Date : 20050629
Docket : IMM-9562-04
Citation : 2005 FC 916
OTTAWA, Ontario, this 29th day of June, 2005
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
RAJESWARAN BALASUBRAMANIAM
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division (RPD), dated October 22, 2004, wherein the claim of Rajeswaran Balasubramaniam, the Applicant, was rejected. The RPD concluded that he was neither a Convention refugee nor person in need of protection.
[2] The Applicant is a citizen of Sri Lanka. He is a Hindu Tamil businesseman. His wife and twin sons are still in Sri Lanka.
[3] The Applicant alleged that the Liberation Tigers of Tamil Eelam (LTTE) extorted money from him from 1991 to 1995 as a form of business tax and war fund. He and his family were displaced in April 1995 and they returned to their village in June 1996.
[4] During a search operation, the army took him into custody in June 1996. He was questioned and beaten; they suspected that he had a link with the LTTE. He was released the same day. He alleged that he continued to have problems with the army; at checkpoints, he was questioned and beaten up.
[5] In June 2002, the LTTE asked the Applicant for money for local development. He paid them Rs. 25, 000 but they asked for Rs. 300,000, since the Applicant was a successful businessman. The Eelam People's Democratic Party (EPDP) also demanded money for the same cause and they told him that they could assist him to import goods from Colombo. Since the Applicant wanted to increase his business, he paid the money to the EPDP at the beginning of 2003.
[6] The LTTE noticed the increase in the Applicant's business and claimed Rs.1,000,000 from him. In May and June 2003, the Applicant was assaulted by the LTTE. When the EPDP learned about these incidents, they offered him protection in exchange of more money. This irritated the LTTE who took him to their camp and beat him, suspecting him of being an EPDP informer and of spying for the army . He was released two days later when his wife and the village headman promised the money within two weeks. Following this detention, the Applicant decided to leave his country on September 11, 2003. He arrived in Canada on September 15 and claimed protection the same day.
[7] The RPD found that the Applicant was not credible. It listed several contradictions and implausibilities. First, the RPD explained that it did not believe the Applicant was a businessman and therefore doubted the incidents stemming from his occupation. His National identity Card (NIC) did not indicate his profession. Also, on the birth certificates of his children, farmer was the occupation noted. When asked about this, he answered that his father-in-law filed the application and wrote "farmer". The RPD found that the Applicant was adjusting his testimony when questioned on this subject.
[8] The RPD referred to another contradiction about the card issued by the army. According to the RPD, the Applicant's answers concerning the time when the card was issued were evasive; again he kept adjusting his testimony; he did not remember when the army lost control of his area. Moreover, the Applicant explained to the RPD that his army card was taken by the LTTE at a checkpoint when he was on his way to Colombo. However, according to the documentary evidence, there were no longer checkpoints since the peace agreement in 2002.
[9] The RPD questioned the plausibility of the Applicant's testimony concerning why he would risk associating himself openly with the EPDP, knowing that it was a rival group of the LTTE. Also, his testimony was inconsistent when the Applicant explained why he was involved in importing goods and why he paid the EPDP for their help.
[10] The RPD did not accept the explanations provided by the Applicant about when his birth certificate had been translated into English.
[11] The Applicant testified that his wife operated his business after he left until November 2003. Since his wife's letters dated from that period did not mention the business, the RPD was of the view that the Applicant avoided to answer the question. He maintained that he had instructed her by telephone to close the business; the panel had difficulty believing the Applicant.
[12] Further, the RPD indicated that the credibility of the Applicant was undermined when he explained why his family remained in the same house despite the visits of the LTTE. It also questioned the plausibility of the Applicant's allegation that he left some money with his father-in-law for the needs of his family despite the fact he had testified that his wife had strained relations with her parents.
[13] The Applicant testified that the army was still looking for him because he gave money to the LTTE, which is a crime under the Prevention of Terrorism Act. The RPD failed to understand why the army had never arrested him under the Act.
[14] Finally, the RPD noted other facts that questioned the Applicant's credibility: he did not mention his home had been damaged by shelling in 1996 in his Personal Information Form (PIF) and he failed to mention that he feared the army.
[15] The Applicant submits the following issue:
Whether the Board based its decision on erroneous findings of fact made in a perverse manner and without regard for the material presented.
[16] Essentially, the Applicant explained that most findings of the RPD are flawed and determined that it transformed explanations and clarifications into adjustments and evasiveness.
[17] Dealing with the finding that the Applicant had never had a business, the Applicant argues that it was based on a mention in 1988 on the birth certificates of his children and that his occupation (farmer) prior to 1992 was irrelevant to the claim. The relevant facts are those which happened in 2003. With respect to his occupation, the Applicant submits that his testimony relating to the business was detailed and the RPD failed to take it into account. Also, the RPD accused him of adjusting his testimony, which is unfair since his father-in-law had registered the births in 1988 and the Applicant could not be expected to know why he indicated "farmer" as his occupation. In addition, the certificates were not produced to prove his profession but rather to corroborate that his family was born in Sri Lanka.
[18] Concerning the army card, the RPD did not accurately explain the Applicant's version. The Applicant stated that he did not recall when his card was issued; he was being asked to speculate on a matter of which he professed no certain knowledge. Also, the RPD misconstrued the Applicant's testimony as to when the army took control of Pallai. He never testified as to when the army lost control nor did he change his answers.
[19] Dealing with the checkpoints, the Applicant argues that the documentary evidence does not contradict his testimony. A review of the record indicates that the testimony was not contradictory in conducting business with the EPDP. In his testimony he pointed out he had two reasons: developing his existing business and assisting his community in offering goods at a reasonable price.
[20] The Applicant submits that he never stated he was "openly" associating with the EPDP, nor did he suggest that his birth certificate was translated in conflicting areas as the RPD determined.
[21] Finally, it is argued that some evidence from the Applicant was ignored; he testified that he spoke on the phone with his wife about his business, thus, the statement by the RPD that he avoided to answer was unreasonable. It was also unreasonable for the RPD to conclude as it did in dealing with the relationship the Applicant's wife had with her parents. He attempted to explain that while his wife sometimes argued with her mother and probably did not want to live with her parents, this does not mean that she did not wish to have anything to do with them.
[22] Essentially, the Respondent argues that questions of credibility are within the purview of the RPD. Even if the Applicant does not agree with the RPD's assessment of evidence, he failed to demonstrate that the assessments are perverse, capricious or manifestly unreasonable. The RPD offered detailed reasons why the Applicant was found not to be a credible witness.
[23] In a further memorandum, the Respondent explained that even if the RPD was mistaken on two issues (the translation of the birth certificate and the moment when the army took control of an area) these errors are not material to the decision; that it should be read as a whole.
[24] Concerning the Applicant's association with the EPDP, the Respondent submits that the Applicant is trying to convince this Court that he consciously took risks to provoke LTTE anger towards him by selling goods at a reasonable price as a humanitarian gesture while he knew of the rivalry between the two groups.
[25] Regarding his occupation, the Respondent argues that the Applicant kept adjusting his testimony and provided no documents to support his business activities.
[26] Further, it is the Respondent's contention that the family's conduct is incompatible with a genuine fear, his wife and children remained in the same house while he alleged that the LTTE still solicits money.
[27] The decision in RKL v. Canada summarizes the principles regarding credibility assessment. The determination of credibility is the hearthland of the Board's jurisdiction and it may conclude that an applicant is not credible because of "implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms". "However, not every kind of inconsistency or implausibility in the applicant's evidence will reasonably support the Board's negative findings on overall credibility. It would not be proper for the Board to base its findings on extensive "microscopic" examination of issues irrelevant or peripheral to the applicant's claim" (RKL v. Canada (MCI), [2003] FCT 116, par. 7-12).
[28] There is a presumption that, when an applicant swears the truth, the allegations are true unless there is a reason to doubt (Maldonado v. Canada (MEI) [1980] 2 C.F. 302 (FCA)).
[29] In this case, according to the respondent, the RPD made two minor errors that are of no consequence. After carefully reviewing the transcript, the RPD made more than two evident errors and one is very significant. It put undue emphasis on the Applicant's children's birth certificates. The applications which were filed by his father-in-law in 1988 are not relevant to his situation in 2003. Further, the RPD questioned the Applicant as to why his father-in-law indicated "farmer". The question is not relevant and opened the door to speculation. Since this negative finding was very relevant to the decision, the error is material to the decision. The RPD indicated it does not believe that the applicant was a businessman, and doubted all incidents stemming from the evidence on this issue.
[30] The Applicant explained his business in detail and this was not doubted by the RPD. It should also be noted that the Schedule 1 (p. 183 of tribunal record) indicated as a profession "farming" until 1992, and subsequently "business". The Applicant explained that his business started in 1980 on a small scale and subsequently expanded.
[31] Concerning his army card and when the army lost control of an area, the Applicant correctly pointed out that the RPD misconstrued his testimony; he was not evasive on this issue.
[32] According to the RPD, the Applicant failed to mention his fear of the army in his PIF. Correct, however the notes taken by the officer clearly raised a fear of the army (p. 186 and 194 of tribunal record).
[33] From the transcript, I am satisfied that the Applicant correctly explained the relationship between his wife and her family. I find that the RPD made a unreasonable inference. Following the question as to why his wife was not living with her family, the Applicant explained that the relationship between his wife and her parents "is not excellent. That's why she prefer to stay a bit away from them" (p. 261 of tribunal record). The RPD then questioned the credibility of the Applicant on the fact that he gave his father-in-law money for his family and concluded that it was not plausible that he could trust him since the relations were strained. After reading the transcripts, the Applicant explained that the relationship was not excellent; there were some arguments between the wife and her mother (p. 261 and 279 of tribunal record). To conclude that it was not plausible the Applicant would have given money to his father-in-law is not reasonable.
[34] On the alleged implausibility regarding the translation of the Applicant's birth certificate, the RPD concluded that the Applicant was "not a reliable witness". After reading the transcripts, the RPD was undoubtedly wrong on that issue (p. 247-248 of tribunal record). To conclude that the Applicant was not reliable taints the decision.
[35] Counsel for the Respondent acknowledged two errors but he is wrong to suggest that they are not material. The RPD made a microscopic analysis of the testimony and pointed out alleged implausibilities when the Applicant attempted to clarify his answers. I am satisfied they are not "real" implausibilities.
[36] While errors from the RPD may not all be reviewable errors, cumulatively, they render the decision patently unreasonable.
ORDER
[37] This application for judicial review is allowed, the Officer's decision is quashed and the matter shall be returned to a different officer for redetermination.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
June 29, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-9562-04
STYLE OF CAUSE : Rajeswaran Balasubramaniam v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Qc
DATE OF HEARING: May 31, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: June 29, 2005
APPEARANCES:
Me Pia Zambelli FOR THE APPLICANT
Me Annie Van Der Meerchen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Diane N. Doray FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT