Date: 20041026
Citation: 2004 FC 1504
Toronto, Ontario, October 26th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
PUVANESWARY KANDIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Puvaneswary Kandiah is a Tamil citizen of Sri Lanka. She is a 74 year old widow, and the mother of eight children. She claimed refugee protection, asserting that she had been subject to extortion by members of the Liberation Tigers of Elam ('LTTE') due to the fact that she had children overseas.
[2] The Immigration and Refugee Board rejected the applicant's claim, finding that she was not a credible or trustworthy witness. Further, the Board found that she failed to rebut the presumption that state protection would be available to her in Sri Lanka.
[3] The applicant now seeks to have the Board's decision set aside, asserting that its credibility findings were patently unreasonable. The applicant also asserts that the Board erred in its treatment of the issue of state protection.
Were the Board'sCredibility Findings Patently Unreasonable?
[4] A review of the decision discloses that the Board took into account the applicant's advanced age and limited education in assessing her credibility. Nevertheless, the Board found that there were many reasons to disbelieve her. Perhaps most importantly, the applicant's evidence with respect to what was really the central incident in her claim was not at all consistent.
[5] The applicant alleges that in 2003, she was captured by the LTTE and was held in a bunker until such time as her family paid a ransom in order to secure her release. According to the applicant, it was this incident that led her to flee Sri Lanka.
[6] At various points in the process, the applicant has said that this event occurred in May of 2003, on June 15 of 2003 or in November of 2003. Further, she has variously claimed to have been detained for three days or for five days. There were also inconsistencies in her evidence as to the amount of the ransom demanded by her captors.
[7] Based upon these inconsistencies, the Board concluded that the applicant had fabricated these events in order to substantiate her claim.
[8] I do not accept the submission that the Board was unduly zealous in its treatment of the applicant's evidence. These are not minor inconsistencies, and go to the very heart of her claim. On this basis, the decision in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 is distinguishable.
[9] The applicant also provided conflicting information with respect to the whereabouts of her children. In her Personal Information Form ('PIF'), the applicant indicated that she did not know the whereabouts of one of her daughters in Sri Lanka. She was, however, able to indicate where each of her other children resided, including the whereabouts of three other children who were still in Sri Lanka. In contrast, in her testimony at her refugee hearing, the applicant insisted that she did not know where any of her four children were in Sri Lanka. The applicant explained this inconsistency by saying that her son filled out the PIF for her.
[10] The Board did not accept this explanation, finding it not plausible that the applicant's son would know where his siblings were living, and that the applicant, who was residing with this same son, would not know where her children were. I see no basis for interfering with this finding, which seems eminently reasonable to me.
[11] The applicant also submits that this credibility finding is peripheral to the claim, and should be given little weight as a result. I do not agree. The applicant's claim is premised on her assertion that she is an elderly widow with no family to assist her in Sri Lanka. Her PIF form discloses that one daughter lives in Thunukkai - the same place where the applicant says that she was living before she left for Canada. In these circumstances, the question of the whereabouts of the applicant's daughter is not merely peripheral to the claim.
[12] The Board also made a general finding with respect to the applicant's demeanour, noting that her testimony was often not 'straightforward', and that, at times, she was evasive in her answers. In coming to this conclusion, it is clear that the Board was sensitive to the particular vulnerabilities of the applicant, including her age and limited education.
[13] Two of the Board's findings are, however, problematic. Firstly, the Board referred to the Port of Entry notes, where the applicant was asked to explain why she was seeking refugee protection. The applicant is noted to have replied:
There is no one in Sri Lanka to look after me because I lost all the children in the sense that I don't know the whereabouts of all my children and my two sons one in Switzerland and one in Canada and I prefer to be in this country with my son.
[14] In its reasons, the Board noted that the applicant did not say that she was running away from extortion on the part of the LTTE, or that she had suffered persecution in the form of having been detained for a period of time. From this, the Board drew a negative credibility finding.
[15] A review of the Port of Entry notes discloses that earlier in her interview, the applicant had in fact referred to having been detained by the LTTE. At this point, she claimed that the detention had lasted three days, and that she was released after a payment was made of 50,000 rupees. The respondentconcedes that the Board erred is overlooking this statement.
[16] There is also a problem with one of the Board's plausibility findings. While noting the LTTE's reputation for cruelty, the Board nevertheless found it implausible that the LTTE would "[T]ake an old lady and keep her five days in a bunker to obtain extortion money." However, the country condition information before the Board included evidence with respect to the abduction and extortion of an 82 year old man. On its face, this evidence would tend to provide independent corroboration that the abduction and extortion of the elderly was not beyond the LTTE. As such, the evidence should at least have been addressed by the Board.
[17] While I am satisfied that these last two findings cannot withstand judicial scrutiny, having found no basis for interfering with the Board's conclusion that the applicant had fabricated her claim, I am not persuaded that, by themselves, these two errors were sufficiently material to the result to warrant setting aside the Board's decision.
State Protection
[18] Having upheld the Board's conclusion that the applicant's claim was not subjectively well-founded, it is therefore unnecessary to deal with the issue of state protection.
Conclusion
[19] For these reasons, the application is dismissed.
Certification
[20] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10304-03
STYLE OF CAUSE: PUVANESWARY KANDIAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 25, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES BY:
Ms. Krissina Kostadinov
FOR THE APPLICANT
Ms. Alison Engel
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041026
Docket: IMM-10304-03
BETWEEN:
PUVANESWARY KANDIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER