Date: 20021129
Docket: IMM-420-02
Neutral citation: 2002 FCT 1239
OTTAWA, ONTARIO, THIS 29th DAY OF NOVEMBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
Aseef Iqbal MEERA LEBBE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated January 3, 2002, wherein the applicant was declared not to be a Convention refugee as defined in section 2 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The applicant, a Muslim, is a 30 year old Tamil speaking citizen of Sri Lanka who was self-employed in the farming and grocery business. He alleges a fear of persecution at the hands of the Liberation Tigers of Tamil Eelam (the "LTTE"), the Sri Lanka Muslim Congress (the "SLMC"), the police and the army.
[3] Fearing for his safety, after his alleged arrest and detention in mid October 2000 by the local police of Akkaraipattu, the applicant decided to leave his country. On October 20, 2000, he went to Kattankudy where he stayed for two months. Through the help of an agent, the applicant arrived in Colombo. He applied for and was granted a visa to Canada for the purpose of his business. On February 2, 2001, he left Sri Lanka travelling with his brother-in-law. En route to Canada, their passports were taken by the airline authorities at the Zurich airport. They claimed refugee status upon their arrival in Canada on the same day.
[4] Due to the cumulative effect of multiple non-credibility findings, the Board concluded that the applicant's allegation that he had been persecuted as a result of his political opinion and membership in a particular social group was neither credible nor trustworthy.
[5] Moreover, the Board also considered the applicant's fear of the LTTE should he return to Sri Lanka. It noted that the applicant did not have problems with the LTTE after 1997: "By his own admission, he did not consider the incidents he had with the LTTE serious enough to cause him to leave the country. Although the panel is aware that the LTTE committed human rights abuses against civilians in the east, however, at this point the evidence in its entirety shows that there is no more than a "mere possibility" that the claimant would be at risk of serious harm at the hands of the LTTE if he were to return to Sri Lanka". Although, the validity of this latter conclusion has been challenged in the applicant's memorandum, this issue was not argued at the hearing. After reviewing the record and considering the parties' written submissions, I conclude that the arguments made in this regard by the applicant are unfounded and that the Board gave adequate reasons for its determination on this issue. Furthermore, the applicant has failed to convince me that the Board has ignored available documentary evidence on the human rights abuses by the LTTE against Tamil speaking Muslims.
[6] I also reject the applicant's argument that the Board failed to properly address his fear of being persecuted by the Sri Lankan authorities and the SLMC. First, I note that the applicant's fear of the SLMC is expressly mentioned in the Board's reasons. Second, it turns out that this particular issue is contingent upon the overall credibility finding made in this case by the Board which is also contested by the applicant. I will therefore examine the credibility issue.
[7] As a starting point, the applicant's difficulties and resulting fear from the police and the SLMC flow from his alleged membership and participation in the Akkaraipattu branch of the United National Party (the "UNP") since 1994 and in which he allegedly became secretary in January 1996.
[8] In the case at bar, the Board did not believe the applicant's alleged involvement with the UNP credible. It noted that there was no documentary evidence issued by the party to attest to his alleged affiliation since 1994, save for a single membership card. It accorded no probative value to said membership card (for the years 2001 to 2005) since it was issued after the date the applicant arrived in Canada. Moreover, it considered the applicant's explanation that one membership card was stolen, and the other lost, but found his testimony in this regard "utterly convoluted". The Board also gave little evidentiary value to a letter from one Mr. M.H. Cegu Isadeen, a former MP from Colombo, which attests that the applicant "rose up to holding various responsible offices in the United National Party Branch Organization" and that "[h]e has campaigned actively and vigorously to promote the policies and programmes of the UNP in this area due which [sic] reasons, he had been politically victimized every now and then". The Board noted that there was no mention in this letter of the applicant's alleged arrests or detentions. The Board also attached importance to the fact that the letter made no mention of the alleged incident of September 2000 when the applicant and Mr. Isadeen had both narrowly escaped from the shootings of SLMC supporters. In his Personal Information Form (the "PIF") the applicant alleges that on September 4, 2000, while he was travelling in the same van with Mr. Isadeen, the treasurer and the vice-president of the branch, some SLMC supporters started to shoot at their van. The vice-president was killed and some of the supporters of the UNP who were following the van in other vehicles were injured. The gravity of this alleged incident is such that the Board found it implausible that it would have been omitted by Mr. Isadeen in his letter. I accept the respondent's argument that the combination of these elements allowed the Board to make the factual determination that the applicant's alleged involvement in the UNP was not credible.
[9] The Board also discarded, for lack of credibility, the applicant's evidence regarding other central aspects of his claim.
[10] The critical incident that prompted the applicant's departure from Sri Lanka allegedly occurred on the night of October 13, 2000, when the applicant, his brother-in-law and other local residents went to the mosque responding to a call from the trustees. Just a few days before, the UNP as well as Mr. Isadeen, had been defeated at the general election. After the victory of the SLMC, their thugs started to attack the UNP supporters and damage their belongings and properties. On the evening of October 12, 2000, the applicant alleges that SLMC thugs beat him and looted his store. He reported the incident to the trustees of his mosque. Yet, the attacks on UNP supporters allegedly continued. Therefore, on the night of October 13, 2000, the trustees set the alarm from the mosque to advise every one to gather at the mosque. A meeting was held at about 11:00 p.m. There, the trustee made a request to stop the violence, but SLMC thugs entered the mosque with the police. The applicant and his brother-in-law were arrested with other local residents. The applicant alleges that he was detained, beaten and accused of being a supporter of the LTTE. On the fifth day, after having taken his photograph and required his signature on some documents, he was released on the condition that he reports to the police station on every Monday of the week.
[11] The Board found that the applicant's testimony with regard to the incident at the mosque was replete with implausibilities and contradictions. More particularly, the Board mentioned that the applicant was unable in his testimony, after close questioning, to cite specific incidents of violence occurring at the time, or reasonable grounds for the intervention of the trustees rather than that of the security force in the alleged violence. Moreover, the Board made reference to a newspaper clipping dated October 16, 2000, stating that the mosque "is being closed for the last three days". Therefore, the Board concluded that the mosque had been closed three days before, including October 13, 2000, which contradicted the applicant's allegation of being arrested at the mosque on that same night. Since a newspaper usually refers to events which occurred on the day preceding its publication, I find it was reasonable to the Board to infer that October 13, 14 and 15, 2000, were the days when the mosque was closed. Moreover, the Board also noted that the article was "laconic" as to the violence in the village which prompted the trustees to call the meeting. Furthermore, the Board concluded that the applicant "lack[ed] spontaneity" with regard to the condition of his release on October 18, 2000, following his arrest at the mosque. The applicant had mentioned in his PIF that the police took his picture and required his signature on some documents before his release. When asked at the hearing if the police did anything before his release the applicant first answered in the negative from which the Board concluded that "his lack of spontaneity to recall these alleged procedures cast [sic] more doubts about the veracity of his arrest from the mosque and subsequent detention". I find that it is well within the purview of the Board to consider discrepancies between the PIF narrative and the applicant's testimony. The applicant has failed to convince me that a factual error has been made in this regard.
[12] Other reasons for disbelieving the applicant which relate to peripheral aspects of his claim were also given by the Board. However, I find it is not necessary to relate them here in view of the general conclusion I have reached. After having the benefit of reviewing the transcript and the evidence, I conclude that the adverse credibility findings and the inferences summarized above which concern central aspects of the applicant's claim are not patently unreasonable or unsupported by the evidence.
[13] The determination of the applicant's credibility is the heartland of the Board's jurisdiction and this Court has found that it has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (F.C.T.D.); Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 at p. 306 (F.C.A.); and Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at p. 40 (F.C.T.D.)).
[14] Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for the Board's when the applicant has failed to prove that its decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it (see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14; Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124, at para. 9; and the grounds for review at subsection 18.1(4)(d) of the Federal Court Act). As clearly pointed out by Kelen J. in Chen v. The Minister of Citizenship and Immigration, 2002 FCT 1194, at paragraph 4:
The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses.
[15] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.); and Kanyai, supra, at para. 10).
[16] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (see Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11).
[17] Overall, I conclude that it was reasonably open to the Board to find that the applicant was not credible. Despite the able arguments of applicant's counsel, no material error affecting the result of this decision has been committed by the Board. The fact that it may have erred in drawing an adverse inference from the fact that the applicant had not been truthful in his visa application because he stated that he was coming for business purposes, does not change the general conclusion of the Board.
[18] The Board simply did not believe the applicant's account of the facts leading to his fear of persecution, and it expressed the reasons for casting doubt upon the applicant's credibility in clear and unmistakable terms. The evidence must be assessed together, and not in isolation from each other (see Lai v. Canada (Minister of Citizenship and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)). That is what the Board did in its decision, and its conclusion is reasonable. This does not mean that I necessarily share the same views, or that I would have come to the same conclusion. In this case, however, this is not the point. The Board is not immune from making errors. When errors of fact are made, the Court should not hastily substitute its judgment for that of the Board, except in the clearest of cases and where the error made by the Board is material and patently unreasonable.
[19] In view of the negative credibility findings, the Board was right in denying the applicant's claim for refugee status. Accordingly, this application for judicial review must fail.
[20] Counsel have not submitted any question for certification.
O R D E R
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, rendered on January 3, 2002, is dismissed. There is no serious question of general importance to be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-420-02
STYLE OF CAUSE: Aseef Iqbal MEERA LEBBE v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Qc.
DATE OF HEARING: November 14, 2002
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Martineau
DATED: November 29, 2002
APPEARANCES:
Mr. Viken G. Artinian FOR THE APPLICANT
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Viken Artinian FOR THE APPLICANT
Montreal, Qc.
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada