Date: 20000426
Docket: IMM-5864-98
Ottawa, Ontario, the 26th day of April 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
CALISTA MANOHARAN, VINISTEN MANOHARAN
and BANWESTON MANOHARAN
Applicants
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Calista Manoharan (the "applicant") applied for refugee status on her own behalf and on behalf of her two children. The Convention Refugee Determination Division ("CRDD") found that some of her evidence was implausible but also found that Mrs. Manoharan and her family did not fit the profile of the types of individuals who would be of interest to the Tamil Tigers or to the Sri Lankan army. In the end, the CRDD found that the applicant lacked a well founded fear of persecution in Sri Lanka and therefore was not a refugee. She seeks to challenge that conclusion for herself and her independent children by way of judicial review.
[2] The applicant is a Tamil from the north of Sri Lanka. When she was 24 and single, the Tigers attempted to recruit her by threats. Her mother hastily arranged a marriage for her which "effectively exempted her from conscription by the LTTE"1. She and her new husband remained in the North and had two children, who are also applicants in this application. The applicant"s husband was subject to demands for unpaid labour from time to time. This in turn brought him to the attention of the army. In September 1997, the army came to arrest her husband. Fortunately, they were not at home and took advantage of the situation to flee to Mullaitivu, an area controlled by the Tigers. During bombing and shelling in the area, she became separated from her husband and decided to follow an agent to Colombo from whence she came to Canada.
[3] The CRDD found implausible the applicant"s story of becoming separated from her husband and choosing to leave him behind to follow an agent to Colombo and Canada. It is trite law that it is the heart of the jurisdiction of the CRDD to determine issues of credibility and plausibility, and that even with respect to conclusions about plausibility drawn from the CRDD"s specialized knowledge, great judicial deference is owed to the CRDD"s findings2. However, the CRDD cannot base its findings upon misstatements of the evidence3. In her Memorandum, the applicant identifies three key areas in which she says that the CRDD has misstated her evidence. In support of this she refers to her affidavit filed with the application for judicial review. Unfortunately, the affidavit does not accurately reflect the evidence before the Board as shown in the transcript of the hearing. By way of one example out of several, in her affidavit, the applicant says that she "gave the following evidence in [her] oral testimony". She refers to evidence of her husband being abducted by the LTTE and being forced to pay a ransom to obtain his release. There is no oral evidence on this point. It appears only in the answer to q. 37 of the Personal Information Form ("PIF"), and in an attenuated form compared to what appears in her affidavit. The Board"s decision must be assessed on the basis of the evidence which it heard, not some other possible evidence.
[4] The applicant reproaches the CRDD its findings of implausibility with respect to her departure from Mullaitivu area without her husband, as well as her fear of the army and the LTTE based upon her profile. As for the circumstances of the applicant"s departure from Sri Lanka without her husband, this is a matter which could reasonably be considered to be implausible. There is no error on the Board"s part in concluding that it is. The finding of implausibility is simply a credibility finding which this Court will not disturb except on the clearest of grounds. The issue of the discrepancy between the documentary evidence as to the profile of persons who are of interest to the LTTE, and the applicant"s evidence of her experience with the LTTE is a matter within the CRDD"s particular expertise. It is clear that the the CRDD may prefer documentary evidence to the evidence of the applicant4. In this case, the documentary evidence suggests that the applicant would not fall within the profile of those of most interest to the combatants. The CRDD is entitled to assess the applicant"s evidence in her PIF and her viva voce testimony in the light of this documentary evidence.
[5] In the end result, there is no basis for any interference on the part of this Court.
[6] The Applicant suggested the following question for certification:
| Is it an error of law for the Refugee Division to reject the plausibility of the Applicant"s evidence where it has ignored testimony, written evidence & [sic] objective documentation supportive of the Applicant"s claim? |
[7] The question proposed is rhetorical in that it is clear that the Refugee Division must consider all the evidence in coming to its decision. The applicant"s complaint is the weight which the Refugee Division gave to some evidence as opposed to other evidence more favourable to the applicant"s position. No question will be certified.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated October 26, 1998 is hereby dismissed.
"J.D. Denis Pelletier"
Judge
__________________2 Eledchumanasamy v. Canada [1999] F.C.J. No. 378 per Evans J.
3 Owusu-Ansah v. Canada [1989] F.C.J. No. 442, (1989) 98 N.R. 312