Docket : IMM-3476-03
Ottawa, Ontario, this 14th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MANIVANNAN SUBRAMANIAM
Applicant
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 (the "Board"), dated April 24th, 2003, wherein the Applicant was denied Convention refugee status and it was determined that the Applicant was not a person in need of protection.
STANDARD OF REVIEW
[2] The primary ground for this application is the credibility and plausibility findings of the Board. The Board rejected the Applicants' refugee claims because they found that the evidence presented by the Applicant was not credible, nor plausible. The Board is an expert tribunal in determining refugee claims and has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) where the Federal Court of Appeal said:
Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[3] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[4] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
FACTS
[5] The Applicant is a citizen of Sri Lanka who alleges a fear of persecution based on his political beliefs and membership to a particular social group, namely that he is a Tamil from northern Sri Lanka. The Applicant left Sri Lanka in 1994 and claimed refugee status in Germany. His refugee claim was rejected in 1995, but the Applicant remained in Germany until November 2001, when he left for the United States of America. Upon his arrival in the US, he was detained for travelling on a false passport and was released on a bond on January 7th, 2002. Two days later he came to Canada and claimed refugee. The Applicant is married with a daughter. His brothers and one sister who live in Toronto have been accepted as refugees in Canada.
THE BOARD'S DECISION
[6] The Board rejected the Applicant's claim on two grounds. First, the Board found that the Applicant lacked general credibility and gave several reasons, including:
a. the overall quality of the Applicant's testimony was deemed poor. It was difficult to elicit consistent and coherent answers from the Applicant, who did not tend to answer questions directly and had a tendency to repeat the central incidents outlined in his written narrative even though they had no relevancy to the questions asked;
b. there were discrepancies between the Applicant's testimony and his US Immigration and Naturalization Service (INS) interview regarding his detention in 1994 as well as regarding his status in West Germany from September,1994 to November, 2001; and
c. the Applicant provided contradictory evidence between his oral statements and those contained in his Personal Information Form (PIF)concerning his reasons for moving to Galle in the south. The Board concluded that this contradiction brought into question his decision to leave Sri Lanka.
[7] The Board also found that the Applicant's alleged fear of persecution in Sri Lanka was not well-founded in that, based on current country conditions established through documentary evidence, he failed to establish that there is a serious possibility or reasonable chance that he would be persecuted should he return to Sri Lanka.
ANALYSIS
Credibility and Implausibility
[8] The central issue in this claim is whether or not the Applicant is credible. To reach a determination in this matter I am therefore guided by the principles set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.) ("Maldonado") and those set out in Rajaratnam v. Canada (Minister of Employment and Immigration) [1991] F.C.J. No. 1271" However in Maldonado it was made clear that the Board must have valid reasons for finding that an Applicant lacks credibility. The decision in Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1980] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was set aside because it was based on inferences that were unsupported by the evidence. As stated in Bains, this is because a reviewing court, depending on the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
Psychological Report:
[9] In this case the Applicant's credibility was in question as was the plausibility of his claim and the Board was required to satisfy itself, on the basis of the evidence presented, that there were grounds to support its decision. On page 4 of the reasons for decision the Board essentially concluded as follows:
In assessing the claimant's credibility, the panel has considered the psychological report carefully. However, it is the panel's observation that the claimant did not have difficulty to testify to the traumatic events. As a matter of fact, he repeatedly referred to the painful events that he would have experienced in Sri Lanka, including his daughter's injuries, his assault and police detention in the south. Here, the claimant's capacity to testify did not conform to the general behavioural pattern of the people who suffer PTSD as noted in [the] report. The panel is of the view that the claimant's inconsistency and incoherence are mitigated by his lack of credibility rather than his psychological problems.
[10] The Board having considered the psychological report, concluded while taking into account the Applicant's psychological profile, that his testimony was inconsistent as well as incoherent and all of which impacted on the assessment of his credibility. Such an approach shows, as was the case in Dekunle v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1403, that the Board read and considered the psychological report, but concluded that the diagnosis did not alter its findings of fact:
Here the Board did consider the psychological report and decided that it did not influence its analysis of the facts. If the Board had dismissed [the] claim solely on the basis of his demeanour or his inability to recall certain events, the report might have been more central to the Board's evaluation of the evidence. However, it also noted serious contradictions and implausibilities and omissions in [the Applicant's] testimony. In these circumstances, the Board was entitled to assess the impact of the report in light of the whole of the evidence and assign it little weight: Al-Kahtani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 335 (QL) (TD); Canizalez v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1492; and Boateng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 517 (QL) (TD).
As it will be seen, the Board did find contradictions and implausibilities and omissions which were not explained in a satisfactory way.
INS Testimony:
[11] With regards to the finding that the Applicant gave contradictory testimony regarding his 1994 detention, the Board noted discrepancies between his oral statements before them and the notes taken during his INS interview in the US. Specifically, the INS report notes that the Applicant claims to have been detained by Sri Lankan police in 1994, but it makes no mention of the beating he reported to the Board. The only INS report reference to physical abuse is made with regards to incidents with the military that would have occurred in 1990. Considering what evidence the Board had before it, I consider that this is not a patently unreasonable conclusion.
PIF:
[12] The Board found an inconsistency between the Applicant's oral testimony and his PIF with regards to his reason for moving to the town of Galle in southern Sri Lanka. In oral testimony, the Applicant stated that he moved because he wanted to find a safe place to live with his family. In his PIF, he had stated that he moved there to work. The transcript reveals that the Board addressed this issue with the Applicant and gave him an opportunity to reconcile the conflicting reasons for his move to Galle. Considering the evidence that was presented, I find that it was not patently unreasonable for the Board to conclude negatively on credibility when faced with such inconsistency.
Departure from Sri Lanka:
[13] The Board also found that there was inconsistency between the Applicant's testimony and the documentary evidence with regards to his decision to leave Sri Lanka. The Applicant testified that he had not decided to leave the country until after the April 1994 assault in Galle. However, the Applicant had already obtained his passport two months prior to the assault arguing that it was reasonable for him to do so because of the previous troubles he had experienced in Sri Lanka. However the Board rejected this explanation because the Applicant had earlier testified that his objective in moving south to Galle was to reunite his family. The Board found, on the basis of the evidence presented, that the aim to reunite was inconsistent with his preparation to leave the country alone. I find that such a conclusion is not patently unreasonable.
6 years in Germany
[14] The Board also determined that the Applicant's testimony with regards to his status as a refugee in Germany was not credible. The Board came to this conclusion based on German policy establishing a one month departure deadline for unsuccessful refugee claimants and the Applicant's inability to explain how he had managed to remain in Germany over six years after he was denied refugee status. While the Board did not question the fact that the Applicant was in Germany between 1995 and 2001, it drew a negative finding regarding credibility because the Applicant could not explain his status during that time, nor provide a satisfactory answer as to how he was able to avoid the one month departure deadline.
[15] However, in arriving at such a finding the Board was not aware of a letter from the Embassy of the Federal Republic of Germany dated May 12th, 2003 which supports the Applicant's testimony. This letter arrived 3 weeks after the Board's decision was rendered. Therefore, the Board was functus officio. This new information does not change my overall conclusion since my global assessment of the decision (excluding the Applicant's status in Germany) is that it was not patently unreasonable for the Board to determine that the Applicant was not credible.
ADDITIONAL COMMENT
[16] Furthermore, the Board concludes in its decision that the Applicant has not met the onus of establishing that he has a well-founded fear of persecution. The Board cited documentary evidence showing that Tamils fleeing persecution in the north can generally find safe haven in the south and noted that there was now a permanent cease-fire between the Sri Lankan government and the Tamil Tigers. The Respondent further submitted that the Applicant had failed to address any issue relating to the Applicant's lack of a well-founded fear of persecution and claims that the BBC news articles submitted by the Applicant suggest that the levels of violence in Sri Lanka have "declined impressively since the permanent cease-fire was signed".
CONCLUSION
[17] Based on my review of the Board's decision, the hearing transcript as well as the parties' written and oral submissions, I am of the opinion that the Board considered all of the relevant evidence before rendering its decision. I therefore find, based on a standard of patent unreasonableness, that the Board did not err.
[18] No question was put forward for certification by either party.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3476-03
STYLE OF CAUSE: SUBRAMANIAM v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Wednesday June 9, 2004
REASONS FOR ORDER : Mr. Justice Simon Noël
DATED: June 14th, 2004
APPEARANCES:
Ms. Krassina Kostadinov FOR PLAINTIFF / APPLICANT
Mr. Jamie Todd FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Waldman & Associates
Toronto, Ontario FOR PLAINTIFF/APPLICANT
Mr. Jamie Todd
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT