Date: 20030714
Docket: IMM-4526-02
Citation: 2003 FC 871
Ottawa, Ontario, this 14th day of July 2003
Present: THE HONOURABLE MADAM JUSTICE SANDRA J. SIMPSON
BETWEEN:
MANOHARAN, INDRANI THABITA
MANOHARAN, NOEL HARSHANA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the ABoard@) dated September 10, 2002 in which it concluded that Indrani Thabita Manoharan (the AAdult Claimant@) and Noel Harshana Manoharan (the AMinor Claimant@) (together the AApplicants@) are not Convention refugees (the ADecision@).
[2] The Applicants are citizens of Sri Lanka who resided in Germany from July 1985 to October 1999. However, they no longer have legal status in Germany. The Adult Claimant fears persecution in Sri Lanka by reason of her race, her membership in three social groups, i.e. (a) a young Tamil woman, (b) a single mother, and (c) a victim of spousal abuse, and by reason of her imputed political opinion (that she supported the Liberation Tigers of Tamil Eelam (the ALTTE@)). The Minor Claimant fears persecution in Sri Lanka by reason of his Tamil race, his perceived political opinion (that he is of the prime age to be a LTTE recruit) and his membership in a particular social group B a young Tamil.
[3] The Applicants came to Canada on November 11, 1999 and made a refugee claim based on recent events in Sri Lanka.
The Issues
[4] The Applicants raise two main issues. Firstly , they submit that the Board erred in failing to address the Minor Claimant=s independent claim. Secondly, they submit that the Board erred in making its negative credibility findings.
The Minor Claimant
[5] The Applicants argue that the Board failed to address the Minor Claimant=s distinct claim as a young Tamil male who would be subject to persecution in Sri Lanka at the hands of the LTTE and the Sri Lankan Army. The Respondent submits that, because the Minor Claimant did not file his own narrative and because his claim is tied to the Applicants= presence in Sri Lanka in 1999, the negative credibility findings against the Adult Claimant defeat both their claims.
[6] In my opinion, the Board erred when it failed to make a separate determination about the risk to the Minor Claimant. The Board clearly identified that the Minor Claimant had separate grounds for his refugee claim but never addressed his distinct claim. This was a reviewable error with respect to the claim of the Minor Claimant.
The Credibility Findings
[7] The Applicants submit that all but one of the negative credibility findings against the Adult Claimant dealt with Acollateral issues@. Because these findings did not relate to the substance of the claimed persecution, it is argued that they cannot support the rejection of the Applicants= claim. The Respondent submits that the negative credibility findings revealed an overarching pattern of deception by the Adult Claimant which tainted the credibility of the entire claim.
[8] The standard of review for findings of credibility made by the Board is patent unreasonableness. The Court will not intervene unless the findings are unreasonable on their face, unsupported by the evidence or vitiated by a failure to consider the proper factors (Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (T.D.); Dudar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1277 (T.D.)).
[9] The Board identified three discrepancies which appeared in the two PIFs provided by the Applicants and in the information provided at the Port of Entry. They related to the Applicants period of residence in Germany, the time they spent in the United States, and the routes they used to travel to Canada.
[10] The first PIF stated that the Applicants resided in Germany from November 1989 to October 1999. The Applicants submitted an amended PIF in December 2000 which stated that they resided in Germany from July 1985 to October 1999. The evidence supports this discrepancy and therefore this negative credibility finding is not patently unreasonable.
[11] Next, the Board found that the Applicants Afailed to mention the month spent in New York, USA, from October to November 1999@. It concluded that A...omitting her stop in the United States was deliberate, with a view of not [sic]_having to escape giving an explanation as to why she did not seek protection in the United States@. While the Applicants are correct in stating that the Adult Claimant revealed her stop in the United States in the first PIF, the amended PIF, and at her Port of Entry interview, and that consequently the Board could not properly find that her motive for the discrepancy was to avoid explaining why she did not seek protection in the United States, I am nevertheless satisfied that it was not patently unreasonable for the Board to make an adverse credibility finding on the basis of her inconsistent evidence. Even if the Board erred in its speculation about her motive, the fact remains that on each occasion the Adult Claimant stated that she stayed in the United States for a different length of time. In these circumstances, it was not patently unreasonable for the Board to make a negative credibility finding.
[12] Finally, the Board made a negative credibility finding based on the fact that the Applicants gave a different travel route in their first and amended PIFs. Again, this finding is supported by the evidence and is not patently unreasonable.
[13] Applying these findings to the Applicants= claim the Board held:
The panel=s determination of this claim is based on an assessment of the evidence deemed to be credible and is based on the understanding that the Convention refugee definition is forward looking. Looking at the totality of the evidence, the contradictions between the two PIFs, the deliberate effort to conceal the fact that the claimants= journey to Canada started in Germany, not Sri Lanka, as well as concealing the fact that they made a stop in the United States, where she could seek asylum, also the recording of the wrong date when the claimants had gone to Sri Lanka from Germany, is overwhelming evidence of lack of credibility and trustworthiness in the stories the adult claimant asks the panel to consider.
Given the overwhelming deceitful evidence presented by the adult claimant, the only rational conclusion which the panel can come to, is that there is not a scintilla of truth in the adult claimant=s evidence - documentary or oral - that they returned to Sri Lanka in June 1999, and were confronted by the Colombo police as a result of them being contacted by the adult claimant=s husband in Germany, and told of the connections between the LTTE and the claimants.
[14] While it is true that the discrepancies described above do not directly concern the alleged incident in Sri Lanka, it was open to the Board to make a general finding of lack of credibility.
[15] The Board turned next to a negative credibility finding which relates directly to the substantive aspect of the Applicants= claim B their alleged detention in Sri Lanka by the Colombo police. The Board stated:
The panel cannot perceive the adult claimant=s husband jeopardizing his freedom by contacting the Colombo police, after fleeing Sri Lanka in 1985 and claiming refugee status in Germany. It is a fair inference to draw that the husband in 1985 would have named the police and the Sinhala authorities as people whom he feared in Sri Lanka. The adult claimant is well aware that suspicion of LTTE involvement raises the risk for any Tamil, including Colombo Tamils, to the threshold of a serious possibility of persecution. Given the panel=s findings on credibility, it is the panel=s view that the story allegedly given to the Colombo police, is manufactured to put the claimants at risk.
[16] In my opinion, the conclusion drawn in the first passage in the above analysis is patently unreasonable. There was no evidentiary basis for the Board=s conclusion that the Adult Claimant=s husband could be jeopardizing his freedom by contacting the Colombo police from Germany.
[17] The Applicants submit that, because this finding was the only one directly connected to the substantive aspect of the claim and was made in error, the negative credibility finding against the Adult Claimant cannot stand. While I agree that the finding was patently unreasonable, it was made after the Board had impugned the Adult Claimant=s overall credibility based upon significant discrepancies in her story at all stages of her claim and, therefore, it is not material.
Conclusion
[18] While the Board did commit a reviewable error with respect to the Minor Claimant=s claim, it did not commit a reviewable error in its assessment of the testimony of the Adult Claimant. Consequently, the application with respect to the Adult Claimant will be dismissed and the application with respect to the Minor Claimant will be referred back to the Board for redetermination.
ORDER
UPON reviewing the file and considering the submissions of counsel for both parties in Toronto on July 3, 2003;
AND UPON being advised that no question is posed for certification.
NOW THEREFORE THIS COURT ORDERS THAT:
1. The Adult Claimant=s application is hereby dismissed.
2. The Minor Claimant=s claim is sent back for redetermination.
ASandra J. Simpson@
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4526-02
STYLE OF CAUSE: MANOHARAN, INDRANI THABITA ET AL v. MCI
DATE OF HEARING: July 3, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Simpson J.
DATED: July 14, 2003
APPEARANCES BY: Ms. Barbara Jackman
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD: Ms. Barbara Jackman
Toronto, Ontario.
For the Applicant
Mr. Stephen Gold
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-973-1544
Fax:416-954-8982
For the Respondent