Date: 19990322
Docket: IMM-2724-98
Between:
Punitharajeswar ANTONIPPILLAI
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated May 12, 1998, determining that the applicant, Ms. Antonippillai, is not a Convention refugee. The applicant is asking this Court to set aside the decision of May 12, 1998, and order the matter referred back to the Refugee Division for redetermination.
FACTS
[2] The applicant, born in 1968, is a citizen of Sri Lanka. As the Board"s reasons for decision show, the applicant alleges that she was persecuted for reasons of membership in a particular social group"northern Tamils"and imputed political opinion. She also alleges that she was a victim of rape. She says she fears the government and the militants. She testified before the Board members that PLOT militants had assaulted and threatened her between January and September 1986. In November 1986, she allegedly left Sri Lanka for India.
[3] In 1988, she allegedly went to Denmark to claim refugee status with a man she later allegedly married in Denmark in 1989. Her companion"s refugee claim was allegedly accepted whereas hers was rejected. She says they lived together until he disappeared in 1991. She was allegedly then deported to Sri Lanka in July 1992. She alleges that the Danish police beat and tortured her.
[4] Back in Sri Lanka, she also alleges that the police arrested and raped her while she was in detention. After being released, she went to Sweden and claimed refugee status in Denmark through the Danish embassy in Sweden in August 1992. Denmark rejected her claim and the applicant remained in Sweden until September 1994, when she went to Denmark to claim refugee status there for the third time. That claim was also rejected. In March 1997, she left Denmark for Canada. She arrived in Canada on March 10, 1997, and claimed refugee status on March 12, 1997.
Decision of the Refugee Division
[5] The Refugee Division found that the applicant was not a Convention refugee on the ground that her testimony was not credible. The Board members based this finding on the following factors:
| 1) The Board found it implausible that the applicant would not know anything about PLOT militants when she said they had attacked her and forced her to work in their camp for about a month. The Board was of the view that she could have submitted documents to support her allegations of harassment between October and November 1986. |
| 2) The applicant said she had been accused of propaganda against the Tigers, who allegedly came to her home in October 1986 while she was away, and that a friend had allegedly been killed in October or November 1986, but no document was submitted to show the truth of the allegations regarding her friend"s death. |
| 3) The Board found it implausible that the applicant and her husband would not have discussed his claim and that she would not know the grounds for his claim, given that they lived together even after he obtained refugee status. |
| 4) The Board found that the applicant had exaggerated some facts in her account, for example, when she said she had been tortured, which she explained by saying she had been pushed onto a bed in a psychiatric hospital when she refused to leave Copenhagen and was allegedly pinched and beaten. |
| 5) The Board found that the applicant"s behaviour was not that of a person with a subjective fear of persecution, since she arrived in Sweden in August 1992 and stayed until September 1994 without claiming refugee status there. |
| 6) The Board found that the documentary evidence stating that "There were no reports of rape in detention" contradicted the claimant"s allegations that the Sri Lankan police had raped her on her return in 1992. |
SUBMISSIONS OF THE PARTIES
[6] The applicant alleges that the Board imposed an excessive burden of proof on her insofar as the existence and activities of PLOT militants were concerned, and that the adverse credibility finding was unjustified. Furthermore, she alleges that the Board erred in law by having regard to irrelevant facts"such as the nature of her husband"s refugee claim in Denmark"in assessing her credibility and thus rejecting her claim. She also argues that the Board paid no attention to her testimony and exaggerated the significance of some apparently vague statements, and that absent valid grounds for doubting the truth of the allegations, the presumption that the claimant"s allegations are true must prevail.
[7] The respondent submits that the Board"s decision is well founded. With respect to credibility, the panel may have regard to many factors in ascertaining the truthfulness or likelihood of the allegations of a person claiming refugee status, including the nature of the claims she and her husband made in Denmark, her behaviour after leaving Sri Lanka and the fact that she did not make a claim in India or later on in Sweden. The respondent submits that these facts undermined her testimony and led the Board to doubt her credibility, resulting in a reversal of the presumption that her testimony was truthful.
ISSUES
[8] The applicant raises the issue of whether the Board made an error warranting the Court"s intervention in finding that she lacked credibility. In the alternative, she also raises the following two issues:
| 1) did the Board have regard to an irrelevant factor in finding that the applicant lacked credibility? |
| 2) did the Board err by imposing an excessive burden of proof on the applicant? |
ANALYSIS
[9] There is no question that the Board has all the necessary discretion to assess the credibility of the testimony of people who claim refugee status, and may have regard to a multitude of factors in so doing. The Board may base its findings on internal contradictions, inconsistencies and evasive statements, which are the "heartland of the discretion of triers of fact", and other extrinsic factors such as rationality, common sense and judicial notice, but those findings must not be made in a perverse or capricious manner or without regard for the material before the Board: Sbitty v. Canada (M.C.I.) , (IMM-4668-96, December 12, 1997), Shahamati v. M.E.I., (F.C.A.) (A-388-92, March 24, 1994).
[10] In the case at bar, the applicant submits that the Board did not have valid reasons for doubting the truth of her allegations; her testifying under oath gave rise to a presumption of truthfulness. The respondent argues that the Board had valid reasons for doubting the truth of her testimony.
[11] The Board"s reasons for decision give us a general idea of the basis for the decision. First, the Board found it implausible that the applicant would be unable to provide any information at all about PLOT militants when she alleged that she had been a victim of assault, threatened in her home village between January and September 1986 and forced to work for them for a month in their camp. Second, the Board found that she had made no effort to try to support her allegations of harassment by PLOT militants from January to October 1986. Third, the Board found it implausible that she and her husband would not have discussed his claim and that she would not know the grounds for his claim. Fourth, the Board noted that she had exaggerated some facts of her claim and that she might have exaggerated other aspects of her claim. Fifth, the Board found her behaviour"she lived in Sweden for over two years without claiming refugee status"inconsistent with her alleged subjective fear. And sixth, the allegations of rape in detention in Sri Lanka were contradicted by the Country Reports on Human Rights Practices for 1996 , U.S. Department of State, Washington, February 1997, which state that there were no reports of rape in detention.
[12] The applicant argues that the grounds for her husband"s refugee claim in Denmark are irrelevant. The respondent submits that the Board may have regard to many factors in assessing a person"s credibility.
[13] This argument has been raised a number of times in the Federal Court. In Giron v. Canada (M.C.I.), (A-387-89, May 28, 1992), the Federal Court of Appeal allowed an application for judicial review on the ground that the Board made errors in the interpretation of the facts and the inferences it drew from the facts. Among those errors, the Board had regard to a matter irrelevant to the claim in question. The Court said:
| The fact that he did not reveal the threats he received to other members of his group was explained by the claimant on the ground that he was afraid of informers (Appendix at 41) and that the matter was extremely personal (Appendix at 45). He also did not share the fact of receiving threats with his mother and his sister, because they were women (Appendix at 22), though eventually he did tell his mother the substance of what was happening after she had intercepted a telephone threat to him (Appendix at 37). |
| . . . |
| The internal contradiction that the Board identified as to whether he first revealed the threats to his mother or to Anne Rubenstein, the visiting American student (Appendix at 22-5), relates to a matter irrelevant to his claim. |
[14] In Salamat v. Canada (1989), 8 Imm. L.R. (2d) 58 (F.C.A.), the Federal Court of Appeal held that the panel had had regard to considerations that were irrelevant or not established by the evidence, for example: that if the applicant came from a wealthy family, there would have been no justification for the authorities arresting and harassing him; that the applicant in all likelihood had no experience in farming; that the applicant had destroyed his passport before landing at Mirabel airport; and that an unfavourable inference could be drawn from the fact that he had a brother living in England and that his father had travelled in that country.
[15] Furthermore, in Mehe v. Canada (M.E.I.) (F.C.A.) (A-250-90, October 15, 1990), the Federal Court of Appeal also held that the panel had made an error in assessing the applicant"s credibility by having regard to fact that the Belgian authorities had found him not to be a refugee, because that was an irrelevant consideration.
[16] In the case at bar, the fact that the applicant did not know the grounds of her husband"s claim despite their having lived together for some time is, in my view, relevant to the applicant"s claim, but only insofar as her credibility is concerned.
[17] The applicant also argues that the Board erred in imposing an excessive burden of proof on her. According to her, the Board is not entitled to require documentary evidence in support of her allegations. The respondent argues that the applicant could, however, have attempted to prove that the group exists, by providing some documentary evidence or testimony attesting her disappearance during that time.
[18] The relevant passage from the decision reads:
| The claimant alleges that she was assaulted and threatened by the PLOT militants in her home village of Iranaipalai, Pthukudiyiruppu, between January 1986 and September 1986. However, she was not able to tell the panel who this group was. She later gave a vague answer saying that they were a militant group and wanted their own country. The panel does not find this plausible. She alleges that she was working forcibly in their camp for one month. One month is ample time to learn about the group. |
| . . . |
| The panel believes that the claimant could have made an effort to provide some kind of document to support her claim of harassment from the PLOT militants from January 1986 to October 1986, since this is the basis of her claim. |
[19] The Board"s decision must be examined as a whole and in light of all the evidence. I am not convinced that the Board imposed an excessive burden on the applicant. The Board found it implausible that she would not know anything about PLOT militants when they had assaulted her and forced her to work in their camp for a month. Given that implausibility, I believe it was reasonable for the Board to note that she did not submit any document to support her allegations. In my view, that burden is no greater than or different from the burden on all refugee claimants.
[20] With respect to the main argument regarding the adverse credibility finding, the applicant also cites Djama v. M.E.I., A-738-90, and argues that the Board must not exaggerate the significance of some apparently vague statements in order to treat the entire testimony as that of a liar.
[21] The Board"s decision does not appear to show that the Board gathered the applicant was not credible because she had exaggerated the incidents that took place in Denmark. The relevant passage reads:
| The panel saw that the claimant exaggerated her claim of persecution in Denmark. This factor alerted the panel to a possibility of exaggeration in other aspects of her claim. |
[22] In my view, the Board"s decision is based on contradictions, such as the fact that the documentary evidence states that "There were no reports of rape in detention", which contradicts the applicant"s allegations that the Sri Lankan police raped her; inconsistencies, such as the fact that the applicant did not know anything about PLOT militants when they assaulted her and forced her to work in their camp for a month, and the fact that she did not attempt to submit any documentary evidence in that regard; and other factors, such as the exaggerations in her account and the time she spent in Sweden between 1992 and 1994 without claiming refugee status there.
[23] The applicant has not convinced me that the Board made an error warranting this Court"s intervention, even if I were to find that the Board had erred in its statement regarding her rape in detention in Sri Lanka.
CONCLUSION
[24] The application for judicial review is dismissed.
[25] The parties did not submit any question for certification.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
March 22, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2724-98
STYLE OF CAUSE: PUNITHARAJESWAR ANTONIPPILLAI
- AND - THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 18, 1999
REASONS FOR ORDER OF TEITELBAUM J.
DATED MARCH 22, 1999
APPEARANCES:
Martin Forget
FOR THE APPLICANT
Jocelyne Murphy
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Martin Forget
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada