Date: 20021115
Docket: IMM-5107-01
Neutral citation: 2002 FCT 1187
Ottawa, Ontario, this 15th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PAULETTE BERNADINE ALEXANDRA PERERA
RASANJALI SAMADHI PERERA (By her litigation guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review pursuant to subsection 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated October 3, 2001, wherein it was determined that the applicants were not Convention refugees.
[2] The applicant seeks an order setting aside the decision of the Board, referring the matter back to the Board for redetermination in accordance with such directions as this Court considers appropriate.
Background
[3] The principal applicant, Paulette Bernadine Alexandra Perera, is a citizen of Sri Lanka. She is of Burgher origin. She was married to a Sinhalese man who died in 1999. Her daughter, Rasanjali Samadhi Perera, is an 11 year old citizen of Sri Lanka.
[4] The applicants base their claim to refugee status on the grounds of their political opinion and membership in a particular social group, young Burgher females. The principal applicant alleges that Sri Lankan security forces suspect her of harbouring Liberation Tigers of Tamil Eelam ("LTTE"). She fears that she will be killed if she returns to Sri Lanka. The minor applicant bases her claim on that of the principal applicant.
[5] The principal applicant claims that in 1993, members of the Sri Lankan security forces arrested and detained her and her husband. They were accused of harbouring an LTTE member, assaulted and then released.
[6] The principal applicant claims that in 1997, June 1999, and August 1999, her husband was again taken into custody and beaten. The principal applicant claims that in August 1999 she saw her husband unconscious with bruises all over his body, and that on September 13, 1999, at the age of 38, he died. The principal applicant states that the police told her that he died of a heart attack and that she should not take any action regarding the cause of his death.
[7] In May 2000, the principal applicant claims that she was again taken into custody and detained for three days. She claims that she was released only after her uncle used his influence and a bribe was paid. After this experience, she claims that she feared for her life and had no alternative but to flee Sri Lanka.
[8] On June 18, 2001, a hearing was held by the Board to determine whether the applicants were Convention refugees. On July 19, 2001, the Board received further written submissions and a medical report. The Board states that these submissions and documentation were duly considered before it reached its decision, dated October 3, 2001.
[9] The Board found that the applicants did not present credible or trustworthy evidence in support of their claims to Convention refugee status for the reasons discussed below. The Board commented that Burghers, the ethnicity of the applicants, consist of less than one percent of the total population of Sri Lanka and that the documentary evidence does not support Burghers being of any concern to the Sri Lankan security forces, who are predominantly from the Sinhalese community. The ethnic group of most concern to the Sri Lankan security forces are the Tamils. The Board also noted that the principal applicant's deceased husband's father was a member of the Sri Lankan security forces. The Board did not accept the principal applicant's explanation that the father died when her husband was young so she did not know his occupation, or her explanation that there had been errors in translating certain documents. The Board also found that given the ethnic and family backgrounds of the principal applicant and her deceased spouse, it was not reasonable to accept that they would allow police harassment, which is alleged to have started as early as 1993, to continue for so many years without trying to address the problem in some way. The Board also found that there were numerous inconsistencies and omissions in the applicant's evidence that point to a lack of credibility. The Board found that there was a discrepancy in the date of death of the principal applicant's father in her Personal Information Form ("PIF") and other documentation. In oral testimony, the principal applicant testified that following her arrest in May 2000, the police beat her. However, in her PIF, she states that she was detained, threatened and humiliated. The Board did not find that the principal applicant's explanation that she thought "humiliated" and "assault" meant the same thing to be satisfactory. In oral testimony, the applicant testified that the police were pursuing her because they believed she had taken further action against them, by contacting a lawyer, despite threatening she should not do so. However, none of the information is found in the applicant's PIF narrative. The Board found that the principal applicant embellished this part of her story to bolster her claim to refugee status. In oral testimony, the principal applicant testified that when she saw her husband after his last arrest, unconscious with bruises all over his body, there was a police officer at the hospital guarding him. This was not mentioned in her PIF narrative as the principal applicant claims that she forgot about it. The Board found that the omission of this information from the applicant's PIF points to a lack of credibility. The Board found that the principal applicant could not provide any evidence to show that her husband's cause of death was due to a police beating. The Board stated that "[i]t is not reasonable for the panel to accept that the principal claimant [applicant] could not have provided any information in support of such an allegation". Again, the Board found that this points to the principal applicant's overall lack of credibility. In her post-hearing submission, the Board was provided with a medical report stating that the principal applicant was suffering from post-traumatic stress disorder ("PTSD"). Although the Board accepted the diagnosis that the principal applicant was suffering from stress and depression, it did not find that the she was suffering from these conditions due to her alleged difficulties with the Sri Lankan security forces. The Board assigned no probative value to the statutory declaration of the principal applicant's brother-in-law as he was found not to be a disinterested party in these proceedings. The Board found that it was not reasonable to accept that the Sri Lankan security forces would be interested in the principal applicant's husband and herself, but not the husband's business partners, who the principal applicant testified were never arrested or sought by the police. The Board stated "[i]t is reasonable to assume that the Sri Lankan authorities would want to question everyone associated with the principal [applicant's] deceased spouse, and in particular, his two business partners". Because of the above credibility findings, the Board concluded that the applicants did not present credible or trustworthy evidence in support of their claims to Convention refugee status. The Board further noted that there was no evidence adduced with respect to the basis of the minor applicant's well-founded fear of persecution should she return to Sri Lanka. As the principal applicant's claim could not stand, the minor applicant's claim also failed.
[10] This is the judicial review of the decision of the Board finding the applicants not to be Convention refugees.
Applicants' Submissions
[11] The applicants submit that the central issue in their claim for refugee status is the arrest, detention, torture and death of the principal applicant's husband followed by the consequences flowing from his death. The applicants submit that the principal applicant and her husband were suspected to be supporters or sympathizers of the LTTE, for which they were subjected to arrest, detention and torture. The applicants submit there were no credibility findings, including adverse credibility findings, as to the events of arrest, detention, torture and death of the principal applicant's husband and the events thereafter. The applicants therefore submit that since no adverse findings of credibility were found, the incidents which the principal applicant has narrated are credible. These include the principal applicant's testimony that she and her husband were suspected of being supporters of the LTTE; that they were arrested, detained and beaten in 1993, and the husband was arrested and beaten in 1997 and twice in 1999; that the applicant saw her husband unconscious with bruises all over his body after his final detention and before his death; that the applicant's husband died in police custody on September 13, 1999 at the age of 38; that the applicant was told by police that her husband died of a heart attack and threatened her not to take any action; the police visited her house when her husband was abroad; the applicant was taken into custody by the Sri Lankan Army, in May 2000, and detained for three days; and that the applicant is suffering from post-traumatic stress disorder.
[12] The applicants submit their departure from Sri Lanka was due to these incidents which caused fear in their minds.
[13] The applicants submit that the Board's finding of a contradiction with regard to the rank and profession of the husband's father, and the date of death of the principal applicant's father, is not central to the claim to completely undermine her credibility. The applicants submit that the inconsistencies must be sufficiently serious and must concern matters which are sufficiently relevant to the issues adjudicated to warrant such an adverse finding. The applicants submit that the arrest, detention and torture of the principal applicant and her husband, as well as his death, are the central issues of their claim and that no contradictions or adverse findings of credibility were found with respect to these issues. The applicants submit that the Board's failure to consider this credible evidence and, instead, its focus on inconsistencies in evidence not central to the issue to be determined, is a reviewable error. The applicants rely on the cases of Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (QL) (C.A.), Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (QL) (C.A.), and M.M. v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1110 (QL) (C.A.) to support these submissions.
[14] The applicants also submit that the principal applicant's explanation that she thought "humiliated" and "assault" meant the same thing to be reasonable. It is submitted that her level of education has no relevance and that her ethnic and cultural background should be taken into account.
[15] The applicants submit that an issue that often arises is the degree of state involvement in persecution that is required in order for an applicant to sustain a claim of refugee status. The applicants submit that where the agents of the state are directly involved in the persecution, the only issue to be determined is whether the applicant has a well-founded fear of persecution. The applicants submit that the Board's finding that the principal applicant or her husband did nothing to stop harassment is perverse and capricious. The applicants submit that in Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (QL) (C.A.), refugee claimants testified that they suffered harassment at the hands of Sinhalese thugs over a long period of time, without any protection from the state, and were found to have suffered persecution.
[16] The applicants submit that the impact of past persecution on a person's ability to testify is important. It is submitted that an opinion from a psychiatrist that a person is suffering from a psychological disorder (i.e. consistent with the history of the persecution) is highly relevant to any assessment of credibility for two reasons. First, the existence of the condition is, to some extent, corroborative of past persecution, and second, the condition itself might affect one's testimony. The applicants submit that contradictions might be the consequence of a psychological condition and that the Board must consider the expert opinion. The applicants submit that the Board had no other evidence before it to doubt the veracity of the psychiatrist's report and not find that the principal applicant's stress and depression were due to her allegations that Sri Lankan security forces believe she harboured members of the LTTE. The applicants submit that the Board ignored documentary evidence and based its findings on no evidence, and as such, this is a reviewable error.
[17] The applicants submit that the Board's finding of a contradiction between the husband's death certificate, stating that he died of hypertension, and the testimony of the principal applicant, that she believed he died as a result of beating by the police, to be perverse and capricious.
Respondent's Submissions
[18] The respondent submits that it was open to the Board to make the finding it did; that the Board did provide reasons for its finding; and that the applicants' other arguments are irrelevant as they do not address the Board's reasons for its decision.
[19] The respondent submits that the applicants' allegations are unfounded and the Board's decision is well founded in fact and in law.
[20] The respondent submits that where the Board makes a finding regarding the credibility of a witness, the Court should be less inclined to interfere with the Board's findings than in any other situation given the Board's ability to assess the witness in oral testimony before it.
[21] The respondent submits that the Board clearly and unequivocally determined the principal applicant not to be credible and in so deciding, offered detailed reasons for its decision citing numerous contradictions between material aspects of the evidence proffered by the applicant and the documentary evidence.
[22] The respondent submits that a finding of credibility made by the Board which is based on problems internal to applicants' testimony is the heartland of the discretion of triers of fact and, as such, the Court should not interfere. The respondent submits that in light of the Board's finding of an overall lack of credibility on the part of the applicants, the Board was entitled to find the applicants not to be Convention refugees.
[23] The respondent submits that unless the contrary is shown, and as long as evidence supports the Board's finding, the Board is assumed to have weighed and considered all evidence presented to it. The respondent submits that in this case, the Board reviewed the evidence and chose to rely on the most relevant, recent and reliable resources. The respondent submits that the Board properly considered these documents and that the appropriate weight was afforded to them.
[24] The respondent submits that the applicants have failed to demonstrate that the Board refused to consider any evidence, or that it ignored evidence, or that it made an erroneous finding with respect to any evidence. The respondent submits that the applicants have in no way shown that the Board's assessment is perverse, capricious or without regard to the evidence.
[25] Issues
1. Did the Board err in determining that the applicants were not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended?
2. Did the Board err in law in finding that the applicants did not have a well-founded fear of persecution because it drew conclusions from findings of fact that were not supported by the evidence?
3. Did the Board err in law when it failed to notify the applicants of its concerns and thereby failed to provide the applicants with an opportunity to respond to them?
4. Did the Board err in law in failing to observe the principles of natural justice?
5. Did the Board err in law in misconstruing and ignoring evidence, in taking into account irrelevant evidence, in misinterpreting evidence properly before it, in making erroneous findings of fact without regard to the evidence before it, and in failing to properly understand the evidence?
6. Did the Board err in law when it concluded that the testimony of the principal applicant was not credible by ignoring the documentary evidence before it?
7. Did the Board err in law in making negative credibility findings with respect to the principal applicant's testimony without stating grounds or reasons for so doing?
8. Is the decision that the applicants are not Convention refugees invalid on its face because the Board applied the wrong test for Convention refugees and ignored the credible evidence before it which substantiated the applicants' claim to be Convention refugees?
Relevant Statutory Provisions
[26] The relevant subsection of the Immigration Act, R.S.C. 1985, c. I-2, as amended, states:
| 2(1)"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or |
2(1) « réfugié au sens de la Convention » Toute personne: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, |
| (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[27] Issue 1
Did the Board err in determining that the applicants were not Convention refugees as defined in subsection 2(1) of the Immigration Act, supra?
The Board found that the applicants did not provide credible or trustworthy evidence in support of their claims to be Convention refugees. In its decision, the Board pointed out specific examples as to why it did not find the principal applicant to be credible. These included:
1. The principal applicant's failure to mention in her PIF the police were guarding her husband at the hospital. Her explanation was that she forgot.
2. The fact that her PIF stated that her father died in 1994, but her marriage certificate stated that he was dead at the time of her marriage in 1985. The applicant stated that there must have been a mix-up by the interpreter. The transcript of the hearing establishes that her father-in-law was dead at the time of her marriage.
3. In her oral testimony, the applicant stated that when detained in May 2000, the police beat her (hit her on her back and legs). In her PIF, she stated that the police detained her for three days during which time she was threatened and humiliated. The applicant testified that "assault" and "humiliated" have the same meaning. The Board did not accept this explanation.
4. The fact that the principal applicant did not include in her PIF the information about the police pursuing her because she had spoken to a lawyer about her husband's death. The Board found that the applicant was embellishing her evidence.
5. The death certificate stated that the applicant's husband died of "hypertension" and was silent on whether the husband died from complications resulting from internal injuries suffered from a beating by the police. The Board stated that the applicant should have been able to present evidence that her husband's death was due to a police beating. Because the applicant could not provide this evidence, the Board said that "this points to the principal claimant's (applicant's) overall act [sic]of credibility".
6. The Board also stated that it was unreasonable for the police not to want to question the deceased husband's business partners.
7. Finally, the Board did not believe that the applicant's diagnosis of PTSD was caused by the alleged difficulties with the Sri Lankan security forces. The Board accepts the psychiatrist's finding that the applicant is suffering from stress and depression, but does not accept that it was caused by her alleged problems in Sri Lanka. The psychiatrist's report seems to suggest otherwise and there was no other evidence to account for her diagnosis.
[28] There is no doubt that the Refugee Division is a specialized tribunal which is in the best position to gauge credibility and as long as it makes findings of credibility in clear terms, it is not open to intervention on judicial review (see Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (C.A.)).
[29] I have reviewed the transcript of the hearing and I have reviewed each of the specific findings of lack of credibility and I note that none of the findings relate to the central issue in this case, i.e. is the applicant's story with respect to her husband's beating and her alleged detention and beating true? It is clear from the decision that there were differences between the applicant's statements in her PIF and her testimony, but these must be weighed in light of the psychiatrist's report that she attempts to block out the difficulties in Sri Lanka to handle stress. Although the Board did not accept the psychiatrist's report, it gave no reasons for not accepting the report's conclusion that the applicant's PTSD was as a result of the events in Sri Lanka. If correct, this medical condition could explain some of the differences between the PIF and the applicant's oral testimony.
[30] I do not intend to deal with each of the Board's findings as to the credibility of the applicant as I am of the view that the Board did not reject in clear terms, the remainder of the applicant's testimony. The Board stated after discussing each of the points with respect to credibility:
Given the foregoing negative credibility findings, the panel is left with only one conclusion, that the claimants did not present credible or trustworthy evidence in support of their claims to Convention refugee status.
[31] Is the Board saying that it does not believe the evidence specified in its decision or is it saying that it does not believe all of the testimony provided by the principal applicant? I cannot tell and consequently, I find that the Board made a reviewable error. If all of the applicant's testimony is to be rejected, the Board must state so in clear and unmistakable terms.
[32] The application for judicial review is allowed.
[33] Neither party wished to certify a serious question of general importance.
ORDER
[34] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
November 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5107-01
STYLE OF CAUSE: PAULETTE BERNADINE ALEXANDRA PERERA
RASANJALI SAMADHI PERERA
(By her litigation guardian)
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, October 2, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, November 15, 2002
APPEARANCES:
Mr. Jegan Mohan
FOR APPLICANTS
Ms. Pamela Larmondin
FOR RESPONDENT
SOLICITORS OF RECORD:
Mohan & Mohan
Suite 225
3300 McNicoll Avenue
Toronto, Ontario
M1V 5J6
FOR APPLICANTS
Department of Justice
Suite 3400, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021115
Docket: IMM-5107-01
BETWEEN:
PAULETTE BERNADINE ALEXANDRA PERERA
RASANJALI SAMADHI PERERA
(By her litigation guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER