda v. Canada (M.E.I.), (1993) 63 F.T.R. 81 (F.C.T.D.)
2 See Hilo v. Canada ( M.E.I.) (1991), 15 Imm. L.R. (2d) 199, see also Dan-Ash v. M.E.I. (1988), 93 N.R. 33 at 35.