Date: 19980409
Docket: IMM-1987-97
BETWEEN:
LAL KUMARA CHANDRAGUPTA MATARAGE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY, J.
[1] The applicant is a Sinhalese lawyer who practised in Colombo, Sri Lanka.
[2] In June 1993, the applicant filed applications for habeas corpus relief on behalf of two students who disappeared four years earlier during the government's retaliation against a Marxist movement's uprising in Embilipitiya in rural Sri Lanka. The habeas corpus applications named certain military officers as respondents.
[3] As the result of his legal representation on behalf of the victims, the applicant states that he received several phone calls and one unsigned letter threatening that he would meet the same fate as two human rights lawyers murdered in 1988 and 1989. This threat was repeated when his automobile was intercepted and he was assaulted by several men in plainclothes who were operating vans without license plates. Upon the advice of a superintendent of police, the applicant states that he then fled Sri Lanka to seek refugee status.
[4] The Convention Refugee Determination Division accepted that the applicant was a lawyer but disbelieved his allegations of persecution. The applicant could only remember the names of one of the two or three respondents in the applications for habeas corpus. He could not produce the unsigned letter threatening his life. He did not attempt to obtain, from the court records in Colombo, a copy of the applications of habeas corpus which he says included his name and address. On the basis of these three omissions and in view of the applicant's "obvious discomfort, hesitation" and "uncomfortable demeanour", the tribunal did not accept his credibility and the subjective basis of his claim of persecution.
[5] The applicant submits that the tribunal erred in the assessment of his credibility by relying on his direct response that he did not remember the names of the parties he sued without confronting him with its concern on this issue during the hearing.
[6] In support of his position, the applicant relies on the majority reasons of Hugessen J.A., as he then was, in Gracielome v. Canada (Minister of Employment and Immigration (1989), 9 Imm. L.R. (2d) 237 at 239. In Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106, a unanimous decision dealing with issues similar to those in Gracielome and heard some three weeks earlier, Justice Hugessen concurred with the reasons of Mahoney J.A. It is worth noting that both cases were under the Immigration Act, 1976, S.C. 1976-77, c. 52, the relevant provisions of which have since been amended. Pursuant to subsections 45(1) and 70(1) of this earlier version of the legislation, the Immigration Appeal Board, even prior to its own hearing, had available the transcript of the refugee claimant's examination under oath before a senior immigration officer. The Board, apparently under subsections 71(3) and (4), would at times draft reasons subsequent to its decision having been communicated to the parties. Findings of credibility would often be based on the comparison between the transcripts of the claimant's evidence before the senior immigration officer and the one before the tribunal. In Owusu-Ansah, Mahoney J.A. compared the Board's reliance on apparent discrepancies between both transcripts with findings of credibility made in the usual trial process (at pages 107-8):
| The inconsistencies relied on often go unnoted during the Board's hearing and unremarked by counsel in argument before it. In many cases, this among them, the claimant's evidence has been given through interpreters, usually different at each proceeding. The process is fraught with the possibility of innocent misunderstanding. It is also to be noted that, in the scheme of the legislation, reasons for a decision are composed by the Board some considerable time after the decision has been rendered not, as in the usual judicial proceeding, as a critical part of the decision making process. Few judges, I suspect, would attest to not having ever changed their minds in the process of writing reasons. The Board's reasons serve no purpose but to justify its prior decision. In the present case, the Board has, in my opinion, overreached itself in its search for inconsistencies in the Applicant's evidence. I shall deal with them seriatim after dealing with another basis upon which the Applicant's credibility was called into question. |
It is against this background that one must read the statement of Justice Hugessen in Gracielome at p. 239:
| It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact, from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than in this Court. |
| The application will be allowed; the subject decision will be set aside and the case referred back for a re-hearing. |
[7] Under the legislative amendments in force since 1989 the decisions of the Convention Refugee Determination Division are more often prepared without the benefit of any transcripts although panels may be called upon, for example, to assess testimony received from a claimant against that person's earlier version noted by an immigration officer. The Court of Appeal decisions relied upon by the applicant must be read in the context of the then existing legislative scheme. While the specific problem being addressed by these decisions may no longer apply, there may still be circumstances, however, where a discrepancy should be brought to the attention of a refugee claimant (see, for example, Guo v. Canada (Minister of Citizenship and Immigration, [1996] F.C.J. No. 1185 (QL) (F.C.T.D.)).
[8] In this case, the tribunal's failure to confront the claimant with its concern with a direct response to a specific question is not a reviewable error. The parties were on notice that credibility was in issue. In assessing the plausibility of the applicant's assertions, the tribunal could take into consideration his failure to remember the names of the respondents in two habeas corpus proceedings he allegedly launched in Sri Lanka, without further highlighting the issue during the hearing. These were the same legal proceedings which allegedly resulted in his persecution and his decision to flee Sri Lanka. On the facts in this case, I adopt the statement of my colleague Justice Gibson in Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (QL) (F.C.T.D.) at paragraph 17, in interpreting the scope of Gracielome:
| ... to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. |
[9] Similarly, the tribunal's reference in its decision to the applicant's "lack of effort" in attempting to obtain the threatening letter for the hearing without referring to his telephone calls to his brother in Sri Lanka for this purpose is not a reviewable error. This attempt, some four years after the letter was allegedly received and only three months before the hearing, may be characterized as a lack of effort.
[10] The applicant failed to provide the tribunal with copies of the two applications for habeas corpus he purportedly drafted and filed. When confronted with this omission at his refugee hearing, the applicant did not request that the tribunal afford him additional time to obtain these documents from Sri Lanka. Their production, if they exist, would have addressed two of the three omissions noted in the tribunal's reasons.
[11] None of the applicant's submissions has satisfied me that the tribunal committed any reviewable error in its findings concerning credibility. Similarly, it was open to the tribunal, on the basis of all the documentary evidence, to conclude that there did not exist an objective basis that human rights lawyers as a group currently face a serious possibility of persecution in Sri Lanka. In making this finding, the tribunal notes the murders of lawyers in 1988 and 1989 but relies on the reported positive developments over the past decade to improve the investigation of human rights abuses. Moreover, the applicant himself testified that he knew of no lawyers who were murdered in Sri Lanka since 1993.
[12] For these reasons, the application for judicial review is dismissed. Neither party suggested the certification of a serious question.
Judge
Ottawa, Ontario
April 9, 1998