Federal Court of Appeal Decisions

     A-1676-92

IN THE MATTER OF the Immigration Act, R.S.C. 1985, c. I-2, S.C. 1988 C 35 and Amendments and Regulations thereto;

AND IN THE MATTER OF a decision of the Immigration and Refugee Board, Convention Refugee Determination Division, regarding the refugee claims of Thevarajah Supramaniam: File No. U90-00387;

AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms.

BETWEEN:

     THEVARAJAH SUPRAMANIAM

     Applicant

     - and -

     THE MINISTER OF EMPLOYMENT

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, C. I-2, (the "Act") of a decision of the Convention Refugee Determination Division (the "CRDD") dated July 10, 1992, whereby it was determined that the applicant was not a refugee within the meaning of the Convention. The applicant is a citizen of Sri Lanka, and claims to have a well-founded fear of persecution in that country on grounds of race, religion, nationality, political opinion, and membership in a political social group.

         The CRDD accepted that the applicant had experienced past persecution at the hands of the IPKF and EPRLF in 1988, but concluded that he no longer had anything to fear from these groups as the documentary evidence disclosed that both groups had since withdrawn from Sri Lanka.

         The CRDD found that the incidents described by the applicant's brother involving the LTTE in 1989 and 1990 formed the crux of the claim, but could not be considered credible because they had been completely omitted from the applicant's PIF. The CRDD did not find the explanation of the applicant's brother for this omission satisfactory. The CRDD found that "his testimony regarding the LTTE in April 1990 was tailored to embellish and bolster the claim".

         The CRDD concluded that there was no reasonable chance that the applicant would face persecution were he to return to Sri Lanka. Although the CRDD accepted that "young Tamil males may be, in some cases, at risk of persecution", the CRDD was not persuaded that there was either a reasonable chance or a serious possibility that the applicant would be a target of persecution at the hands of any of the groups he claimed to fear, owing to his obvious physical and mental incapacities.

         The inferences that the CRDD draws from the evidence before it are generally accorded a significant degree of deference by this Court, but must nonetheless be reasonable. This deference applies equally to the CRDD's findings regarding the plausibility of the claimant's story as to the CRDD's findings with respect to credibility. In Aguebor v. Canada (M.E.I.), 160 N.R. 315, the Federal Court of Appeal explained the considerable deference usually shown to the CRDD in the following terms:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division

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could not reasonably have been drawn. In this case, the appellant has not discharged this burden.

(My emphasis.)

         In the present case, the CRDD made an explicit adverse finding of credibility with respect to the testimony of the applicant's brother concerning the incidents involving the LTTE in 1989 and 1990. The CRDD chose to give no weight to the applicant's evidence on these events for two reasons: firstly, these events were not mentioned by the applicant in his PIF, and secondly, the information given the applicant's brother concerning these events was "third hand hearsay" from the applicant's father. In my view, it was open to the CRDD to draw a negative inference from the failure of the applicant to mention the events of 1989 and 1990 involving the LTTE in his PIF. Moreover, the decision of the CRDD to accord no weight to the testimony of the applicant's brother concerning these events does not strike me as unreasonable in view of the fact that the brother admitted to having no first-hand knowledge of these events.

         The CRDD correctly determined that the question before it was whether there was a "reasonable chance" the applicant would be persecuted were he to return to Sri Lanka. In my view, the applicant has not established that the CRDD ignored or misinterpreted evidence, or acted perversely or capriciously in determining there was no more than a mere possibility the applicant would be persecuted upon his return to his country. The CRDD took the past persecution of the applicant into consideration, but concluded on the basis of the documentary evidence and on the basis of the applicant's obvious physical and mental handicaps, that his fear of persecution was not objectively well-founded. This finding does not strike me as unreasonable.

         Although the circumstances of the applicant's case are very sympathetic, it is my opinion that the CRDD committed no reviewable error in concluding that

the applicant did not meet the definition of a Convention refugee. Consequently, the application for judicial review is dismissed.

OTTAWA, Ontario

May 16, 1997

                                

                                         JUDGE