Date: 20050411
Docket: IMM-3723-04
Citation: 2005 FC 476
Ottawa, Ontario, the 11th day of April 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
MOHAMMED YASEER
MOHAMMED MOHIDEEN
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] On March 9, 2004, the Immigration and Refugee Board (the "Board") determined that the Respondent, Mr. Mohammed Yaseer Mohammed Mohideen, is a Convention refugee under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"). The Applicant, seeks judicial review of the Board's decision delivered by Board member, Mr. Michael Crelinsten. The Applicant seeks to have the decision quashed and the matter remitted to a differently constituted panel for redetermination.
FACTUAL BACKGROUND
[2] The Respondent is a Tamil Muslim, born on July 7, 1982, in Negombo, Sri Lanka.
[3] The Respondent has two brothers and one sister. He also has three stepbrothers and one stepsister from his father's first marriage. He assisted his father in the family business helping with the business accounts.
[4] In his personal information form ("PIF"), the Respondent states that his father had financially supported the children of his first marriage so that they could establish their businesses. His father had also provided a dowry to his stepsister. Notwithstanding this help, in September 2001, the Respondent's stepbrothers asked for more money from the family business. The father refused and the stepbrothers insulted the father and promised that they would teach him a lesson.
[5] The Respondent's stepbrothers went to the Negombo police and lodged a false complaint against the Respondent, alleging that he had links to the Liberation Tigers of Tamil Eelam (LTTE). In September 2001, the Respondent was detained for one day at the police station and beaten by the police. His father intervened to have him released.
[6] On December 4, 2001, similar events occurred at the father's home and, this time, when the stepbrothers attacked his father, the Respondent had to intervene. The Respondent claims that again, the stepbrothers lodged a complaint against him alleging that he was helping the LTTE in the Negombo area and transporting goods for the LTTE to Jaffna. The Respondent alleges that the stepbrothers bribed the police and that his father could not help since he had suffered a heart attack and died. The Respondent was questioned and beaten by the police and only released for his father's funeral
[7] On February 22, 2002, the Respondent's stepbrothers bribed an employee of the family business to steal three signed blank cheques. The cheques were intended for three individuals tied to the Sri Lankan underworld. Upon being notified by his bank that attempts had been made to cash the said cheques, which were fraudulently made out for amounts that far exceeded the funds on deposit in his bank account, the Respondent put a stop payment on the cheques.
[8] The three individuals for whom the cheques were intended accused the Respondent of fraud for having issued cheques for which there were non sufficient funds. The Respondent was arrested by the Negombo police and later released on bail. The three individuals threatened the Respondent with death. While hiding in Wallanada, his mother's hometown, he secured a Canadian student visa and fled to Canada.
[9] The Respondent arrived in Canada on September 25, 2002, and claimed refugee status on December 11, 2002. His claim was accepted on March 9, 2004. On November 19, 2004, leave was granted to commence the within judicial review application.
[10] The Respondent's claim for refugee status was founded on his fear of persecution based upon race, religion, nationality, imputed political opinion and a particular social group, family. He also claims to be a person in need of protection based upon a danger of torture as well as a risk to life or of cruel and unusual treatment and punishment.
IMPUGNED DECISION
[11] The Board considered the Respondent a Convention refugee because it was satisfied that he had met the subjective and objective components of a well-founded fear of persecution, that there was an absence of State protection, that there was no internal flight alternative ("IFA"), and that the Respondent faces more than a mere possibility of persecution based upon imputed political opinion were he to return to Sri Lanka.
[12] In reaching its decision, the Board had the benefit of the Respondent's testimony and the following documentary evidence, namely: the Respondent's PIF and amended PIF, Schedule 1 background information, copies of the Respondent's personal papers such as his passport and Canadian student visa, documents on country conditions in Sri Lanka.
[13] The Board found the Respondent's testimony consistent, unexaggerated, spontaneous, with no significant or implausible contradictions. The Board recognized the Respondent's delay in leaving Sri Lanka but held that, on a balance of probabilities, the student visa could plausibly be used as a vehicle by the Respondent for escaping persecution in his country. He showed that his subjective fear of persecution was based upon his family's ties to the underworld and their fraudulent claims that he is linked to the LTTE.
[14] With respect to the objective component of the well-founded fear of persecution, the Board held that country documentation confirms the extrajudicial involvement and corruption of the police in Sri Lanka. The Board concluded that the Sri Lankan state is unwilling and unable to protect refugee claimants. It based its finding on the Respondent's credibly established family links with the Sri Lankan underworld, the death threats made against the Respondent, the falsely motivated charges against him, the fact that he jumped bail and was wanted by the police. The Board found that these elements support its finding that the authorities, on a balance of probabilities, are neither willing nor able to protect the Respondent should he return to Sri Lanka.
[15] Finally, the Board found that there were several agents of persecution at play in the present case: the Respondent's stepbrothers, the Sri Lankan underworld, the Sri Lankan police as a result of the falsely motivated case pending against the Respondent and his fraudulently claimed links to the LTTE. On a balance of probabilities, the Board held that nowhere in Sri Lanka would the Respondent remain safe, undiscovered and able to pursue his life without fear of persecution. The Board found there to be no viable IFA for the Respondent in Sri Lanka.
THE ERRORS ALLEGED
[16] The Applicant contends that the Board erred:
1) by failing to expressly find the Respondent to be "a person in need of protection" pursuant to s. 97 of the IRPA;
2) in finding the Respondent to be a Convention refugee when his refugee claim had no nexus to a conventional ground;
3) in finding that there was no State protection and no IFA for the Respondent in Sri Lanka;
4) in making patently unreasonable findings of credibility and fact.
STANDARD OF REVIEW
[17] In reviewing factual findings, the Court's intervention will only be warranted if the decision is based on a finding that is made in a perverse or capricious manner or without regard for the material before it. (Paragraph 18.1(4)d) of the Federal Courts Act, R.S.C. 1985, c. F-7, s.1; 2002, c. 8 s. 14.) The standard of review to be applied to credibility determinations is the norm of the patently unreasonable decision: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL.
[18] With respect to the Board's decision relating to the possibility of an IFA, the standard of review is whether it was patently unreasonable for the panel to conclude that it was reasonable, on a balance of probabilities, for the Respondent to avail himself to an IFA. (Ramachanthran v. Canada (Minister of Citizenship and Immigration) 2003 FCT 673; Chorney v. Canada (Minister of Citizenship and Immigration), 2003 FC 999.) Decisions of the Board as to the adequacy of State protection will also be reviewed against the standard of patent unreasonableness. (Sajid Ali et al. v. Minister of Citizenship and Immigration, 2004 FC 1449).
ANALYSIS
1. Failing to expressly find the Respondent to be "a person in need of protection" pursuant to s. 97 of the IRPA
[19] In the final paragraph of its reasons the Board concluded as follows:
Based upon the credible establishment of both a subjective and objective component of a well-founded fear of persecution, based upon the absence of State protection as well as the absence of an IFA, the panel concludes that the claimant faces more than a "mere possibility" of persecution based upon imputed political opinion, where [sic] he to return to Sri Lanka. Accordingly, the Refugee Protection Division determines that the claimant, Mohammed Yaseer MOHAMMED MOHIDEEN, is a "Convention refugee" under section 96 of the Act. His claim is, therefore, accepted.
[20] The Applicant maintains that the Board rendered a decision pursuant to s. 96 of the IRPA and made no finding in respect to s. 97 of the IRPA. The Respondent argues that the Board did address the Respondent's claim under s. 97 by noting in its reasons that "...he also claims to be a 'person in need of protection' based upon a danger of torture as well as a risk to life or of cruel and unusual treatment or punishment." The Respondent contends that the omission of any mention of s. 97 in the reasons is no more than an inadvertent error since the transcript of the oral reasons at the last paragraph states, "Accordingly, under Section 96 and 97 of the Refugee Protection Act, the claim is accepted."
[21] A review of the transcript of the hearing and the reasons shows that the Board conducted a review of the Applicant's circumstances in respect to the risk he may be exposed to if returned to Sri Lanka, and in particular the country reports as they relate to elements of risk associated with his alleged links to the LTTE, the underworld and Sri Lankan authorities as a result of his pending Court case, for which he jumped bail. I am satisfied that the Board addressed its mind to the Respondent's s. 97 claim and was in a position to determine whether the Respondent was a "person in need of protection" based on torture as well as a risk to life or of cruel and unusual treatment or punishment. I accept that the transcript of the oral hearing reflects a decision of the Board in respect to the Respondent's s. 97 claim. I am also satisfied that the Board committed no reviewable error in concluding that the Respondent was a person in need of protection.
2. Finding the Respondent to be a Convention refugee when his refugee claim had no nexus to a conventional ground
[22] The Board made the following findings in respect to the Respondent's fear of persecution:
Threatened with death by the three individuals mentioned above, the [Respondent] secured a Canadian student visa and fled to Canada on October 25, 2002. [...]
[...] The panel concludes that the [Respondent] meets the Adjei threshold the claimant [sic] of risk of persecution based upon fraudulently claimed links to the LTTE and the consequent imputed political opinion because of the credibly established family links to the underworld and their efforts to blackmail, extort or harm him. This conclusion is further underpinned by the absence of his father who was connected and could intervene on his behalf with the police, the claimant's credible testimony regarding the pending case in Sri Lanka and his credible testimony regarding his status as a principal in that case. (pages 9-10 Tribunal Record)
[23] The Applicant contends that the main reason the Respondent fled Sri Lanka, was criminality and a fear of vengeance from the underworld. Such grounds, argues the Applicant, are not related to the Convention grounds. Further, the Applicant contends that the Respondent's link to the LTTE is ancillary only to the major ground of vengeance by those associated to the underworld who have threatened the Respondent. The Applicant therefore argues that the Board erred in finding the Respondent a "Refugee under s. 96 of the Act", since the Respondent did not establish a nexus with a convention ground.
[24] In his testimony before the Board, the Respondent confirmed that he feared not only being killed by underground criminals who wanted to prevent his testifying against them in a fraud case, but also the false allegation that he "...supplied material or goods to the LTTE". Based on a number of elements, including the fact that the Respondent had been tortured at the hands of the police, that he had jumped bail and was wanted by the police, and the country reports which confirmed extra judicial involvement and corruption of the police in Sri Lanka, the Board determined that the Respondent had met the "threshold" and was found to be a Convention refugee.
[25] I am satisfied that the Board had sufficient evidence before it to conclude that the Respondent had established that his claim had a nexus to a Convention ground, namely, imputed political opinion resulting from fraudulently claimed links to the LTTE.
3. Finding that there was no State protection and no IFA for the Respondent in Sri Lanka
[26] The Board found that the Respondent feared persecution by the police as result of the fraudulent charges brought against him. The Board accepted that the Respondent had been tortured by the police, had jumped bail and was in hiding prior to leaving Sri Lanka. In the circumstances, given the country condition reports considered by the Board in respect of the Sri Lankan police, the Board's findings in respect to an IFA and the lack of State protection were not patently unreasonable.
4. Making patently unreasonable findings of credibility and fact
[27] The Applicant points to certain errors made by the Board that render its decision patently unreasonable. The Applicant contends that the Board erred when it failed to consider certain contradictions in the Respondent's testimony and his PIF narrative in respect to his stepbrothers' request for an interest in the family business. The Applicant further argues that the Board failed to consider omissions of certain important factors in his PIF, namely that during his second arrest he was taken to the Columbo police, his attempted kidnapping and reference to the underworld as an agent of persecution. The Applicant contends that the Board failed to consider the Respondent's lengthy delay in leaving Sri Lanka and delay in claiming refugee status once in Canada. The Applicant also contends that the Board's credibility findings are patently unreasonable. It is also argued that the Respondent's story in respect to the blank cheques and the Respondent's family's ties to the underworld are implausible and not supported by the evidence.
[28] Upon careful review of the transcript of the hearing and the evidence before the Board, I find that the Board committed no reviewable error in its findings of facts and credibility determinations. In respect to the Respondent's delay in leaving Sri Lanka and delay in claiming refugee status, it was open to the Board to accept the Respondent's explanations.
[29] It is well accepted that determinations of fact and credibility findings are within the purview of the Board, a recognized expert tribunal, only to be disturbed by a reviewing court on the patently unreasonable standard of review. With the benefit of having heard and considered the Respondent's evidence, it was open to the Board to find the Respondent credible and accept his version of the facts.
CONCLUSION AND CERTIFICATION OF A QUESTION
[30] The application for judicial review will be dismissed. The Board's findings and conclusions were open to it on the applicable standard of review and do not warrant this Court's intervention.
[31] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the IRPA and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is dismissed.
2. No question is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3723-04
STYLE OF CAUSE: MCI v. Mohammed Yaseer Mohammed Mohideen
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: February 14, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: April 11, 2005
APPEARANCES BY:
Me Mario Blanchard For the Applicant
Me Dan Bohbot For the Respondent
SOLICITORS OF RECORD:
John H. Sims, Q.C. For the Applicant
Deputy Attorney General of Canada
Montréal (Québec) H2Z 1X4
Me Dan Bohbot For the Respondent
4979A, chemin Côte Ste-Catherine, suite 200
Montréal (Québec) H3W 1M5
