Date: 20021113
Docket: IMM-453-02
Neutral citation: 2002 FCT 1177
BETWEEN:
TYRONE SUKIRTHARAJ LYMAN
RAJINI LYMAN
ANDREA RASHMITA LYMAN
Through Her Litigation Guardian
TYRONE SUKIRTHARAJ LYMAN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] Tyrone Sukirtharaj Lyman, a 36-year old citizen of Sri Lanka, was born in Jaffna and, at a young age, moved with his family to Colombo, where he was educated and eventually employed as a bank officer. The two other applicants are Mr. Lyman's spouse and their daughter.
[2] The applicants' claim for refugee status is based on their fear of the Sri Lankan police and other authorities because of perceived anti-government activities in support of Tamil militant forces.
[3] The Convention Refugee Determination Division did not believe the applicants' allegations in support of their subjective fear of persecution and determined that they were not Convention refugees. The panel found that the applicants "... enhanced or fabricated their detentions and difficulties with the authorities to bolster their refugee claims."
[4] In their written and oral submissions in support of this application for judicial review, the applicants challenge, in particular, three of the panel's credibility findings.
[5] First, the panel found Mr. Lyman's testimony that he was arrested "at his home", after a train bombing blast in July 1996, was inconsistent with the statement in his personal information form that he was arrested "at the train station". I agree with the applicants that the personal information form does not state where Mr. Lyman was arrested. It was incorrect for the panel to characterize this factual issue as a discrepancy.
[6] Second, the applicants challenge the panel's finding of implausibility concerning several incidents because of Mr. Lyman's failure to seek the assistance of his employer, who had successfully obtained his first release from detention in January 1996. The impugned passage of the panel's decision reads as follows:
The panel finds it not credible that the claimants did not ask his employer to intervene on each occasion of harassment, detention or arrest. It is not credible that the claimants, established in their community and with his lengthy employment in the financial business in Colombo, would rely on a variety of supporters and not rely on his employer. The claimant also did not seek redress or legal remedy after his alleged abuse at the hands of the police. The panel finds, on the balance of probabilities, that the claimants enhanced or fabricated their detentions and difficulties with the authorities to bolster their refugee claims.
[7] In my view, it was open to the panel to make its negative finding of credibility on the basis of the adverse inference it drew from the applicant's testimony. The implausibility of the applicant relying either on someone who spoke Sinhala or on a neighbour instead of seeking the renewed assistance of his employer is not such an unreasonable negative inference as to warrant this Court's intervention: Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL) (C.A.), at paragraph 4. Further, I am not convinced, on the basis of my review of the transcript, that the tribunal was required to alert the applicants, at the time of the hearing, of the possibility of it drawing this negative inference: Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 (QL) (T.D.), at paragraphs 24-28.
[8] Finally, the applicants have established no reviewable error in the panel's negative assessment concerning their alleged failure to register the names of two Tamil house guests with police officials. This incident would have occurred in May 2000, subsequent to earlier arrests and detentions. The applicants knew of the legal requirement to register visitors and failed to do so in a timely fashion. In these circumstances, the panel chose not to believe that the applicants would risk this non-disclosure even for a short period of time. Again, after reviewing the applicants' responses on this factual issue, I am satisfied that the panel's finding is not one which can properly engage this Court's intervention.
[9] Accordingly, this application for judicial review will be dismissed. I agree with both parties that there is no serious question for certification in this proceeding.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
November 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-453-02
STYLE OF CAUSE: TYRONE SUKIRTHARAJ LYMAN, RAJINI LYMAN, ANDREA RASHMITA LYMAN, through her litigation guardian, TYRONE SUKIRTHARAJ LYMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: NOVEMBER 5, 2002
REASONS FOR ORDER : THE ASSOCIATE CHIEF JUSTICE
DATED: NOVEMBER 13, 2002
APPEARANCES: Lorne Waldman
For plaintiff / applicant
Jamie Todd
For defendant / respondent
SOLICITORS OF RECORD:
Lorne Waldman
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontairo
M4P 1L3
For plaintiff / applicant
Jamie Todd
Department of Justice
2 First Canadian Place
Exchange Tower, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For defendant/ respondent