Date: 20040226
Docket: IMM-1024-03
Citation: 2004 FC 294
Toronto, Ontario, February 26th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
UNNAMALAR NARASINGHAM, KAYATHARI JOKANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, Ms. Unnamalar Narasingham, and her daughter, Ms. Kayathari Jokanathan, seek judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), reasons dated January 13, 2003. In that decision, the Board determined that the applicants were not Convention refugees or persons in need of protection. The applicants request an order setting aside the Board's decision and an order that a different Board reconsider their claims.
BACKGROUND
[2] The principal applicant, Ms. Unnamalar Narasingham, and her minor daughter, Kayathri Jokanathan are both citizens of Sri Lanka and claimed Convention refugee protection by reason of their nationality, as Tamils, imputed political opinion and membership in a particular social group, namely women in Sri Lanka.
[3] The principal applicant claimed to be from the Jaffna region of Sri Lanka. She is married and has one young daughter, born in 1998, who is the other applicant in this judicial review.
[4] Due to the civil war in Sri Lanka, Ms. Narasingham claims to have been displaced for several years. Eventually she and her husband settled in Vavuniya, in the north of Sri Lanka. She claims to have suffered a number of instances of persecution at the hands of the Sri Lankan military in the north including an incident in June 2001, in which she was molested in her home. At that point, the principal applicant claims that she knew that they could not remain in Sri Lanka and they contacted an agent to help them make the arrangements to leave the country.
[5] Ms. Narasingham claims the family travelled to Colombo in the first week of December 2001. She says that she was arrested by security forces and detained on December 8, 2001, falsely accused of being a suicide bomber and slapped. She was released the next day upon payment of a bribe.
[6] The agent was only able to arrange travel documents for the principal and minor applicants. Their husband/father was to join them in Canada at some point in the future. The applicants arrived in Canada on December 24, 2001. They initiated their claim for Convention refugee status in Canada four days thereafter, at the Citizenship and Immigration Canada ("CIC") office in Montreal.
[7] The hearing of the applicants' claim was held on December 3, 2002 in Montreal. The principal applicant was the designated representative for her minor daughter, who was four years old at the time of the hearing. The principal applicant testified before the Board. The Board's reasons, rejecting the applicants' claims, are dated January 13, 2003.
The Board's Decision
[8] The Board concluded that the principal applicant lacked credibility in several areas, largely related to her identity. This led the Board to question the applicants' entire claim, placing the applicants' reasons for coming to Canada, "in serious doubt" (see page 3 of the Board's reasons). The Board, due to its credibility findings, did not believe that the applicants were from the Vavuniya area, and that the incidents described by the principal applicant were therefore fabricated. The Board found the principal applicant's testimony regarding her lack of a National Identity Card ("NIC"), that would have confirmed her residency claim, to be inconsistent and therefore drew an adverse credibility finding, due to the fact that it found that she offered varying explanations of what had happened to her NIC.
[9] Secondly, the Board found contradictions with the principal applicant's marriage certificate, in relation to her description of where she had been living in Sri Lanka. Differing addresses in Colombo are listed on this marriage certificate for the principal applicant and her husband, and the applicant explained that someone had told her that it would be better if she and her husband gave different addresses. The Board stated that it did not accept this explanation.
[10] Third, the Board found it implausible that the minor applicant's birth certificate was issued in Colombo rather than where the child was born, in Vavuniya. The Board noted documentary evidence that birth certificates in Sri Lanka must be issued in the judicial district where the person was born. The Board stated that the principal applicant was unable to provide an explanation as to why her husband could not obtain the birth certificate in Vavuniya, but rather an uncle/friend had to obtain the birth certificate in Colombo and send it to Canada. The Board also noted that the applicant had originally stated that she brought her daughter's birth certificate to Canada with her, but later, after being confronted with the fact that the birth certificate had an issue date of January 12, 2002, stated that she had been required to hand this certificate over to the agent who arranged her travel here.
[11] Fourth, the Board also found it implausible that the principal applicant's husband would return to Vavuniya, if this was an area where he had experienced problems. The Board stated that the applicant had no explanation as to why her husband did not attempt to stay in Colombo, an area that apparently was much safer for him than Vavuniya.
[12] Fifth, the Board found that the principal applicant offered contradictory evidence about her time in Colombo. The Board stated that the applicant initially testified that she did not go out in Colombo but just stayed at home, however, she later testified that she went out and was arrested. The Board noted that the applicant could not provide an explanation for this contradiction.
[13] Finally, the Board also found that the principal applicant's subjective fear of persecution was in doubt, given that she waited to go to Colombo and leave Sri Lanka until December 2001, when the last alleged persecutory incident occurred in Vavuniya in June 2001. The Board also noted that the applicant did not claim refugee status at the border, but waited four days after arriving in Canada to do so.
[14] The applicants argue that the Board made a number of errors: first in failing to assess the totality of the evidence such as the principal applicant's claims of past persecution, and instead focussed solely on the issue of her identity. The applicants submit that the evidence of past persecution could have permitted the Board to find that they were in the north of Sri Lanka when the principal applicant was persecuted, if the Board had assessed it and found it to be credible. This evidence should have been weighed and assessed against the Board's other credibility concerns.
[15] The applicants submit that the Board also erred in its credibility assessment by ignoring reasonable explanations for the lack of identity documents and exaggerating contradictions on several occasions, and that such minor contradictions should not have been used against the principal applicant's credibility. In support, they rely on Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (C.A.)(QL).
ISSUES
[16] 1. Did the Board err in failing to assess the applicants' evidence of past persecution, even though it had found the principal applicant not credible with respect to other aspects of her claim?
2. Did the Board err in its assessment of the principal applicant's credibility?
ANALYSIS
[17] In my opinion, the Board did not err in failing to assess, in detail, the applicants' specific allegations of past persecution because the Board concluded that such allegations were fabricated, as the applicants' evidence was not credible in establishing that she was from the Vavuniya area. The present case is distinguishable from Oyarzo Marchant v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.) relied upon by the applicants , as in that decision there was uncontradicted evidence of past persecution which the board failed to assess in light of more recent incidents of alleged persecution. However, in this case, the Board's negative findings in relation to the applicants' identity and place of residence negated the very foundation of the allegations of past persecution, since such persecution could not have occurred as described by the principal applicant if she had not lived in the Vavuniya area.
[18] The situation before me is also different from another decision cited by the applicants, M.M. v. Canada (Minister of Employment and Immigration) (1991), 137 N.R. 1 (F.C.A.). In that case the Federal Court of Appeal held that the board did believe certain allegations of persecution and the inconsistencies noted by the board were not central to the appellant's claim. Here, due to negative credibility findings, the Board did not believe the principal applicant's evidence as to identity and where she resided, and therefore concluded that she did not live in the Vavuniya area during the time when she alleged that the Sri Lankan army molested her. This finding was central to the applicants' claim.
[19] I accept the respondent's submission that since the Board's decision was based on negative credibility findings, the court should apply the patent unreasonableness standard of review. Provided that the Board's credibility findings are supported by the evidence before it, the Board was not required to assess the principal applicant's allegations of past persecution in light of the fact that its credibility findings negated the very foundation of such allegations.
[20] I am also satisfied that the Board's finding related to subjective fear of persecution was reasonable, and the Board's noting of the minor delay of the applicants in making their claim in Canada (four days) was correctly viewed as a relevant but not determinative factor in the Board's assessment: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).
[21] Parliament in s.106 of the Immigration and Refugee Protection Act, S.C. 2001, c.27, placed particular emphasis on the importance of acceptable documents establishing identity or if not available, a reasonable explanation for the lack of documentation or evidence that the claimant for refugee status has taken reasonable steps to obtain the documentation. Applicants bear the onus of establishing their identities.
[22] In this case, there was no documentary evidence, credible or otherwise, to connect the applicants to the region of northern Sri Lanka from whence they claim to have come.
[23] The principal applicant submitted explanations for the lack of an identity card and for the marriage certificate and birth certificate issued in Columbo. The assessment of whether the explanations of the principal applicant are persuasive or acceptable is the Board's task and within its area of expertise. The Board was entitled to test the credibility of those explanations and I am satisfied that it provided clear reasons for its adverse credibility findings in relation to those issues.
[24] I do agree with the applicant, however, that the Board erred in stating that the principal applicant provided "no explanation" in certain areas. Such explanations should have been addressed by the Board in its reasons and clear reasons provided for not accepting them.
[25] First, the Board stated in its reasons that the principal applicant was unable to provide an explanation as to why her husband could not obtain her daughter's birth certificate in Vavuniya, but instead the copy of the birth certificate provided at the hearing had been issued in Colombo and picked up by a family friend and sent to Canada. At page 69 of the hearing transcript, the following exchange took place between the RPO and the principal applicant:
Q. Why wouldn't your husband be able to get your Birth Certificate from Vavuniya since... the daughter's Birth Certificate from the district of Vavuniya since that's where she was born and that's where her birth was registered?
A. When the files are closed, we'll have to come to Colombo to obtain this.
[26] The Board stated at page 3 of its reasons that the principal applicant had no explanation for the fact that her husband could not obtain their daughter's birth certificate in Vavuniya. This statement is not true in light of the principal applicant's testimony reproduced above, and therefore the Board erred in this regard and should have addressed such explanation in its reasons, setting out why it did not accept it in clear and unmistakable terms. See: Muthukumar v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 152 (T.D.)(QL) and Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL).
[27] Next, the Board erred in misconstruing the principal applicant's testimony concerning what she did in Colombo for the 18 days that she and her family stayed there, prior to her departure for Canada. The Board stated at page 4 of its reasons:
The claimant also provided contradictory evidence with respect to her time in Colombo. Initially the claimant testified that she did not go out, rather [s]he stayed at home, and her husband would go out, in order to prepare the arrangements for them to leave the country. however, this contradicts her written evidence that she had gone out soon after her arrival and was actually arrested by the Colombo police. The claimant had no explanation for the contradiction. ...
[28] At page 23 of the transcript, the principal applicant testified in response to the question of what she did for the 18 days she spent in Colombo, she stated that she stayed at home while her husband went out, and that she was arrested by the police on the 8th day of that month. The Board member questioned her on this, maintaining that she initially stated that she never went out of the house in Colombo, but later changed her testimony to state that she did go out of the house on December 8th to buy some clothes. I accept the applicants' submission on this point, that the Board misconstrued the principal applicant's evidence and appears to have been overly microscopic in looking for a contradiction in testimony. I refer to Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) on this issue, and that the Board should not be overzealous or microscopic in questioning a claimant, particularly when the claimant is testifying through an interpreter.
[29] Finally, the principal applicant provided an explanation as to why she and her family did not leave Vavuniya until six months after the June 2001 incident with the Sri Lankan army. At page 20 of the transcript the following exchange with counsel took place:
Q. Is there any reason why it took six months for you to leave from Vavuniya?
A. We wanted to leave immediately, but the attack on the airport in Colombo was the following month. Because of [this] the agent said at the correct time I'll [let] you know, you better come when I say to come.
[30] The Board did not address this explanation provided by the principal applicant as to why she and her family delayed in leaving Vavuniya. In this regard, the Board also erred in not providing clear reasons as to why such explanation was not accepted.
[31] Overall, however, I am satisfied that the Board's findings regarding the principal applicant's explanations to questions about her identity documents affected her overall credibility, and that such findings are not patently unreasonable. The result of the Board's negative credibility findings, is that the Board did not believe that the applicants were from the Vavuniya area and that the principal applicant had fabricated her claim.
[32] It is well established that the Board is entitled to draw adverse credibility findings on the basis of contradictions and inconsistencies in a claimant's evidence, including their Personal Information Form ("PIF"), testimony and other evidence: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.) (QL).
[33] This court should not interfere with the Board's assessment of credibility, as the Board had the advantage of seeing and hearing testimony, unless it is satisfied that the Board based its conclusion on irrelevant considerations or ignored evidence: Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.)(QL) and Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.) (QL). Having carefully reviewed the tribunal record, I can't come to that conclusion.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
I HEREBY CERTIFY that the above document is a true copy of the original filed of record in the Registry of the Federal Court the __________ day of _____________ A.D. 2004
Dated this _______ day of _______________, 2004
_______________________________
Name, Title of Officer
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1024-03
STYLE OF CAUSE: UNNAMALAR NARASINGHAM, KAYATHARI JOKANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 26, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: FEBRUARY 26, 2004
APPEARANCES BY:
Ms. Maureen Silcoff FOR THE APPLICANTS
Ms. Angela Marinos
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Maureen Silcoff
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040226
Docket: IMM-1024-03
BETWEEN:
UNNAMALAR NARASINGHAM, KAYATHARI JOKANATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER