Date: 20040130
Docket: IMM-2387-03
OTTAWA, Ontario, this 30th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
KANMANI MUTHUKUMAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated March 6, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection, on grounds of credibility.
FACTS
[2] The applicant is a 70 year old Tamil citizen of Sri Lanka, from the village of Pungudutivu in the district of Jaffna. She has five children, two of whom have been accepted as Convention refugees in Italy and in Canada, her other children are in unknown locations in Sri Lanka. She was widowed in July 2001. She claims a well-founded fear of returning to Sri Lanka because she fears the Liberation Tigers of Tamil Eelam (LTTE), the Sri Lankan Army (SLA), and the People's Liberation Organization of Tamil Eelam (PLOTE), a pro-government group.
[3] She bases her claim on two particular allegations:
(1) In October 2001, members of the PLOTE attempted to extort 200,000 rupees from her because they believed she could obtain funds from her children abroad. They threatened to report her to the Sri Lankan Army (SLA) as an LTTE supporter, if she failed to comply. The PLOTE members agreed to allow her three months to raise the money; and,
(2) In November 2001, the LTTE requested to hide arms on her property because they found it to be a suitable location. They threatened to punish her as a traitor if she refused. When her attempts to dissuade them failed, she informed them that she would be leaving the country within a month, and that they could do as they wished after she had left Sri Lanka.
[4] Although the applicant had experienced problems with the LTTE in the past, her life in Pungudutivu had been without incident since January 1996-with the exception of the two incidents stated above. The Applicant left Sri Lanka for Canada on December 25, 2001 with the help of an agent hired by one of her sons.
[5] At her refugee hearing, the Board rejected her credibility and decided that the claimant had created the incidents to bolster her claim. The Board decided that she did not flee Sri Lanka for fear of persecution, but did so because she wanted to join her supportive family members abroad. At page 3 the Board states:
The RPD finds that the claimant failed to establish that she has a well-founded fear of persecution in Sri Lanka today. The testimony of the claimant is that she lived in Pungudutivu from January 1996 to October 2001 without incidents that caused her to fear. The RPD does not find it credible that two incidents, one by each military adversary, occurred so close to each other and that each villain permitted the claimant time to comply with their demands. The RPD finds, on a balance of probabilities, that the claimant created these incidents to bolster her refugee claim.
[...]
[...]The children, presumed to be in Sri Lanka, are out of touch with the claimant, and she was widowed in 2001. The RPD finds that the claimant did not flee Sri Lanka because of persecution but, rather, attempted to join supportive family members abroad. The RPD finds that the claimant does not have a credible well-founded fear that she can reside in Jaffna without a serious risk of persecution.
[6] For the same reasons outlined above, the Board also found there was no risk to the applicant's life, or a risk of cruel and unusual treatment, or punishment in Sri Lanka.
ANALYSIS
[7] The sole issue raised in this application is whether or not the Board erred in its credibility and plausibility findings. The applicant submits that the Board failed to explain why the two incidents could not have occurred approximately seven weeks apart and why it is implausible that the villains would allow her time to comply with their demands. The applicant contends that there were good reasons why each group agreed to wait, and the Board ignored this evidence. The applicant relies on Hilo v. Canada (MCI) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.); and Divsalar v. Canada (MCI), 2002 FCT 653, [2002] F.C.J. No. 875 (T.D.).
[8] The respondent submits that the credibility and implausibility findings of the Board are reasonable and do not warrant this Court's intervention. The respondent contends that the Board is presumed to have considered all the evidence before it, including the applicant's explanations.
[9] The Federal Court of Appeal has made it clear in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, that the plausibility of testimony is within the Board's expertise, and that a different test for intervention does not apply depending on whether the issue is "plausibility" or "credibility". At paragraph 3, per Decary J.:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
The appropriate standard in this case is patent unreasonableness, to which both parties agree.
[10] The principle that a Board is under a duty to state its reasons for doubting a claimant's credibility in clear and unmistakable terms is a fundamental one. See Hilo v. Canada (MEI) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.) Armson. In Hilo, supra the Court of Appeal states at paragraph 6 per Heald J.:
In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted supra is defective because it is couched in vague and general terms.
[11] After reviewing the Board's decision I find that it did not provide an adequate explanation why it doubted that the two incidents alleged by the applicant occurred so close to each other. The applicant provided reasonable explanations as to why the incidents happened, why the LTTE and PLOTE allowed her time to comply with their demands, and why she had to flee. The Board does not address these explanations. With respect to the PLOTE the applicant states at page 2 of her narrative:
When I refused to pay the demanded sum and told them that I was a widow and did not have such a large sum, he told me that he was aware that I had a son in Italy and a daughter in Canada and he wanted them to contact them and get the demanded sum. ...Fearing that he might carry out his threat, I told him I needed time to contact my children abroad and get the required sum. The PLOTE member gave me 3 months time.
[12] With respect to the LTTE the applicant explained at page 3 of her narrative:
[...]The LTTE said that I should help out without fear as my house and farmland was very suitable as it was close to the sea shore. They also said that as I was an old widow living alone, that the army would never suspect me. Despite all my pleadings, the LTTE was not willing to listen to me and the threatened to kill me as a traitor if I did not help out. Being aware that the LTTE ould carry out its threat I told the LTTE that I was leaving the country and I pleaded with them not to go ahead with their demand until I leave the county. The LTTE gave me one month to leave.
[13] The hearing transcript shows the applicant provided the same explanations at her hearing. While it is within the Board's power to reject such explanations, it cannot do so without providing clear and unmistakable reasons . In this case the Board does not even mention the applicant's explanations. The Board has the right to reject the credibility of the applicant, and the Court will defer to the Board's credibility finding unless it is patently unreasonable, but the Board must provide adequate reasons.
[14] The Board erred in failing to provide provide clear and unmistakable reasons for rejecting the applicant's credibility, and in failing to consider the applicant's explanations for the facts which the Board found to be implausible.
[15] For these reasons, this application for judicial review is allowed and the matter is to be remitted to a differently constituted panel for redetermination.
[16] Neither counsel or the Court consider that this case raises a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is granted. The matter is to be remitted to a differently constituted panel for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2387-03
STYLE OF CAUSE: KANMANI MUTHUKUMAR v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada
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FOR THE RESPONDENT |
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FEDERAL COURT
Date: 20040130
Docket: IMM-2387-03
BETWEEN:
KANMANI MUTHUKUMAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER