Date : 20050118
Docket : IMM-1245-04
Citation : 2005 FC 58
BETWEEN :
GAGANA UBEYSEKERA
ANDREA ROZANNE UBEYSEKERA
KAVYA ABHIMANI UBEYSEKERA
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for a judicial review of a decision by the Refugee Protection Division ("RPD"), dated January 5, 2004, wherein the claim of Gagana, Andrea Rozanne and Kavya Abhimani Ubeysekera, the applicants, was rejected, the RPD concluded that they were neither Convention refugees nor persons in need of protection.
Facts
[2] The applicants are citizens of Sri Lanka. Gagana and Andrea Rozanne are husband and wife; Kavya Abhimani is their four year old daughter. The female applicant was appointed the designated representative for her daughter.
[3] The female applicant had been working for Sri Lankan airlines as a flight attendant and then as a secretary. She developed a friendship with one of her co-worker, Ms. Subramaniam. In June of 2001, the applicants rented the upper floor of their home to Ms. Subramaniam and her husband.
[4] On December 18th, 2001; the applicants held a party at which the Subramaniams were invited but did not attend. The police came to the applicants' house that evening and they arrested the male applicant. The latter was asked about the Subramaniams. He was informed by the police that they were members of the Liberation Tigers of Tamil Eelam ("LTTE"); they accused him of knowing of the membership and helping them in exchange for money.
[5] The male applicant was kept in custody, questioned every day until December 31st when released. He was beaten during detention. During one interrogatory, the police informed him that they found documents in the Subramaniams' part of the house. These documents were related to the attack of the Katunayake airport in July 2001. The applicant was finally released on December 31st, 2001 since his father paid a bribe of 300,000 rupees; he was told that he was still under investigation.
[6] After release, his wife told him that some days following his arrest, the police came twice to his home to search and that she had been raped on both occasions. She was threatened and told not to disclose the incidents. Also, during the detention of the male applicant and after his release, anonymous threatening phone calls were made to his home; the applicants were blamed by LTTE for the subsequent arrest of the Subramaniams.
[7] The male applicant went into hiding and stayed away from his house; he lived with relatives and friends. On January 3rd, 2002, the police came to the house and questioned his wife. Two days later, they came back and took her into custody and questioned about the Subramaniams. She was released the same day. After that last incident, it was decided that the whole family should be in hiding. The applicants spoke with a lawyer who suggested that they leave the country. The applicants then applied for visas to Canada. They left on February 3rd, 2002 on their own passports and arrived the same day; they submitted a refugee claim a few days later.
[8] Since their arrival in Canada, the applicants learned that the police still come to their home and are looking for them; the threatening calls are also continuing.
The RPD's decision
[9] The RPD found several implausibilities in the story of the applicants. First, the RPD concluded that the applicant could not have been released with "such a small amount (bribe) or any amount for that matter" since he was suspected to be an alleged supporter of the LTTE and in close contact with persons involved in the airport attack of July 2001.
[10] The RPD referred to the letter filed by the applicants' Sri Lankan lawyer and found it to be of little probative value. Another implausibility referred to by the RPD was the fact that the male applicant was arrested even though he was not employed at the airport. The female applicant who worked with Ms. Subramaniam was only arrested on January 5th and released the same day; this they also found to be implausible.
[11] In addition, the RPD found it incredible that the female applicant remained in her home even though she was allegedly raped twice and only went into hiding after her arrest. Also implausible was the fact that her husband had been arrested for suspicion of being involved with the attack of the airport while she was allowed to remain at work while he was incarcerated.
[12] The RPD was concerned about the serious internal inconsistencies between the testimony of the female applicant and medical reports concerning her alleged rapes; those inconsistencies undermined her credibility.
[13] The RPD went on to comment that some evidence "does not make sense at all". The RPD believed that if the police was looking for the applicants, they could have found them. Also, the RPD did not believe that relatives and friends would have helped the applicants to hide since having done so would have exposed them to retaliation.
[14] The RPD also found as a fact that the house was rented and not owned; they questioned why the father of the male applicant would have stayed to protect her if the police were still coming and threatening calls continued.
Issues
[15] The applicants submit the following issues:
Are the RPD's plausibility conclusions based upon speculative findings of facts that are not supported by the documentary evidence?
Are the RPD's plausibility findings based upon misconstruction of the Applicants' evidence?
[16] On the first issue, the applicants submit that the conclusion by the RPD that it was implausible that the police accepted a bribe of 300,000 rupees to release the male applicant if they suspected him in relation to terrorism is based on speculative findings; that the bribe paid represents 10 times the annual minimum wage salary of an industrial worker in Sri Lanka. Thus, this can hardly be considered as a small amount; this finding is reviewable.
[17] The RPD also discounted the letter from the Sri Lankan lawyer because it had been requested by the applicants. That conclusion put the applicants in an impossible position; they were the only ones able to request it and if they had not done so, the RPD may have questioned their lack of diligence. The letter confirms that they consulted a lawyer about their dilemma of both police harassment and threats from the LTTE. He advised there was little he could do to help.
[18] The RPD concluded that it was implausible that the police would have focussed their attention on the male applicant since he was not the one working with Ms. Subramaniam. The applicants argue that this conclusion is speculative; In addition the evidence revealed that the applicants owned the home and that it was not rented, as the RPD specified. Based on this erroneous finding of fact, the RPD found it implausible that the male applicant's father would continue to live there. This is clearly incorrect.
[19] Concerned with the fact that the female applicant and her daughter did not go into hiding after her release, the applicants explained that to secure their safety, they remained in their home in the company of either her parents or her in-laws until a safe place could be found.
[20] In dealing with the RPD's finding of discrepancies in the medical documentation and the female applicant's P.I.F., the applicants submit that there are no such discrepancies.
[21] Another implausibility and speculation determination made by the RPD was that by hiding the applicants, their relatives would have been open to retaliation.
Submissions of the Respondent
[22] With respect to the issue about the bribe, the respondent argues the characterization of the bribe as small was irrelevant because the RPD concluded that the male applicant would not have been released for any amount; that inference was supported by the documentary evidence showing that the bombing was a major terrorist event in Sri Lanka. Also, the RPD found that the male applicant was an alleged supporter of the LTTE, thus, these findings were not speculation.
[23] Dealing with the letter from the applicants' lawyer, the respondent submits there is no evidence to support that the panel would have found the applicants negligent.
[24] The RPD found it was implausible that the police focussed their attention on the male applicant since it was the female applicant who was working at the airport with Ms. Subramaniam. The respondent argues that it was not unreasonable. Even though the RPD made an error on the determination as to who owned the home, it had no bearing on the outcome.
[25] The respondent further explains it is implausible that the female applicant remained in her home despite the rapes; that she continued to work at the airport despite her husband being detained for helping the alleged bombers and despite the fact that she had been arrested.
[26] In dealing with the issue of the bribe, the court finds no evidence to support the RPD's finding that the male applicant would not have been released for such a small amount or for any amount. This finding is speculative at best.
[27] Referring to the incident of rape, the respondent insisted on the discrepancies between the documentary evidence and the testimony of the female applicant. In such cases, the RPD should reference the gender guidelines and should be more flexible in dealing with testimony concerning such a traumatic experience[1]. The Respondent indicated some discrepancies and submits that they "are clear"; I am satisfied that the female applicant reasonably explained when questioned by the RPD. In my view, her story is plausible and the discrepancies were minor and hesitation is inevitable when testifying on the traumatic experience that she had been through. The RPD's findings on that aspect disclose a lack of special knowledge and sensitivity that is required in judging the applicant's story concerning this issue.
[28] I do not agree with the respondent when he suggests that it made no difference, that the RPD may have made an error in finding that the applicants rented their home. It is apparent that the RPD persisted and arrived at a negative inference; first that the female applicant remained in her home despite being raped twice; the RPD was also suspicious as to why the male applicant's father stayed at the home. The error is significant and should not be treated as minor. It is clear from the evidence that the house was owned by the applicants[2]. In addition, the female applicant explained why she remained despite being raped; she was not left alone[3].
[29] Unfortunately, the RPD made some comments that it should not have made, more particularly finding that the police could have found them at will even though some friends helped them to hide; further, if the police had any interest, they could have located them; that friends and relatives exposed themselves to retaliation and why would they do that? The RPD should not arrive at conclusions that amount to speculation. The male applicant testified friends and relatives concealed him in three different locations and the police were unable to find him.
[30] I must conclude that the RPD relied on speculation and made considerable reviewable errors as well as arriving at an improper analysis and made unwarranted comments. The erroneous plausibility findings rendered the RPD's decision patently unreasonable. It is evident from the Sri Lankan lawyer's letter as well as the evidence that these applicants were being harassed and detained by the police; that the LTTE were threatening them since they were of the view that they had caused the Subramaniams to be arrested. None of these factors were analysed or considered.
[31] Accordingly, the application for judicial review is granted, the RPD'S decision is quashed and the matter returned to a differently constituted panel for redetermination.
JUDGE
OTTAWA, Ontario
January 18, 2005
FEDERAL COURT OF CANADA
Name of Counsel and Solicitors of Record
DOCKET: IMM-1245-04
STYLE OF CAUSE: GAGANA UBEYSEKERA ET AL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: January 11, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT: January 18, 2005
APPEARANCES BY:
Mr. Michael Korman For the Applicants
Mr. Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Mr. Michael Korman
Otis & Korman
Barristers & Solicitors
41 Madison Avenue
Toronto, Ontario
M5R 2S2 For the Applicants
Mr. John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent
[1] S.I. v. Canada (M.C.I.), [2004] F.C.J. No. 2015 (F.C.T.D.) and Friggith v. Canada (M.C.I.), [1999] A.C.F. No. 1141 (F.C.T.D.)
[2] P. 298 of the tribunal record.
[3] P. 307, 308, 329 of the tribunal record.