Date: 20020930
Docket: IMM-5767-01
Neutral Citation: 2002 FCT 1021
Ottawa, Ontario, September 30, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
KANAGARAYAN SAVERIMUTTU
demandeur
et
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
défendeur
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under the authority of subsection 82.1(1) of the Immigration Act (the "Act") against the decision of the Convention Refugee Determination Division (the "Refugee Division") rendered on November 15, 2001 wherein the Refugee Division determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant was born July 22, 1925 in Jaffna, Sri Lanka. He is of the Roman Catholic faith. The applicant is a retired English teacher and tutor.
[3] In May 1989, he claims that he was forced to translate documents for the Liberation Tigers of Tamil Eelam (LTTE). This continued for five (5) to (6) years after the Jaffna area fell under the army's control in 1995.
[4] At some point in the year 2000, the army came to know that the applicant was helping the LTTE, and began to watch his movements.
[5] In March 2000, the applicant moved to Wellawatte. He lived there happily until August 2000.
[6] One night, he was arrested by the Wellawatte police and was questioned about his involvement with the LTTE. The applicant was struck on his left ear which caused a hearing deficiency and was also beaten.
[7] After further harassment, the applicant fled Sri Lanka and arrived in Canada and claimed refugee status on January 28, 2001.
[8] The applicant alleges a well-founded fear of persecution for reasons of race, nationality and membership in a particular social group. He also alleges a fear of persecution by the Sri Lankan police who suspects him of helping the LTTE.
ISSUES
[9] 1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
2. Did the Board apply the wrong test in determining the burden of proof required of the applicant?
ANALYSIS
1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
[10] No, the Board did not err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it.
The credibility of the applicant
[11] The Board was dubious of the applicant's credibility based on certain discrepancies and inconsistencies between his Personal Information Form (PIF) and his testimony. Specifically there was uncertainty in regards to the applicant's employment or unemployment at key intervals; and, whether or not the army was in fact aware of the applicant's connection to the LTTE. In addition, the Board found the applicant's testimony to be evasive and inconsistent in regards to the frequency of translations performed for the LTTE. Furthermore, the applicant's credibility was called into question when he omitted to include an important incident involving the army arriving at his house in the presence of students in his PIF. And lastly, the Board found that the applicant's behaviour was not consistent with that of a person who has a genuine subjective fear of persecution.
[12] The Refugee Division is entitled to decide adversely with respect to a claimant's credibility as the determination of the claimant's credibility is the heartland of the Refugee Division's jurisdiction since it is the trier of fact.
[13] The jurisprudence of this Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility of an applicant. This Court cannot intervene with the findings of fact made by the Board, unless it is demonstrated that the conclusions drawn are unreasonable or that they are capricious, made in bad faith or not supported by the evidence. This was recently confirmed in the case of Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.), where this Court held:
[38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
[14] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.), the Court held:
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.
[15] In light of the applicable jurisprudence, it is evident that the Board's treatment of the evidence is within its area of expertise and jurisdiction.
2. Did the Board apply the wrong test in determining the burden of proof required of the applicant?
[16] No, the Board did not apply the wrong test in determining the burden of proof required of the applicant.
Subjective fear of persecution
[17] The test for evaluating the risk of persecution is set out in the case of Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.) and has been referred to many times since by this Court. The test laid out is stated as follows:
[8] What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[18] In order to satisfy the test, the applicant must prove, on a balance of probabilities, that he has a well-founded fear of persecution should he return to Sri Lanka. The Board concluded that the applicant could not satisfy his burden and so wrote at page 8 of its decision:
The claimant is of a relatively mature age and found not to have a well-founded fear of persecution should he return to Sri Lanka. The panel believes that the claimant has not met his burden of proof and therefore has not established that he would encounter the problems he alleges upon his return to Sri Lanka.
(emphasis added)
[19] In the case of Zhu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 396 (F.C.A.) the use of the word "would" was at issue. Heald J.A., writing for the Federal Court of Appeal, held:
We are all of the view that this appeal must be allowed since the tribunal applied an incorrect test in its determination that the appellant did not have a well-founded fear of persecution.
In its reasons for decision, the Tribunal stated: (Appeal Book Page 166) "... the question we need to answer is: Would the treatment he might receive amount to persecution as understood in the definition of Convention refugee?" and also at Page 166, the Tribunal added: "The claimant was unsuccessful in establishing in the PSB or in any other authority the existence of an intention to persecute him." (...)
The language employed by the Tribunal supra cannot be distinguished from that used by the Tribunal in the Arduengo case. (...) In that decision the Court expressed the view that "... the board erred in imposing on this applicant and his wife the requirement that they would be subject to persecution since the statutory definition supra required only that they establish "a well-founded fear of persecution". The test imposed by the board is a higher and more stringent test than that imposed by the statute. In such circumstances it is impossible to conclude that had the board applied the proper test to the factual situation in these cases they would have arrived at the same decision".
In our opinion that rationale applies with equal force to the circumstances in this case.
(emphasis added)
[20] In Osei v. Canada (Minister of Employment and Immigration), 12 Imm. L.R. (2d) 49, [1990] F.C.J. No. 940 [F.C.A.], the Federal Court of Appeal held:
In the same way as an improper formulation of the test by the tribunal may be obviated by a proper application, a proper formulation may be obviated by an improper application.
[21] In Caballero v. Canada [1993] F.C.J. No 483, page 1, at paragraph 2, Létourneau J. held:
[2] .This is a claim to refugee status made by the husband and his wife, who are both citizens of Honduras, which claim was rejected by the Refugee Division. We are not persuaded that in making this decision the Refugee Division committed any errors which would justify this Court in intervening. It did, for example, technically commit an error in stating the test that applied in this case when it said, in the final lines of a thirty-two page decision in which its reasons were well set out, that there was no clear and precise indication that the claimant's wife would be subject to persecution if she returned to Honduras, for one of the reasons set out in the definition of a refugee [Appeal Record, vol. 6, p. 1057]. However, the error in this instance is of no consequence, since the evidence in the record did not establish that there was a well-founded fear of persecution, the appellant and occasionally his wife having travelled regularly and frequently between Honduras and the United States.
[22] In Kadiosha v. M.C.I., [2000] F.C.J. No. 1562 (F.C.T.D.), Pinard J. held:
[7] Clearly, the tribunal stated the test applicable to determining refugee status incorrectly. The proper test is not determining whether the person claiming refugee status was persecuted in his or her country, but whether he or she fears persecution with good reason. However, what matters is that the proper test should be applied, not whether it was correctly stated. This rule was set out by the Federal Court of Appeal in Osei v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 49, in which Décary J.A. wrote at 51:
In the same way as an improper formulation of the test by the tribunal may be obviated by a proper application, a proper formulation may be obviated by an improper application.
[8] In the case at bar the perception that the principal plaintiff lacked credibility, in view of the many contradictions, improbabilities and omissions emerging from the evidence, in fact amounts to a finding that there was no credible evidence on which to base the applications in question (see Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, at 244).
[9] Accordingly, although technically the tribunal made an error in formulating the test applicable here, that error was not significant as the principal plaintiff's lack of credibility prevented the evidence from establishing a reasonable fear of persecution.
[23] Even if there are different decisions by different judges, the principle remains clear: the issue is whether the Board properly applied the test when it rejected the applicant's claim after it found that he was not a credible witness. In the case at bar, the answer is yes.
[24] The Board reached a finding of an overall lack of credibility and provided several examples of contractions in the applicant's evidence on central elements of his claim.
[25] These findings were sufficient to reject the applicant's claim and the applicant failed to demonstrate that the credibility findings were unreasonable.
[26] In my view, the intervention of this Court is not justified.
ORDER
Therefore, this application for judicial review is dismissed.
No question for certification.
Pierre Blais
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
STYLE OF CAUSE:
KANAGARAYAN SAVERIMUTTU
demandeur
et
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
défendeur
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: September 24, 2002
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: September 30, 2002
APPEARANCES BY: Me Diane N. Doray
For the Applicant
Me Sebastien Dasylva
For the Respondent
SOLICITORS OF RECORD: Me Diane N. Doray
6855 de l'Épée, suite 203
Montreal, Quebec (H3N 2C7)
For the Applicant
Me Sébastien Dasylva
Department of Justice
For the Respondent