Docket No.: IMM-4749-01
Neutral Citation: 2002 FCT 1301
Ottawa, Ontario, this 16th day of December, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NESAMMAH ARIAYPUTHIRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated September 14, 2001, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant, Nesammah Ariayputhiran, a Tamil, is a sixty-eight year old widow and citizen of Sri Lanka. She based her claim for refugee status on her fear of persecution from the Liberation Tigers of Tamil Eelam ("LTTE") and Sri Lankan authorities, as well as her inability to receive medical treatment for her diabetes.
[3] The applicant is originally from the island of Pungudutivu, where the LTTE were very active. In 1988, her husband was killed and her son disappeared.
[4] In 1991, she moved to Jaffna with her other children. The applicant states that in Jaffna, the LTTE extorted money and forced people to do whatever they demanded. Her neighbourhood was often bombed and shelled. She claims to have spent many nights in a bunker.
[5] In 1995, the applicant, like many others in Jaffna, was forced to evacuated the city and go to Vani, in northern Sri Lanka. The applicant states that the journey and the conditions there were very difficult. She explains that there was a shortage of food and medicine and as a result she became ill from malaria.
[6] The applicant, along with other elders, could not bear this situation and in 1997 undertook the journey back to Jaffna, an area controlled by government forces. In Jaffna, the applicant had a house near an army camp. She alleges that armed LTTE members went to her house on several occasions, forced their way in, demanded money and food, threatened the applicant, and even spent the night. She claims that the neighbours were very worried and feared she would get arrested, so they called the applicant's children who were then living in Canada.
[7] The applicant's children made arrangements with an agent to get her out of the country and bring her to a safe place. The agent brought her to Colombo in early April 2000 where she stayed in a boarding house in Wellawetta. While in Wellawetta, the applicant claims that the police came to her house several times and accused her children and her of helping the LTTE in Jaffna. She was told by the police that she had to leave Colombo. On June 27, 2000, the agent arranged for her removal to Canada where she joined her children on July 1, 2000. The applicant claimed refugee status on the same day.
[8] The hearing was held before the Board on July 19, 2001.
THE BOARD'S DECISION
[9] The Board determined that the issues in this claim were credibility and the well foundedness of the applicant's fear of persecution.
[10] The Board accepted the identity of the applicant as a Tamil woman who lived in both the cities of Jaffna and Vani. The Board accepted as credible the applicant's testimony that she had nothing to fear from the Sri Lankan Army (SLA) when she travelled from Vani back to Jaffna with a group of elders because of her age.
[11] The Board did not find credible that numerous LTTE members would risk exposure, for little gain, in an army-controlled area by breaking into the applicant's house near an SLA camp. The Board found that the applicant enhanced her experiences with the LTTE to bolster her claim. The Board also did not find it credible that the applicant's neighbours were so concerned for her safety that, on her behalf, they contacted her children who were abroad to remove her from danger.
[12] For the above reasons, the Board concluded that the applicant had not provided any credible evidence to establish that she had a well-founded, objective or subjective, fear of persecution if she were returned to Sri Lanka.
[13] Finally, the Board found that being in frail health does not provide the applicant with a connection to a Convention ground. It relied on Mare v. M.C.I. (2001) 13 Imm. L. R. (3d) 129 (F.C.T.D.), a decision of Mr. Justice Rouleau dated May 9, 2001. In considering the applicant's medical requirements, the Board found that "people with life threatening health conditions" do not meet the Convention definition unless they are denied medical treatment for a Convention ground. The Board found that the applicant would not be denied medical treatment available in Jaffna or in Sri Lanka and, accordingly, found that she did not meet the Convention definition by reason of her illness.
ISSUES
[14] In my view, two issues are raised in this judicial review. The first is whether the Board's plausibility and credibility findings were open to it on the evidence. The second is whether the Board supported its decision with sufficient reasons.
ANALYSIS
[15] It is generally accepted in the jurisprudence of this Court that no one is in a better position than the Board to gauge the credibility of an account and to draw the necessary inferences. The Board is entitled to make reasonable findings based on implausibilities, common sense and rationality. Such findings are not subject to judicial review as long as the inferences drawn by the Board are not so unreasonable as to warrant the Court's intervention. [Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.) at p. 316].
[16] The applicant contends that the Board's finding that it is not plausible that a small group of Tamil Tigers would force their way into the applicant's home five times in the government-controlled area of Jaffna, especially given that there was a nearby army camp, and regular army patrols, for so little gain, i.e. food and shelter, to be patently unreasonable. The applicant argues that the Board's finding , "for so little gain", is not founded in the evidence. The applicant also argues that it was unreasonable for the Board to find that the LTTE were numerous when her testimony is to the effect that there were only two LTTE members that visited her. Further, the applicant argues that it was patently unreasonable to find the LTTE to be risk-averse, given the country condition reports that show that the LTTE are involved in a full scale conflict with the forces of the Sri Lankan government and that the military is a frequent target of the LTTE. It is the applicant's contention that the Board misconstrued the applicant's evidence in that she believed that it was precisely because the army camp was nearby that the LTTE were in the area.
[17] I do not accept the applicant's submissions and do not find the Board's plausibility finding to be unreasonable. The applicant's evidence does not specify that it was the same two LTTE members that entered the applicant's home on five different occasions to obtain food and shelter. I find that it was not unreasonable for the Board to take from the applicant's narrative that a number of different members of the LTTE visited her on five occasions, or that this was suggestive of a large number of LTTE in the area. Nor do I find patently unreasonable the Board's finding that it was implausible that members of the LTTE would likely not risk life by targeting the applicant merely for food and shelter. The applicant testified that she informed the LTTE that her children did not financially support her so she had no money to provide the LTTE. She also informed the LTTE that she had no food to give them. Given these circumstances, to find implausible that the LTTE would risk numerous additional incursions near the Army base in order to further attempt to extort money and food from the applicant is, in my view, a finding reasonably open to the Board.
[18] The applicant contends that the Board erred in determining that the neighbours would likely not be so concerned for the applicant's safety that they would contact the applicant's children in Canada. The applicant argues that the Board made this determination using a Canadian paradigm. The applicant further argues that the neighbours may well have acted out of self interest, fearing that the applicant would attract government attention in Jaffna for being perceived as complicit with the LTTE. I am of the view that the Board's finding with respect to the neighbours was reasonably open to it on the evidence. In any event, given the Board's finding that the LTTE did not risk the alleged incursions in the applicant's home, this issue of whether the neighbours did intervene and what may have motivated them is immaterial to the applicant's claim.
[19] The applicant further contends that the Board erred in finding her not credible because she feared that she would be perceived as being complicit with the LTTE. Given the applicant's testimony and the documentary evidence, the applicant argues that the Board's reasons are inadequate and amount to a bald conclusion which is patently unreasonable.
[20] The Board's reasons must be read in their entirety. The Board did not believe that the applicant was the target of five incursions at her home in Jaffna. Consequently, I am of the view that it was not unreasonable for the Board to find not credible the applicant's fear that she would be considered complicit with the LTTE for the incidents that "did not happen" in Jaffna, namely the alleged incursions and extortion incidents.
[21] It would have been preferable for the Board, in its reasons, to specifically address the applicant's evidence regarding her children's involvement with the LTTE. However, since this questioning was related to the food extortion incidents, which were reasonably found to be implausible, I am of the view that the Board did not commit a material error by failing to address this aspect of the claim. Given the Board's prior plausibility findings with respect to the extortion incidents, it was reasonable for the Board to conclude as it did.
[22] The applicant argues that the Board erred by failing to examine the applicant's cumulative past experiences during the civil war as a basis to determine that she had a well-founded fear of persecution.
[23] The applicant's evidence is that her husband may have been killed during an incident which occurred at a time he was inadvertently violating a curfew. Following this tragic incident her son was questioned and disappeared. I agree with the respondent's submissions that this regretful sequence of events arose out of the circumstances of the civil war. There was no evidence before the Board that would link these past events in the civil war with a personal well-founded fear of persecution directed at the applicant on an enumerated ground.
[24] The extortion incidents respecting the five alleged incursions to the applicant's home in Jaffna were central to her claim. The Board found that these incidents did not occur. Having determined this implausibility finding to be open to the Board on the record before it, I find that the Board did not err in concluding that the applicant does not have a well-founded fear of persecution if she were to return to Sri Lanka today.
[25] The applicant argues that the Board erred by violating the "benefit of the doubt" principle. The applicant contends that if her evidence is consistent with the documentary evidence, then she must be given the benefit of the doubt with respect to elements of the evidence that she has not been able to provide.
[26] Paragraph 204 of the U.N. High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1998), provides as follows:
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[27] I am of the view that the benefit of the doubt, be it or not a principle, cannot be invoked by the applicant in the circumstances of this case. The Board found the applicant's evidence on the alleged extortion incursions to be implausible. This evidence goes to the core of the applicant's claim and the benefit of the doubt principle cannot be used to resuscitate the Board's finding regarding the plausibility of the applicant's claim.
[28] For the above reasons this application for judicial review will be dismissed.
[29] The applicant proposes the following question for certification:
Is the benefit of the doubt as set out in the UNHCR Handbook paragraph 204 a principle of the law that the Refugee Division is required to consider in relation to the assessment of a refugee claim being determined by the Refugee Division?
[30] I have reviewed the written submissions of the parties on the proposed question received after the hearing. In the above reasons, I determined that the Board's negative plausibility findings on a core element of the applicant's claim were open to it. I am of the view that since there were reasons to doubt the credibility of an element central to the applicant's claim, the benefit of the doubt principle would not apply even if it were a "principle of law".
[31] I therefore conclude that the applicant's proposed question would not be determinative of the case at hand. The applicant has therefore has not proposed a serious question of general importance that would be determinative of the appeal. I do not propose to certify a question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27.
[32] The applicant has been determined not to be a Convention refugee, however, I am of the view that consideration should be given by the appropriate authorities, if so requested, to the significant humanitarian and compassionate circumstances that arise on the facts of this case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated September 14, 2001, is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4749-01
STYLE OF CAUSE: Nessammah Ariyaputhiran v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, August 27, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: December 16, 2002
APPEARANCES:
Micheal Crane FOR APPLICANT
(416) 351-8600
Jamie Todd FOR RESPONDENT
(416) 952-5009
SOLICITORS OF RECORD:
Micheal Crane FOR APPLICANT
166 Pearl Street, Suite 200
Toronto, Ontario, M5H 1L3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6