Docket: IMM-3160-03
Citation: 2004 FC 778
Toronto, Ontario, May 27th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
PUSPA PARAPITIYA GAMLATHRAGE
ANJELINE KUMARI RAJAPAKSA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The applicant is a 40 year old Sinhalese citizen of Sri Lanka. The minor applicant is her five year old daughter. They claim persecution on grounds of perceived political opinion and membership in a particular social group.
[2] The applicant claims that her husband is a political activist and ran for office on behalf of the Janatha Vimukthi Peramuna (JVP). As a result of harassment and threats which the family received subsequent to this, the applicant and her daughter came to Canada in April 2002.
[3] The Board on April 9, 2003 found that the applicant had failed to provide sufficient credible evidence that JVP members who ran for political office were subject to physical violence or that her husband, specifically, had been subject to such violence.
[4] The applicant made two arguments: incorrect translation and misinterpretation of documentary evidence.
[5] I do not accept the applicant's first argument, namely that inadequate translation denied her a fair hearing. While the translation may not have been perfect, the evidence reveals that in a transcript of over 100 pages the person listening to the tapes post hearing found only 4 instances of minor incorrect translations. None of these instances related to any point germane to the panel's finding.
[6] The applicant was advised by both her counsel and the Board to stop if she did not understand any questions or they were unclear. In addition twice, on separate occasions, during the hearing the Board member and the Refugee Protection Officer asked her to repeat a question to ascertain she understood. She did so in her own words clearly indicating that translation was not a problem.
[7] As to the interpretation of documents the Board made reasonable findings as to the frailty of the documentary evidence.
[8] The Board observed that while the claimant did not necessarily have to produce documents in support of her claims, it drew a negative inference from the fact that notwithstanding the additional time granted on request by the Board, the applicant did not produce the key evidence required namely a statement of the JVP as to her husband's membership.
[9] The Board found the proffered documentary evidence unconvincing. It found that the testimony of a witness, Mr. McLelland, and a letter from Mr. Bowling of the International Working Group on Sri Lanka provided no concrete support for the applicant's claim. The Board drew a negative inference from the fact that the applicant had not produced better evidence although having the time to do so. It also found the applicant, as a result of the hearing, not to be credible as among other things, she failed to state on her amended PIDF that her husband and son had gone missing; something that in the life of a wife and mother one would expect to constitute a " significant event". In the context of these facts, the applicants argument that of the actions of the Board are contrary to the findings in Maldonado v. Canada (M.E.I.) 2 F.C. 302 cannot be maintained.
[10] Accordingly I find that there was nothing patently unreasonable in the Board's decision. Therefore this application will be dismissed.
[11] I was also asked by the applicant to certify the following question "Can a panel reasonably ask a claimant to produce documents from a country that she has left by reason of fear of persecution, and can the panel draw a negative interference when the claimant fails to do so?" Since the panel here did not ask the claimant to produce documents, but merely accommodated the claimants request for more time to gather documentation, I fail to see the relevance of the question to the case at bar. Accordingly the request for certification is denied.
ORDER
THIS COURT ORDERS that
1. This application be dismissed
2. The request to certify the Applicant's question is denied.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3160-03
STYLE OF CAUSE: PUSPA PARAPITIYA GAMLATHRAGE,
ANJELINE KUMARI RAJAPAKSA
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 27, 2004
REASONS FOR ORDER BY: VON FINCKENSTEIN J.
APPEARANCES BY:
Randolph Hahn For the Applicants
Marcel Larouche For the Respondent
SOLICITORS OF RECORD:
Guberman, Garson
Barristers and Solicitors
Toronto, ON For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040527
Docket: IMM-3160-03
BETWEEN:
PUSPA PARAPITIYA GAMLATHRAGE,
ANJELINE KUMARI RAJAPAKSA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER