Date: 20010202
Docket: IMM-3994-99
Citation: 2001 FCT 17
BETWEEN:
SIRIYALATHA HERATH MUTHIYANSA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] In this judicial review, the applicant challenges the July 19, 1999 decision of the Convention Refugee Determination Division ("CRDD"), which determined she was not a Convention refugee.
[2] The applicant is a Sinhalese citizen of Sri Lanka, and a married mother of three, who at the time of her claim, was twenty one years of age.
[3] The applicant's flight was sparked by a series of incidents arising out of her husband's employment as a cleaner on a fish truck. One day, police stopped his truck and searched it; during their search they found weapons among the fish, and arrested and detained both the applicant's Sinhalese husband and the Tamil driver. Police alleged they were sympathizers and supporters of the Liberation Tigers of Tamil Eelam ("LTTE").
[4] The applicant states that twice after her husband's arrest and detention, local police came to her home, searched it, and attempted to extract information regarding her husband's whereabouts, since he had escaped. The applicant states that in front of her children, the police beat and threatened her. The record shows that at no time after one of these incidents did the applicant seek medical attention.
[5] On the basis of police allegations against her husband and the subsequent threats and beatings she sustained, the applicant briefly went into hiding with her three children. Her father then arranged for their flight from the country. A last minute complication precluded her children from accompanying her, so the applicant fled alone, leaving her children with her parents.
[6] She arrived in the United States then travelled by bus to Quebec in the company of her agent. Although they were processed in customs there, she did not claim Convention refugee status. She travelled on to Montreal, and from there called her friend in Toronto, who asked whether she had made her claim. She did not do so until her arrival in Toronto, five days after entering the country. She claimed refugee status on the basis of membership in a particular social group, that is as a perceived supported and sympathizer of the LTTE.
[7] Her children remain in Sri Lanka with their grandparents. There was no evidence before the CRDD that the children were not safe, that the grandparents themselves were in peril, or that the applicant's siblings were in danger.
[8] The CRDD found the applicant was not a Convention refugee for three reasons: her story lacked credibility; she did not provide clear and convincing evidence that the state was unable to protect her; and, she did not establish a well-founded fear of persecution.
[9] The CRDD's negative credibility finding is central to this claim, since it states in its conclusion that: "[h]aving considered all the evidence, the panel concludes that the claimant's story is not credible." The applicant states that there is no reason to doubt her uncontradicted and consistent evidence, and that the CRDD gave no reasons for this perverse finding.
[10] The applicant specifically takes issue with the CRDD's conclusion that her evidence lacked credibility because:
| (a) it did not believe " a Sinhalese would work for a Tamil owned company and work with a Tamil driver as a helper, considering the risks entailed in being on the road each day under these circumstances; |
(b) it doubted her marital and family status;
(c) it did not accept her explanation for not seeking state protection; and,
(d) it did not accept her reason for the delay in claiming refugee status.
[11] The Federal Court of Appeal in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at paragraphs 3 and 4 (F.C.A.) ruled that the panel was a specialized tribunal with jurisdiction to draw inferences and to gauge credibility, holding:
| It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of plausibility of an account from the Board's filed of expertise, not did they lay down a different test for intervention depending on whether the issue is "implausibility" or "credibility". |
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal has complete jurisdiction to determine the plausibility of testimony. ...As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[12] The applicant states the panel erred in doubting her marital and family status, because she did not provide corroborating documents. The applicant noted that corroboration in the form of documents is not required.
[13] In my view, however, the lack of corroborating documents itself was not the source of the panel's concern. Rather the applicant was unable to satisfy the panel as to why, after ten months in Canada, she had not made efforts to retrieve her marriage certificate and her children's birth certificates from Sri Lanka, especially given that her story hinges on her husband. The CRDD's lack of credence in her story arises not from the absence of documentation, but from the absence of effort to retrieve it. As a consequence, I cannot find the CRDD erred in its credibility finding in this regard.
[14] The panel also questions the applicant's reasons for not seeking state protection. She cites a fear of state security forces, and yet it is local police she claims have accosted her. She does not approach any authority or agency for assistance, nor does she call her husband's employer to ascertain the nature of the problem, his whereabouts, or any other details around his arrest. When questioned about this, she says she does not know where the employer is, and the employer is also afraid, but is unable to say how she can know this.
[15] Although the panel adverts to the political upheaval in Sri Lanka, it relies on its own specialized knowledge in noting the incongruity of the applicant not being able to seek assistance or protection, while her children, her parents, and her siblings all remain in the same district, unharmed. In its reasons the CRDD states it is: "... just not credible that a person in the claimant's position, a Sinhalese with no history of problems with the authorities, would not be able to seek and receive state protection..." Even if she had experienced the abuse complained of, the decision states, "... the claimant failed to demonstrate with clear and convincing proof that the state was unwilling or unable to protect her."
[16] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 726, the Supreme Court of Canada holds that absent a complete breakdown of state apparatus, it is generally presumed that a state is able to protect its citizens. In this instance the claimant never sought protection.
[17] The CRDD also found the applicant had failed to establish a well-founded fear of persecution. Although she came into Canada in the company of an agent, she did not claim Convention refugee status at customs in Quebec upon entry. Her story was not consistent as to why she did not claim until she arrived at her friend's in Toronto, five days after entering the country. Her counsel states the agent told her not to claim.
[18] The applicant's counsel explains this delay saying his client is young, uneducated, and unsophisticated, and was reliant on her agent. He submits her testimony has been consistent and without significant contradictions, inconsistencies, or omissions, and as such should be accepted.
[19] The applicant relies on Maldonado v. Minister of Employment and Immigration (1979), 31 N.R. at paragraph 5 (F.C.A.), for the principle that: "... When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness..."
[20] This approach is not in dispute, but it is my considered view that in this matter, the panel's conclusion reflects its consideration of the evidence in its totality.
[21] In noting that delay in making a claim is an important factor in assessing its validity, the CRDD cites: Heer, Karnail Singh v. Minister of Employment and Immigration (F.C.A., No. A-474-87) and states it is reasonable to expect someone with a well-founded fear of persecution who has fled in search of a safe haven, to seek the protection of Convention refugee status without unreasonable delay, citing: Hue, Marcel Simon Chang Tak v. Minister of Employment and Immigration (F.C.A. No. A-196-87). In the panel's view, this was not done in this case; it concluded five days did not seem reasonable in the circumstances. The CRDD's reasons conclude the applicant's delay "points to a lack of subjective fear of persecution" and that her explanation that her agent told her not to claim, was not reasonable. In the result, the CRDD concluded the applicant had failed to establish a well-founded fear of persecution.
[22] The Federal Court of Appeal held in Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at paragraph 2 (F.C.A.), that: "... the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense." In doing so, when the panel draws inferences that are not so unreasonable as to warrant the intervention of this Court, the findings will be allowed to stand.
[23] As to the applicant's submission about the panel's observation that it did not believe a Sinhalese would work for a Tamil, I concur that the panel's comment was gratuitous, but I find it neither determinative nor fatal.
[24] I am also of the view that the panel identified the elements of the applicant's story, which in the end, led to its negative credibility finding. Suffice it to say, that in weighing and assessing the applicant's evidence, the panel has concluded that the truth of her story is not in "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." (Farnya v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.).
[25] In the final analysis, it is open to the CRDD to reject uncontradicted evidence if that evidence does not accord with the probabilities affecting the case as a whole. In my opinion, this is what it has done here (Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (F.C.A.)).
[26] For these reasons, the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
February 2, 2001