Date: 19990602
Docket: IMM-2721-98
BETWEEN:
ROSHAN MOHAMED JEZLY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
CULLEN, J.:
[1] The applicant challenges by way of judicial review the decision dated 20 April 1998 of the Immigration and Refugee Board (Refugee Division) (the "CRDD"), in which the Board found that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act , R.S.C. 1985, c. I-2 (the "Act"). Leave to commence an application for judicial review was granted on 3 March 1999.
[2] The applicant requests that the CRDD"s decision be set aside and the matter referred back for redetermination before a differently constituted panel of the CRDD.
[3] Background
The applicant, Roshan Mohamed Jezly, is a 25 year old Tamil-speaking Muslim, and a citizen of Sri Lanka. He claimed Convention refugee status upon his arrival in Fort Erie, Ontario on 1 May 1997. His claim is based on his fear of persecution by reason of his political opinion as a suspected supporter of the Liberation Tigers of Tamil Eelam (" LTTE"), a militant Tamil separatist group also known as the Tigers. He fears persecution at the hands of the Sri Lankan Army ("SLA"), and believes that they will kill him because they believe that he voluntarily gave money to the LTTE from 1990 until he left Sri Lanka.
[4] The applicant was born in Colombo, and moved with his family to a village called Chenkalady, which is approximately ten miles outside the town of Batticaloa, when he was a young child. The family owned and operated a shop, the "Mohamed Shop", in the village. The applicant states in his personal information form that he worked as a helper in his father"s shop. In March 1997, a bomb exploded in the village, and the family shop was burned, apparently in retaliation by the SLA.
[5] The CRDD rejected the applicant"s claim to Convention refugee status on the basis of implausibilities and lack of credible supporting evidence.
[6] Board"s Decision
First, the CRDD did not accept the applicant"s testimony that he was arrested by the SLA in early October 1996 on suspicion of supporting the LTTE, and that his father was not arrested. The panel rejected the applicant"s explanation that his arrest stemmed from the fact that he, and not his father, had paid money to the LTTE in August 1996 as a result of extortion and threats. The panel concluded that this area of the evidence was not credible based on what it termed a "significant area of contradiction" regarding the claimant"s testimony that he operated the family shop, whereas in his personal information form he described himself as a "helper." The panel found his explanation that he helped his father, but also considered himself as the owner, unpersuasive. The panel also noted that the applicant stated in his personal information form that it was his father who paid the money to the LTTE.
[7] Second, the CRDD did not accept the applicant"s claim that he was tortured by the SLA during his second arrest, later that same month (October 1996), as a means of gaining his membership in the Muslim Home Guards, an anti-LTTE force.
[8] Third, the CRDD rejected the applicant"s claim that he believed he would be arrested following the bomb explosion in March 1997. The applicant claimed that he ran from his shop and was noticed by an SLA soldier in a passing truck. Based on the applicant"s testimony that everyone fled the scene after the explosion, the CRDD found it implausible that in such circumstances the applicant would have stood out.
[9] Fourth, the CRDD noted the contradiction between the Port of Entry notes, which attributed the family shop"s burning to the LTTE, and the applicant"s testimony that his father told him the SLA had burned the shop and others in retaliation. The CRDD found this area of the evidence to be untrustworthy.
[10] Fifth, the CRDD found the applicant"s evidence that the SLA considered that only he, and not his family, had given money to the LTTE untrustworthy in light of the negative credibility findings.
[11] Finally, the panel noted documentary evidence which indicated that in February 1997 12 Muslim shops were burned in the applicant"s village, yet the applicant, who was there until March 1997, had no recollection of these events, although he testified that such events do occur. The panel also noted documentary evidence which indicated that the applicant"s village was shelled by the SLA in early February 1997 after a nearby army camp was attacked. Again, the applicant testified that he knew nothing of these events other than to say that when there is severe fighting, people close up their shops and run away. The CRDD concluded that it was reasonable to expect the applicant to be able to adduce more precise evidence in this area and to have been aware of these events if he was, in fact, present in the region at that time. The panel found that, for this reason, the applicant was not in the area of Sri Lanka he alleges during the period he claimed.
[12] Applicant"s Position
The applicant submits that the CRDD"s adverse credibility and implausibility findings were improperly arrived at and based on evidence before the panel. With regard to the CRDD"s rejection of the applicant"s explanation for his varying ways of describing his position in the family shop, the applicant submits that the panel misunderstood the cultural aspect of the business. The applicant argues that his father owned the business and controlled the finances, but was not regularly present in the shop. The applicant, being the eldest son, runs the business and is always at the store.
[13] The applicant argues that the SLA targets younger males for harassment and recruitment, and would not bother attempting to recruit the applicant"s father due to his age, and therefore it is entirely plausible that his father would not be arrested with him.
[14] With regard to the applicant"s testimony that he stood out and was noticed by a soldier following the explosion, the applicant submits that this is entirely plausible based on his testimony that there were people in the street, but certainly not many.
[15] The applicant submits that the documentary evidence relied on by the panel does not clearly state that the shop burnings occurred in February 1997, as opposed to March 1997, after the applicant fled. The applicant also submits that it is unreasonable for him to be familiar with the army camp which the documentary evidence noted was attacked, sparking a retaliatory shelling of his village.
[16] The applicant contends that the CRDD erred when it failed to consider relevant evidence in the form of the persecution which he claims to have suffered from early 1995. The panel dealt only with the events starting in October 1996. The applicant argues that as the panel made no adverse finding with respect to the earlier events, they must be accepted as true, and the panel"s failure to confront prior instances of detention and torture constitutes an error warranting judicial intervention.
[17] The applicant submits that the parties agreed that identity would not be an issue. However, the applicant takes issue with the panel"s finding that he was not in the area of Sri Lanka he alleges he was in during the period of his alleged problems. The applicant contends that this is a finding relating to issue in a larger context, and that the panel breached the rules of natural justice by failing to afford him the opportunity to respond to this issue after stating that identity would not be in issue.
[18] Finally, the applicant argues that his right to a full hearing by a two-member panel, pursuant to section 69.1(7) of the Act, was breached when one of the members left the hearing early to "catch a train" (see volume 2, hearing transcript, p. 352). The member left after the refugee claims officer gave his closing submissions, but before those of the applicant"s counsel. While the exiting member did undertake to listen to tapes of the applicant"s counsel"s submissions, the applicant argues that no evidence on the record or in the decision attests to this. Thus, the decision was made by a single member and without the consent of the applicant, pursuant to section 69.1(8). The applicant argues that this amounts to a serious violation of procedural fairness.
[19] Analysis
The panel"s conclusions about the defects in the applicant"s story are based on an assessment of the applicant"s credibility. The CRDD is generally accorded considerable deference on judicial review in regard to credibility findings. The panel, rather than the reviewing Court, is in a better position to make findings as to the witness" demeanour, credibility, and the overall trustworthiness of the evidence. A tribunal may find an applicant lacking in credibility based on implausibilities in the applicant"s testimony: Aguebor v. Canada (MEI) (1993), 160 N.R. 315 (F.C.A.).
[20] The reviewing Court cannot interfere if the CRDD"s findings were reasonable in light of the evidence before it, even if the Court might not have reached the same conclusion: Kioreskou v. Canada (MCI) (IMM-1860-94, 22 March 1995) (T.D.).
[21] The panel clearly states in its decision why it doubted and discounted the applicant"s testimony. It found, in particular, contradictions and implausibilities. The applicant was given the opportunity to clarify these shortcomings, but failed to do so to the CRDD"s satisfaction.
[22] With regard to the documentary evidence cited by the panel and relied on for its conclusion that the applicant was not in the area of Sri Lanka he alleges he was in, the applicant contends that the documents do not specifically give February 1997 as the date of the shop burnings and shelling in his village of Chenkalady. He implies that these events occurred in March 1997, well after he left the area. One of the documents comes from a newsletter entitled The Sri Lanka Monitor, and is dated February 1997 in its header. The article "Burned Alive", found at page 3 of the newsletter, states:
| The Mavadivembu Army camp was attacked at 1.30 am on 2 February. Thirteen soldiers were killed and 12 others injured. Three civilians also died in the assault. Following the attack the Army shelled Chenkalady killing two civilians and wounding nine others. |
| (AR, p.25) |
[23] It is difficult, if not impossible, to stretch the meaning of this to accommodate the applicant"s reading that these events occurred in March 1997. The applicant also states that he can hardly be expected to know the names of all of the army camps in the area. That may be valid, however, the CRDD faulted him for failing to know that his village was shelled by the army during the period he claims to have been there.
[24] The second piece of documentary evidence relied on by the panel is another newsletter entitled The Sri Lankan Information Monitor, and is also dated February 1997. The relevant portion reads:
| The most disturbing feature of the Eastern arena in February was, however, the clash and tension between Tamils and Muslims in the Valaichchenai-Eravur area north of Batticaloa. The situation was triggered off when a Muslim homeguard attached to the Valaichchenai Police Station was killed, allegedly by the LTTE on February 9. This took place in Ottamavadi, a Muslim township close to Valaichchenai. This led to a clash between Muslims and Tamils in the town, in which three Tamils were burned alive and several others injured. Three Muslims were later abducted by the LTTE and killed. Tensions remained high in the area for the following few days. 12 shops belonging to Muslims were burned down in Chenkalady, and shelling in Ottamavadi resulted in injuries to over 30 persons. Miravoddai village was among those that came under mortar fire. |
| (AR, p. 26) |
[25] The applicant argues that this newsletter does not clearly state that the shop burning occurred in February 1997, and not March 1997. Again, the applicant is asking the Court to stretch to impossible lengths in order to accede to his argument. The CRDD"s conclusions with respect to the documentary evidence are clearly reasonable.
[26] With regard to the applicant"s contention that the CRDD failed to consider relevant evidence, the applicant points to a portion of his personal information form wherein he states that his family was harassed by the LTTE in 1990 and that it picked up in 1995. The applicant argues that the CRDD dealt only with the events starting in October 1996. I see no reason to interfere with the CRDD"s decision on this point. The applicant"s claim to refugee status is based on his fear of the SLA, and in his testimony, he states that his problems with the SLA stemmed from an August 1996 extortion attempt by the LTTE. Nor did the panel not ignore his evidence regarding the extortion by the LTTE dating back to 1990; it"s conclusion, however, is based on the implausibilities within the applicant"s story concerning his alleged problems with the SLA.
[27] With regard to the applicant"s argument that identity became an issue and he was not provided with the opportunity to address it, having been led at the hearing"s outset to believe that it was not an issue, the applicant"s argument on this point must also fail. The applicant contends that the CRDD did put identity into issue when it made this conclusion:
For this reason [regarding the documentary evidence] and in view of the aforesaid negative credibility findings, the panel finds that the claimant was not in the area of Sri Lanka he alleges during the period of his alleged problems.
[28] The applicant"s contention that this amounts to identity in a larger context must fail. The panel did not dispute the applicant"s identity, but rather a crucial element of his story"that he was in the place he said he was during the critical period.
[29] Finally, the applicant"s contention that he was denied the right to a full hearing before two members warrants comment. Member Mouammar and the refugee claims officer both left before the end of the hearing. The applicant"s testimony had been given, and counsel were preparing to give their closing submissions. There was an off the record discussion, and the applicant"s counsel appears to have consented to allowing the refugee claims officer to present his submissions first, so that he and the member could leave to catch their trains. Here is the relevant portion of the transcript, where the presiding member stated,
| Can I just interrupt you [applicant"s counsel] for a minute, counsel, thanks. I"ll just go off the record. We"re back on the record. Counsel has kindly accepted that the RCO will go first. And the RCO and my colleague, Mr. Mouammar will leave to catch their trains and Mr. Mouammar has undertaken to listen to counsel"s submissions by tape. Thank you. Mr. Stark? |
| (Volume 2, hearing transcript, p. 352) |
[30] The applicant now argues that there is no evidence that the member listened to the tapes of the submissions he missed by leaving early. The evidence, however, is his undertaking to do so, which is clearly on the record in the transcript. The applicant had the, and accordingly, the decision should stand.opportunity to object at that time, and on the record, to the member"s early departure, but he chose not to and, in fact, consented to the arrangement. That being said, however, I do find it disturbing that a CRDD member would leave a hearing that had not concluded in order to catch a train. While it did not affect the end result, it does not look good either. Refugee hearings are not trivial matters; their outcomes have consequences that can be far-reaching. What is the consequence of a missed train? Another one will always come along.
[31] In the result, however, there is nothing in the CRDD"s decision to warrant this Court"s intervention. Accordingly, the decision should stand and the application is dismissed.
Ottawa, Ontario
June 2, 1999. B. Cullen
J.F.C.C.