Date: 20021209
Docket: IMM-5102-01
Neutral citation: 2002 FCT 1275
BETWEEN:
CRECENTIAKATHI SAKTHIVEL
GUKAN SAKTHIVEL
PRETHIPAN SAKTHIVEL
NIROSHINI SAKTHIVEL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review, pursuant to section 18.1 of the
Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated, October 5, 2001, wherein the Board determined that the applicants were not Convention refugees.
[2] The applicants seek an order setting aside the decision of the Board, referring the matter back to a differently constituted panel for redetermination.
Background
[3] The applicant, Crecentiakathi Sakthivel, and one of her three children, Gukan Sakthivel, age 12, are citizens of Sri Lanka. Her other two children, Prethipan Sakthivel, age 5 and Niroshini Sakthivel, age 3, are alleged to have been born in Moscow, Russia, but birth registration documents were never obtained. As a result, they are stateless persons. However, application was submitted for Sri Lankan citizenship on the basis of their mother's citizenship. The results of this application were not provided.
[4] The applicant, Crecentiakathi Sakthivel, claims to have a well-founded fear of persecution on the basis of her political opinion (imputed) and membership in a particular social group (i.e. Tamils from Eastern Sri Lanka). The source of the persecution, according to the applicant, is the Sri Lankan authorities, particularly the army, and the Liberation Tigers of Tamil Eelam ("LTTE").
[5] The applicant's submission is based on the problems that her spouse had experienced with the LTTE and the Sri Lankan security forces. She attests that a series of events, leading up to March 1995, made it impossible for them to continue living in Sri Lanka.
[6] In 1990, the applicant's uncle and cousin were shot by the army on suspicion of LTTE involvement. Following this, in 1993, the applicant's spouse's uncle was shot by LTTE for failing to make a financial contribution. Although the applicant and her spouse lived in the army-controlled area of Batticaloa, the LTTE was active at night and extorted 100,000 rupees from her spouse in 1994. On March 7, 1995, while the LTTE was engaged in peace negotiations with the government, her spouse was ordered to report for military training by the LTTE. He was told that the LTTE was confident that the negotiations would fail, and they were collecting citizens to form an army. The LTTE told him that if he did not join voluntarily, he would be forcibly removed. He agreed to join, and was given three days to settle his affairs before starting his training. During this three day period, the applicant, her spouse and their son, Gukan, left Batticaloa for Colombo. On March 15, 1995, the police raided the lodge where they were staying, and the applicant's spouse was arrested. With some assistance, the applicant was able to secure his release. However, the police told the husband to leave Colombo for the sake of his safety.
[7] The applicant and her spouse then sought the help of relatives overseas, who provided funds for an "agent" to take the family abroad. The agent was not able to obtain suitable documents for all three of them, so the applicant's spouse was sent first. He left Sri Lanka and arrived in Niagara Falls, U.S.A. on March 23, 1995. He entered Canada and made a successful refugee claim on May 18, 1995. On the advice of the agent, the applicant and her son were moved to Moscow, Russia (via Singapore) and settled in a remote house where other Tamil refugees were staying, while awaiting travel documents for Canada.
[8] After waiting a number of months for travel documents, the applicant appealed to her husband to join her in Moscow. The agent arranged for his journey to Russia. They spent three years in Russia awaiting the applicant's travel documents. Two of their children were born during this time. On June 18, 1999, the applicant and her three children arrived in Canada and made refugee claims.
[9] The applicant claims that if she is forced to return to Sri Lanka, she and her children will be at risk of forcible recruitment by the LTTE. During their absence, the LTTE has broadened its scope of recruitment to include women and children. She claims that both herself and her 12 year old son will be recruited. In addition, she claims that she and her family will face punishment, by the LTTE, since her spouse had previously deceived them. Finally, she claims that the current state of affairs will lead the security forces to suspect her and her children of LTTE involvement.
The Findings of the Board
[10] The decision of the Board contained the following conclusions:
I find the claimant to be generally lacking in credibility and I find that the evidence does not establish that the claimants face a serious possibility of persecution in Sri Lanka for any Convention reason. They are not Convention refugees.
[11] The Board found both the required objective and subjective components of a well-founded fear of persecution to be lacking in the applicant's claim.
[12] The Board found the documents provided with the application to be lacking. The Board found the documents did not establish the residence of the applicant for any year, since 1991. The Board also found that since the applicant's spouse had already been through the refugee determination process, he should have ensured the applicant produced the relevant documents. To the Board, it was "incredible" that the agent was able to arrange for the immediate transport of the applicant's spouse to Canada, but that it took four years to arrange for the transfer of the applicant.
[13] The Board had particular difficulty with the lack of birth documents for the children born in Russia. The applicant stated that she was confined to a rooming house for her entire stay in Russia, and that she was not permitted to leave, for fear of being apprehended by Russian authorities as an illegal resident. As a result, the only time she ventured out was to deliver her children at a medical facility. She claims that the arrangements were made by the agent, but because of their illegal status, they did not register the birth of either child. The Board disbelieved the applicant was even in Russia as no tangible proof of the stay was provided. The Board stated:
I do not believe the claimant's story. On a balance of probabilities, I find it implausible. In this regard, I note that the claimant was unable to provide any reasonably expected detail about Russia or Moscow. Her explanation that they were confined indoors rings hollow. Indeed, if I am to believe the husband's evidence that they basically sat in a room watching TV for years on end, I find added reason to expect the claimant to have some communicable knowledge about Russia, even if she could not understand the language. And if, indeed, the claimant's spouse had the wherewithal to support his family's apparently problem-free sojourn in Moscow for that period of time and have two children delivered at a medical facility, I fail to see why he could not, with due diligence, use the same resources to obtain birth documents for his children. I draw an adverse credibility inference from the claimant's failure to provide a cogent explanation for her failure to produce apparently reasonably obtainable birth documents for Prethipan and Niroshini.
In the alternative, even accepting that the claimant was in Russia from June, 1995 to June, 1999 does not advance the claim.
[14] The Board found that the applicant's failure to apply for refugee status in Russia represented conduct inconsistent with a well-founded fear of persecution. This was sufficient to negate her claim.
[15] Further, the Board found that the applicant faced no serious possibility of persecution in Sri Lanka. The Board found documentary evidence to be more objective and reliable than the evidence of the applicant. Relying on information from the United States, Department of State, the Board found that the Sri Lankan government has taken significant steps toward addressing the human rights abuses and discrimination against Tamils occurring in the country. It further found that there were other avenues that the applicant could pursue if she does experience harassment by the authorities, including an appeal for assistance to the Committee to Inquire into Undue Arrest and Harassment ("CIUAH").
[16] As for the claim that the applicant may be harmed by the LTTE for her spouse's failure to report for training, the Board found this to be an embellishment. Relying on the fact that no harm came to the applicant's mother or sister, who still reside in the area, the Board found this claim to be unsubstantiated. The Board concluded that there is no more than a mere possibility of persecution at the hands of the LTTE in the applicant's home area or in any other area of Sri Lanka controlled by security forces.
[17] Since the claims of the children were reliant on those of their mother, their claims were found to fail as well.
Applicant's Submissions
[18] The applicant submits that the tribunal erred in law by failing to properly assess the evidence of the applicant's 12 year old son, Gukan.
[19] The applicant submits that the Board erred in law with respect to its finding of credibility, by its failure to grant weight to the testimony of the applicant's spouse and to the fact that he had been found credible, and accepted as a Convention refugee in 1995, on the basis of the same facts that formed the foundation of this claim.
Respondent's Submissions
[20] The respondent submits that the Refugee Division did not err in law in finding that the applicant was not a Convention refugee.
[21] The respondent submits that the applicant has failed to demonstrate that the Board failed to properly address the claim of the applicant's 12 year old son.
[22] The respondent maintains that it was reasonably open to the Board to find the evidence of the applicant's spouse to be inconsistent and self-serving, and that the Board is not obligated to follow a previous Board finding on credibility.
[23] Finally, the respondent submits that the applicant has failed to demonstrate the existence of an arguable issue of law upon which to base the application.
[24] Issue
Did the Board make a reviewable error in its handling of the evidence of the applicant's spouse?
[25] Relevant Statutory Provisions
The relevant sections of the Immigration Act, R.S.C. 1985, c. 28, state as follows:
| 2.(1)"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), . . . 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
2.(1) « réfugié au sens de la Convention » Toute personne: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). . . . 8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
| 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person (a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned; (b) came to Canada, directly or indirectly, from a country, other than a country of the person's nationality or, where the person has no country of nationality, the country of the person's habitual residence, that is a prescribed country under paragraph 114(1)(s); (3) For the purposes of paragraph (1)(b), . . . (b) a person who comes to Canada from a country shall be considered as coming to Canada from that country whether or not the person was lawfully in that country. |
46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes: a) il s'est déjà vu reconnaître le statut de réfugié au sens de la Convention par un autre pays dans lequel il peut être renvoyé; b) il est arrivé au Canada, directement ou non, d'un pays - autre que celui dont il a la nationalité ou, s'il n'a pas de nationalité, que celui dans lequel il avait sa résidence habituelle - qui figure dans la liste établie en vertu des règlements d'application de l'alinéa 114(1)s); (3) Pour l'application de l'alinéa (1)b), le pays de provenance de l'intéressé est celui d'où il est parti pour le Canada, indépendamment du caractère légal ou non de son séjour dans ce pays, sauf, sous réserve de tout accord conclu en vertu de l'article 108.1, s'il ne s'y trouvait qu'en vue d'un vol de correspondance à destination du Canada. |
Analysis and Decision
[26] The applicant, Crecentiakathi Sakthivel, submitted as part of her documentation, the personal information form ("PIF") of her husband. Her husband was accepted as a Convention refugee by another panel of the Convention Refugee Determination Division of the Immigration and Refugee Board. Her husband also gave oral testimony at her hearing before the Board.
[27] Both counsel indicated at the hearing before me that the only issue for my consideration was the Board's handling of the testimony of the applicant's husband and its handling of the facts contained in his PIF.
[28] At page 109 of the Tribunal Record, the Board dealt with credibility as follows:
I had serious credibility concerns with the material evidence of both the claimant and her spouse that were not resolved in their favour, sufficient to rebut the presumption of truthfulness on their part and to support a finding that the claimant is generally lacking in credibility.
[29] There are two other references to the husband's evidence, but both of these references to embellishment relate to evidence of what will happen in the future. These references do not address the husband's evidence up to 1995 as it relates to the applicants' application.
[30] There is no doubt that the Board can make findings of credibility. However, if the Board is going to make a non-credibility finding against someone, it must point to specific pieces of evidence it considered when making such a finding. It is not sufficient for the Board to simply make a statement that it finds a witness not credible.
[31] Heald J.A. for the Court in Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (QL) (C.A.) stated:
The appellant was the only witness who gave oral testimony before the board. His evidence was uncontradicted. The only comments as to his credibility are contained in the short passage quoted supra. That passage is troublesome because of its ambiguity. It does not amount to an outright rejection of the appellant's evidence, but it appears to cast a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
[32] In the present case, the husband's evidence up to 1995 was not discussed other than with a general statement regarding credibility. When he testified, he was not questioned about the content of his PIF, which his wife had made part of her application for Convention refugee status.
[33] The Board, in its decision, stated at page 10 of the Tribunal Record:
. . . I have to determine, inter alia, whether the claimant has established, on a balance of probabilities, that she is recently from Sri Lanka. Without knowledge of their relevant particular circumstances prior to their arrival in Canada, I am unable to make a reasoned determination that the claimant and her children are Convention refugees, a determination that includes an assessment of how they might be viewed by the alleged agents of persecution, the LTTE and the security forces. Without knowing where they have been and what has happened to them, I can only speculate, and speculation is not a valid basis for a determination . . .
[34] From this excerpt, it is obvious that the Board placed great reliance on knowing where the applicants were prior to their arrival in Canada. That is why the husband's PIF and his oral testimony are so important. It contains evidence that if believed could substantiate what the applicants have stated.
[35] I have reviewed the decision and I cannot find anywhere, with the two exceptions of the evidence pointing to future events, where the Board even made reference to the husband's evidence.
[36] Consequently, I am of the view that the Board made a reviewable error when it made the following finding on the credibility of the applicant's spouse, at page 13 of the tribunal record:
I had serious credibility concerns with the material evidence of both the claimant and her spouse that were not resolved in their favour, sufficient to rebut the presumption of truthfulness on their part and to support a finding that the claimant is generally lacking in credibility.
The Board can make credibility findings, but it must be specific and give reasons for not believing the testimony of the witness, in this case the applicant's husband.
[37] For that reason, the application for judicial review is allowed and the matter is referred to a different panel of the Board for reconsideration.
[38] It is not necessary that I make any finding with respect to the use, if any, to be made of the husband's testimony that was apparently previously accepted by another panel of this Board. That determination should be first made by the panel rehearing this application.
[39] The parties will have one week from the date of these Reasons to submit any proposed serious question of general importance for my consideration, and a further week to make any response to a submitted question, before I render my Order.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
December 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5102-01
STYLE OF CAUSE: CRECENTIAKATHI SAKTHIVEL
GUKAN SAKTHIVEL
PRETHIPAN SAKTHIVEL
NIROSHINI SAKTHIVEL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Friday, October 11, 2002
REASONS FOR ORDER OF O'KEEFE J.
DATED: Monday, December 9, 2002
APPEARANCES:
Mr. Lorne Waldman
FOR APPLICANTS
Mr. Marcel Larouche
FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
FOR APPLICANTS
Department of Justice
Suite 3400, Box 36, Exchange Tower
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021209
Docket: IMM-5102-01
BETWEEN:
CRECENTIAKATHI SAKTHIVEL
GUKAN SAKTHIVEL
PRETHIPAN SAKTHIVEL
NIROSHINI SAKTHIVEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER