Date: 20040129
Docket: IMM-724-03
OTTAWA, Ontario, this 29th day of January, 2004.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
PARAMESWARY NEETHINESAN, and
NEEROJA NEETHINESAN,
PUVISAN NEETHINESAN, and
NIRUJAN NEETHINESAN,
by their Litigation Guardian,
PARAMESWARY NEETHINESAN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated January 7, 2003 wherein the Board determined that the applicants are not Convention refugees or persons in need of protection.
THE FACTS
[2] The principal applicant, Parameswary Neethinesan ("applicant"), is a 27 year old citizen of Sri Lanka. The minor applicants are her three children ages 8, 6 and 4 years old at the time of the hearing. All three children were born in Switzerland but claim to be citizens of Sri Lanka; the children rely on their mother's claim and have not presented separate or independent narratives. The applicants arrived in Canada in October 23, 2000 and immediately made refugee claims. They claim to fear persecution in Sri Lanka at the hands of the Sri Lankan security forces, and the Liberation Tigers of Tamil Eelam ("LTTE"), because they are Tamils from the north of Sri Lanka.
[3] On December 22, 2000 the applicant submitted a PIF stating the following false allegations: that she was married in 1993 and living with her husband in Jaffna; in 1994 she bribed the LTTE to spare her husband from forcible recruitment; in 1996 the Sri Lankan Army arrested her husband and beat him up, on suspicion that he was an LTTE supporter but was released after she paid a bribe of 30,000 rupees; in December, 1999 her husband was taken to the LTTE camp in Kokuvil and forced to undergo arms training for two weeks; she and her family fled Sri Lanka for Canada, via Singapore, but her husband was left behind by the agent in Singapore. She submitted fraudulent documents to support these claims.
[4] Canadian authorities discovered the applicant's documents were fraudulent. As a result, on May 17, 2002 the applicant submitted an amended PIF in which she admitted that she had falsified the information on her PIF. In the amended PIF she alleged the following: the LTTE attempted to forcibly recruit her when she was 14 years old; she was taken to the LTTE camp where she was forced to watch arms training and to do odd jobs; she left Sri Lanka for Switzerland when she was 15 years old with the help of an agent hired by her brothers residing in Switzerland; three years later, her brother arranged a marriage to a Mr. Tharmalingham Neethinesan in Switzerland, who began to mistreat her and their children; he was addicted to alcohol and became increasingly abusive and violent. The applicant alleges that she fled Switzerland because her husband had become a terror and his abuses were sadistic and terrible to describe.
[5] The Board provided the following reasons for refusal, beginning at page 12:
I consider the principle established by the F.C.A. in Dan-Ash that such presumption of truthfulness may be rebutted by the existence of contradictions in the evidence presented by the claimant and that it is a valid basis for a finding of lack of credibility. ...I also consider significant inconsistencies and omissions in the claimant's evidence to be pertinent in determining the credibility of the claimant.
With respect to the false evidence submitted the Board stated at page 8 of the reasons:
The claimant's only explanation for the misrepresentation of facts and for submitting fraudulent documents to the RPD was that she followed the advice of an agent in Switzerland and also listened to the opinion of someone called Rajah in Toronto. [...] I consider that being ill advised or misinformed by an agent does not relieve a claimant of her obligation to be truthful in presenting her refugee claim. The claimants were assisted by an experienced lawyer in the preparation of their PIFs and in pursuing their refugee claims for several months with the RPD[...] The presentation of fraudulent documents and false evidence in support of claims to refugee status is a very serious matter. It undermines the integrity of the claimants' overall evidence in support of their claims. Because of the series of concealment and misrepresentation of material facts and attempt to mislead the RPD and not having a reasonable explanation for so doing, I draw an adverse inference as to the principal claimant's credibility as a trustworthy witness.
With respect to the allegations of domestic abuse the Board stated at page 11 of the reasons:
I find, on a balance of probabilities, the claimant's story of domestic abuse implausible. The claimant's allegation of domestic abuse also was first mentioned only in her amended PIF. If her allegation of domestic abuse were true, it is reasonable to expect that she would have mentioned it prior to the discovery by the RPD that the birth certificates she had submitted for her three children were fraudulent and, consequently the fact that she had not lived in Sri Lanka from 1990 to 2000, the period where she allegedly suffered from persecution in that country, must have been revealed. I therefore draw an adverse negative inference of credibility for such a significant amendment to the claimant's PIF. [emphasis added]
ANALYSIS
[6] The applicant raises the following issues:
(i) did the Board err by ignoring or misinterpreting evidence in assessing the applicant's credibility;
(ii) did the Board ignore relevant evidence in determining that the applicants do not fit the profile of those targeted by the LTTE or Security Forces; and,
(iii) did the Board err by failing to assess the refugee claims of the minor applicants separately from that of the applicant.
[7] The applicant submits that the Board failed to properly assess her as a member of a particular social group defined by innate or unchangeable characteristics, namely a Tamil from the north of Sri Lanka. The applicant contends that, irrespective of the negative credibility finding, the Board had an obligation to determine if she had an objectively well-founded fear of persecution. The applicant submits that the Board erred by ignoring the documentary evidence, and failing to provide specific reasons why the claims of the minor applicants were rejected.
[8] The respondent submits that the Board's credibility finding was reasonably open to it. The respondent contends that the Board correctly found that there was no objective basis for the applicant's fear of persecution. The respondent contends that it is not now open to the applicant to allege that the claims of her children should have been considered separately, since she failed to submit any independent or additional evidence that warranted a different consideration from hers.
Credibility and Identity
[9] I find that I am not able to accept any of the applicant's submissions. The outcome of the refugee hearing in question rested heavily on the applicant's credibility. With respect to the Board's credibility finding, it is established that this Court not interfere unless such a finding is
patently unreasonable. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
[10] The applicant's deliberate attempt to mislead the Board with false information and fraudulent documents tainted her credibility to the extent that the only fact the Board was willing to accept is that she is a citizen of Sri Lanka. While she was accepted by the Board as a citizen of Sri Lanka, the Board had no reliable evidence to establish her identity as a Tamil from the north.
Profile of the Claimant as Targeted by the LTTE or Security Forces
[11] I do not find that the Board ignored relevant evidence in determining that the applicant does not fit the profile of those targeted by the LTTE, or Security Forces. The Board stated at page 15:
I do not accept Counsel's arguments, as the claimants do not fall into the category of young single female or male Tamils who are profiled or targeted and who might be at risk. According to available documentary evidence, the claimant as a 27-year-old married woman and a mother of three young children does not fit into the profile of a person targeted by the LTTE or the Sri Lankan Security Forces. [...] Particularly, in the current substantial progress made in the peace process in Sri Lanka and given her profile, I do not believe that the claimant or her children would be of interest to the LTTE or the Sri Lankan Security Forces.
[12] The Board shows that it did consult the documentary evidence. It is not the role of the Court on judicial review to re-weigh the evidence. Furthermore, the Board's examination of the Applicant's profile indicates an objective assessment her claim of persecution, since it enables a comparison with persons similarly situated. The claimant left Sri Lanka 12 years ago when she was only 15, and it is not reasonable to expect that the LTTE would be interested in her.
Minor Applicants' Claims
[13] With respect to the minor applicants' claims, the applicant failed to submit any independent or additional evidence that warranted a different consideration from hers; rather their claims completely relied on her claim as principal applicant. At page 17 the Board provides a brief, but clear reason why the minor applicants' claims failed:
The claim of the principal applicant having failed and absent any relevant evidence to distinguish their claims, the claims of all three minor applicants must fail as well.
[14] The Board did consider whether the children would be of interest to the LTTE or the Sri Lankan security forces. The Board stated at page 16 of it reasons:
[...] I do not believe that the claimant or her children would be of interest to the LTTE or the Sri Lankan Security Forces.
The claimant's vive voce evidence before the hearing at page 27 of the transcript was:
Counsel: I'd like to ask about your children. Are your children safe in Sri Lanka?
Claimant #1: No
Counsel: And why not?
Claimant #1: I have a son, the oldest 8 years old, and it is normal for the Tigers to recruit children of 19 years.
This evidence from the claimant accords with some of the documentary evidence that children aged 19 years are recruited. At the time of this hearing, the children were 8 years of age and younger, so that Board's finding that the children did not fit the profile of children at risk was not patently unreasonable. The Board has expertise and knows that young children aged 8, 6 and 4 years old are not likely to be recruited by the LTTE.
CONCLUSION
[15] The Board made findings of fact and credibility with respect to the claim. The Court cannot interfere unless such findings are patently unreasonable. In this case the claimant was caught in her lies, left Sri Lanka 12 years ago, and did not convince the Board that her refugee claim and here children's claims are well-founded or credible. With respect to the minor children the Board did briefly consider their situation against the objective evidence, and concluded that they are not at risk because of their young ages.
[16] The Court and the parties agree that this case does not raise a question of general importance for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-724-03
STYLE OF CAUSE: Parameswary Neethinesan et al.
Applicants
- and -
The Minister of Citizenship and Immigration
Respondent
DATE OF HEARING: January 22, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Kelen
DATED: January 29, 2004
APPEARANCES BY:
Ms Kristina Kostandinov For the Applicant
Ms. Neeta Logsetty For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Waldman and Associates
Toronto, Ontario
M4P 1L3 For the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
Date: 20040129
Docket: IMM-724-03
BETWEEN:
PARAMESWARY NEETHINESAN, and
NEEROJA NEETHINESAN,
PUVISAN NEETHINESAN, and
NIRUJAN NEETHINESAN,
by their Litigation Guardian,
PARAMESWARY NEETHINESAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER