Date: 19980731
Docket: IMM-5186-97
BETWEEN:
BAGAWATHY KANAPATHIPILLAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] As a 68 year old Tamil Sri Lankan woman born in Jaffna, who resided in northern Sri Lanka, the applicant asserts she was persecuted by both the LTTE and the Sri Lankan authorities. According to the evidence, the incidence of violence and persecution suffered by the applicant and her family members are as follows:
| " in September, 1990, the applicant's daughter was killed during a shelling attack by the Sri Lankan army; |
| " on April 2, 1992, her husband was killed when the temple he was attending was bombed by the Sri Lankan army; |
| " the applicant's grandson was arrested in September, 1998 and detained for a week by the IPKF on the basis that he was suspected to be a LTTE member because of his age; |
| " for the 5 years previous to her fleeing, the applicant was forced by the LTTE to work for them at their camp. She was required to cook and to tend to their wounded and sick members; |
| " in June, 1995, the LTTE detained the applicant's son for 2 weeks because he refused to pay Rs50,000 toward the LTTE war fund. The applicant gave her gold jewellery in exchange for the release of her son. Fearing for his life, her son obtained a false LTTE pass and fled in August, 1995; |
| " while another son of the applicant's was on his way to Colombo, he was arrested by the PLOT members who suspected him to be a member of the LTTE. To date, this son has never been seen or heard from again; |
| " in September, 1995, the applicant fled where she was living and went to Kilinochchi with her grandson and son-in-law. In July, 1996, the Sri Lankan army attacked the area and the applicant fled to a refugee camp in Mankulam; |
| " while at the refugee camp the LTTE demanded that she pay Rs 200,000 to their war fund. They threatened that if she did not pay them within 3 months that she would be detained; |
| " before the expiry of the three month period, the applicant became ill with an ear infection and a fever. She managed to get a LTTE pass so that she could go to Colombo to get medical treatment on the condition that she would arrange for the money to be paid to the LTTE; |
| " on October 26, 1996, the applicant arrived in Colombo where she stayed in a private medical clinic for 3 days after which she was discharged on October 29, 1996 and went to stay in a lodge; |
| " On October 29, 1996, the applicant was arrested by the Colombo police and accused of providing the LTTE with money. The applicant testified that she was detained for two weeks, beaten and interrogated twice. She was released when she paid a bribe and was told to leave Colombo otherwise she would be arrested and interrogated further about supplying money to the LTTE; |
| " after her release, the applicant went into hiding until she was able to flee Sri Lanka to Canada. |
[2] In an oral decision given after very brief deliberation, and subsequently confirmed in writing, the CRDD set the issues in this case as follows:
| The panel identified at the outset of the hearing that the relevant issues for determination were credibility, and the existence of an internal flight alternative (IFA) in the city of Colombo. |
[3] I find that the critical decision in this case is that of credibility since the negative finding made pervades all issues of subjective and objective fear of persecution. The CRDD found that the applicant was not credible for the following reasons:
| ...the panel has found certain areas of the claimant's testimony to be lacking in plausibility, and that the evidence is not credible. Firstly, the panel does not find it credible that the claimant would be detained for two weeks and then released despite the serious allegation of complicity with the LTTE. |
| The panel notes that the POE [Port of Entry] notes were translated to the claimant in her native language and that the question in the POE asking what is the basis of the claimant's fear of return to Sri Lanka is quite clear. The claimant's explanation provided at the hearing was not satisfactory to explain the omission from the POE notes of her experiences at the hands of the Colombo police in view of the lengthy detention, and the physical mistreatment allegedly suffered in Colombo. |
| The claimant states in the POE notes, "I have never been physically assaulted or threatened with harm". In relation to this statement, there is no specific reference to the LTTE or to Sri Lankan military. The panel finds that the omission of the details in relation to the arrest, detention and mistreatment are significant omission. |
[4] Respecting the first element of the negative finding of credibility, counsel for the respondent could not identify any place in the record which would substantiate the CRDD's belief that it was not "credible that the claimant would be detained for two weeks and then released despite the serious allegation of complicity with the LTTE".
[5] Counsel for the respondent stated that the CRDD is a specialized tribunal, and, accordingly, its judgement is based on its experience with a wealth of cases in this area of the law. However, in my opinion, for such a critical finding to be made, it is necessary to state clearly its evidentiary base. I find the statement of the CRDD is without an evidentiary base, and, accordingly, is sheer speculation. It is, therefore, an erroneous finding of fact that is made in a capricious manner.
[6] The POE notes referred to in the second part of the credibility finding quoted above, which were recorded by an immigration officer through a interpreter at the time the applicant claimed refugee status, are, in their entirety, as follows:
| My daughter and my husband were killed in bombir [sic] incidents. My son is missing since August 1996. L.T.T. was pressuring me for money as two of my sons are in Saudi & Bharain. I have never been physically assaulted or threatened with harm. My house and store were taken away by the L.T.T. |
[7] In my opinion, the second part of the negative credibility finding made is remarkably unfair, and is without regard to what the applicant stated in her testimony before the CRDD. The following is the portion of the transcript of the hearing before the CRDD (Tribunal Record, p. 574) where the applicant was questioned about the notes:
| COUNSEL: Unless the panel has any, oh, sorry, (inaudible). Do you recall being interviewed when you first entered the country? |
| CLAIMANT: Yes. |
| COUNSEL: Was there an interpreter present? |
| CLAIMANT: Yes. |
| COUNSEL: Do you recall the kinds of questions that you were asked? |
| CLAIMANT: One of the questions was, that if I was up beaten by the Tigers? I said (inaudible) did not beat me, the Tigers did not beat me up, but threatened that I should (inaudible) money to them, (inaudible) bring money for them. |
| COUNSEL: Do you remember the specific questions that you were asked? |
| CLAIMANT: Not all of them. |
| COUNSEL: There is a summary in these notes, which the Immigration officer has made. |
| CLAIMANT: Yes. |
| COUNSEL: I don't see within the summary, mention of your problems in Colombo. |
| CLAIMANT: Neither they asked me, nor did I tell. |
| ROWSELL: Madam, respectfully, it does say, basically, to describe the basis for your refugee claim. That would include all the reasons why you left Sri Lanka. |
| COUNSEL: Do you remember how long the interview lasted? |
| CLAIMANT: About 10 minutes. |
| COUNSEL: And how was that time spent, as best you can recall? |
| CLAIMANT: In that time period, they asked me for the name of the agent. And how, what (inaudible) looked like, what type of a person he was. And where did you go, what was the places you went to, before coming. And then they gave me instructions as to what has to do with these forms and as to what I should do after that. |
| GOLDMAN: (inaudible) taken with the claimant and then transmitted to the Immigration office or (inaudible). |
| COUNSEL: No, I think you're, no, I believe that you're referring to the (inaudible) this is not (inaudible). |
| ROWSELL: Oh, no it's not that. |
| COUNSEL: Did the, were the notes taken by the Immigration officer translated to you? |
| CLAIMANT: No, she, after asking me that in Tamil, told him in English. |
| COUNSEL: Okay, that's the interpreter? |
| CLAIMANT: Yes. |
| COUNSEL: And you said before that you weren't asked about Colombo. |
| CLAIMANT: Yes. |
| COUNSEL: What, if you can explain what you mean by that? |
| CLAIMANT: I replied only to what they asked for, and they asked me, where did you go from Colombo, and where are you coming from. |
| COUNSEL: Okay. Why did you tell them about your problems in the north? |
| CLAIMANT: They asked me (inaudible) this, and why did, why did you come from there? Immediately I said, that my son (inaudible). I said that I had problems with the Tigers when I was there. I said that they were causing me trouble, asking me money. It was then they asked me if they beat me up. I said that they did not beat me up, but they threatened me verbally. They did not ask me anything else, and I didn't tell them, I also didn't tell them anything. |
[8] In this evidence, the applicant clearly states why the few words transcribed during the twenty minute interview did not tell a full story. It is entirely reasonable for anyone being asked to account before an authority figure, let alone this 68 year old woman speaking through an interpreter after arriving in a strange country, to only answer the questions asked of her.
[9] Therefore to say, without reasons, that the applicant's explanation is "not satisfactory", in my opinion, amounts to an erroneous finding of fact made in a capricious manner, and without regard to the evidence.
[10] On the basis of the errors found under s. 18.1 (4)(d) of the Federal Court Act, I set aside the CRDD's decision and refer this matter to a differently constituted panel for reconsideration.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5186-97
| STYLE OF CAUSE: |
BAGAWATHY KANAPATHIPILLAI
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: THURSDAY, JULY 30, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: FRIDAY, JULY 31, 1998
APPEARANCES:
Ms. Jacqueline Lewis
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD:
| Lewis & Associates |
| 175, Harbord Street |
Toronto, Ontario
M5S 1H3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980731
Docket: IMM-5186-97
Between:
| BAGAWATHY KANAPATHIPILLAI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
AND ORDER