PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NASUWA BEEBEE MOHAMMADU CASSIM
FATHIMA SHEEMA SHAHABDEEN
SHIFAN MOHOMED
FATHIMA SILMIYA SHAHABDEEN
FATHIMA SHAMA SHAHABDEEN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The principal Applicant, Mr. Shahabdeen Mahamudu Lebbe (the Applicant), is a Muslim Tamil from Sri Lanka, who claims protection in Canada because of his political opinion, namely his support for the United National Party (UNP) and the Ceylon Workers Congress (CWC). His wife, Ms. Nasuwa Beebee Mohammadu Cassim, and children, Fathima Sheema Shahabdeen, Shifan Mohomed, Fathima Silmiya Shahabdeen, and Fathima Shama Shahabdeen base their claim on that of the Applicant.
[2] In a decision dated June 16, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) determined that the Applicants were not Convention refugees or persons in need of protection. While apparently accepting that the incidents of attack on his factory, harassment of the family and abuse by the police on one occasion did occur, the Board rejected the claim, primarily on two findings. The Board, first, did not accept that he had the political profile he asserted. Secondly, the Applicant failed to convince the Board that the Sri Lankan Freedom Party (SLFP) was behind the attacks on his factory and on his family. In addition, on the basis that the police had begun an investigation concerning one of the incidents, together with documentary evidence, the Board found that the Applicant had failed to rebut the presumption of state protection.
[3] The Applicants seek judicial review of that decision.
Issues:
[4] The main issue addressed by the Applicants is whether the Board erred in respect of its credibility finding on the bases that:
- The Board erred by finding a "misstatement" in respect of his political profile in his Personal Information Form (PIF);
- The Board's finding of lack of political knowledge on the part of the Applicant was based upon evidence given by the Applicant that was misconstrued or ignored by the Board;
- The Applicant did include, in his PIF, reference to the collusion of the SLPF and the police; and
- The Applicant provided a reasonable explanation, supported by an articling student, for omitting the precipitating incident from his interview at the POE.
[5] The Applicant also raises the issue of whether the Board erred in its conclusion that he had failed to rebut the presumption of state protection.
Analysis
[6] Credibility findings are within the heartland of the Board's discretion and the Board is in the best position to gauge credibility and draw the necessary inferences (Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)). The Board's decision should be reviewed on a standard of patent unreasonableness; unless the decision is entirely unsupported by the evidence or is made in a perverse or capricious manner, without regard for the material before it (s. 18.1(4)(d), Federal Courts Act, R.S.C., 1985, C. F-7), this Court should not intervene. However, even on this high standard, I am persuaded that the decision should not stand.
(a) The Applicant's position within the party
[7] In his PIF, the Applicant stated that he was the "elected Muslim leader for the UNP and the CWC in my district". The Board questioned him extensively on what was meant by this statement and about his role with the UNP and CWC. The Board concluded that it
. . . drew "a negative inference from the alleged "misstatement" in his written evidence regarding his UNP position, and finds the claimant attempted to exaggerate his political profile as an "elected leader" for the UNP . . .
[8] It appears that, in the Board's view, the term "elected" could only mean elected to public office; that was the focus of the questioning. However, this confusion is cleared up by the sentence that follows the claim to being an "elected Muslim leader". In this following sentence, the Applicant clearly explains that his role is one of "gaining support for the Muslim people for these parties, and to organize the Muslim people for these parties, and to organize the Muslims who were already party members." During questioning at the hearing, the Applicant was entirely consistent with the contents of his PIF. He neither misstated his position nor exaggerated. This flawed finding by the Board speaks directly to the question of his political profile.
(b) Role of the SLPF in the alleged persecution
[9] The Applicant, in his PIF and his testimony, alleged that the SLPF was behind the persecution. It appears that the Board did not believe the Applicant's testimony in this regard. However, the Board did not carefully review the entirety of the evidence presented on the role of the SLFP but focussed on one minor event in its conclusion. Specifically, the Board stated that the Applicant omitted, from his narrative and his POE interview, the claim that SLFP members had accompanied the police to inspect his factory.
[10] Given the testimony involving the SLPF, this is an extremely minor omission. By relying on a perceived minor omission to discredit the entire story of the Applicant that the SLPF was behind the attacks and raids, the Board erred (Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.)).
(c) Lack of political knowledge
[11] The Board grilled the Applicant on his political knowledge. I find no fault with the attention paid to this point by the Board; an assertion of political profile would normally be accompanied by considerable knowledge of the political landscape. However, even though the Applicant was able to provide significant information on this aspect of his claim, the Board concluded as follows:
The lack of political knowledge of an allegedly prominent person of a political party, for instance, the name and configuration of the party that purportedly forced his entire family to leave his country, is bewildering indeed, illustrating to the panel that the claimant's alleged political position was certainly not nearly as significant as he wanted the panel to believe.
[12] As the transcript demonstrates, the Applicant had considerable knowledge of the political parties in his country. In relying on minor points such as the Applicant's lack of knowledge of the full names of some of the political parties, the Board entered, in my view, into a microscopic analysis and erred (Attakora, above).
(d) Precipitating Event
[13] The Applicants described the event that precipitated their flight from Sri Lanka as being when SLFP members allegedly attacked the home of Fathima Shifani on September 17, 2004. The Board drew an adverse credibility inference because the Applicant did not mention this incident at the POE interview.
[14] The Board is entitled to draw adverse inferences from the omission of a critical event during his interview at the POE. However, the Applicant asserts that the Board ignored the explanation given in his testimony. In this case, I agree.
[15] The Board accepted that the POE interview is not as exhaustive as the PIF narrative must be, but nonetheless decided that an omission of the key incident of persecution was unreasonable. The transcript demonstrates that the Applicant (and a law student who was present at the interview) explained to the Board that the immigration officer at the POE advised them not to go into complete detail and only provide "some of the reasons" for fleeing. The Applicant was specifically told to stop describing persecutory incidents at a certain point and leave it for the refugee hearing. In light of this evidence, the Board's reliance on this omission to draw an adverse credibility inference is capricious.
(e) State protection
[16] The Respondent asserts that, even if the Board erred in its conclusion on credibility, the finding of adequate state protection is determinative. On the facts of this case, I cannot agree with the Respondent. The Board's finding of state protection flows from the Board's finding on credibility in that it rests on the conclusion that the Applicant did not have the political profile he claimed and that the SLPF was not behind the attacks. A finding of state protection is most often determinative of a claim. However, on the facts of this case, I agree that this issue is inextricably linked to the credibility finding. If the Board erred in its credibility finding, it follows that the Board assessed the availability of state protection without regard to the situation faced by the Applicant as someone who has been attacked because of his political profile.
Conclusion
[17] In this case, the Board made a number of errors. In light of the significance of these errors, the decision should be quashed. Neither party proposed a question for certification. No question will be certified.
ORDER
This Court orders that:
- The application is allowed and the matter sent back to the Board for re-determination by a different panel of the Board; and
- No question of general importance is certified.
"Judith A. Snider"
________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4251-05
STYLE OF CAUSE: SHAHABDEEN MAHAMUDU LEBBE ET AL v. MCI
DATE OF HEARING: April 24, 2006
APPEARANCES:
| Mr. Lorne Waldman
|
|
| Ms. Deborah Drukarsh
|
SOLICITORS OF RECORD:
| Lorne Waldman, Toronto, Ontario
|
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| John H. Sims, Q.C., Deputy Attorney General of Canada |