Date: 20010417
Docket: IMM-606-00
Neutral Citation: 2001 FCT 326
BETWEEN:
NALLANATHAN, Lina Radhiha
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
A. INTRODUCTION
[1] Lina Radhiha Nallanathan (the "applicant") is a 36-year-old single woman accountant from Sri Lanka and Tamil by race. She challenges the January 17, 2000 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") denying her refugee claim based on imputed political opinion and on a particular social group, a Tamil woman from the North of Sri Lanka. She claims a well-founded fear of persecution at the hands of the Sri Lankan Army (the "Army") because she is a supporter of an independent democratic Tamil state and is not otherwise involved in politics. She also fears the Tigers.
[2] In her Personal Information Form (PIF), the applicant traced a generalized history of harassment from 1983 to 1990 by the Army, by the LTTE and by the IPKF. She recites that in June of 1990 the Tigers ordered her to make monthly payments to them which she did; she also maintained their camp accounts when ordered to do so in March 1992.
[3] She wrote on her PIF that, from 1995 to 1999, she stayed in various refugee camps after the Tigers had ordered at various times the evacuation of various cities.
[4] The event precipitating her flight to Colombo, she said, was the roundup of Tamils by the Army after one of their Jeeps was blown up. She and her family were released after a week but the Army kept returning to the family home at night to see if the Tigers were there. One of her neighbours was raped by Army personnel in front of her.
[5] She decided to seek refuge in Colombo where she hoped to find work and stay permanently; shortly after she arrived there, she was arrested and beaten but released on a bribe and told to return to Jaffna. She fled to Canada on August 21, 1999.
B. The tribunal's decision
[6] The foundation of the tribunal's decision is its finding the applicant's story not credible and trustworthy. This finding of lack of credibility was mainly based, not on inconsistencies or contradictions in her testimony, but on implausibilities drawn by the tribunal from her recital.
[7] Quite apart from the implausibilities, the tribunal was not satisfied with the identity document filed by the applicant; this document was not a National Identity Card (NIC). The tribunal placed little weight on the identity document presented by her as a substitute for the NIC and found it of no probative value in establishing the claimant's recent domicile, i.e. that she had lived until very recently in the North of Sri Lanka.
[8] The tribunal's findings of implausibilities were of the following magnitude:
(a) that a well-educated mature adult would not be personally aware, as she had testified, whether a pass was issued to her by the Army to travel to Colombo. The tribunal based this finding on documentary evidence of the controls the Army places on people wanting to travel to Colombo;
(b) that she would not be questioned upon her arrival in Colombo, noting however, her response that the security people had talked to her father and the agent he had hired;
(c) that she would not know the name of the airport in Jaffna, after testifying having been born and having lived there most of her life and, recently, having flown out from that airport, destination Colombo. The conclusion the tribunal drew was she did not make the flight from Jaffna to Colombo;
(d) that she had the intention to settle permanently in Colombo and her agent told her she could do so. The tribunal's basis for this finding is documentary evidence that passes to Colombo are limited and are only for short visits;
(e) that she did not know if she was registered with the police in Colombo which, according to the documentary evidence, is a requirement. She said she had left the matter to her agent. The tribunal cited documentary evidence that Tamils are subject to intense interrogation at security checkpoints.
[9] The tribunal concluded her testimony ran counter to what the documentary evidence says about conditions in Sri Lanka and that it was "persuaded she has not been in northern Sri Lanka for many years" and therefore did not "believe her testimony of working for the Tigers and being under suspicion by the army from 1995 to 1999".
[10] The tribunal wrote at page 5:
It is up to the claimant to make her case and if she is without critical identity documents, she must provide other credible or trustworthy evidence to support her claim. She has not done this. Since I do not know where the claimant is recently from, I cannot make a positive decision on her behalf. I find that there is not a serious possibility that the claimant would be persecuted if she were to return to Sri Lanka.
C. ANALYSIS
[11] The critical finding made by the tribunal in support of its conclusion there was no serious possibility she would be persecuted if she were to return to Sri Lanka is that it did not believe she was recently from the North, and as a result, rejected her testimony of working for the Tigers and being under suspicion by the Army from 1995 to 1999.
[12] To reach this conclusion, the tribunal discounted the applicant's identity card which it said was not a substitute for an NIC which by law all citizens of Sri Lanka are obliged to have.
[13] The second foundation for its finding the applicant had not proven she was recently from the North stemmed from the implausibilities it drew from the applicant's testimony.
[14] Her counsel said the tribunal:
(1) erred in not finding that her birth certificate was proof that she is from Jaffna and she is a citizen of Sri Lanka;
(2) the implausibility findings are irrelevant and not central to the issue of the well-founded fear of persecution of the applicant;
(3) the tribunal did not consider the central elements of her claim;
(4) breach of the gender guidelines.
[15] The applicant's first point misses the mark. What the tribunal was looking for was evidence the applicant was recently from the North. The transcript contains a copy of both the birth certificate and identity card. A review of those two documents supports the tribunal's conclusion that neither of them disclose she was in the North of Sri Lanka during the relevant period.
[16] The applicant's second point is met by the Federal Court of Appeal's decision in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 where Justice Décary wrote:
[4] 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. In this case, the appellant has not discharged this burden.
[17] It cannot be said the tribunal had no evidentiary basis from which to draw the implausibilities. A review of the transcript demonstrates that for each implausibility, the tribunal grounded them on the applicant's testimony and on documentary evidence.
[18] The applicant has not established the implausibilities drawn were unreasonable and in my view, they were relevant to the determination where the applicant was recently from.
[19] On the point of the failure to consider her claim, I can find no basis for intervention. The tribunal did consider her claim but rejected it by coming to the conclusion there was no serious possibility the applicant would be persecuted if she returned to Sri Lanka. That conclusion, as noted, was based on a credibility finding related to the agents of persecution she feared.
[20] Finally, I agree with counsel for the respondent, there was no breach of the gender guidelines. The essence of her claim was not gender but political opinion. Moreover, the applicant, in her testimony, gave no evidence in support of the point.
[21] For these reasons, this judicial review application is dismissed. No certified question arises.
J U D G E
OTTAWA, ONTARIO
APRIL 17, 2001