Date: 20050520
Docket: IMM-3905-04
Citation: 2005 FC 730
BETWEEN:
GREGORY CHRISTOPHER
ANNAMARY CHRISTOPHER
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated March 23, 2004, wherein the Board determined that the Applicants are not Convention refugees nor persons in need of protection.
FACTS
[2] The Applicants are Tamil citizens of Sri Lanka. They are husband and wife, the Applicant being 72 years old and his wife 56. Their claims are based on membership in a particular social group, namely, Tamils from the north of the country who fear the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan authorities. All of their children have left the country for Canada; their two sons were accepted as Convention refugees while their daughter was sponsored.
[3] The Applicants alleged that their family had encountered problems with the LTTE, who were attempting to recruit the children, and the Sri Lankan Army, who suspected the family of LTTE sympathies. They were relocated several times over the years. Their sons were arrested, tortured and detained several times and they finally fled to Canada. The Applicants then returned to Jaffna with the hope that they would be left alone since their children were all gone abroad.
[4] After the peace negotiations were underway and the LTTE had some legitimacy, the LTTE began aggressive recruitment of the remaining youth and extortion demands of the elders. In March 2003, the LTTE visited the Applicants at their house in Jaffna, asked them for a large amount of money, and threatened them if they refused to pay. There were three visits in total. The Applicants alleged that the LTTE demanded that they contact their children for payment. Other elder people in the village were apparently treated the same way.
[5] In May 2003, the Applicants travelled to Colombo and applied for travel documents that permitted them to leave on July 30, 2003. During that period of three months in Colombo, the Applicants did not have any problems with the LTTE. They testified that their neighbours told the LTTE where they were; they believed that the LTTE was expecting that they had travelled to Colombo to obtain the extortion money.
DECISION UNDER REVIEW
[6] The Board first stated that it did not have the mandate to consider humanitarian and compassionate grounds or family unification.
[7] The panel then went on to assert that the Applicants were able to travel to Colombo without problems, and that the LTTE did not pursue them despite their failure to meet the extortion deadlines. The Applicants did not have problems with the Sri Lankan authorities in Colombo either. The Board thus concluded that they had a viable Internal Flight Alternative, since they had no problems there and were not required to obtain travel permits or to register with the police since the unilateral ceasefires of December 2001. The Board also considered the documentary evidence and found that there were many positive changes in the country conditions since 2002.
[8] The Board specifically wrote:
There were no suicide bombings, no reports or arbitrary arrests or detentions, no large scale arrests of Tamils, most checkpoints were removed, registration of visitors is discontinued and reports of mistreatment by security forces largely ceased. There was a two-day state of emergency declared and it was based on political unrest and not on a recurrence of civil war hostility.
For these reasons, the Board found that the claimants have a viable IFA in Colombo today with no more than a mere possibility of persecution, and that it would not be unreasonable for them to relocate to Colombo.
APPLICANTS' SUBMISSIONS
[9] The Applicants first note that the Board did not express any credibility concerns and accepted as a fact that the LTTE had demanded a significant amount of money from them. In their view, it was patently unreasonable for the Board to conclude that the LTTE did not pursue them in Colombo on the basis that they were left alone during the three months they resided there. It is the Applicant's contention that the LTTE did not pursue them in Colombo because it had not yet located them (Colombo being a large city) and because it was under the impression that the Applicants were trying to find the money.
[10] Counsel for the Applicants also stressed that the Board's analysis focussed entirely on Sri Lanka's conditions in the aftermath of the peace process but did not address the risk of further extortion. Indeed, it is submitted that the LTTE can now operate more freely in Colombo as a result of the truce; it may be that suicide bombings, arbitrary arrests or detentions, large scale arrests of Tamils have diminished, but this is irrelevant as for determining whether the Applicants are still at risk of extortion in Colombo.
[11] Counsel for the Applicants also argued that the documentary evidence establishes that the situation involving extortion from the LTTE is more serious now than it was prior to the ceasefire, since it can operate throughout the country with impunity. Accordingly, the Board's conclusion that the Applicants had a viable IFA, with no reference to the documentation of the LTTE activities in Colombo, is alleged to be patently unreasonable.
[12] In their reply memorandum, the Applicants specify that the issue is not whether there is an increase in LTTE extortion in Colombo, but rather whether it is taking place and whether the Applicants fit the profile of those with a reasonable chance of being targeted. The Applicants maintain that persons with relatives abroad are assumed to have the ability to pay, which is their situation. They add that the test for refugee status is not that of a certainty or likelihood of persecution, but only something more than a minimal possibility.
RESPONDENT'S SUBMISSIONS
[13] According to the Respondent, the Board's conclusion that there is a trend toward positive changes in response to LTTE extortion activity in Colombo and that the Applicants would have an Internal Flight Alternative there, was supported by the evidence before it. Such a finding of fact, when supported by the evidence before the tribunal, cannot be characterized as perverse of capricious.
[14] Counsel for the Respondent further argues that the Board is presumed to have taken into consideration all the evidence before it, and does not need to mention every piece of it. In the case at bar, it is suggested that the Applicant has failed to rebut that presumption.
[15] The Respondent also refers to a paper drafted by the Research Directorate of the Immigration and Refugee Board, reporting no increase in LTTE extortion in Colombo after the February 2002 ceasefire. Similarly, it is contended that the Applicants were unable to point to any evidence to the effect that extortion is a particular problem where persons have children living abroad.
[16] In summary, the Respondent maintains that the Applicants do not fit the profile of the likely targets of extortion, and stresses that they have been unable to demonstrate that the Board made a patently unreasonable finding in concluding that they have an IFA in Colombo.
ISSUE
[17] The only issue to be dealt with in this case is the following: Did the Board err in concluding that the Applicants had a viable Internal Flight Alternative in Colombo?
ANALYSIS
[18] Based on the jurisprudence and the pragmatic and functional analysis in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL), the appropriate standard of review in an application for judicial review which raises the issue of an IFA is patent unreasonableness (Khan v. Canada (M.C.I.), [2005] F.C.J. No. 47 (F.C.); Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 (F.C.); Canada (M.C.I.) v. Mohideen, [2005] F.C.J. No. 596 (F.C.)). In other words, the Court will only intervene with the Board's decision if the applicant can demonstrate that the decision was based on an erroneous finding of fact or one that was made in a perverse of capricious manner or without regard for material before it (Federal Courts Act, paragraph 18.1(4)(d)).
[19] It is settled law that the idea of an IFA is "inherent" to the definition of a Convention refugee. Since a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an internal flight alternative. It follows that the determination of whether there is an IFA is integral to the determination of whether a claimant is a Convention refugee. And since the existence of an IFA is part of the question of whether or not the applicant is a Convention refugee, the onus is on the applicant to show, on a preponderance of probabilities, that there is a serious possibility of persecution throughout his entire country.
[20] The test in determining the existence of an IFA was expressed by Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 711 and reiterated in Thirunavukkarasu, supra, at paragraph 12. In finding that an applicant has an IFA, the Board must first be satisfied, on the balance of probabilities, that there is no serious possibility of the claimant being persecuted in the new location, and secondly, that the conditions in the new location must be such that it would not be unreasonable for the claimant to seek refuge there.
[21] In the present case, the Board did not express any concerns with respect to the credibility of the Applicants, nor about their well-founded fear of persecution. As for the possibility of an IFA, the Board did not examine the specific situation of extortion from the LTTE in Colombo, but chose instead to focus on the country conditions in a general way and without any specific reference to the Applicants' situation.
[22] The Board's determination that the Applicants have a viable IFA in Colombo was based on four findings: 1) The Applicants were able to reside in Colombo for three months without incident; 2) there are no requirements to register with the police or to obtain travel permits since the ceasefire of December 2001; 3) there were positive changes in 2002 which were not reversed in the following months; and 4) there were no suicide bombing, no reports of arbitrary arrests or detentions, no large scale arrests of Tamils, most checkpoints were removed, registration for visitors was discontinued, and reports of mistreatments by security forces largely ceased.
[23] With all due respect, these facts are irrelevant to assess whether there is no serious possibility that the Applicants will be extorted in Colombo. It may be that the daily life of the general population has greatly improved as a result of the ceasefire, but this does not necessarily translate into a more secure environment for the Tamils who have been targeted for extortion purposes by the LTTE. It was indeed the Applicants' contention that the ceasefire has enabled the LTTE to operate more freely throughout Sri Lanka. As I said in Anthonimuthu v. Canada (MCI), [2005] F.C.J. No. 162:
As to the absence of reliable evidence that the LTTE was extorting large amounts of money in Colombo at the time alleged, nor that elderly Tamils were mistreated, the evidence is at best ambiguous. The U.S. Department of State Report mentions that the LTTE was responsible for extortion without confining this finding to a specific geographical zone. The Research Directorate of the Immigration and Refugee Board also reported in 2003 that, "as a consequence of the ceasefire and the resulting ability of the LTTE to now move freely in government controlled areas, the LTTE has reportedly been able to extend its extortion activity into new territory, particularly the towns of Batticaloa and Karaitivu".
[24] It may be, as the Respondent argues, that the Applicants could not be the target of the LTTE since they do not fit the profile of potential victims of extortion (not being business persons) and since the LTTE has not extended its activities to Colombo. But there is certainly no analysis leading to that conclusion in the Board's reasons. One can certainly not leap to that conclusion on the sole basis that the general situation has somewhat improved since the ceasefire.
[25] Nor can we dismiss the possibility of extortion in Colombo just because the Applicants have lived there for three months without being harassed by the LTTE. As the Applicants testified (and their credibility was not questioned by the Board), the LTTE was told that they had moved to Colombo to find the money; this could very well explain why they were left alone, to say nothing of the fact that Colombo is a big city and that the LTTE may not have been able to locate them yet.
[26] The Respondent has also submitted some decisions where this Court has upheld similar findings of an IFA in Sri Lanka by the Board. But as is well known, each decision based on a finding of fact turns on the evidence put to the Board. I have carefully read the decisions that were submitted to me by counsel for the Respondent, and have found that they are distinguishable on their facts. In some cases, either there was no evidence about the fear of extortion or the Applicant was not extorted. In others, the incidents of extortion were not considered as persecution, which was not even an issue in the present case.
[27] In conclusion, I am of the view that the Board made a reviewable error in failing to analyse the specific risk of extortion in Colombo raised by the Applicants. It was no answer to rebut the Applicants' testimony with general statements about the improvement in the country conditions as a result of the ceasefire. This application for judicial review should accordingly be granted, the Board's decision quashed and the matter returned to a different panel for redetermination.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-3905-04
STYLE OF CAUSE: GREGORY CHRISTOPHER
ANNAMARY CHRISTOPHER v. MCI
DATE OF HEARING: May 5, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER: de Montigny J.
DATED: May 20, 2005
APPEARANCES BY:
Mr. John Grice For the Applicants
Ms. Anshumala Juyal For the Respondent
SOLICITORS OF RECORD:
Mr. John W. Grice
North York, Ontario For the Applicants
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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