Ottawa, Ontario, October 13, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated February 16, 2006, finding that the applicant was not credible and was neither a Convention refugee nor a person in need of protection.
ISSUES
[2] Did the Board err by making adverse findings of credibility in a perverse and capricious manner, on irrelevant considerations, or without regard to the totality of the evidence before it?
[3] For the following reasons, the answer to this question is negative and the present application shall be dismissed.
BACKGROUND
[4] The applicant is a young Tamil, citizen of Sri Lanka who was forced to work for the Liberation Tigers of Tamil Eelam (LTTE) following an attack by the army that killed several people from his village in 1992.
[5] In April 1995, he was arrested and beaten by the army for working with the LTTE. Similarly, in October 2000, he was arrested, detained and beaten. One month later, he was again victim of persecution at the hands of the army. This would continue at various times during subsequent years.
[6] With the aid of a smuggler, the applicant left Sri Lanka for Malaysia on October 10, 2004 and arrived in Canada on October 26, 2004. He was detained upon arrival. His claim for refugee status was denied, which forms the basis of this application for judicial review.
DECISION UNDER REVIEW
[7] After examining both the oral and written evidence, the tribunal concluded that the applicant was not a trustworthy person. In particular, the tribunal doubted the applicant’s credibility in the following matters:
1. The applicant contradicted himself in that he testified that he had received documents a few days prior to the hearing and when asked why it had taken him so long to obtain the documents, he gave two different and inconsistent explanations. On the one hand, he told the tribunal that they were in another part of the country and his wife had to get them and on the other hand, he testified later that the documents had been lost and had to be reprinted;
2. The applicant’s testimony revealed discrepancies in his travel itinerary, more notably the applicant indicated that he remained in Jaffna until 2004. When pressed on the matter to be more specific, the applicant said he was in Jaffna in September 2004 then he testified that it was in October 2004;
3. The applicant gave blatantly contradictory testimony about the time and place he first met the smuggler who assisted him when he left Sri Lanka. The applicant testified that he first met the smuggler in a hotel in Malaysia yet also testified that the smuggler paid a bribe to airport authorities in Sri Lanka in order for him to leave the country. The applicant further contradicted his evidence that he did not experience any problems with authorities and left Sri Lanka under his passport from Sri Lanka;
4. The applicant testified that he travelled to Canada on an Indian passport yet he did not know the name in the passport. Moreover, there was no Indian national listed on the flight of the Swissair plane from which he disembarked at Dorval Airport;
5. The tribunal found it implausible that the smuggler would not have known or would not have discussed with the applicant that he traveled with his own identity card and his birth certificate;
6. Finally, the tribunal found the applicant was not credible in that he indicated in his Port of Entry (POE) report, as well as on his Personal Information Form (PIF) that he left Sri Lanka because of fear of persecution by the Sri Lankan army. Yet the applicant testified that the real reason he left Sri Lanka was because of his fear of the LTTE.
[8] In each of these six instances, the tribunal gave the applicant an opportunity to explain the contradictions, discrepancies and inconsistencies in his evidence. The tribunal was not satisfied with the applicant’s explanations. Rather, the tribunal found the applicant was vague, hesitant and evasive throughout most of his testimony and seldom answered directly to the questions posed. At times, he did not answer the questions and they had to be repeated.
ANALYSIS
Standard of review
[9] The standard of review for issues of credibility is patent unreasonableness as held in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL). The Federal Court of Appeal stated as follows:
In his memorandum, counsel for the appellant relied on the decision of this Court in Giron v. Minister of Employment and Immigration [(1992), 143 N.R. 238 (F.C.A.).] in support of his argument that a court which hears an application for judicial review may more easily intervene where there is a finding of implausibility. Because counsel are using Giron with increasing frequency, it appeared to us to be useful to put it in its proper perspective.
¶ 3 It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
¶ 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.
Adverse findings of credibility
[10] The tribunal based its adverse credibility findings on both the internal inconsistencies in the applicant’s accounts, as well as on the implausibility of some of the claimant's explanations. I will deal with each separately.
1) Internal inconsistencies
[11] A careful review of the transcripts of the applicant’s testimony indicates that the tribunal was faced with several inconsistencies and contradictions between the applicant’s testimony and the information he provided to the Immigration Officer on the date of his arrival in Canada.
[12] The transcripts show also that the tribunal was sensitive to several mitigating factors that would otherwise cloud the applicant’s credibility. These mitigating factors include the circumstances under which his port of entry interview was conducted: through an interpreter by telephone. By the nature of its questions, the tribunal was also sensitive to the fact that the applicant was a humble farmer with limited education. The transcripts also show that the applicant was ably represented by counsel.
[13] I find nothing in the transcripts of the proceedings to indicate that the tribunal was overzealous to discredit the applicant. On the contrary, the tribunal based its decision on the multiple internal inconsistencies and the applicant’s evasiveness in providing satisfactory explanations to many of these discrepancies.
[14] The tribunal had valid reasons to doubt the applicant’s credibility. It was therefore not unreasonable for the tribunal to reach the negative conclusion of the applicant’s credibility. The tribunal sought explanations from the applicant for the numerous contradictions and while some explanations were accepted, the tribunal was not unreasonable in failing to be convinced of the veracity of some of the applicant’s explanations. The Court is of the opinion that the tribunal should have granted the benefit of the doubt to the applicant for example, his stay in Jaffna. This was not a major element and has been noted by the tribunal as a minor discrepancy. It did not affect the decision taken as a whole.
(2) Plausibility Findings
[15] With respect to the tribunal’s implausibility findings, I agree with the assessment of Mr. Lorne Waldman (Immigration Law and Practice, 2nd ed. vol. 1 (Markham: LexisNexis Butterworths 2006) at 8.87) when he states as follows:
The distinction that the Federal Court has made between conclusions concerning credibility that are based on contradictions or inconsistencies in the claimant’s evidence, and those that are based on inferences drawn from the evidence before the tribunal, is extremely important. In Giron v. Canada (Minister of Employment & Immigration) (1992), 143 N.R. 238, [1992] F.C.J. No. 481 (C.A.)), the court indicated that it will be more willing to intervene in those credibility findings that are based on inferences drawn by the tribunal:
The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is of the discretion of triers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.
[16] In the case at bar, the tribunal states as follows:
According to his testimony, the claimant did not know what passport he used to travel from Malaysia to Canada, except that it was an Indian passport. He did not know the name that was on it. It is hardly plausible that a professional smuggler would not tell his client in what name he was traveling under. The claimant also said that he traveled with his own identity card and his birth certificate, without the agent’s knowledge. It is hardly plausible that using the services of a smuggler and having paid for them, and knowing that he was traveling with a fraudulent passport from Malaysia to Canada, he did not take the opportunity to discuss with his escort if it was appropriate or not to carry with him identity documents contradicting the passport. And it is hardly plausible that a professional smuggler did not brief his client on such an important matter. Furthermore, although the claimant testified that he traveled with his identity card and his birth certificate: “I brought my identity card and my birth certificate with me,” we read in exhibit M-2: “Today, there was an observer who brought your original birth certificate and his name is Pathmamohan.”
[17] I would distinguish the Giron test in this case when applied to the facts upon which the tribunal based its implausibility findings. First, the conduct of professional human smugglers is not a subject matter that is common to the general public or that would ordinarily be within the expertise of the Court. Second, because of the nature and specific characteristics of professional human smugglers, the immigration tribunal could be said to have greater expertise than the courts in dealing with professional smugglers matters. Finally, the credibility findings that were based on the implausibility of the evidence before the tribunal goes to the heart of the tribunal’s decision and I would accord deference to the findings of the tribunal on this particular matter.
[18] Based on these facts, it was not unreasonable for the tribunal given its expertise in dealing with professional smugglers matters, to doubt the applicant’s explanations. Like its credibility findings based on the internal inconsistencies of the applicant’s accounts, the tribunal’s inferences drawn with respect to the implausibility of the applicant’s explanations regarding the professional smuggler were reasonably open to it.
[19] That is why the Court finds that the tribunal’s decision was not patently unreasonable such that it would warrant judicial intervention.
[20] The parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1407-06
STYLE OF CAUSE: SEVARAJA NADARAJAH
and THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 3, 2006
APPEARANCES:
SOLICITORS OF RECORD:
Joseph W. Allen FOR APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec