Ottawa, Ontario, April 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] It is for a specialized tribunal in its capacity (recognized knowledge and background of its members) as a first instance, trier of fact to decide issues of credibility in the manner it considers appropriate under the circumstances and in the context of that jurisdiction. Unless patently unreasonable, its decisions are its, and its alone, to make; however, in each individual case, that capacity, thus knowledge and background must, at least, be put on paper; that, to ensure that
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consideration is given to subjective and objective evidence, thus testimony, personal and objective documentation (whether it originates with the specialized tribunal or otherwise) for the purpose of
illustrating assessment. The assessment, no matter how brief, must be demonstrated in its reasons for decisions by explaining the factors, taken into consideration in that assessment, under the particular situation, circumstances and context of the individual (thus particular country conditions, objective evidence vis-à-vis the individual's subjective claim).
Citing credibility-assessment jurisprudence for the legal tests alone, does not assist in ensuring that the specialized nature of the tribunal in its knowledge of "country conditions" of a particular country is brought to bear in adequate reasons. Adequate reasons require a demonstration of an assessment of that evidence in the unique light of each individual's evidence as considered against a background of the objective evidence of which the specialized tribunal is a repository.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act [1](IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on March 12, 2004, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
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BACKGROUND
[3] The alleged facts, as described by the Board are as follows. A 56-year-old widowed Tamil woman from northern Sri Lanka, the Applicant, Ms. Neeladevi Sinnathurai, has four sons and two daughters who all fled Sri Lanka between 1986 and 1998 and are now living abroad from Sri Lanka.
[4] In August 1992, Ms. Sinnathurai's village was subjected to heavy shelling and bombing by the Sri Lankan Army and her husband was killed in a shell attack. During 1993 and 1994, Ms. Sinnathurai's son, Sivakumaran, was harassed by the Liberation Tigers of Tamil Eelam (LTTE) and he was forced to do hard labour for them. In mid-1994, Ms. Sinnathurai's son was arrested by the army accusing him of supplying materials to the Tigers. On that occasion, he was beaten and detained for nearly two weeks.
[5] Ms. Sinnathurai fled to Veerapuram, along with her only remaining son and stayed with her brother. From 1995 to 1997, Ms. Sinnathurai's son continued to be harassed by the LTTE and People's Liberation Organisation of Tamil Eelam (PLOTE). In September 1997, he was arrested by PLOTE and detained. In May 1998, he was arrested, beaten and detained for a long period of time by the army. After his release, he fled to Canada where he has been accepted as a Convention refugee. Ms. Sinnathurai continued to remain with her brother.
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[6] In July 1999, Ms. Sinnathurai went to south India to perform a religious vow in the name of her son. She returned shortly after.
[7] In 2001, Ms. Sinnathurai began to be harassed by the LTTE who were demanding money. The LTTE told Ms. Sinnathurai that she could afford to pay them, since all her children were abroad. Fearing reprisal, she paid them under duress.
[8] In July 2001, Ms. Sinnathurai applied for a visitor's visa to come to Canada with the intention of never returning to Sri Lanka. She planned to make a refugee claim in whichever country her children would advise.
[9] Ms. Sinnathurai first came to Canada on July 18, 2001 from Sri Lanka. She remained in Canada but failed to make a refugee claim. On March 16, 2002, she left Canada and arrived in
Norway on March 17, 2002, where she remained until May 10, 2002. She then went to Germany and stayed there for twelve days. She went to Switzerland on May 22, 2002 and stayed until
June 17, 2002. She returned to Canada on June 17, 2002. She claimed refugee status on June 24, 2002.
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DECISION UNDER REVIEW
[10] The Board decided Ms. Sinnathurai was not a refugee nor a person in need of protection because it did not believe that she faced extortion at the hands of the LTTE in Sri Lanka prior to leaving and because she did not claim protection in Canada until after traveling to various other countries around the world.
ISSUES
[11] Was the Board's decision patently unreasonable?
ANALYSIS
[12] The standard of review with regards to credibility findings and findings about the subjective fear of persecution is patent unreasonableness.
[13] First, the Board made a reviewable error with respect to credibility. The Board only stated that it did not believe Ms. Sinnathurai faced extortion at the hands of the LTTE but believed that she made up this allegation to substantiate her refugee claim. The Board stated that there were a number of inconsistencies throughout her testimony but did not list nor discuss the reasons for any. As
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clearly expressed by the Federal Court of Appeal in Armson v. Canada(Minister of Employment and Immigration)[2], the Board has a duty to give its reasons for rejecting a refugee claim on the ground of credibility in clear and unmistakable terms. The Federal Court of Appeal quoted from Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Service[3]: "Some reason for thinking the evidence not credible must be given if an appearance of arbitrariness is to be avoided."
[14] Second, the Board simply states that it believes that if Ms. Sinnathurai really faced all the difficulties she alleged, she would not have returned after having visited India in 1999. This is an error, as the Board again provided no evidentiary base for this finding and as Ms. Sinnathurai clearly traveled to India prior to her own personal problems at the hands of the LTTE, which only began in 2001. Though this error is not as important as the unsupported lack of credibility finding identified above, it still adds to the difficulties with the Board's decision.
[15] As for the delay in claiming refugee status in Canada and in visiting other countries without making claim in any of these countries, the Board concluded it showed a lack of subjective fear of persecution on the part of Ms. Sinnathurai. The Board did not include the explanation of Ms. Sinnathurai, that she had traveled to see her children whom she had not seen in twelve years (other than her son who had been accepted as a refugee in Canada) nor had she ever met her grandchildren; and she made it understood that her life and questionable status may not have
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allowed her to see her closest relatives under the circumstances, otherwise. The inference was that her priority was to see her family first and seek status subsequently.[4] The Court is of the view that, though a delay in claiming refugee status and traveling to different countries, without claiming refugee status, constitute significant factors to consider, they are, in and of themselves, not conclusive in this case as the Board did not adequately assess the credibility of Ms. Sinnathurai's claim.
[16] With respect to the country condition documentary evidence, Ms. Sinnathurai argues that the Board has a duty to seek out and assess in some manner the objective evidence directly related to the refugee claimant's particular circumstances. Although the Court is of the view that the Board does not have to seek out evidence that was not before it; however, having reviewed the objective documentary evidence provided by the Board in this file, the Court duly notes that the most pertinent document to which reference is made by Ms. Sinnathurai, the Sri Lanka Project's Refugee Council Paper, entitled "Human Rights and Return of Refugees", does specify more than once that the LTTE was indeed responsible for extortion. Although no details are given in that regard, it certainly acknowledges the fact of the existence of extortion. It is not for the Court to determine how the Board was to have discussed this document in its reasons (that is for the Board alone to decide); nevertheless, the fact remains that extortions took place and that an indication to that effect requires, at the very least, acknowledgement.
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CONCLUSION
[17] For these reasons, the Court answers the question in the affirmative. Consequently, the application for judicial review is allowed. The matter is sent back for re-determination.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be granted;
2. No question be certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3965-04
STYLE OF CAUSE: NEELADEVI SINNATHURAI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 13, 2005
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Karina Thompson FOR THE APPLICANT
Ms. Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
KARINA THOMPSON/ FOR THE APPLICANT
ROBERT I. BLANSHAY
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General