Date: 20041007
Docket: IMM-7561-03
Citation: 2004 FC 1379
BETWEEN:
SAKTHIVEL RASIAH
KUMARATHY SAKTHIVEL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND:
[1] Rasiah Sakthivel and Kumarathy Sakthivel (the "applicants") are husband and wife, of Tamil ethnicity, both 49 years of age and citizens of Sri Lanka. They challenge the August 27, 2003 decision of the Refugee Protection Division (the "tribunal"), determining they were not Convention refugees nor persons in need of protection.
[2] The fear they expressed was of both the Sri Lankan Army ("SLA") and the Liberation Tigers of Tamil Eelam ("LTTE"). They fear the SLA, who suspect them of complicity with the LTTE, suspicions compounded by the alleged activities of their only daughter who has been recognized by the Refugee Protection Division as a Convention refugee in Canada because in Sri Lanka she was suspected by the SLA of LTTE complicity and was targeted by the LTTE for recruitment.
[3] They fear the LTTE for several reasons. The LTTE forced Rashia Sakthivel to work for them as a carpenter. They fear the LTTE will extort money from them because they know their daughter is in Canada.
[4] The tribunal based its decision on one discrepancy between what the applicants wrote in their Personal Information Form ("PIF") and what they testified to at the hearing about what happened to them in December 2001; they had written in their PIF the SLA arrested and detained them at an army camp for six days until a bribe was paid for their release. They testified at the hearing the whole village had been rounded up and detained following the defection to the LTTE of one of the girls in the village named Subarna.
[5] At page 4 of its decision, the tribunal stated:
I find this contradiction so significant that I find that this detention and experience with the SLA in December 2001 was fabricated to bolster their refugee claim by introducing an incident after their daughter had left Sri Lanka, and neither the claimants nor the village were rounded up by the SLA in search of Subarna or for any other reason. [emphasis mine]
[6] The tribunal also noted, since February 2002, there had been a cease-fire and ongoing peace negotiations in Sri Lanka.
[7] The tribunal made other findings: one related to their age and the other to Mr. Sakthivel's health. Because of their age, the tribunal found the applicants were beyond the category of Tamils perceived to be most at risk of recruitment by the LTTE and suspicion by the SLA; based on this finding, the tribunal determined the applicants could return to their prior habitual residence with no more than a mere possibility of persecution.
[8] In terms of Mr. Sakthivel's failing health, the tribunal found he would no longer be again a likely candidate for forced physical labour as a carpenter by either the SLA or the LTTE.
[9] In addition, the tribunal made the following finding in terms of the suspicion which the SLA might have because of their daughter's recognition by Canada as a refugee:
I also find that the suspicion of the SLA that their daughter is with the LTTE is not plausible when the claimants can provide documentation of her successful Convention refugee status in Canada. Also, in the six months after their daughter's departure from Sri Lanka, the only problem alleged by the claimants were not credible, and were related to Subarna and not to their daughter's absence. The desire of the claimants to be in Canada with their only child is understood; however, family reunification is not in the mandate of the RPD.
I find that the claimants could return to their traditional home in Kaithady with no more than a mere possibility of persecution and reside in the government controlled area of Jaffna that has been securely held since 1996. [emphasis mine]
[10] Counsel for the applicants raises the following issues in his challenge to the tribunal's finding:
(1) The tribunal erred by not confronting the applicants with the contradiction in the following circumstances: the contradiction was not apparent, it was the only instance supporting an adverse credibility finding and it was significant to the tribunal's determination relying on Justice McKeown's decision in Selvakumaran v. Canada (Minister of Citizenship and Immigration), [2002] FCT 623.
(2) The tribunal failed to consider a material aspect of their claim related to the risk of extortion by the LTTE relying on Justice Layden-Stevenson's decision in Packiam v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 649.
(3) The tribunal applied the wrong test when it found "the claimant, because of his failing health, is no longer a likely candidate for forced physical labour as a carpenter by either the SLA or LTTE" [emphasis mine]. Counsel for the applicants states the burden of proof with respect to anticipated risk ought to be whether there is a serious possibility the applicant would be a candidate for forced labour, not whether he would be on a balance of probabilities.
(4) The tribunal ignored or misconstrued the evidence when it concluded the "only problem" faced by the applicants was the December 2001 event which the tribunal found not credible.
ANALYSIS
[11] I am of the view this judicial review application must be allowed for a number of reasons:
(1) contradiction not put;
(2) extortion as persecution not considered; and
(3) misconstruing the evidence or making findings in absence of evidence.
[12] I appreciate credibility findings are findings of fact which can only be set aside under paragraph 18.1(4)(d) of the Federal Court Act on a standard equivalent to patently unreasonable.
[13] In Selvakumaran, supra, Justice McKeown, after considering Justice Tremblay-Lamer's decision in Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627, stated for a tribunal to ground a credibility finding on a perceived inconsistency it has not put to the applicant, that inconsistency must be serious, obvious, and must relate to matters relevant to the claim.
[14] I add, in Ngongo, supra, Justice Tremblay-Lamer identified a number of factors to be considered whether an inconsistency must be put to an applicant before an adverse credibility finding is drawn. She considered the factors of obviousness, singularity, (was the tribunal's decision based on a single contradiction or a number of contradictions), was the inconsistency in answer to a direct question from the tribunal, was the applicant represented by counsel in which case counsel could have questioned him on any contradiction, was the inconsistency an actual contradiction or just a slip and was the applicant communicating through an interpreter.
[15] On the facts of this case, fairness required the contradiction be put to the applicants. First, the tribunal identified only one contradiction in the applicants' testimony but stated it was of such a magnitude it was central to its credibility finding the applicants did not bring forth credible evidence. Second, an examination of pages 519, 530, 531 of the transcript as compared to what was written in their PIF demonstrates the contradiction was not obvious and could not have been cured by the applicants' counsel. Third, it was fundamental to the tribunal's determination of their refugee claim because the tribunal came to the conclusion this was the only problem they faced since their daughter's flight from Sri Lanka in September of 2001.
[16] Counsel for the respondent argued the tribunal asked several questions of the applicants about the December 2001 event in an effort to clarify their testimony. While the presiding member of the panel did ask several questions of the applicants on the subject, she never put the inconsistency to the applicants for comment.
[17] On the issue of extortion as persecution, the tribunal committed a reviewable error by not considering that aspect of the applicants' claim. Extortion as persecution at the hands of the LTTE was central to the fear the applicants expressed should they return to Sri Lanka. The fear extended beyond the payment of money to encompass the inability or refusal to do so leading to torture or perhaps death (see transcript, pages 521, 525 and 526).
[18] I need not resolve the issue whether the tribunal adopted a wrong standard of proof when it concluded Rasiah Sakthivel "because of his failing health is no longer a likely candidate for forced physical labour as a carpenter by either the LSA or LTTE" [emphasis mine]. The applicants testified Mr. Sakthivel, between 1996 and June 2001, had been taken by the LTTE in forced labour as a carpenter and once by the SLA. That forced labour should it occur would compound their problems with the SLA (see transcript, page 521).
[19] I find the tribunal's conclusion on Mr. Sakthivel's health and forced labour is based on speculation and not on the evidence. Mr. Sakthivel's health problems and their impact on his ability to work were not the subject matter of evidence or comment during the hearings. The only evidence on his health was identified at the beginning of the hearing when his counsel filed a letter from his family physician indicating he suffered from hypertension and diabetes causing him difficulties in concentration and that is why his wife gave the main evidence during the proceeding.
[20] Finally, the tribunal misconstrued or ignored the evidence when finding that after their daughter left in September of 2001, during the six-month period before the applicants left, the only problem allegedly suffered by the them was the December 2001 SLA arrest and torture which the tribunal found not credible. This led counsel for the respondent to argue the tribunal had an evidentiary basis for its conclusion because the applicants did not report any instance of extortion after their daughter left nor did they complain Mr. Sakthivel was forced by the LTTE to work for them. The tribunal erred in a patently unreasonable manner when it ignored the evidence the applicants left Northern Sri Lanka for Colombo on January 5, 2002, where they stayed until their departure from Sri Lanka in March 2002.
[21] For all of these reasons, this judicial review application is granted, the tribunal's decision is set aside and the matter of the applicants' refugee claims is to be reconsidered by a differently constituted panel. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
OCTOBER 7, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7561-03
STYLE OF CAUSE: RASIAH ET AL v MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Wednesday September 1, 2004
REASONS FOR ORDER : Lemieux J.
DATED: October 7, 2004
APPEARANCES:
Mr. Micheal Crane FOR PLAINTIFF / APPLICANT
Ms. Margherita Braccio FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Micheal Crance
Barrister and Solicitor
Toronto, Ontario FOR PLAINTIFF/APPLICANT
Ms. Margherita Braccio
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT