PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
JANAK HEWAGAMA (a.k.a. JANAK CHANDRAKU HEWAGAMA)
NIMALKA HEWAGAMA (a.k.a. NIMALKA DILRUKS HEWAGAMA)
REHAN HEWAGAMA (a.k.a. REHAN ASHENDRA HEWAGAMA)
DEVNI HEWAGAMA (a.k.a. D Y HEWAGAMA)
SUHASHA HEWAGAMA (a.k.a. S S HEWAGAMA)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] For this Court, sitting in judicial review and not appeal, a decision with supporting reasons to be patently unreasonable (as per the standard of review) requires more than a lack of substantiation in respect of certain aspects to which reference may nevertheless be made by the Court.
If the first instance, trier of fact, discloses inconsistencies, at the core of the testimony, to support the finding of implausibility, giving simply adequate reasons for finding the allegations of an Applicant not to be credible or plausible, then the Board is entitled to reject some or all documentation in support of the allegations.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on April 28, 2004, dismissed the Applicants' claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
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BACKGROUND
[3] Janak Hewagama, the principal Applicant, his wife, Nimalka Hewagama, and their three children are Sinhalese citizens of Sri Lanka. They allege a well-founded fear of persecution based on Mr. Hewagama's political opinion and their membership in a particular social group, the family.
[4] The alleged facts as described by the Board are as follows. Mr. Hewagama joined the Sri Lanka Freedom Party in 1994. After the People's Alliance Party (PA) lost the election in 2001, he received two death threats by telephone, which he assumed originated from the United National Party (UNP). He declared that he went to England to avoid post-election violence by UNPsupporters; furthermore, he inquired about obtaining refugee status during his stay, and was advised that his application would be refused. His father died in July 2002 and he returned for the funeral and continued his political activities. In August 2002, he and a political associate, Rohana, were attacked with guns by UNP supporters when distributing leaflets in the Kaduwela area where they were both active on behalf of the PA. They reported the attack to the police without avail. In September 2002, he received a death threat by telephone. In November 2002, unknown (or unidentified) people came to his home, while he was out and threatened his wife who had answered the door; these unknown (or unidentified) people were chased away by a male relative. Mr. Hewagama received a telephone call the next day, threatening to abduct his children if he would not stop his PA involvement. The family went into hiding and left Sri Lanka on December 10, 2002,
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after his political associate Rohana was killed on December 8, 2002. Many more threats ensued after Mr. Hewagama left Sri Lanka.
DECISION UNDER REVIEW
[5] The Board found Mr. Hewagama not credible as he gave contradictory testimony; he first declared he did not have a visa to leave. Subsequently, he declared, after the Board pointed out to him that he had a visa from September 30, 2002, that he could not have left because he had to purchase the airline tickets and sell the house and vehicles, although he had many relatives who could have helped him with these tasks, nevertheless, he chose to do all himself. Mr. Hewagama's reavailment for a lengthy period and the family's delay in leaving Sri Lanka further undermined his credibility.
ISSUE
[6] Did the Board make a reviewable error in rejecting the Applicant's claim?
ANALYSIS
[7] First, it must be recalled that reasons given by the Board must be read as a whole. On such reading, the Court is satisfied that the Board understood the facts of the Hewagama family's claim
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and reasonably found the evidence in support of it insufficient to support a positive determination. Important findings which remain uncontested include the following: Mr. Hewagama first said he did not have a visa to leave but later gave a different reason for not having left the country; he stayed in Sri Lanka for a prolonged time after his father's funeral, after having been out of the country, purportedly to protect his life. Another factor, although not conclusive, in and of itself, takes into account the facial expressions of Ms. Hewagama and her son which apparently reflected that they were not happy with Mr. Hewagama's replies.
[8] Mr. Hewagama argues that the Board erred with respect to three elements. First, Mr. Hewagama submits that the Board erred in determining that certain personal documents could not be given weight as fraudulent documents are easily obtained in Sri Lanka. The Board wrote:
The claimant presented many documents in support of his claim, and even though he might have been involved with the PA at one point, I find that I cannot give all of his documents probative weight. As fraudulent documents, such as arrest warrants and passports, are easily obtainable in Sri Lanka, it is perceivable that, on the balance of probabilities, one could procure other documents that are not based on the truth.
The Board then went on listing the documents submitted by Mr. Hewagama.
[9] The Court agrees that the mere fact that fraudulent documents can be available in a said country does not allow, in and of itself, to conclude the submitted documents are to be disregarded. The Board could have specified that, given its finding that Mr. Hewagama's story lacked credibility as a whole, the personal documentary evidence was not accorded any weight as it was meant to
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support a story that was not considered credible by the Board. It is evident from reading the Board's decision that this general lack of credibility of Mr. Hewagama's story was its underlying reasoning. Nevertheless, the Court does not find this detrimental in light of the evidence taken as a whole.
[10] Second, Mr. Hewagama submits that the Board erred in finding that the testimony of family members should not be given weight as they have an interest in the outcome of the claim. The Board wrote:
The claimant's wife and 19-year-old son supported the claimant's allegations and testified in regards to the incident of November 25, 2002. I find that these two witnesses do not add probative value to the overall testimony, as they had a definite interest in a positive outcome of their claims.
[11] Furthermore, although it is recognized that the Board cannot simply disregard testimony due to family ties between two or more witnesses and that it needs to assess the credibility of each witness on its own merits, nevertheless, as the testimonies of both the spouse and the son were simply offered to confirm certain elements of Mr. Hewagama's narrative with which the Board had already found an inherent substantial weakness, the absence of a clear and unequivocal credibility assessment by the Board does not warrant more than mention in that regard by the Court.
[12] Third, Mr. Hewagama argues that the Board erred in assessing the evidence concerning the allegation that he had been in hiding. In regard to the section of the transcript pertaining to that issue, the Court is in agreement with the Board that the explanations offered in respect of when Mr. Hewagama and his wife ceased working and when the children stopped attending school, are, at the very least, confusing (if not to contradict the essence of being in hiding); the Court can find no
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fault with the Board's doubt of Mr. Hewagama's credibility in that regard as the only explanation for the date discrepancies gives reference to the Personal Information Forms which also appear not to be accurate.
[13] Overall, the Board's reasons adequately explain the weakness of Mr. Hewagama's evidence. The Court is satisfied that the Board, as a trier of fact and specialized tribunal, came to a conclusion that was opened to it.
CONCLUSION
[14] For these reasons, the Court answers the question in the negative. Consequently, the application for judicial review is dismissed.
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ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No question be certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4833-04
STYLE OF CAUSE: JANAK HEWAGAMA
(a.k.a. JANAK CHANDRAKU HEWAGAMA)
NIMALKA HEWAGAMA
(a.k.a. NIMALKA DILRUKS HEWAGAMA)
REHAN HEWAGAMA
(a.k.a. REHAN ASHENDRA HEWAGAMA)
DEVNI HEWAGAMA
(a.k.a. D Y HEWAGAMA)
SUHASHA HEWAGAMA
(a.k.a. S S HEWAGAMA)
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Maureen Silcoff FOR THE APPLICANTS
Ms. Alison Engel Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN AND ASSOCIATES FOR THE APPLICANTS
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General