Date: 20010509
Docket: IMM-1174-00
Neutral citation: 2001 FCT 451
BETWEEN:
SIVAKUMAR SHANMUGALINGAM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction:
[1] The applicant seeks judicial review of a January 27, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) wherein the Board found that the applicant was not a Convention refugee.
[2] Counsel for the applicant raised two main issues: 1. Did the Board err by failing to consider the medical evidence before it in assessing the applicant's credibility?; and 2. Did the Board err by failing to consider the documentary evidence before it in terms of assessing the well-foundedness of the applicant's fear, given his particular circumstances as a young Tamil from Northern Sri Lanka?
Facts:
[3] The applicant is a 21 year old Tamil Hindu male citizen of Sri Lanka who claims refugee status based on a well-founded fear of persecution due to his political opinion. He claims that his brother was being recruited by the Tigers and that he was moved from Pooneryn to Vavuniya in order to escape being taken in place of his brother if his brother did not join the Tigers. In Vavuniya, the applicant was allegedly arrested and detained by the PLOTE in April, 1997. He claims that in November, 1997 and again in 1998, he was arrested by the police and that in July, 1998, he was taken by the army for two weeks. He fled Vavuniya with his father in August, 1998 and went to Colombo. There, he claims that he was arrested again by police, but his father obtained his release.
[4] The applicant fled Sri Lanka on August 30, 1998, arrived in Canada on September 1, 1998 and claimed refugee status on September 4, 1998.
[5] The Board noted that the applicant raised the issue of his psychological problems and it appears from the decision that this issue was considered by the Board in determining whether or not the applicant was capable of testifying. The applicant claimed to be afraid of appearing before the Board and that he suffered from various problems that may have affected his ability to testify, namely: his propensity to forget what he says, his failure to understand some things, and his difficulty in finding the proper places when asked to find something contained in written materials. A psychological report was introduced at the hearing and the applicant also stated that he had not followed up with the psychologist, nor was he being treated with any medication.
[6] The Board found that the applicant was alert and responsive but sometimes lazy and gave responses lacking in specifics. In the Board's view, there were many inconsistencies between the applicant's PIF narrative and his testimony at the hearing, as well as within his testimony itself, including:
- The applicant's statement that he left Colombo in August, 1998 with his uncle and last saw his parents in December, 1996 contradicts his PIF statement to the effect that his father travelled with him to Colombo and bribed police to have him released after his arrest there;
- Internal contradictions in the applicant's testimony surrounding the time and duration of his detention in February, 1998;
- The applicant's PIF narrative stated that he was interrogated by the army in July, 1998. However, he stated at the hearing that he was not interrogated. On further inquiry, he stated that he was interrogated, but that the interrogation was done in Sinhalese and so he did not understand what he was being asked;
- The applicant's testimony to the effect that he was visited by Tigers on various occasions since December, 1996 was not included in his PIF narrative and does not makesense since, according to his other statements, he moved to Vavuniya in December, 1996 and so any incidents that occurred then would not have involved the Tigers;
- The applicant's statements contradict his brother's PIF to the effect that the applicant did not leave his parents behind when fleeing to Colombo; and
- The applicant's statements that he was harassed by the Tigers in Vavuniya, which was under Tiger control at that time contradicts the documentary evidence to the effect that Vavuniya was not under the control of the Tamil Tigers at that time.
[7] The Board also found some of the applicant's explanations implausible because:
- The applicant failed to provide details as to his July, 1998 arrest by the army and what the army apparently "warned" him about;
- The applicant is small in stature and suffers from asthma, so it seems unlikely that he is a candidate for recruitment by the Tigers;
- The applicant stated that the army interrogated him in Sinhalese when they would have known he spoke Tamil;
- It appeared to the Board unlikely that the army would have kept him for two whole weeks under such circumstances; and
- The applicant did not provide any specific answers to the request to describe the worst event of his life, instead he simply stated that he was beaten and that he is troubled by his asthma.
[8] For these reasons, the Board concluded at page 6 of its reasons, "the claimant is found not to be credible, thus unable to prove his fear of persecution."
Analysis:
[9] The first issue is whether or not the Board erred in failing to consider the medical evidence before it in assessing the applicant's credibility. Counsel for the applicant submits that the Board did not take the applicant's psychological state sufficiently into account when assessing the quality and nature of his testimony, especially in light of the documentary evidence to the effect that Tamil males in Sri Lanka are subject to the mistreatment by the Tigers and the state authorities to which the applicant testified. Counsel submits that the Board held the applicant to the same standards that it would have held any other applicant who did not show evidence of such psychological impairments to providing coherent testimony.
[10] On the other hand, the respondent argues that the Board's credibility findings are within its purview and that they were clearly open to the Board on the evidence before it, given the inconsistencies and contradictions in the applicant's own testimony and between his statements at the hearing and those he made in his PIF narrative. The respondent submits that the Board did indeed acknowledge the applicant's medical concerns, however, it still determined that the applicant was capable of testifying and that his responses were problematic, leading to the conclusion that he was not a credible witness.
[11] Indeed, the Board clearly addresses the issue of the psychological evidence brought by the applicant at the start of its reasons. At page 1 of its decision, the Board wrote:
The hearing took place in two sessions, on October 7 and October 25, 1999. During October 7, 1999 session, the claimant's brother, Havikumar Shanmugalingam was appointed as a designated representative as the claimant was described to be having psychological problems. This was decided after having a pre-hearing conference with the Counsel and the Refugee Claim Officer (RCO) and a review of the psychological report from Maria Haladyn-Dudek, M.Ps. It was agreed as well during this conference that the Counsel could start his examination-in-chief under the circumstances, asking some basic family related questions forst leading into questions such as shy he is here today, the role of the panel in his understanding and why his brother is present in the room. This process was adopted to assess the capability of the claimant to testify by making him feel comfortable, ensuring his understanding of the proceedings therefore.
[12] At page 3, the Board stated:
The panel was satisfied with the claimant's capability to testify and his clear understanding as to why he is present at the hearing.
And later on that same page:
The claimant confirmed to have provided himself all the information about him and his persecution to the psychologist. The panel noticed no peculiar problems in him testifying as mentioned earlier. He was alert and responsive. The panel, however, did notice that the claimant showed some laziness in testifying on some occasions, not making a real effort to understand a question. This trend of the claimant was confirmed twice by his brother Havikumar during his short testimony as a witness as well. The panel also fails to understand that if his psychological problems were serious as claimed, why then no follow-up treatment was taken by the claimant.
[13] Counsel for the applicant objects to the Board's claim that the applicant was "lazy" and indicates that his brother's testimony in that regard was taken out of context, as his brother was testifying to the effects of the applicant's depression, and not to the nature of the applicant's responses at the hearing. Counsel also submits that the applicant did not seek further treatment because he was too depressed to do so, arguing that this lack of follow-up should not detract from the Board's view of the seriousness of the applicant's psychological state.
[14] In any event, the Board summarized the nature of the applicant's testimony at page 3, stating that:
The claimant was generally spontaneous in his reponses, but was not always direct in answering specifics. On few occasions, he would not answer. There were many inconsistencies to his PIF and within his oral testimony.
[15] In my view, the Board was clearly aware of the psychological factors at issue in this case. While I am troubled by some of the Board's statements, specifically the statement that the applicant was "lazy" in responding to the Board's questions, the Board's findings are not unreasonable. I must defer to the Board's finding that the applicant was capable of testifying and that he would have sought further treatment if his mental health was so seriously impaired, even though I may not have made the same determination if I had been in the Board's position. It was open to the Board to determine that the applicant was not a credible witness, given its views on the implausibility of and the contradictory nature of his testimony, as well as its assessment that the applicant did not adequately and completely address some of the questions posed to him.
[16] The second issue is whether or not the Board erred in failing to consider the documentary evidence before it in terms of assessing the well-foundedness of the applicant's fear, given his particular circumstances as a young Tamil male citizen in Sri Lanka. Counsel for the applicant argues that, given the documentary evidence that young Tamil males are often persecuted both by the LTTE and the Sri Lankan Army, the Board erred in its findings. The respondent submits that the Board has the right to weight the evidence before it. It was therefore within its rights, submits the respondent, when it gave weight to the fact that the applicant's testimony was not credible. Furthermore, the Board's reasons disclose that it did consider the documentary evidence and determined that the applicant was not likely to be targeted for recruitment by the Tigers, given that he is small in stature and has medical problems. At page 4 of its reasons, the Board wrote:
Considering his profile, the panel does not believe that the Tigers were targeting the claimant as a recruit. He had testified he was suffering from an asthma conditioin which was related to the Tigers by his father in November1996, when the father went to work for the Tigers in his stead. He also testified that he is small in appearance and had difficulties in school to learn [sic]. He was unable to explain why, with his profile described by himself, particularly health, the Tigers would be interested in him even on the basis that they want at least one member of the family to join them.
[17] Counsel for the applicant submits that the Board's findings regarding the applicant's "profile" dealt only with the issue of the alleged persecution by the Tigers, and thereby the Board failed to address the likelihood that the applicant would have been persecuted by the Sri Lankan Army. However, it is clear from the Board's decision that it did not find the applicant's story regarding his detention by the Sri Lankan Army to be credible. The Board wrote at page 6 of its decision:
During the July 1998 incident, the claimant was asked earlier if he was questioned by the army, and had replied "no". He was read line 40 of his PIF stating that the [sic] was actually interrogated. He responded that they did interrogate, but he did not understand anything from the army as they spoke in Sinhalese. The panel fails to understand why would they question him in Sinhalese knowing that he is Tamil, while seeking information of him. Moreover, would they keep him for two weeks under these circumstances? The claimant is less than truthful in testifying.
The applicant gave a further explanation for this inconsistency between his testimony and the statements he made in his PIF narrative, stating that his interrogation was conducted by PLOTE, who were interpreting for the Army, so he therefore was not inconsistent in his answer to the panel's questions concerning interrogation. In my view, the above credibility finding was reasonably open to the Board on the evidence before it and, therefore, the Board adequately addressed the issue of the applicant's alleged persecution by the Army, contrary to the submissions of the applicant's counsel.
ORDER
[18] The application for judicial review is dismissed.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
May 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1174-00
STYLE OF CAUSE: SIVAKUMAR SHANMUGALINGAM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, APRIL 25, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, MAY 9, 2001
APPEARANCES BY: Ms. Helen Luzius
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Helen P. Luzius
Barrister & Solicitor
5030-3080 Yonge St.
Toronto, Ontario
M4N 3N1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010509
Docket: IMM-1174-00
Between:
SIVAKUMAR SHANMUGALINGAM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER