Federal Court Decisions

     IMM-2445-96

Between:

     KAMIL MOHAMED

     HANOON MOHAMED

     SILMIYA MOHAMED

     YUSRI MOHAMED,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     This matter came on for hearing in Toronto in the forenoon of Thursday, July 31, 1997. Both sides were represented by counsel. Neither counsel stated any serious question of general importance arising from this case, and Court holds that there is none.

     This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c.I-2 (the Act) for judicial review of a decision of the Convention Refugee Determination Division (CRDD) dated June 24, 1996, which found the applicants not to be Convention refugees.

     The applicants are Tamil Muslims who claim to have a well-founded fear of persecution in their country of citizenship, Sri Lanka (personal information form (PIF)) of the male applicant, tribunal record (TR), p. 24). At the hearing before the CRDD on March 1, 1996, the male applicant based his claim for refugee status on perceived political opinion and/or membership in a particular social group, while his wife and two children based their claims on membership in a particular social group, i.e. family membership (CRDD, TR vol. I: p. 5).

     In the narrative response to question 37 of his PIF (TR, vol. I: pp. 32-36), the male applicant claims to have a well-founded fear of persecution from both the Tamil Tigers (LTTE) and the Sri Lankan government authorities.

     He recounted at length the events in support of his claim to refugee status as follows. Before the applicants fled for Colombo, the male applicant ran a prosperous shoe store business in Kalmunai, Eastern Province, Sri Lanka. His difficulties with the LTTE started in October 1990. A group of armed LTTE members came to his home to demand that he join them as a conscript. The male applicant managed to convince the LTTE that he could not join them, since he was the sole breadwinner in his family. Instead, the LTTE extorted an agreement whereby the applicant would pay the LTTE monthly instalments of between 5 000 and 10 000 rupees. The LTTE threatened him and his family with death if he failed to make a payment, or if he told anyone of the arrangement.

     The applicant's version of events continues. Near the end of 1990, a contingent from the Sri Lankan Army came to the male applicant's shop and accused him of helping the LTTE. The applicant was taken to a nearby army camp, along with approximately 7 other men from his village, 3 of whom were also shopkeepers. The applicant was released after about three or four hours, during which time the army questioned him as to whether he was supporting the LTTE. The applicant denied giving money to, or otherwise supporting, the LTTE. He surmised from their questions that the army did not have any actual evidence that he was giving money to the Tamil Tigers.

     Over the next 4 years, the applicant said he was detained approximately 10 or 11 different times by army patrols, who asked him the same routine questions about his involvement with the LTTE. On one occasion in the summer of 1993, the applicant was taken for questioning with about 12 other people. Only 9, including the applicant, were subsequently released. A Tamil Muslim shopkeeper who was a neighbour of the applicants was one of the people who did not return.

     In October 1994, the Tamil Tigers came to the male applicant he recounted and demanded 300 pairs of canvas shoes. Delivery was to be made at the Kalara Temple in Kalmunai. The male applicant had to make a special order for this quantity of shoes. After he received the shoes, and while he was in the process of loading them into his van, an army patrol happened to pass by. They asked to see his special import permit, which is normally required for security reasons when importing the big quantity of goods involved. When the male applicant could not produce the required permit or explain why he did not have one, he and his employee, a Tamil Hindu, were immediately arrested and taken to an army camp, where they were separated.

     The male applicant declared that he was taken to a room, stripped naked, and had his I.D. taken from him. Five officers proceeded to question him about his involvement with the Tigers. They beat and kicked him, and hit him with their rifle butts. They then, according to the applicant, threatened to burn his testicles with cigarettes. Finally, realizing the only way to stave off further abuse was to confess, the male applicant admitted his contact with the LTTE. With this, he related, the beatings stopped, but the army was not interested in hearing his explanations for his association with the LTTE. He was given back his clothes and told he was to be transferred to a different camp in the morning.

     The next morning, according to the male applicant, he was taken before an army officer who informed him that he would be released if he complied with four conditions: i) that he report to the army whenever an LTTE member visited his shop, ii) he was not to leave the Eastern Province without a written consent from the army, iii) under no circumstances could he hire any Tamil speaking person to work in his store; only he and his wife could work there, and iv) he was to report to the army once every two weeks. The male applicant was then fingerprinted and photographed, but his national identity card (NIC) was not returned to him. He learned afterward that his wife, with the help of the Grama Sevaka - the village headman - had secured his release by paying a bribe to the army officer. (If true, it is a dishonour to the government of Sri Lanka which should be informed of its minions' misconduct. The Hindu employee was never released. His having been released is the best proof that the army never regarded the applicant to be in cahoots with the terrorists.

     Following his release, the male applicant resolved that he and his family had to leave the Eastern Province, as he had given the army the names of some LTTE members. In his mind, he was trapped in a dilemma: he believed that if the LTTE came to see him, either they or the army would kill him. If he went to the army, the LTTE would kill him. If he failed to report, the army would arrest and likely kill him, he said he believed. With the help of the Grama Sevaka, the applicant was able to sell his house and shop within ten days of his release. There is some confusion between the transcript, the PIF, and the decision as to whether the house and shop were sold to the headman himself, at a loss, or whether the headman merely helped to find a purchaser for the applicants -- pp. 299-301 of TR, vol. II). The male applicant gave his parents enough money to live on, and found and paid for a rented home for them to live in.

     The applicant found a driver to take him and his family to Colombo. They travelled at night. when they arrived in Colombo in the morning, they tried to find accommodation at several lodges, but were told that they could not stay without clearance from the police. Finally, they found a lodge willing to let them stay for one night provided they got clearance the next morning. The following day, the male applicant went to the local police station to request a clearance to stay in Colombo. When he could not produce his NIC, and after the police learned that he was from the Eastern Province, he was immediately detained.

     The next day, the driver who brought the applicants to Colombo came with the applicant's wife to the police station. The male applicant was allowed to leave after the driver paid the officer in charge a bribe of 10,000 rupees.

     If it be true that military and police authorities exact bribes, then the government of Sri Lanka, by not suppressing such misconduct (despite the civil war) wallows in dishonour; and the claimant and wife are not really suspected to be Tamil terrorists since they were released.

     He was told not to leave the lodge where they were staying until the police checked with the Kalmunai authorities and called him back for further questioning. Fearing what would happen when the local police discovered that the male applicant had breached the conditions of his release in Kalmunai, the applicants decided they had to leave Sri Lanka.

     The driver put the applicants in touch with an agent who would get them out of the country. After spending one night at the driver's home, the applicants moved into the agent's home where they stayed in hiding for three months until they left Sri Lanka. The applicants left the agent's home only to the airport in order to leave the country. They arrived in Canada on February 12, 1995. The applicants first indicated their intention to make a refugee claim a week later on February 20, 1995 (TR, vol. II: p. 29).

     The CRDD's decision to reject the applicants' claim for refugee status was based on its determination that the applicants were not credible. The CRDD found that several elements of the applicants' story were implausible, and that "other aspects of the claimants' story are inconsistent with the documentation presented to the panel on Tamil Muslims in Sri Lanka" (TR, vol. I: p. 13). The applicant's counsel accuses the CRDD of not recognizing that an "individual might have extenuating circumstances." The panel found that there was insufficient credible or trustworthy evidence before them to allow them to make a positive determination on the applicants' claim. Although they held that a negative determination with respect to the applicants' credibility was a sufficient basis for denying the claim, they found, in the alternative, that the applicants had an internal flight alternative (IFA) in Colombo.

     The applicants enumerate several issues. Only three are significant. The first is that the applicants were denied natural justice because the CRDD promised to treat the male applicant's testimony with respect to his experiences in Eastern Sri Lanka as credible, and then found that the male applicant to not be credible. The second is that natural justice was denied because the CRDD did not keep an accurate record of the hearing. The final issue is whether the board erred in determining that the applicants had an IFA in Colombo.

     With respect to the first issue, the jurisprudence of the Federal Court of Appeal makes it clear that the determination of credibility is within the domain of the CRDD. For example, Mr. Justice Décary stated in Aguebor v. Minister of Employment and Immigration, (1993), 160 N.R. 313 at p. 316:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony; who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

Contrary to to contention of the applicants, the CRDD did not state that the only issue they had to consider was internal flight alternative. There was no promise to treat the story as credible. Rather, as the following excerpt from the transcript of the hearing, indicates, the panel made it clear that credibility was always a live issue before it:

Simeon: Thank you. I have nothing further to add in terms of issues, however I will point out that a central issue I believe both my colleague and I share this point of view, the central issue is the internal flight alternative and counsel has provided with an extensive narrative and, Counsel, we will be accepting the narrative as if it was presented orally by the claimant this morning. The panel is quite familiar with the conditions in Sri Lanka today and we are prepared to accept that there is a basis for a well-founded fear in the Eastern Province, so perhaps in terms of your examination you can begin at that point in which they made their flight to Colombo and the situation during their stay in Colombo.

With respect to the issue of the agents of persecution there could be some clarification there, however it's generally acknowledged that Tamils do have a fear of the security forces within Sri Lanka. So there could be some points there. And credibility may arise as an issue during the course of this hearing. There was a delay of approximately I think eight days, something in that order and there could be some questioning on that as well (TR, vol. II: p. 295).

The fact that it accepted that the applicants' claim to fear persecution in the Eastern Province of Sri Lanka does not preclude the CRDD from assessing the general credibility of the applicants on the basis of particular, detailed information provided by the male applicant regarding his experience in the Eastern Province. The applicants were not betrayed here. It was their particular story which the panel found to be not credible. They were never accorded immunity from such a finding.

     The matter of CRDD's finding that the applicant's sending to Colombo for the applicant's family's birth certificates all at once was implausible, is in the Court's view quite wrong. There is nothing in the evidence, or in human nature which is implausible about that.

     Turning to the second issue, the Court notes that the Federal Court of Appeal has held that the absence of transcripts does not itself vitiate the CRDD's decision (Kandiah v. M.E.I., A-113-90), April 13, 1992). Here, there was no transcript available but tapes of the hearing were. The applicants submit that the tape is incomplete. The applicants do not point to where it is incomplete, but upon review of a transcription of the tape there appears to be only one episode where there is a break (TR, vol. II; p. 310). In the male applicant's affidavit the male applicant swears that no mention of the "birth certificate" issue appears in the transcript and that the break in the tapes was probably the point in the refugee hearing where it was discussed. The applicants point out that this was one of the implausibilities found by the CRDD which led it to impugn the male applicant's credibility. It must be noted that this was not the only basis for its credibility finding. The CRDD's finding reads (TR, vol. I: p. 13):

Key portions of the male claimant's testimony are clearly inconsistent with the documentation before the panel. Other aspects of the claimant's testimony dealing with the issuance of their birth certificates and the female claimant's lack of an NIC are implausible in light of the male claimant's testimony and the documentation before the panel as well. Accordingly, the panel finds that the claimants' did not present the panel with credible or trustworthy evidence. Without sufficient evidence and trustworthy evidence before the panel it cannot reach a positive determination in these claims.

In sum, the cornerstone of the credibility finding was that the CRDD found the applicants' story inconsistent with documentary evidence. This is open to the CRDD, as stated by the Federal Court of Appeal in M.E.I. v. Zhou, (A-492-91), July 18, 1994 (F.C/A):

We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed.

It was reasonable of the CRDD to think that they, the applicants, would have obtained an NIC for the applicant's wife. In the face of these findings, therefore, the applicants' position was seriously undermined.

     In the alternative, the CRDD correctly found that the applicants had an IFA. In Thirunavukkarasu, [1994] 1 F.C. 598 (F.C/A), Mr. Justice Linden wrote, at pp. 597-98:

This, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

Let me elaborate. It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarify, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a case in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

In conclusion, it is not a matter of a claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling half-way around the world to seek a safe haven, in another country. Thus, the objective standard of reasonableness which I have suggested for an IFA is the one that best conforms to the definition of Convention refugee. That definition requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country. The prerequisites of that definition can only be met if it is not reasonable for the claimant to seek and obtain safety from persecution elsewhere in the country.

First it should be noted that the existence of an IFA was an alternative finding of the CRDD (TR, vol. I: p. 14) and not, as applicants state "premised on the assumption that his testimony is not credible * * *", (applicant's record, p. 106). Second, the CRDD's conclusion regarding the availability of an IFA in Colombo is supported by the evidence it had before it. The applicants had and have nothing to fear from the authorities - certainly nothing to fear in Colombo. The CRDD accepted the evidence that Muslim Tamils are regarded as being trustworthy by the authorities because of the savagery which the Tigers have inflicted on the Muslims. There is no reason to quash the CRDD's decision in this regard. The CRDD's most obvious error was the finding that the applicant sold the shop and house to the Grama Sevaka, rather than through the Grama Sevaka. This is irrelevant. There is nothing which substantiates the applicants' assertion that the CRDD used "selective" excerpts of documentary evidence.

     There simply is no reviewable error. This is an unhappy conclusion for the applicants, but the nature of judicial review is not what the Court would do, but how did the CRDD do? It did not go off the rails.

     Accordingly, this application for judicial review is dismissed.

    

Judge

Ottawa, Ontario

August 27, 1997