Date: 20041207
Docket: IMM-3110-04
Citation: 2004 FC 1710
Ottawa, Ontario, this 7th day of December, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
QUINTUS PERERA BULATHSINHALA ARACHCHILAGE
HASITHA RENUKA WILARACHCHIGE
ASHINI LACHINDRIE PERERA BULATHSINHALA ARACHCHILAGE
LACHINI ISHARA PERERA BULATHSINHALA ARACHCHILAGE
THARUSHI NAVINDRI PERERA BULATHSINHALA ARACHCHILAGE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Arachchilage, his wife, and their three children are Sri Lankan citizens. The family claimed refugee status in Canada based on Mr. Arachchilage's membership in a particular social group - persons imputed to have a certain political opinion. The Refugee Protection Division of the Immigration and Refugee Board (RPD) found the applicants not to be Convention refugees or persons in need of protection on the basis that Mr. Arachchilage's testimony was not credible or trustworthy. Its conclusion was based, almost exclusively, on implausibility findings. I have not been persuaded that the RPD committed any error in rejecting the claims.
[2] Mr. Arachchilage was in the business of trucking goods to various locations in Sri Lanka, primarily from Colombo. He had transported some shipments for the Sri Lankan army. He alleges that his participation in a diversion of army goods to a Tamil Tiger camp, on the instructions of a corrupt army official, caused his life and the lives of the members of his family to be jeopardized at the behest of the army.
[3] The standard of review regarding decisions of the RPD, a specialized tribunal, is patent unreasonableness except with respect to statutory interpretation where the standard is correctness: Pushpanathan v. Canada, [1998] 1 S.C.R. 982. The board has complete jurisdiction to determine the plausibility of testimony and as long as its inferences are not so unreasonable as to warrant the court's intervention, the findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). Implausibility findings may be based on rationality and common sense: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.). Even if the court might have drawn a different inference, or have found the evidence to be plausible, it will not substitute its decision for that of the board: Singh v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1272. The board is not entitled to speculate or draw inferences that are not supported by the evidence: Akhigbe v. Canada (Minister of Citizenship and Immigration) 2002 FCT 249.
[4] At the hearing, the applicants abandoned the argument contained in the written submission that the RPD was under a duty to provide them an opportunity to address its conclusions of implausibility. The only issues are whether the implausibility findings are proper and whether the board ought to have rejected the medical evidence tendered by the applicants.
[5] The RPD made ten distinct findings of implausibility. With one exception, in my view, the findings were reasonable. In most instances, the board repeatedly referred to the documentary evidence before it in support of its observations concerning the plausibility of Mr. Arachchilage's story. While the applicants point to documentary evidence that might possibly have led to a different conclusion, the basis for their submissions amounts to no more than speculation. It was open to the board to arrive at its conclusions on the basis of the evidence.
[6] In those areas where it relied on common sense and rationality, the RPD was entitled to conclude as it did. By way of example, Mr. Arachchilage claims to have been captured and pushed into a jeep, blindfolded, and tied at the arms and legs. The jeep was reportedly stopped and he was brutally beaten. He was then taken to another location where he was pushed out of the vehicle. He reports that he felt like he was falling down. He lost consciousness but did not know for how long. When he awoke, he heard the flowing of water, as if he were near a river or lake. The tape had loosened from his mouth and he screamed for help. A stranger unbound him and assisted him in climbing to the top of the cliff by a more gentle path. Mr. Arachchilage states that he suffered scratches on his legs, but did not sustain any other significant injuries that required hospital attention. The RPD found it highly implausible that Mr. Arachchilage would only suffer scratches. The applicants claim that the board erred in not eliciting enough information from him about the height of the cliff from which he was thrown. This allegation is without merit.
[7] The exception relates to the whereabouts of the army official after the unloading of the shipment. I agree that the RPD engaged in speculation in relation to this finding. However, that observation, extrapolated from the other findings, is not sufficient to warrant intervention. The decision, in totality, is unassailable.
[8] Regarding the medical documents, the board noted the format of the two documents, the similarity of the handwriting on both, and the altered date. Those facts combined with the fact that Mr. Arachchilage's testimony was unreliable led the RPD to reject the evidence. Its reasons for rejecting the evidence were clear and unequivocal and do not disclose reviewable error.
[9] The applicants, in essence, would have me re-weigh the evidence and substitute my opinion for that of the RPD. That is not my function. There does not exist, on the totality of the evidence, an error that would justify my intervention.
[10] Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
JFC
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 3110-04
STYLE OF CAUSE: Quintus Perera Bulathsinhala Arachchilage and Others v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 6, 2004
REASONS FOR ORDER AND ORDER: The Honourable Madam Justice
Layden-Stevenson
DATED: December 7, 2004
APPEARANCES:
Warren L. Creates for the Applicants
Ramona Rothschild for the Respondent
SOLICITORS OF RECORD:
Warren L. Creates for the Applicants
Ottawa, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada