Date: 20001004
Docket: IMM-893-00
BETWEEN:
AMANI HASIN FAROOK
JAZEEMA HASIN FAROOK JAMALDEEN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the Immigration and Refugee Board's decision (the "Board") rendered on February 2, 2000, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The principal applicant, Jazeema Hasin Farook Jamaldeen, is a 28- year-old citizen of Sri Lanka. She came to Canada with the minor applicant in the within application, her 4-year-old daughter, Amani Hasin Farook, who is also a citizen of Sri Lanka. For the purpose of this case, I will refer to the principal applicant as the applicant since the minor applicant's claim is based on her mother's claim.
[3] The applicant alleges that she is a Tamil-speaking Muslim from Murunkan, located in the Mannar District of the Northern Province of Sri Lanka. She claims a well-founded fear of persecution in Sri Lanka and that her and her daughter are caught in the middle of two warring parties.
[4] She claims that the family left Sri Lanka because of two major incidents that allegedly occurred. The applicant claims that in March 1999, she was arrested by the police on her arrival in Colombo and taken to the Pettah police station. She claims that she was "assaulted despite being a Muslim". She alleges that she was released on the second day of her arrest after paying a bribe to the police. She also claims that she was told to leave Colombo immediately.
[5] The applicant further claims that in July 1999, in Mannar, four members of the Liberation Tigers of Tamil Eelam (LTTE) came to their gas station and demanded ten barrels of diesel fuel. She alleges that the LTTE took their entire stock of diesel fuel and told them not to inform the security forces.
[6] Despite their threats, the applicant allegedly advised the Sri Lankan army (SLA) of the theft of the diesel fuel. The applicant claims that the SLA accused them of collaboration with the LTTE and that they were detained for ten days. The applicant alleges that her and her husband were released from detention after her father paid a bribe of 25,000 rupees.
[7] The applicant claims that they fled the Mannar District and went into hiding at a friend's home in Veppankulam. The applicant alleges that they stayed there for one month before travelling to Colombo where, again, they stayed in hiding at the home of the agent before leaving for Canada.
THE BOARD'S DECISION
[8] The Board concluded that the applicants did not present credible or trustworthy evidence in support of their claims for refugee status. Furthermore, the Board could not accept, on a balance of probabilities, that the SLA would accuse Tamil-speaking Muslims of collaboration with the LTTE.
[9] The Board based its conclusion on various part of the applicant's testimony. On the issue of identity, the Board found that the applicant was issued her Sri Lankan national identity card (NIC) at the age of 22; well after the age that most Sri Lankan nationals are issued their NICs.
[10] The Board did not find plausible the applicant's explanation that the only identity document she possessed prior to her NIC being issued was a postal identity card which allegedly expired in 1994. The Board stated that most Sri Lankan citizens are issued either an extract of birth or a register of certificate of birth, particularly, if they are born in a government hospital and that these documents are needed by the parents to register their children in school.
[11] The Board did not accept the applicant's explanation that she applied for her register of birth in 1996 because she was applying for a job in Kekirawa, in the Northern Province and needed the identity document and an English translation. The Board concluded that the applicant had obtained the documents for some other purpose.
[12] The Board did not accept the applicant's explanation that the minor Applicant's birth took place in Colombo because there was not enough medical facilities in her area. Nor did the Board accept the explanation that her spouse's address was listed as Colombo because they lived in Colombo for the period that she gave birth to her daughter, the confinement and delivery.
[13] The Board found that it was evident that the applicants had a strong connection to Colombo since the minor applicant and her father were born in Colombo and the birth documents presented were all issued in Colombo. As for the applicant's NIC, the evidence showed that it was issued before her marriage and the birth of her child, and that it showed her maiden name and an address at (26/611) 235 Nickawewa Ganawalpola, located in the Mannar District.
[14] Given this evidence, the Board concluded that the applicant did not present credible testimony respecting their place of residence in Sri Lanka. The Board stated that its conclusions in this regard were further supported by the Board's negative findings with respect to the applicant's credibility in the following areas.
[15] The Board questioned the applicant on her statement that many Muslims in the northern province support the LTTE or Tamil Tigers. The applicant explained that she was aware that Tamil-speaking Muslims did not support the Sri Lankan army and that she personally knew families that supported the Tamil Tigers. She explained that the reason why Muslims were supportive of the LTTE was because they were both Tamil speaking. She also explained that SLA personnel killed many Muslim people in Murukan, her home village.
[16] The Board found the applicant's testimony clearly at odds with the preponderance of documentary evidence before the Board and that the applicant's testimony revealed a fundamental ignorance of the current situation in Sri Lanka between the Tamil-speaking Muslims and the Sri Lankan government and the separatist LTTE. The Board found that the applicant's ignorance suggested that she had not been in Sri Lanka for some time.
[17] The applicant mentioned a number of villages on the way to Anaradapuram where they took the train to Colombo. She did not know if these villages where under government control or LTTE control but she eventually testified that they were controlled by the government. When she was asked why she did not say that when she was first asked, the applicant stated that she did not know if she was asked that question. The panel did not accept the applicant's explanation and found that the applicant presented confusing, inconsistent and contradictory testimony in that area of her story.
[18] The Board also found inconsistency between her oral testimony and her PIF. In her oral testimony, the applicant indicated that when they went to the SLA to report what happened to the barrels of diesel fuel, they were forced to tell lies and said that the barrels were lost. In her PIF she stated that they felt they had to advise the army that the stock which they had ordered from them had been stolen.
ISSUES
| [19] 1. Did the Board err in law with respect to its conclusion that the applicants did not provide adequate documentary evidence because it misconstrued the evidence, made improper inferences and ignored evidence properly before it? |
| 2. Did the Board err because it made improper credibility findings with respect to the evidence? |
ANALYSIS
| 1. Did the Board err in law with respect to its conclusion that the applicants did not provide adequate documentary evidence because it misconstrued the evidence, made improper inferences and ignored evidence properly before it? |
[20] As to the place of residence of the applicant in Sri Lanka, the Board concluded that the applicant did not present credible testimony and that the Board's conclusions in this regard were further supported by the Board's negative findings with respect to the principal claimant's credibility in other areas.
[21] As was stated in Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R.300 (F.C.A.):
| If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility. See Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), where Mr. Justice Hugessen observed, at page 35: |
| ... unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence. |
[22] I find that the Board did not err in concluding that the applicant did not present credible testimony respecting its place of residence in Sri Lanka. The evidence produced by the applicant did not support her claim that she lived in Murunkan. The birth certificates that the applicant produced were all issued in Colombo and the address of her spouse stated on the minor applicant's certificate of birth was in Colombo. The Board could not accept her explanations as to why the birth certificates came from Colombo. As to the applicant's NIC, it was issued before she was married and before the birth of her daughter. Furthermore, the Board, based on documentary evidence before it, did not find her explanations plausible as to why she was issued her NIC and her register of birth in 1994 and 1996 and not earlier.
[23] I find that the Board, in the case at bar, properly assessed the applicant's credibility based on the contradictions and discrepancies in her evidence and based on the documentary evidence before the Board. The Board is entitled to assess the applicant's credibility and I cannot find that the Board's conclusions were unreasonable and would warrant the intervention of this Court.
| 2. Did the Board err because it made improper credibility findings with respect to the evidence? |
[24] The Federal Court of Appeal held in Aguebor v. M.E.I. (1993) 160 N.R. 315:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. |
[25] In Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1 (F.C.T.D.), Jerome A.C.J. stated at paragraph 4:
| To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it. |
[26] Hence, a Court will be reluctant to interfere unless the Board's finding are unreasonable.
[27] In the case at bar, the Board cannot be said to have erred on the issue of the applicant's credibility. Regarding the applicant's testimony that many Muslims in the northern province support the LTTE, the Board concluded that the applicant's testimony was clearly at odds with the preponderance of documentary evidence before the panel. The Board was entitled to rely on documentary evidence in preference to the testimony provided by a claimant. See Zhou v. Canada (M.E.I.),July 18, 1994 (A-492-91).
[28] Furthermore, the Board found the applicant's testimony regarding the control of the villages she travelled through confusing, inconsistent and contradictory. The Board, as a trier of fact, had the opportunity to assess the applicant as a witness and the Board assessed the applicant on the evidence presented.
[29] As was stated in Wen v. M.E.I., June 10, 1994 (A-397-91), Stone, J.A. said:
| The Refugee Division's decision turned wholly on an adverse finding of the appellant's credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant's story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division. |
| That apart, we also observe that the adverse finding was based as well on the appellant's answers being "confusing" and "evasive". This assessment of personal demeanour ought not to be interfered with by this Court which lacks the advantages available to the trier of fact. |
[30] Regarding the fact that there was an inconsistency with respect to whether the barrels were lost or stolen, it is clear, in my view, that the applicant never said neither written that the barrels were lost; in that, she was consistent.
[31] Nevertheless, that error is not determinative and having reviewed the transcript of the hearing, I find that the Board's conclusion cannot be said to be unreasonable in light of the evidence and circumstances of this case.
[32] Therefore, this application is dismissed.
[33] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 4, 2000