Date: 20000221
Docket: IMM-1336-99
BETWEEN:
FRANCIS XAVIER PATHINATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Despite the thorough submissions of counsel for the applicant, this application for judicial review of the negative decision of the Convention Refugee Determination Division must be dismissed.
[2] The applicant challenges principally the tribunal"s negative finding of credibility concerning his testimony. In his view, the tribunal made unreasonable inferences, misconstrued the evidence and did not state its reasons for decision in clear and unmistakable terms.
[3] After a careful review of the transcript, I cannot agree with the applicant.
[4] The applicant described himself as an "ordinary policeman" or a constable with the special crime investigation branch of the Sri Lankan police force. On the basis of the applicant"s personal information form, the Minister"s representative participated at the tribunal hearing to raise the possibility of his exclusion from consideration as a refugee on the ground of his commission of crimes against humanity under article 1F(a ) of the United Nations Convention relating to the Status of Refugees. The relevant paragraphs of the applicant"s personal information form read as follows:
| 10. During the Janatha Vimukthi Peramuna operations my tasks were especially in regard to collecting information about the said revolutionary party and people who plot against the government or terrorize and their activities and searching them or their supporters, helpers, and people who accommodated or gave food or clothing to such groups or individuals and people who aided and abetted them. My duty included taking the said categories of people to custody, remanding, and bringing them to court. During this time my supervisors sent me with a group of policemen to arrest the suspects. Eventually they were killed by some of the high officials in our department. They even put tires and burnt the bodies and buried the remains in secret places. A widespread cycle of murder and reprisal killings followed. The government responded ruthlessly. I was one of the group of policemen who were blamed for the security"s brutality as the people who were found to be missing were brought by me and others. Therefore my name was on the Janatha Vimukthi Peramuna hit list. I learned this from my colleagues and supervisors. They called us and advised us and warned us to be careful of this. Therefore I think the government has used me against the Janatha Vimukthi Peramuna. |
| 11. In another incident I was sent with a group of policemen to take a secret message to Delgoda. However the Janatha Vimukthi Peramuna insurgents got the information in advance and attacked us on our way. They threw hand bombs and shot at us and ran away. I was shot and injured on my right leg and still have the scars. |
[5] The applicant was cross-examined by the Minister"s representative concerning what he considered to be discrepancies between the applicant"s denial of any anti-JVP abuses and the statements he made in his personal information form. Upon my reading of the transcript, I am satisfied that the questioning by the Minister"s representative and the supplementary interventions by the panel members were appropriate. It was open for the tribunal to conclude that the applicant was evasive and that he "knew exactly what he had written in his Personal Information Form and it clearly reflected what he intended it to say at that time."
[6] In its reasons for decision, the tribunal further stated:
| The panel determines that this claimant is not a Convention refugee. The evidence overall was neither credible nor trustworthy enough to conclude that he was excludable under Article 1F(a), although the panel had some suspicion that this claimant may have been involved either directly or as an accomplice in activities against the JVP that might make him excludable from refugee consideration. For the same reason, the panel also was unable to conclude that he had provided sufficient credible and trustworthy evidence to find that there was any "serious possibility" that he would be persecuted for Convention reason if he returned to Sri Lanka in the future. [Footnotes omitted.] |
The applicant"s counsel challenged this paragraph for its lack of clarity and for its reference to "some suspicion" with no further explanation.
[7] Any confusion that may be created from a reading of this single paragraph is, in my view, dispelled in the context of the entirety of the decision, particularly after a review of the transcript. The tribunal concluded that the evidence was not strong enough to meet the threshold to exclude the applicant under article 1F(a). However, on the basis of the assertions in his personal information form, when assessed with his oral testimony, it was open to the tribunal to state that the applicant may have been somehow involved in activities against the JVP and yet conclude that he had failed to provide sufficient credible and trustworthy evidence to establish that he was a Convention refugee.
[8] In his detailed and sometimes microscopic comparison between the reasons for decision and extracts from the transcript, counsel for the applicant raised a number of issues, none of which, in my opinion, constitutes a reviewable error. In the end, the tribunal found the applicant"s demeanour during his testimony to be evasive, particularly when he was questioned on the statements in his personal information form concerning his apparent involvement in anti-JVP abuses. The tribunal also considered other aspects of the applicant"s testimony which, in its view, did not meet the criteria of rationality and common sense.
[9] After my careful consideration of the applicant"s arguments and the transcript of the hearing, I have not been convinced that the tribunal"s reasons for decision disclose any reviewable error. Accordingly, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
February 21, 2000