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Maheswaran v. Canada

Case Name:
Mahaswaran v. Canada
(Minister of Citizenship and Immigration)

Between Sarojinidevy Maheswaran, applicant, and The Minister of Citizenship and Immigration, respondent

[2002] F. C. J. No. 1162
2002 FCT 910
Docket IMM-2507-02

Federal Court
Toronto, Ontario
O’Reilly J.

Heard: June 25, 2003.
Judgment: July 24, 2003.
(12 paras. )

Aliens and immigration – Admission, refugees – Grounds, well-founded fear of persecution – Credible basis for claim – Appeals or judicial review, grounds.

Application by Maheswaran for judicial review of a decision by the Immigration and Refugee Board that she was not a Convention refugee. Maheswaran was a 65-year-old citizen of Sri Lanka. She claimed that she was mistreated by the army, police and terrorists who opposed the government. She fled to the capital to live with her son. She stayed for several months and was harassed by the police. The Board found inconsistencies between her personal information form and her application for a visitor’s visa, in which she did not mention her fears. It felt she was mistreated in the capital because of her son’s political profile. However, she had explained in her personal information form that the problems she experienced in the capital had nothing to do with her son. The Board claimed she did not mention the time she spent with her son. However, she did discuss it in her form. The Board also concluded that Maheswaran was not persecuted, but did not explain this conclusion.

HELD: Application allowed. The decision was set aside. The Board erred when it concluded that Maheswaran’s evidence was not credible. There was no justification for the adverse inferences that it made. The Board was also mistaken when it concluded that she was not persecuted. The fact that she stayed in the capital for several months was not inconsistent with a genuine fear of persecution. It was immaterial that Maheswaran did not mention her fears when she applied for the visitor’s visa, as she properly feared that she would be denied a visa. Her failure to discuss this fear should not have caused the Board to discount it.

Counsel:

Max Berger, for the applicant. Tamrat Gebeyehu, for the respondent.

REASONS FOR JUDGMENT AND JUDGMENT
  1. O’REILLY J. :- Ms. Maheswaran is a 65 year-old citizen of Sri Lanka. She alleges that she was the victim of ongoing mistreatment by the Sri Lanka Army, the police and the Liberation Tigers of Tamil Eelam (LTTE) over a period of about 10 years. She says the LTTE harassed her repeatedly, extorted money and jewellery from her, and then occupied her home. She claims similar treatment at the hands of the army after it accused her of harbouring members of the LTTE. She then fled to Colombo, where the police, she says, harassed and threatened her. On March 2001, she obtained a visitor’s visa and came to Canada.
  2. After Ms. Maheswaran fled Sri Lanka, she made a refugee claim in Canada. A panel of the Immigration and Refugee Board dismissed it. She argues that the Board made serious errors in deciding her claim and asks, by way of this application for judicial review, for a new hearing before a different panel of the Board.
  3. This case raises two issues:
    1. Did the Board err when it concluded that Ms. Maheswaran’s testimony was unreliable?
    2. Was the Board mistaken when it found that Ms. Maheswaran was not persecuted?

A. Did the Board err when it concluded that Ms. Maheswaran’s testimony was unreliable?

    1. The Board compared Ms. Maheswaran’s testimony with her Personal Information Form (PIF) and her application for a visitor’s visa. (It also referred to notes taken when she entered Canada but, in reality, no such notes existed. )The Board found various contradictions and omissions as between Ms. Maheswaran’s oral and written evidence. Ms. Maheswaran disputes the Board’s conclusions. Her objections are well-founded.
    2. In her oral testimony, Ms. Maheswaran discussed threats made against her by the LTTE in 1999 and 2000. The Board was concerned that Ms. Maheswaran had failed to mention these threats in her PIF. When the Board asked her why she had left them out, Ms. Maheswaran stated that she simply forgot. In reality, though, Ms. Maheswaran had mentioned them in her PIF. She stated that at the end of 1999 “the LTTE visited us in the night and demanded money from me. I gave them RS 18,000 in December 1999 and RS 30,000 in March 2000. ” She also mentioned an incident in August 2000 when the LTTE demanded food. She said “When I hesitated, the Tigers threatened me. I gave them 15 parcels of rice for six days. “
    3. The Board also felt that Ms. Maheswaran should have mentioned in her PIF, as she had in her oral testimony, that she had spent over five months in Colombo with her son just before she came to Canada. Her PIF says that she left Jaffna in September, 2000 and went to Colombo. She stayed there while awaiting her other son’s efforts to sponsor her move to Canada. After nearly six months in Colombo, she learned that the sponsorship arrangement fell through, obtained a visitor’s visa to Canada and left Sri Lanka in March, 2001.
    4. The Board took particular note of the time Ms. Maheswaran spent in Colombo because it felt that any mistreatment she suffered while there was due to her son’s political profile, not hers. He had occasionally helped the LTTE. The Board thought that her evidence on this subject was evasive. I disagree. She testified that some of her problems in Colombo were related to her son’s activities and some were personal to her. She explained that when she wrote the narrative in her PIF she was describing her own problems, not his. The Board concluded that Ms. Maheswaran failed to mention the time she spent with her son so that she would not have to admit that her problems in Colombo were a by-product of his. As mentioned, she did discuss this time period in her PIF. True, she did not make entirely clear that she was staying with her son. She refers repeatedly to a son, but in the context it is difficult to tell if she was talking about her son in Canada, her son in Colombo, or both. In any case, this minor confusion did not justify the adverse inference that the Board drew from Ms. Maheswaran’s evidence.

B.Was the Board mistaken when it found that Ms. Maheswaran was not persecuted?

  1. The Board found that even if Ms. Maheswaran had been harassed and arrested by the army, and harassed and extorted by the LTTE, she had not been persecuted. It did not explain its conclusion. Reading the reasons as a whole, it would appear that the Board disbelieved some of Ms. Maheswaran’s evidence and felt she had not displayed actual fear for her personal safety. I have already discussed the Board’s unwarranted credibility findings. As for Ms. Maheswaran’s fear, I find the Board’s analysis faulty in this area as well.
  2. The Board determined that Ms. Maheswaran must not have been afraid when she was in Colombo because it took her nearly six months to arrange to leave for Canada. However, she explained to the Board that she was waiting for her son in Canada to sponsor her. Further, although the police threatened and mistreated her, her life was not in immediate danger. Her stay in Colombo for a few months after 10 years of hardship is not inconsistent with a genuine fear of persecution. I note that when the sponsorship plan fell through, she immediately made other arrangements to get out of Sri Lanka.
  3. The Board was also troubled by the fact that Ms. Maheswaran did not mention she was having difficulties in Sri Lanka when she applied for her visitor’s visa. She explained that she thought the visa officer would not grant her permission to travel to Canada if the officer suspected that she might seek asylum here. I can understand her concern — other claimants in like circumstances have done the same thing:Fajardo v. Canada (Minister of Employment and Immigration), [1993] F. C. J. No. 915, at para. 5. Her failure to discuss her situation with the visa officer should not have caused the Board to discount her fear.
  4. Finally, the Board concluded that Ms. Maheswaran was afraid to return to Sri Lanka because of the war generally, not because she thought she was in personal jeopardy. She did say that her main fear was the war. But she had also described many specific instances of mistreatment that she suffered as a consequence of the ongoing hostilities in Sri Lanka. The fact that she feared the war cannot be taken to mean that she was not worried about her personal safety if she returned.
Conclusion
  1. The Board did not have a sound basis for questioning Ms. Maheswaran’s credibility. Further, its conclusion that she was not persecuted was not supported by the evidence or adequately explained. Accordingly, this application for judicial review must be allowed. No question of general importance was proposed for certification, and none is stated.
JUDGMENT

IT IS HEREBY ADJUDGED that:

  1. The application for judicial review is allowed.
  2. No question of general importance is stated.

O’REILLY J.


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