Date: 20041229
Docket: IMM-8877-03
Citation: 2004 FC 1770
Ottawa, Ontario, this 29th day of December, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
EVELYN FRENDA VASANTHINI ARULNESAN
SHERON ARULNESAN
MARY NICKSHALA ARULNESAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Arulnesan, thirty-nine, her twelve-year-old son Sheron and seven-year-old daughter Mary Nickshala seek judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board, dated October 16, 2003, which determined that they were not Convention refugees or persons in need of protection. The applicants, Sri Lankan Tamils, claimed to be at risk because of their perceived association with the Liberation Tigers of Tamil Eelam ("LTTE") and because of LTTE extortion.
[2] Mrs. Arulnesan testified that her husband was arrested by security forces and detained for two days and accused of being an LTTE supporter following a political assassination in 1993. He was again arrested and held for a week following a bombing in January 1996. A bribe was necessary to obtain his release. At this time she was also detained, interrogated, and assaulted and only released after two days.
[3] After another bombing in October 1997, her husband was detained for twelve days and accused of having knowledge of the plot. Another bribe was paid to secure his release. Following an attack on the airport in July 2001, both husband and wife were again arrested. She was released after a day, and arranged a bribe to free her husband. Their home in Columbo was repeatedly searched and they were extorted by police.
[4] Mrs. Arulnesan and her husband had two businesses, a tourism transportation business and a shrimp farm. Mrs. Arulnesan testified that they also had problems with the LTTE, even after the cease-fire, and the businesses suffered in consequence.
[5] The couple decided in 2001 that they should flee the country and paid a fee (300, 000 rupees) to an agent who cheated them. They found another agent and left Sri Lanka in February 2003. Mrs. Arulnesan and her children reached Canada via France, but Mr. Arulnesan was stranded in Malaysia.
THE BOARD'S DECISION
[6] The Board indicated at the beginning of its analysis that credibility and Mrs. Arulnesan's fear of persecution would be the determinative issues in the claim. There is no other indication in the reasons, however, that the Board doubted Mrs. Arulnesan's evidence. It found that an objective fear of persecution was lacking and there was no factual basis upon which to conclude that she and her children would face a risk to life or a risk of cruel and unusal treatment or punishment or a danger of torture if they were to return to Columbo. Citing Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it concluded that the short detentions disclosed by her evidence did not constitute persecution.
ISSUES
[7] In their written submissions, the applicants argued that the Board should have made separate determinations with respect to the risks faced by the children. At the hearing, counsel properly conceded that the certified record disclosed that there was no evidence or submissions before the Board requiring it to treat the children separately. It was also argued in the written submissions that the Board erred in failing to make an independent section 97 assessment. This was not pressed at the hearing. Accordingly, the sole issue before the Court was whether the Board erred in its findings relative to persecution.
ARGUMENT AND ANALYSIS
[8] Mrs. Arulnesan argues that the Board erred in requiring that she show persistent and ongoing incidents of abuse by the Government authorities. A single incident should suffice. Moreover, the cumulative effect of the harassment she suffered between 1990 and 2000 was enough to constitute persecution even where it resulted from measures adopted by the Sri Lankan Government to deal with terrorism or a state emergency: Ranjha v. MCI, 2003 FCT 637; Thirunavukkarasu v. Canada, [1994] 1 F.C. 589 at 601 (T.D.).
[9] The respondent argues that the line between persecution and harassment is difficult to establish and that in this case, after a careful analysis, the Board concluded that it was not made out. Intervention is not warranted unless the conclusion is capricious or unreasonable: Sagharichi v. MEI (1993), 182 N.R. 398; Kaish v. MCI [1999] F.C.J. No. 1041; Bela v. MCI 2001 FCT 581.
[10] Alternatively, the applicants argue that the Board erred by requiring them to show past persecution, which is not a prerequisite to a finding they will suffer persecution if returned. It is current conditions and the risk of future persecution that must be assessed: Amayo v. MEI, [1982] 1 F.C. 520 (C.A.). The respondent denies that the Board required that the applicants show past persecution and argues that read in their entirety, it is clear from its reasons that the Board recognized that the test is forward-looking: Irfan Ahmed v. MCI (1997), 134 F.T.R. 117; Amponsah-Boadu v. MCI [1996] F.C.J. No. 350. However, the question of past persecution can be relevant to prospective risk: Asaipillai v. MCI [1995] F.C.J. No. 1777.
[11] The Board in this case examined the past incidents of alleged persecution as possible indicators of the risk of future persecution. It found:
[T]he claimant adduced insufficient evidence to establish that she had been in a systematic and persistent way deprived of her core human rights or that the alleged detentions she faced were of a severe nature.
[12] This finding was open to the Board in my view. While it accepted Mrs. Arulnesan's evidence about the past events, it was not obliged to conclude that these incidents involving Government authorities amounted to persecution. Nor was it required to use formulaic language in its reasons. There was no specific discussion of the effects of cumulative harassment in its reasons, but it is clear that the Board considered all of the evidence in arriving at its finding that Mrs. Arulnesan and her children need not fear future persecution.
[13] The evidence of LTTE extortion similarly fell short of a sufficient basis upon which to conclude that the family would be at risk if returned to Columbo. It appears that they were primarily of interest to the LTTE because their shrimp farm business employed several vans. Mrs. Arulnesan's husband was pressured to leave them at the farm for the use of LTTE members arriving by sea. This and the practise of the LTTE of abandoning the vehicles some distance away, disrupted the business and ultimately caused the couple to sell it and the vans. The applicants argue that the loss of this business amounted to persecution. The Board concluded, not unreasonably in my view, that the financial pressures on their businesses from the LTTE were due to country conditions at the time and not related to any of the Convention refugee grounds.
[14] I am unable to find any reviewable error in the Board's reasons that would warrant intervention by the court and, accordingly, this application must be dismissed. No question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that this application is dismissed. No question is certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8877-03
STYLE OF CAUSE: EVELYN FRENDA VASANTHINI ARULNESAN
SHERON ARULNESAN
MARY NICKSHALA ARULNESAN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 6, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: December 29, 2004
APPEARANCES:
Lorne Waldman FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN FOR THE APPLICANT
Barrister & Solicitor
Waldman & Associates
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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