Date: 20041213
Docket: IMM-142-04
OTTAWA, Ontario, December 13th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
CHAMPIKA DESHAPRIYA NANOBI ARACHCHIGE DON and DILIMINI DEEPTHI RANASINGHE ARACHCHIGE
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 Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated December 4, 2003, in which the applicants were found not to be Convention refugees or persons in need of protection.
FACTS
[2] The principal applicant ("applicant") is a 28-year old citizen of Sri Lanka. He alleges a fear of persecution by the Central Intelligence Division ("Intelligence Division") of the Sri Lankan Police who wrongly suspect him of being involved in a terrorist attack The applicant's wife, who is also a citizen of Sri Lanka, bases her application for refugee status on her husband's claim.
[3] The applicant states that while in Sri Lanka he worked as a security warden for Sri Lanken Airlines at the Katunayake International Airport outside of Colombo. On July 24, 2001, the airport was attacked by the militant group Liberation Tigers of Tamil Eelam. The applicant, who was on vacation in Switzerland at the time of the attack, was questioned briefly by the police upon his return. Almost ten months later, on April 28, 2002, the applicant alleges that he was arrested by the Intelligence Division and detained for approximately five hours. They questioned him about two young Tamils who lived in his boarding house at the time of the airport attack. On May 2, 2002, the applicant was again arrested by the Intelligence Division and questioned about why he had left Sri Lanka the day before the airport attack. The applicant alleges that he was beaten, tortured by having a drawer closed on his genitals and placed in a cell for two days without food. He was released upon payment of a bribe.
[4] The applicant received medical treatment for his injuries and subsequently went into hiding. He obtained a Canadian visitor's visa on August 6, 2002 and he and his wife left for Canada on September 25, 2002.
THE DECISION
[5] The Board rejected the applicant's claim due to credibility concerns. It found that his testimony contained a number of inconsistencies and implausibilities that rendered his evidence untrustworthy. In support of its conclusion, the Board relied on the following findings:
· it was implausible that the applicant would be allowed to remain in his sensitive position at the airport if the Intelligence Division suspected him of being involved in the attack on the airport;
· it was implausible that the applicant would be permitted to leave the country if he was suspected of being involved with the airport bombing;
· the almost five-month delay between the time of the last arrest and the time the applicants left for Canada was inconsistent with a subjective fear of persecution;
· a letter submitted by the applicant's doctor indicated that he received treatment in March 2002 rather than in May 2002 (when the applicant alleges he was tortured). Moreover, the medical report submitted by the applicant spoke only of contusions all over the body from a blunt object and made no mention of injuries to the genitals.
[10] The Board also identified several minor discrepancies between the applicant's personal information form ("PIF") and the oral and documentary evidence presented at the hearing.
ISSUE
[11] Did the Board err in assessing the applicant's credibility?
ANALYSIS
[12] It is well-established that credibility findings, including those related to the plausibility of testimony, are entitled to considerable deference by the Court and must not be interfered with unless they are patently unreasonable. See Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194; and Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[13] The Board identified four "implausibilities and inconsistencies" which are not "credible or trustworthy". Upon analysis, the Court finds this conclusion patently unreasonable. In particular:
1. there is no inconsistency in the PIF and the applicant's viva voce evidence about the amount of the bribe;
2. there is no inconsistency between the PIF and the lawyer's letter;
3. there is no inconsistency between the PIF and the viva voce evidence about the day the applicant left for Switzerland before the bombing; and
4. there is no inconsistency or implausibility about the applicant's father and brother fleeing to Italy while his brother-in-law, who allegedly owes the remainder of the bribe, remains in Sri Lanka.
[14] Moreover, the Board's decision errs in three other important aspects, and these errors can be characterized as patently unreasonable.
[15] First, the Board failed to take account of the objective evidence such as the U.S. Department of State Country Reports on Human Rights practices in Sri Lanka for 2002 that government security forces and affiliated paramilitaries detain and torture persons without formally arresting them. This is exactly what the applicant said happened to him. If the Board had recognized that the applicant may have been detained and tortured by some of the security forces which did not place him under
formal arrest, then that would explain why there was no notification by the security forces that the applicant was a suspected terrorist connected with the bombing of the airport. This also explains why the security forces did not notify the applicant's employer, Sri Lankan Airlines, why the applicant stayed on the payroll of the airline, and why the applicants were able to leave the country through all levels of security at the airport with their own passports.
[16] Second, the Board did not explain why it disregarded the corroborative evidence from the lawyer in Colombo, Mr. M.P. Fernando. Mr. Fernando wrote a letter dated February 5, 2003, which would be easy to verify as accurate, which corroborated the fact that the applicant contacted a lawyer on May 23, 2003 about his detention and torture by the security forces. This letter corroborates the applicant's story. The Board did not explain why it rejected this important evidence.
[17] Third, the Board does not deal with a medical report entitled "DIAGNOSIS TICKET" which corroborates that the applicant was hospitalized for multiple injuries caused by a blunt instrument including damage to his kidneys. This extrinsic evidence corroborates that the applicant was tortured, required medical treatment and hospitalization. The Board makes no mention of this medical evidence.
[18] There is one last part of the decision which is erroneous. The applicant explained in detail why he delayed leaving Sri Lanka after he was released from detention in May, 2003. First, he was injured and needed time to recover. Second, he needed to obtain a Canadian visitor's visa. Third, he needed to marshal money so that he would be able to obtain the visa and fund his travel. Fourth, the applicant went into hiding outside of Colombo with his wife's family so as to avoid being once again detained by the security forces. The Board simply says:
"The panel does not believe his explanation. This delay further impugns his credibility."
The Board does not give any reasons for not believing his explanation. In my view, the explanation is plausible. While the applicant was getting organized to leave Sri Lanka, he was in hiding outside of Colombo, he was recovering from being tortured, he was obtaining the necessary documents from the Canadian High Commission to travel to Canada, and he was gathering the necessary money. I understand that a refugee fleeing persecution would normally leave the country without delay. In the applicant's case, he provided a reasonable explanation on why he waited until September, 2003.
[19] For these reasons, I am satisfied that this application for judicial review should be allowed.
[20] The applicant proposed a question for certification which the respondent opposed. At the hearing, I advised the parties that this question is not a new question which needs certification. The question was:
"Does the decision-maker have a duty to seek and assess at least some objective evidence regarding the actions of a named agent of persecution where it makes critical findings on these activities as they relate to the claims of a particular refugee?"
The answer is yes, the Board does need to assess the credibility of the claimant's story with the objective evidence to determine whether the claimant's story is plausible in relation to the pertinent condition facing the applicant in his home country. This is not a new question which warrants certification. Accordingly, the Court will not certify this question.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board dated December 4, 2003 is set aside and the matter is remitted to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-142-04
STYLE OF CAUSE: CHAMPIKA DESHAPRIYA NANOBI ARACHCHIGE DON ET AL
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: DECEMBER 7, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: DECEMBER 13, 2004
APPEARANCES BY: Robert I. Blanshay
Barrister & Solicitor
49 St. Nicholas Street
Toronto, ON M4Y 1W6
For the Applicant
Neeta Logsetty
DEPARTMENT OF JUSTICE 130 King Street West
Suite 3400, Box 36
Toronto, ON M5X 1K6
For the Respondent
SOLICITORS OF RECORD: Robert I. Blanshay
416-413-4955
For the Applicant
Neeta Logsetty
416-952-6812
For the Respondent
FEDERAL COURT
Date: 20041213
Docket: IMM-142-04
BETWEEN:
CHAMPIKA DESHAPRIYA NANOBI ARACHCHIGE DON and DILMINI DEEPTHI RANASINGHE ARACHCHIGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER