Date: 20050819
Docket: IMM-7297-04
Citation: 2005 FC 1137
OTTAWA, ONTARIO, THE 19TH DAY OF AUGUST 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
SUSAN ALEXANDRA THOMASZ
DYAN STEFAN MULLER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] A major issue raised by counsel for the applicants against the 2nd of August 2004 decision of the Refugee Protection Division (the "tribunal") denying the refugee claims of Susan Alexandra Thomasz, 21 years of age, and her infant son, Dyan Stefan Muller, both citizens of Sri Lanka, born in Colombo, is the unfair use, because of her state of mind at the time, of the Point of Entry interview ("POE") she had with an immigration officer upon her arrival at the Canadian border in Lacolle, Quebec, on the 27th of November 2003. The tribunal dismissed their claim based on a cumulative lack of credibility.
[2] The tribunal found the applicants were neither Convention refugees nor persons in need of protection in that a return to their country would not subject them to a serious possibility of persecution, torture, a risk to life or of cruel and unusual treatment or punishment. Two agents of persecution were identified: (1) the Sri Lankan police/military; and (2) the Liberation Tigers of Tamil Ealam ("LTTE").
[3] The tribunal used the POE notes:
(1) to draw a contradiction between her testimony where she said she did not know why the Sri Lankan army would return to the family home looking for her father two years after the entire family (except her) had fled Colombo and her POE interview where she said the authorities were looking for her father "because he helped a Tamil family during the war. He let them live in our house".
(2) to find an omission since, in her interview at the POE, the principal applicant made no mention of threat of kidnapping of her or her son by the LTTE if extortion money was not paid and death threats if they told the police about the extortion in spite that those allegations were the trigger for her departure from Sri Lanka.
[4] The principal applicant had, prior to the hearing , in May of 2004, declared that the statement she gave at the POE "does not represent the actual facts related to our fear". The points she made in that declaration were:
(a) she had travelled almost 20 hours when she arrived in the U.S. and in the two days before arriving at the Canadian border, she barely slept for a few hours; she was nervous and her child was sick and then she had to wait 13 hours in the waiting room at Lacolle before an immigration officer interviewed her. Her child was tired and irritable.
(b) When she was questioned, she was so exhausted that her statements to the immigration officer were incoherent. When she read the Port of Entry notes of the immigration officer, she realized she said things that seemed contradictory and confused. She was so tired when she answered the questions that she said anything that crossed her mind to get over the interview. All that she wanted was to end the questioning, meet her parents, and get some sleep.
(c) The fact that her child was very tired added to the stress.
(d) She realized that she said things that seemed absurd and confusing at the border and that she had no excuse whatsoever for doing that except her excessive fatigue and that her judgment was impaired from physical exhaustion. She now knows that she should have asked the immigration officer to postpone the interview, to let her rest, but at the time of the interview, she did not realize the importance of it and cared only about leaving the immigration section to meet her mother and father who were waiting for her.
(e) In her Personal Information Form (PIF), she related the facts in an orderly way, paying attention to her statement. She asked that what she said at the border be disregarded and that her reliable statement was in her PIF.
[5] In its reasons, the tribunal mentioned her declaration (exhibit P-8) and stated :
Recognizing the contents of exhibit P-8, the panel nevertheless notes that the interview contains numerous precise, specific and detailed answers to questions asked. This is not an interview replete with dates and issues of timing that might have been forgotten as a function of stress and exhaustion. Indeed, the one date most explicitly referred to - that of the fire bombing on August 9, 1999 - is consistent with the date referred to in the claimant's narrative. The panel concludes that, exhibit P-8 notwithstanding, the interview is credible, has probative value and that P-8 is merely an attempt to undo the perceived damage of the spontaneous interview given at the border. [emphasis mine]
[6] In her PIF, the principal applicant described several LTTE attacks in Colombo, one in each of 1996 and 1997, after which her father was detained and questioned about his Tamil sympathies. In his business he had many Tamil clients none of whom were part of the LTTE. She further described LTTE attacks in Colombo in 1998 and especially in 1999 where the army and the security forces entered the family home and assaulted her father with the butt of a gun saying that he had given time for the terrorists to hide. They purportedly slapped her mother. Her father was again arrested in 2001 with the armed forces coming to their house and threatening them. This incident was the cause of the flight.
[7] She writes her father left the country in June 2001. Her mother, her sisters and her brother left two weeks after. She stayed behind because she was about to get married. (Those who fled came to Canada and were recognized as Convention refugees. She was married on July 28, 2001)
[8] She wrote in her PIF that on August 9, 2001, while she and her husband moved into the family home in Colombo, a gas bomb was thrown at the house and partly damaged it. Her testimony reveals she thinks the bomb was thrown by people in the neighbourhood who did not like her father because of his association with the Tamils. A complaint was made to the police but no action was taken.
[9] She recites that in late June 2003, the armed forces came to the family home, searched and "threatened us asking for details of my father. Since then, we lived our lives with fear".
[10] In terms of the LTTE militants, she writes they came to the house twice in 2003. "They demanded money and we were forced to give it out of fear". She concludes by stating in her PIF "I realized that if I continue to stay that my life and child's life would be at risk. Further, I could cause problems to my husband by staying in Sri Lanka".
[11] With respect to the State authorities being an agent of their persecution, the tribunal expressed itself in the following terms:
It is plausible that the police visited and that the authorities dealt with the claimant's father as described in her narrative. The claimant's father and the rest of her immediate family, however, no longer live in Sri Lanka. [...] The claimant experienced no difficulty with the authorities for the ensuing two years following their departure. At that time, the police allegedly returned to her house, searched it and asked questions regarding her father. They did not return again. She has experienced no detention, no illegal custody, no violence - nothing physical whatever at the hands of the police. It is clear from her narrative and testimony that the sole interest of the authorities was in her father. She had presented no credible evidence that they impute political opinion to the daughter and that she would, therefore, be at risk from the authorities in this regard. Indeed, when asked why the police would have returned to her house two years after he departed, the claimant responded "I don't know". [emphasis mine]
[12] It is at this point in the tribunal's reasons the tribunal raised the answer she gave at POE why the authorities were looking for her father when she responded "because he helped a Tamil family during the war. He let them live in our house" setting up the contradiction with her testimony.
[13] After concluding the claimant had failed to credibly resolve the contradiction, the tribunal went on to write the following:
In any case, it is clear that, if the authorities maintained any interest at all, as per her allegations, they were interested solely in her father. This conclusion is further reinforced by the claimant's having answered "No" to question 37 in the PIF with regard to whether she is currently charged with any crime or offence. While having originally answered "No" to 38 (are you wanted by the police, military or other authorities), she later amended her response to "Yes". Her testimony and narrative, however, provide no credible corroborative evidence that she is wanted. The panel concludes therefore that the amendment was merely an attempt to substantiate her claim of risk from the authorities but that it has no basis in fact. Indeed, when questioned in this regard, she confirmed that the authorities' interest was confined to her father. [emphasis mine]
[14] With regards to the LTTE as an agent of persecution, the tribunal noted her PIF where she said she and her husband were extorted twice in 2003 and that she remains at risk in this regard. The tribunal also noted she testified that she and her son were threatened with kidnapping and were warned not to call the police or else they would be killed.
[15] The tribunal observed the following:
While she alleges that she and her son were threatened with kidnapping in June 2003, she did not leave for more than five months afterwards. In that, this was the trigger event for her departure, she was asked about this delay. Her response was vague and unclear and made passing reference to logistical problems. The panel concludes that this is implausible given the dire nature of the alleged threats, the fact that her family has already successfully relocated to Canada and that she would have access to people who would, therefore, be more than familiar with the process of departure. [emphasis mine]
[16] The tribunal then quoted the principal applicant's answer that she did not leave with her family in 2001 because she "was living with her fiancé". It remarked that such a response "does not imply a fear of persecution at the threshold of reasonable possibility".
[17] The tribunal went on to note the principal applicant visited the United States in September 2002, the same month her family was accepted as refugees in Canada, but made no claim and then returned to Sri Lanka. She was questioned and, according to the tribunal, testified that it was because she had no major problems. The tribunal noted her narrative [PIF] referred to a number of significant problems between 1996 and 2002 and that her house was allegedly fire-bombed on August 9, 2001. The tribunal states "when questioned in this regard, the claimant could only respond that 'I was confused'." It is at this point in the tribunal's reasons that it states the principal applicant, at the POE, made no mention of death threats or kidnapping. The tribunal added "the claimant's husband remains in Sri Lanka, is working and, according to the claimant's testimony, he has had no contact with the LTTE and has not been extorted since her departure".
[18] The tribunal expresses its conclusions as follows:
Based upon the above analysis, the panel concludes that the claimant has failed to credibly establish her allegations of risk at the hands of the LTTE.
Having failed to credibly establish a well-founded fear of persecution from either the LTTE or of the Sri Lankan authorities, the claimant has failed to establish that either she or her son faces a "serious possibility" of persecution, were they to return to Sri Lanka.
Equally so, the claimant has failed to provide a credible evidence that either she or her son faces a risk of torture, risk to life or of cruel and unusual treatment or punishment, were they to return to Sri Lanka. [emphasis mine]
[19] Counsel for the applicants argues the principal applicant's fear of the LTTE and the Sri Lanka police/army in Colombo arose after her parents and siblings had fled in mid June 2001, i.e. arose in the summer of 2003. But for the tribunal's depreciation of her testimony by the use of the POE contradictions, counsel argues the evidence would have entitled her to Convention refugee status.
[20] In particular, she asserts the principal applicant explained she returned to Sri Lanka after visiting her grandmother in the United States in 2002 because the incidents which led to her flight arose in the summer of 2003.
[21] Moreover, her testimony why she did not leave with her family makes sense; she was about to get married and her husband-to-be could not obtain a U.S. visa.
[22] The grounds raised by counsel for the applicant to set aside the tribunal's decision essentially go to the weight to be given to the evidence.
[23] The standard of review for such grounds is contained in paragraph 18.1(4)(d) of the Federal Courts Act where this Court may set aside a decision if it is satisfied the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
[24] The Supreme Court of Canada and the Federal Court of Appeal have provided reviewing courts with clear guidance in this area.
[25] I cite Justice L'Heureux-Dubé's words at paragraph 85 of her reasons for judgment in Canadian Union of Public Employees, Local 301, v. Montreal (City), [1997] 1 S.C.R. 793:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. [emphasis mine]
[26] I also cite Justice Décary's decision on behalf of the Federal Court of Appeal at paragraph 4 of his reasons for judgment in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.):
¶ 4 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 could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [emphasis mine]
[27] I carefully reviewed the certified tribunal record which contains the POE interview, including the supplementary questions she answered, her declaration, her PIF, her testimony before the tribunal and the tribunal's decision. I reach the following conclusions.
[28] First, in my view, the tribunal's assessment of the POE interview was not unreasonable taking into account the fact she was physically tired, was stressed by her baby's condition and had to wait several hours before being interviewed. I note she was asked about her physical and mental condition and said that she was in good condition at the time of the interview (tribunal record, page 220).
[29] A review of the POE and the supplementary questions supports the tribunal's assessment and use of the POE and interview. The applicant clearly expressed the agents of her fear and why. She related well her father's past problems. In a few places, such as whether her husband was planning to come to Canada, her answers raise questions.
[30] The tribunal was entitled to come to the conclusion it did about the use of the POE. I also note the tribunal, taking the circumstances into account, did not hold against the principal applicant the mistakes she made about some dates. It itself made one mistake on that account, i.e. April 9, 1999.
[31] I agree with counsel for the respondent, the tribunal did not base its decision solely or even mainly on POE contradictions, one of which was minor. It was concerned about the delay it took the principal applicant to leave Sri Lanka after the triggering incidents had occurred. The answers she provided explaining the delay were not plausible. The tribunal stressed the fact the police had not bothered her for two years after the family had left before returning once in 2003 to ask information about her father and could not explain why she would consider it a threat if the police, in the future, asked her questions about her father. She clearly admitted she was not the target of the police. With regard to the LTTE, the principal applicant stated since she left, her husband, who was the sole source of income, had not been extorted by the LTTE and was openly working every day at the hotel which was his place of work. It took into account, as it was entitled to, the omission, both in her POE interview and her PIF for that matter, to mention the possibility of kidnapping and threat if the extortion was reported to the police.
[32] Overall, the tribunal was not satisfied the principal applicant had led sufficient cogent evidence to raise a serious possibility of persecution or of unusual or cruel punishment should she return to Sri Lanka.
[33] In my view, the tribunal could reasonably come to this conclusion based on the evidence before it.
[34] For all of these reasons, this judicial review application is dismissed.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No certified question was proposed.
" François Lemieux "
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7297-04
STYLE OF CAUSE:
SUSAN ALEXANDRA THOMASZ v. M.C.I.
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: August 3, 2005
REASONS FOR ORDER : Lemieux J.
DATED: August 19, 2005
APPEARANCES:
Me Évelyne Fiset for applicants
477, Saint-François Xavier, Bureau 308
Montréal (Québec) H2Y 2T2
Téléphone: (514) 904-0048
Télécopieur: (514) 904-10281
Me Simone Truong for respondent
Complexe Guy-Favreau
200, boul. René-Lévesque Ouest
Montréal (Québec) H2Z 1X4
Téléphone: (514) 283-3295
Télécopieur: (514) 283-3856
SOLICITORS OF RECORD
Me Évelyne Fiset for applicants
Montreal, Quebec
John H. Sims, Q.C.
Deputy Attorney General of Canada for respondent