IMM-4730-96
B E T W E E N:
THIRUNAVUKARASU KANDASAMY
DIVIUA THIRUNAVUKARASU
(BY HER LITIGATION GUARDIAN:
THIRUNAVUKARASU KANDASAMY)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
The applicants seek an order setting aside a decision of the Canadian Refugee Determination Division of the Immigration and Refugee Board ("the Board"). The decision found them not to be convention refugees.
The applicants are a 68 year old father and his 24 year old daughter. They came from the northern part of Sri Lanka. The father was a teacher and school principal for many years. As such he was a Sri Lankan government employee for over 30 years.
He spent a year and a half in India (July 1988 to December 1990), so that his daughter could be treated at a rehabilitation school for retarded children there and, then, they returned to Jaffna via Colombo. He was harassed in Jaffna by the L.T.T.E. attempting to extort money, in ways that one is used to seeing described in these cases. An ex-student of his who was living in the Colombo area suggested that the applicants leave the country. The ex-student told the applicant that he knew an agent who could arrange for this. Arrangements were made. The applicants left Jaffna in October 1995 with the intention of spending a few days in Colombo, passing through, on the way to Canada.
The Board's analysis of the applicants' claim focused on whether he and his daughter had an I.F.A. in Colombo. In analyzing whether such existed, the Board noted that the male applicant's testimony, that the Sri Lankan government's policy was to destroy the Tamil race, was a gross exaggeration. The Board stated that it did not believe that he did not have contacts, e.g. ex-students, in Colombo. It found that he was entitled to a Sri Lankan government pension; his evidence had been that he was having trouble collecting it.
The aspect of the Board's decision that is particularly under attack, in this review application, is its preference for documentary evidence, over the male applicant's oral evidence concerning the treatment the applicants received at the hands of the police when they were in Colombo. The male applicant, who gave evidence on behalf of both himself and his daughter, stated that they had been arrested from the lodge at which they were staying and subjected to severe physical abuse. His daughter, particularly, had been the object of such abuse because the police had taken her lack of communicativeness to be an indication that she was hiding something.
He gave evidence that he was released on the same day that he was arrested, after paying a bribe, and that his daughter was released the following day, after he provided the authorities with medical documentation pertaining to his daughter's condition.
The Board stated that it considered the applicants' description of the abuse they suffered while in detention to be exaggerated. The reason given for this finding was that "the treatment of the claimants during police detention as described by the male claimant differs from that described in the documentary evidence. Even if the panel were to believe the detention occurred, it believes that the alleged police mistreatment to be exaggerated". The Board also stated "the panel prefers the documentary evidence to the male claimant's oral evidence, and finds that due to his age, he is not of the profile scrutinized by the Sri Lankan police".
Counsel for the applicants argues that the Board's decision must be set aside because it has given no reason for preferring the documentary evidence over the direct evidence of the applicant. Secondly, he argues that the Board referred in its reasons only to documentary evidence that originated with the Canadian High Commission. It did not refer to a document carrying a later date published by Amnesty International.
The Board referred to Canadian High Commission documentation that describes the situation in Sri Lanka as it existed after April 19, 1995, the date of the termination of the cease fire. The Board notes that the documentation states that in Colombo: (1) the treatment of people [Tamils] held in short term detention for identification checks is regarded by N.G.O.'s as being consistent with law; (2) the risk of physical and mental abuse during such detention is very low and that incidents when abuse has occurred are isolated and not systematic; (3) young Tamil women are increasingly becoming subject to these checks because the L.T.T.E. employ women as combatants; (4) specific safeguards do exist with respect to the detention of women, such as having women held in the custody of a woman's unit or at least in the presence of a female staff member. The documentation also notes that the Tamils who are under scrutiny are those who are transients or temporary residents of Colombo.
A review of the Amnesty International document does not undermine the information referred to by the Board as contained in the Canadian High Commission communications. The Amnesty International document refers to approximately the same period of time; the information in it is not significantly more up-to-date. The document is, however, written from a different perspective It focuses on the instances when human rights abuses have occurred. It does not describe a situation of full scale persecution of Tamils in Colombo. It describes the situation in all of Sri Lanka and indicates that much of the abuse documented relates to the resurgence of conflict in the north and east of the country. (Some by non-government controlled Tamil groups that oppose the L.T.T.E.) Failure to refer specifically to that document was not an error.
I have reviewed the cases to which counsel referred as authority for the proposition that a Board cannot prefer documentary evidence over that given directly by a claimant to the Board without expressly stating why: Okyere-Akosah v. Canada (Minister of Employment and Immigration (May 6, 1992, A-92-91) (F.C.A.) and Olschewski v. Canada (Minister of Employment and Immigration), (October 20, 1993, A-1424-92), (F.C.T.D.) I have also considered the jurisprudence that states that a Board, when disbelieving a claimant, must give its reasons for casting doubt on his or her credibility in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L. R. (2d) 199 (F.C.A.)
Neither the Okyere-Akosah nor Olschewski decisions are similar to the situation in this case. In the Okyere-Akosah case the claimant gave evidence that he belonged to a church, which the government banned, at a time when the government was requiring all religious bodies to register with the government. The Board relied on an article in a magazine, called West Africa, for a finding that the church to which the applicant said he belonged was engaged in some rather dubious practices (sexually exploiting women, excessive accumulation of wealth), practices about which the claimant did not know. The claimant had testified that these allegations were untrue and mere government propaganda. The Court held that the Board could not prefer the magazine article's description over the applicant's evidence without stating in clear terms why it did so. This was particularly so given that another edition of the same magazine reported the ban of three other churches and the protests of prominent religious leaders.
In the Olschewski decision, while the statement is found that "the Board....regrettably failed to articulate in any manner whatsoever its reasons for preferring the documentary evidence over the evidence of the applicants", the Court also stated "the Board may have believed that the evidence of the applicants did not reveal a well-founded fear of persecution, but it failed to make this finding".
In neither case was the failure to give explicit reasons for preferring the documentary evidence over the direct evidence of the claimant the sole reason for finding the Board had committed an error. In the Okyere-Akosah case, it was in the context of the Board's failure to weight all the evidence, including other editions of the same magazine, that was the focus of the decision. In the Olchewski case, the reference to a preference for the documentary evidence over the direct evidence of a claimant was made in the context of a failure of the Board to make a finding as to whether or not a well-founded fear of persecution existed.
It has been repeatedly said that in making credibility findings Boards must consider all the evidence. I do not think the Board did anything other than this in this case. It had found the claimant's evidence in other areas to be exaggerated. In that context, it looked at the applicant's description of what had occurred in the light of the documentary evidence and made a finding that the applicant had exaggerated in this area too. The danger in preferring documentary evidence over an applicant's direct evidence, is that documentary evidence is usually general in nature. An applicant's recitation of what occurred to him, or her, is particular and personal. Thus, without some clear explanation as to why the general is preferred over the particular one may doubt a conclusion that is based on a preference for the former over the latter. However, that is not the situation in the present case. The Board's conclusion arising from its reliance on the documentary evidence is reasonable in the context of the evidence as a whole.
More importantly, however, even if the Board undervalued the applicants' evidence as to what occurred to them in Colombo, this would not undercut the Board's decision. That decision focused, as it had to, on what was likely to happen to the applicants should they return to Sri Lanka. Even if the applicants suffered more extreme abuse, on the one occasion when they were detained in Colombo, than the Board recognized, this would not undercut the decision that their fear of persecution, should they return, was not well-founded.
For the reasons given the application is dismissed.
"B. Reed"
Judge
Toronto, Ontario
November 5, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4730-96
STYLE OF CAUSE: THIRUNAVUKARASU KANDASAMY
DIVIUA THIRUNAVUKARASU
(BY HER LITIGATION GUARDIAN:
THIRUNAVUKARASU KANDASAMY)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: NOVEMBER 5, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: NOVEMBER 5, 1997
APPEARANCES:
Mr. Micheal Crane
For the Applicants
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
Mr. Micheal Crane
Barrister and Solicitor
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-4730-96
Between:
THIRUNAVUKARASU KANDASAMY
DIVIUA THIRUNAVUKARASU
(BY HER LITIGATION GUARDIAN:
THIRUNAVUKARASU KANDASAMY)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER