Date: 20010525
Docket: IMM-3839-00
Neutral citation: 2001 FCT 525
BETWEEN:
KUGATHAS KANDASAMY
Plaintiff
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This is an application for leave and judicial review from a decision by the Refugee Division (hereinafter "the tribunal") on June 15, 2000 that the plaintiff is not a Convention refugee.
FACTS
[2] The plaintiff, a Hindu Tamil, is a national of Sri Lanka, aged 27.
[3] In 1992 the plaintiff received a visit from the Tigers. They asked him to join the ranks of the Tigers. The plaintiff's father paid a bribe to deal with their request.
[4] In 1993, when he was living in Killinochchi the plaintiff was kidnapped by the Tigers. He had to provide first aid and serve food.
[5] In May 1998 the plaintiff was arrested by the army in Jaffna after the Mayor of Jaffna, Sarojini Yogeswaran, was murdered. The plaintiff was released after being held for a week. His brother Mohanachevem was arrested in October 1998 and since that time no one has known where he is.
[6] In February 1999 the army conducted a raid at the printing plant where the plaintiff was working. The plaintiff and two other employees were arrested by the army at that time and taken to a camp. The plaintiff was held for a month. When he was released he was ordered to report daily to the camp.
[7] Because of his fear, the plaintiff left Jaffna for Colombo. He was arrested by the police in Colombo because he is a young Tamil. The plaintiff was released after being held overnight.
POINT AT ISSUE
[8] Did the tribunal err in concluding that the plaintiff was not credible?
ANALYSIS
[9] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court indicated the circumstances in which the Court would intervene in the conclusions of a tribunal regarding a plaintiff's credibility:
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.
[10] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), it was stated:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
(footnotes omitted)
[11] Finally, in Wen v. M.E.I., [1994] F.C.J. No. 907 (F.C.A.), the Federal Court of Appeal said:
The Refugee Division's decision turned wholly on an adverse finding of the appellant's credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant's story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division.
That apart, we also observe that the adverse finding was based as well on the appellant's answers being "confusing" and "evasive". This assessment of personal demeanour ought not to be interfered with by this Court which lacks the advantages available to the triers of fact. (See Clarke v. Edinburgh Tramways Co. [1919] S.C. 35 (H.L.) quoted in Fletcher v. Manitoba Public Insurance Company (1990) 116 N.R. 1 (S.C.C.), at pages 12-13.
[12] The plaintiff argued that the following conclusion by the tribunal was unreasonable. At p. 2 of its decision, the tribunal indicated:
In explaining his detention on this occasion, the claimant gave some information which is not mentioned in his PIF. The claimant, for example, said that the army came back after one week with photos for the claimant to comment [sic] while he was in the camp. After that he was put in a dark room with no windows or light. He sais [sic] there was a small hole in the wall. The panel believes that the claimant is again adding information to inflate his claim. Therefore, he is not credible as the omission from his PIF of photos shown by the army during his detention for his comments was an important information [sic] which should have been stated there.
[13] In the plaintiff's submission, it is bizarre to blame him for not writing in his account that there was a small hole in the wall of his cell.
[14] I cannot accept the plaintiff's argument. First, I do not read the tribunal's decision as indicating that the tribunal concluded the plaintiff should have stated in his PIF that there was a hole in the wall of his cell. What the tribunal objected to was the fact that the plaintiff failed to mention an important fact in his PIF, namely that he did not indicate in his PIF that while he was an inmate the army had shown him photos asking for his comments.
[15] In fact, in his PIF the plaintiff mentioned, without giving further details, that he was arrested and taken to the camp where he was then tortured.
[16] Further, as was indicated by Teitelbaum J. in Basseghi v. M.E.I., [1994] F.C.J. No. 1867 (F.C.T.D.):
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[17] I cannot conclude that the tribunal's conclusion was patently unreasonable.
[18] The plaintiff also questioned the tribunal's conclusion about the obtaining of a pass. The plaintiff felt that he had clearly explained that the pass was obtained without going through the regular channels, namely through the village headman, who was a person of influence. This was a very usual means of obtaining this kind of document in Sri Lanka and the plaintiff did not feel that the tribunal was in a good position to judge how certain events took place.
[19] At p. 3 of its decision the tribunal explained:
The claimant testified that the village headman had to speak to the army to get the pass for him. The claimant had earlier said that the village headman knew about the claimant's detention by the army for a month. If this testimony is to be believed, then the panel fails to understand how he could obtain a pass from the army through the village headman in a day after his release by the army. Particularly, when it is considered that the army asked him to report daily to their camp as a condition of his release. The claimant is not credible.
[20] Contrary to what was alleged by the plaintiff, the tribunal did not dispute that someone might receive a pass with the help of the village headman. What the tribunal could not find credible was the plaintiff's explanation about the fact that the army gave him a pass only one day after he was released when the army asked him to report to the camp daily. It was this inconsistency that the tribunal could not accept.
[21] It was indicated in Tong v. Secretary of State of Canada, [1994] F.C.J. No. 479 (F.C.T.D.):
A claimant's demeanour, consistency, ability to present specific facts, and concordance with objective evidence in the record may be thought of as internal credibility, viz, the apparent veracity (or lack thereof) of a witness' testimony, taken within itself and within the record, that is, in the light of demeanour, frankness, readiness to answer, coherence and consistency - what I might call the heartland of credibility. Confusion, failure to respond, evasions, inconsistencies and contradictions will create a perception of lack of credibility.
[My emphasis.]
[22] In my view, the tribunal was entitled to conclude as it did on the basis of the evidence presented. I cannot find that the tribunal erred in interpreting the evidence and reaching the conclusion that it did.
[23] The plaintiff also argued that it was entirely unreasonable for the tribunal to conclude that the plaintiff was not credible when he explained that he travelled with a white American man who passed for his father on the journey. According to the plaintiff, white or black children could be born of a union of mixed parentage and adoption is also possible. The tribunal acted from prejudice in dismissing the plaintiff's explanations.
[24] It is true that at first sight there may be a doubt whether the tribunal concluded that it was impossible for a white American to pass for the plaintiff's father. If that was the case, I would consider that the tribunal's conclusion was patently unreasonable.
[25] However, it appeared from the reasons of the tribunal that the latter did not accept the plaintiff's explanation as to how he was going to answer the authorities if he was questioned about his father, whether in general or because he did not resemble his father. The plaintiff explained to the tribunal that he did not know the name of his alleged father and that despite the fact his alleged father had white skin he had black hair and eyes and so was of mixed racial origin.
[26] At p. 3 of its decision, the tribunal indicated:
The claimant testified that he travelled with a white person (An American) from Hong Kong. His agent arranged this. He was told that he was travelling with this white man as his father. The claimant said he did not remember the white man's name. When asked what name was used on his fake USA passport, he said that it was Michael St. John. The panel fails to understand that if he was travelling with this gentleman as his son, he would remember his name but not of [sic] his supposed father. The panel finds that the claimant is not truthful, hence not credible.
The panel also finds that the claimant was making up explanations when questioned how he passes as son, being a dark skin individual, of a white American man. He said that this gentleman had black eyes and white body, therefore, of a mixed racial origin. He pointed to the counsel after, stating that he looked like him (white man as well). These are not credible explanations, thus rendering him not to be credible.
[27] It can be seen that the tribunal was trying to determine whether the plaintiff was prepared for the eventuality that the authorities might ask him for details about his father and their difference in appearance.
[28] In my view, it was reasonable for the tribunal to try and determine how the plaintiff had prepared for the eventuality that he might be asked for details about his father. The conclusion that the plaintiff lacked credibility in this regard was supported by the evidence and, in my opinion, the tribunal's conclusion was not unreasonable.
[29] The plaintiff argued that the tribunal could not dismiss all the testimony if the inconsistencies, though significant, did not relate to a central aspect of the claim.
[30] I cannot accept that argument. I have carefully examined the evidence before the tribunal and the tribunal's decision. The tribunal's findings on the plaintiff's lack of credibility do relate to important points in the claim.
[31] The plaintiff was unable to persuade the Court that the tribunal's conclusions were arrived at in a perverse or capricious manner or without regard for the material before it.
[32] The application for judicial review is accordingly dismissed.
[33] None of the counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 25, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3839-00
STYLE OF CAUSE: KUGATHAS KANDASAMY v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 16, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: May 25, 2001
APPEARANCES:
Claudia Gagnon FOR THE PLAINTIFF
Thi My Dung Tran FOR THE DEFENDANT
SOLICITORS OF RECORD:
Claudia Gagnon FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada