BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] The Applicant is a Muslim Tamil citizen of Sri Lanka. He arrived in Canada on the 4th of September, 2001, travelling on a student visa, to attend Lakehead University. On the 11th of August, 2003, he made a claim to Convention refugee or like protection in Canada. He based his claim on an alleged well-founded fear of the father of a former school mate of his and of the police. The father was alleged to hold a high post in government and to be politically active and successful. Unlike most Tamil claimants from Sri Lanka, the Applicant was born in Columbo and would appear to have spent all, or at least most, of his life there before coming to Canada.
[2] In a decision dated the 16th of March, 2005, the Refugee Protection Division (the "Board") of the Immigration and Refugee Board rejected the Applicant's claim for protection. The Applicant sought judicial review of that decision. These reasons follow the hearing of a portion of the Applicant's application for judicial review.
BACKGROUND
[3] The Applicant was a very successful student in Informatics. He stood first in his class. As a result, he was offered a teaching assistantship with the prospect of being able to go to Singapore for work and to gain some professional experience. He was scheduled to begin teaching in December, 2000.
[4] A schoolmate of the Applicant, who ranked second in the same discipline, was jealous of the success and the opportunities offered to the Applicant and asked the Applicant to step aside in his favour. The Applicant refused. The schoolmate threatened the Applicant. When the threats did not deter the Applicant, the schoolmate's father intervened. The Applicant alleges that the father falsely informed the CID, an element of the Sri Lankan police, that the Applicant had links with the Tamil Tigers. The Applicant was taken into custody by the CID, was interrogated and beaten. Out of fear and frustration and at the urging of his parents, the Applicant applied in January of 2001, to Lakehead University in Thunder Bay, Ontario, with a view to commencing a software engineering programme there.
[5] When the Applicant's school became aware of the situation, it offered him an opportunity to go directly to Singapore to work as an instructor. The Applicant's schoolmate learned of this offer. Once again, the Applicant alleges that his schoolmate's father had him arrested and once again the Applicant was interrogated and beaten. Through the intervention of a lawyer, the Applicant was released but he was instructed to remain in Columbo pending further investigation.
[6] The Applicant obtained his Canadian student visa.
[7] In his Personal Information Form narrative, the Applicant describes the circumstances that eventually led him to apply for Convention refugee or like protection in the following terms:
After my arrival the UNP came to power in December 2001 and my father made a complaint against Chamath's [the schoolmate's] father. Since Chamath's father was highly influential he caused problem to my brother. My brother was arrested in May 2002. After this I couldn't continue my studies and I was mentally depressed about my situation and I met a car accident in October 2002. However, still I was not decided to ask for refugee protection. But due to my parents' request I have decided because they said that Chamath's father gave them more problems by asking my father to withdraw his complaint and told him that he would give me problem any time I would return. Then only I decided to ask for refugee protection.[1]
THE DECISION UNDER REVIEW
[8] The Board was satisfied as to the Applicant's identity. That being said, the Board wrote early on in its succinct reasons:
The claimant [here the Applicant] was often evasive and improvising during his testimony. He also showed how easy it was for him to contradict himself and justify his last version of an event.[2]
The Board expressed concern about the Applicant's failure to pursue with his parents all that they knew about events contributing to his alleged fear, following his departure from Sri Lanka. The Board rejected his explanation that his parents were reluctant to provide details for fear of upsetting him and that he respected their reluctance. It expressed concern with regard to a letter from a Sri Lankan lawyer who notified him about continuing police interest in him. A follow-up letter, allegedly from the same lawyer was sent for verification. For technical reasons, arising from the verification process, the Board determined that it could not rely on the information from the lawyer and it rejected the allegation of continuing police interest.
[9] The Board noted a report from a medical doctor, a specialist in orthopaedics. The report indicated that, as a result of an automobile accident in October, 2002, in Canada, the Applicant complained of having difficulty focusing and concentrating. The report indicated that the Applicant "...suffered a significant psychological injury" and recommended a psychological or a psychiatric opinion. Apparently, the Applicant chose not to follow the recommendation. In the result, the Board chose not to believe that the Applicant's testimony was affected by the impact of the automobile accident.
[10] Finally, the Board wrote:
The panel took into consideration several newspaper articles related to Tamils arrested in Columbo... . These articles were submitted by the claimant's [here the Applicant's] counsel after the hearing. Since the panel is of the opinion that the claimant fabricated his story, there is no reason to discuss these articles.
For all of the above reasons, the panel does not believe that the claimant provided credible evidence which would establish a well-founded fear of future persecution or that he faces a danger of torture, a risk to life or risk of cruel and unusual treatment or punishment. Therefore, the panel finds that he is neither a "Convention refugee" nor a "person in need of protection".[3]
[citation omitted]
THE ISSUES
[11] "Procedural issues" surrounding "reverse-order questioning" or the Chairperson's Guideline No. 7 were raised on behalf of the Applicant. Those issues were bifurcated from what I will refer to
as the "substantive issues" on this application for judicial review and were heard by a different judge. They will be the subject of separate reasons and a separate order. The remaining issues argued before me were presented on behalf of the Applicant in essentially the following terms: first, is the Board entitled to consider ignorance, or put another way, failure to inform one's self, as a credibility issue; secondly, does the Applicant's Personal Information Form narrative reflect a threat to the Applicant arising after he left Sri Lanka; thirdly, can credibility of the Applicant be put in doubt if documentation relating to his educational record does not reflect his grades and, I would add, his standing, and further, was it open to the Board to impugn the Applicant's credibility on the basis that he provided no corroborative evidence of the opportunities allegedly awaiting him by reason of his educational success; fourthly, does an Applicant have a continuing obligation to update his Personal Information Form narrative; fifthly, was it open to the Board to reject the information provided by a Sri Lankan lawyer on the technical grounds on which it relied; and finally, was the Applicant consistent about his fear of his schoolmate's father.
ANALYSIS
a) Standard of review
[12] It was not in dispute before the Court that the issues here under consideration all went to a finding that the Applicant simply lacked credibility in the totality of his story of his fear of persecution or like treatment if he were required to return to Sri Lanka. Further, it was not in dispute before me that the Board's determination regarding the Applicant's credibility, and thus the well-foundedness of his claim, is a determination to which great deference should be shown by this Court. Thus, the appropriate standard of review is patent unreasonableness. In Chowdhury v. Minister of Citizenship and Immigration[4], my colleague Justice Noël wrote at paragraph [12] of his reasons:
The decision of the RPD as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an Applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) at para. 4).
b) The Board's credibility finding
[13] I am satisfied that, against a standard of review of patent unreasonableness, the Board's finding that the Applicant failed to provide credible evidence sufficient to establish his claim was open to it.
[14] It is trite to say that the onus on a claim for Convention refugee protection, or like protection, is on the Applicant. In the circumstances, it is incumbent on an Applicant to fully inform himself or herself of all of the circumstances giving rise to his or her claim. Here, the Applicant was simply not entitled to rely on the reticence of his parents to inform him of all that he alleges was going on after he left Sri Lanka that contributed to his decision, long after his arrival in Canada, to claim protection. Where the onus is on an Applicant, ignorance is no excuse.
[15] At best, the Applicant's Personal Information Form narrative is incomplete with regard to relevant events after he left Sri Lanka. It was entirely open to the Board to take into account this weakness in the Applicant's narrative.
[16] It was also entirely open to the Board to note the lack of corroboration regarding the Applicant's alleged outstanding academic performance and regarding the resultant employment opportunity. Surely such corroboration could have been obtained through the Applicant's academic advisors at the educational institution that he attended. Those advisors would also surely have been aware of the opportunity alleged to have been offered the Applicant in Singapore and could also have confirmed that offer, notwithstanding that it was only extended orally.
[17] While a claimant such as the Applicant has no obligation to update his Personal Information Form as new information becomes available to him or her, I reiterate, the onus is on the claimant, here the Applicant, and he or she fails to do so at his or her peril.
[18] I am satisfied that it was entirely open to the Board to cast doubt on the advice allegedly received from a Sri Lankan lawyer on the grounds that it did.
[19] Finally, while I am satisfied that the Applicant was consistent in his expression of fear about his schoolmate's father, that alone cannot possibly be sufficient to justify this Court's interference in the Board's decision.
CONCLUSION
[20] For the foregoing reasons, the portions of this application for judicial review that were here before the Court will be dismissed.
[21] At the close of hearing, counsel were advised that this application would be dismissed. They were consulted on the issue of certification of a question. Counsel for the Respondent recommended no question for certification. Counsel for the Applicant requested time to consider the issue and that request was granted. By letter dated the 22nd of March, 2006, counsel for the Applicant advised the Court that he would not be recommending a question for certification. The Court is of the view that this matter turns entirely on its own facts. No question will be certified.
Ottawa, Ontario.
April 10, 2006.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2150-05
STYLE OF CAUSE: INTHIKHAB HUSSAIN MATHEEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 22, 2006
APPEARANCES:
| Dan M. Bohbot
|
|
| Lisa Maziade
|
SOLICITORS OF RECORD:
| Dan M. Bohbot Lawyer, Montréal, Quebec |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec |