Date: 20041020
Docket: IMM-9445-03
Citation: 2004 FC 1459
Toronto, Ontario, October 20th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
VAITIALINGAM, AMBIKAPATHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, in respect of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated November 13, 2003, wherein Member Brennenstuhl determined that the applicant was not a Convention Refugee.
[2] The applicant seeks to have this Court set aside the decision of the Refugee Protection Division and order that the matter be referred back for reconsideration by a differently constituted tribunal in a manner consistent with the reasons of this Court.
Background
[3] The applicant is an 81 year old citizen of Sri Lanka, and a Jaffna Tamil by birth and residence.
[4] The applicant claims to have suffered at the hands of the Sri Lankan Security Forces, the Liberation Tigers of Tamil Eelam ("LTTE") and other militant Tamil Groups.
[5] In 1987, the Applicant was able to get a visa to the United Kingdom, and left for the U.K. in fear of persecution at home due to armed conflict and civil war between the Tamils and Sinhalese. She remained in the U.K. with her eldest daughter, as a permanent resident until June 2000. The applicant claims to have been ill-treated by her daughter and family in the U.K. Claiming she was unable to bear these problems, and still afraid to return to Sri Lanka, the applicant obtained a visitor's visa to Canada and arrived in Canada in July 2000.
[6] In August 2002, the applicant was denied permanent residence pursuant to her inland humanitarian and compassionate grounds application ("H & C application"). In April 2003, the applicant made a claim for refugee status based on her well-founded fear of persecution for reasons of race, political opinion, and membership in a particular social group. This claim was denied on November 13, 2003, and, on July 7, 2004, the applicant was granted leave for this judicial review application.
Refugee Protection Division Decision of November 13, 2003
[7] The Board determined that the applicant was neither a Convention refugee nor a person in need of protection. The Board found that the applicant's alleged fear was not subjectively well-founded because, while she claimed that she was fearful of returning to Sri Lanka, the applicant's conduct since leaving Sri Lanka in 1987 was not consistent with that averment. The Board noted that the applicant returned to Sri Lanka on two occasions since 1987; once in 1997 to visit her brother, and again in 2000 to attend his funeral.
[8] The fact that the applicant voluntarily made the two trips led the Board to conclude that the applicant did not harbour a genuine fear of persecution in Sri Lanka. The Board also found that the applicant's renewal of her Sri Lankan passport indicated her willingness to entrust her welfare to the state of Sri Lanka.
[9] The Board determined that the applicant's alleged fear, and her claim that she is in danger of torture and at risk of cruel and unusual treatment or punishment, was not objectively demonstrated. While documentation suggested that young Tamils are at risk, there was nothing, notwithstanding a recent declaration of a state of emergency, to suggest that a frail 80 year old Tamil woman would be at risk of being mistreated by any militant groups, or mistreated to the extent required by IRPA of a person in need of international protection. The Board found additional support for its finding in the testimony of the applicant that she faced no difficulties during her two visits to Sri Lanka, and that her elderly brother, until he died in 2000, lived in Sri Lanka without any difficulties.
[10] While the Board acknowledged that the applicant wished to be, and should be, with her family at this stage in her life, it found that this need was not sufficient to make the applicant a person in need of refugee protection.
Applicant's Submissions
[11] The applicant submits that the Board made an error of law when it determined that the applicant had no well-founded fear of returning to Sri Lanka. This determination was based on the applicant's return to Sri Lanka on two occasions, and her renewal of her passport from the Sri Lanka mission in London, U.K. The applicant argued that possession of a passport cannot always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear. The applicant submitted that her motive in obtaining her passport must also be considered, and in this case, the applicant renewed her passport in London to enable her to visit her son in Australia. Further, the applicant returned to Sri Lanka to attend her brother's funeral. She submitted that this act cannot be construed as evidence that she had no fear of persecution. Finally, the applicant noted that, for the concept of reavailment to apply to her case, it must be determined that she had the dominant intention to reside in Sri Lanka permanently.
[12] The applicant submitted that the Board's finding of who qualifies as a "Convention refugee" is not in accordance with IRPA. In IRPA, the definition of refugee is wide, and includes a fear of torture, including mental torture. The applicant claimed that the Board failed to consider the United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict. There is emergency and armed conflict in Sri Lanka, and the applicant is a frail, elderly woman who is a widow with no family in Sri Lanka. Therefore, her well-founded fear is aggravated by her age and helplessness. Further, the applicant has testified as to her fear, and there is no evidence on the record to contradict her testimony. Her statement in her Personal Information Form ("PIF") as well as her oral testimony are sufficient to establish her subjective fear.
[13] The applicant submitted that the Board erred in law by ignoring and misinterpreting evidence. The applicant gave oral evidence, and submitted documentary evidence, to establish her subjective fear, and that women in her situation face risk to their lives in Sri Lanka. The applicant also claimed that her statement that she was too old and feeble to take any more trips was misinterpreted by the Board and used out of context to conclude that the applicant was unwilling or unable to return to Sri Lanka because of her age. Finally, the applicant submitted that failure of the Board to acknowledge evidence that directly contradicts the Board's findings is an error of law.
Respondent's Submissions
[14] The Board based its decision that the applicant did not have a well-founded fear of persecution, on her trips to Sri Lanka in 1997 and 2000, and the renewal of her Sri Lankan passport. The respondent submitted that it was reasonable for the Board to find this conduct of the applicant to be inconsistent with that of someone who truly fears for her life in Sri Lanka. The respondent relied on Kabengele v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1866 F.C.T.D. (QL) which states:
. . . [i]t is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely.
[15] On the issue of reavailment, the respondent relies on the UNHCR Handbook, which states that, in the absence of proof to the contrary, obtaining a passport will be presumed to indicate an intention to avail oneself of the protection of the country of his nationality.
[16] The respondent submitted that the Board correctly interpreted and applied sections 96 and 97 of IRPA. While the applicant argued that the definition of refugee is broad, and includes a fear of torture, she has not put forward any evidence to suggest that she would be at risk of torture in Sri Lanka, nor did she otherwise indicate how the Board erred in its interpretation and application of the provisions.
[17] The respondent noted that the Board was not required by law to consider the United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict. The applicant has not shown that this U.N. resolution has been implemented by Canadian statute, or is otherwise binding on Canada. In addition, the declaration is not relevant to this case because it deals with the obligations of states in conflict zones, not the obligations of host states concerning refugees.
[18] The respondent submitted that the applicant's submissions ignore the Board's right to weigh evidence and make findings of fact. The applicant has not shown that the Board based its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it.
[19] The respondent submitted that the applicant has failed to demonstrate any reason for believing that the Board refused to consider, ignored or misinterpreted any evidence. The Board was alive to the documentary evidence before it regarding the current political climate in Sri Lanka, and determined that the evidence did not establish that a woman in the applicant's position would be at risk of being mistreated to the extent required to be found to be a person in need of protection. Further, the applicant does not establish which documentary evidence directly contradicts the findings of the Board. Jurisprudence indicates that the Board is presumed to have considered all of the evidence, and need not refer to particular pieces of evidence in its decision.
Issues
[20] The applicant raises the following issues:
1. Whether the Board erred in law in finding that the applicant had no well-founded fear;
2. Whether the Board erred in law as regarding the definition of a Convention refugee; and
3. Whether the Board erred in law in ignoring evidence and misinterpreting evidence.
Relevant Statutory Provisions
[21] Section 96 and subsection 97(1) of IRPA define Convention refugee and person in need of protection as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
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(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Analysis and Decision
[22] Issue 1
Whether the Board erred in law in finding that the applicant had no well-founded fear
The applicant, as indicated earlier, is an 80 year old widow from Sri Lanka. No issue of credibility of the applicant was raised by the Board. The applicant left Sri Lanka in 1987 to join her daughter in the United Kingdom where she lived as a permanent resident for 13 years until she had significant problems with her daughter. She arrived in Canada in July 2000 and made an H & C application which was denied on August 13, 2002. On February 7, 2003, the applicant made a second H & C application which is still outstanding. The applicant made an inland refugee claim on April 2, 2003 which was denied on November 13, 2003. That denial is the subject of this judicial review.
[23] The Board found that the applicant had travelled to Sri Lanka in 1997 for two weeks to visit her ill brother and in 2000 for two weeks to attend her brother's funeral. Although the applicant had fears when she was in Sri Lanka, she encountered no problems. The Board found that since the applicant went back to Sri Lanka twice, this conduct was not consistent with a fear of returning to Sri Lanka. Accordingly, the Board found that the applicant did not have a subjective fear based on Convention refugee grounds.
[24] The applicant submitted that her visits to Sri Lanka did not count as reavailment because she did not take on the character of a refugee until April 2003 when she made her refugee claim in Canada. I do not accept this proposition as an applicant could wipe out any reavailment by postponing his or her claim for refugee status. In Kabengele, supra, Rouleau J. stated at paragraph 41:
It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (see Rached v. M.C.I., A-859-91, January 18, 1996; Wey v. Canada (Secretary of State), IMM-2758-94, February 21, 1991; Sofakhoo v. M.C.I., IMM-455-96, April 3, 1997; Bello v. M.C.I., IMM-1771-96, April 11, 1997).
[25] The Board stated that its conclusion was reinforced by the fact that the applicant renewed her Sri Lankan passport in 1997 in order to travel to Sri Lanka. This is a factor that the Board could take into account in reaching its conclusion.
[26] The Board also found that the applicant's alleged fear had not been objectively demonstrated, after it reviewed the documentary evidence and considered the applicant's visits back to Sri Lanka. This is a reasonable finding on the part of the Board.
[27] Although the applicant argued that she had no intention to remain in Sri Lanka, I am satisfied that the Board's decisions with respect to her subjective fear and the well-foundedness were reasonable decisions and ought not to be set aside by this Court.
[28] Issue 2
Whether the Board erred in law as regarding the definition of a Convention refugee.
The Board found at page 3 of its decision:
I find that the claimant's alleged fear owing to a Convention ground and her claim that she is in danger of torture and at risk of cruel and unusual treatment or punishment in Sri Lanka is not, on a balance of probabilities, objectively demonstrated. The documents do suggest that young Tamils from the north are at risk in the current political climate in Sri Lanka particularly for recruitment by the LTTE; however, there is nothing in the documentary evidence, notwithstanding the recent declaration of a state of emergency and the threat to the peace process with Tamil rebels, to suggest that a frail 80-year-old Tamil woman would be of any interest to any of the sectarian factions in Sri Lanka or at risk of being mistreated by any of those groups or mistreated to the extent required by IRPA of a person in need of international protection.
The claimant testified that when she returned to Erlalai in 1997 and 2000, she faced no personal trauma. In addition she testified that her elderly brother, who died of natural causes in 2000, lived in Erlalai without any difficulties. In my opinion, this is further supporting evidence that claimant would not be at risk or in danger in Sri Lanka as alleged.
[29] The applicant stated that the definition of refugee is much broader under the new legislation. That may be so, but the applicant must still lead evidence to show that her situation fits within the definition. The same applies to any possible application of the United Nations Declaration on the Protection of Women in Emergency and Armed Conflict. The evidence that was before the Board simply does not qualify the applicant as fitting within the definition.
[30] The applicant also stated that the Board failed to apply the concept of sur place refugee to the applicant's case. A review of the Board's decision shows that the Board did consider the current conditions in Sri Lanka and the fact the applicant is an 80 year old woman who would not be of interest to the LTTE or other factions in Sri Lanka or who would be mistreated by any of these groups in a manner so as to warrant international refugee protection.
[31] I am of the opinion that the Board's decision in this respect was reasonable.
[32] Issue 3
Whether the Board erred in law in ignoring evidence and misinterpreting evidence.
The applicant submitted that she has stated that she fears she will be tortured if she returns to Sri Lanka and that the Board ignored this evidence and that the Board ignored documentary evidence which indicated that more than young Tamil males are at risk in Sri Lanka. The Board addressed the documentary evidence and concluded that person such as the applicant would not be of interest to the LTTE or others. The applicant referred me to page 131 of the applicant's application record, but this appears to be only an index to a disclosure package. I have not been persuaded that the Board ignored or misinterpreted evidence. The Board did not make a reviewable error in this respect.
[33] The applicant also argued that her answer to the question about whether she would go back to Sri Lanka to visit was taken out of context. She had answered, "Now my body is weak and now I am 80 years old." I am of the view that was reasonable for the Board to note this answer and it was not an error for the Board to do so.
[34] In conclusion, I am of the view that the Board's decision was reasonable and therefore, the application for judicial review must be dismissed.
[35] The applicant has proposed the following question to be certified as a serious question of general importance:
In considering the principles of re-availment, whether the principles should be considered from the period a claimant intends to claim refugee status or from the time he/she left his/her country of nationality.
[36] I am not prepared to certify this question as the question will not be determinative of the application.
[37] The respondent did not propose a question for certification.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is denied.
2. No serious question of general importance will be certified.
"John A. O'Keefe
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9445-03
STYLE OF CAUSE: VAITIALINGAM, AMBIKAPATHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 5, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: OCTOBER 20, 2004
APPEARANCES BY:
I. Francis Xavier
FOR THE APPLICANT
John Provart
FOR THE RESPONDENT
SOLICITORS OF RECORD:
I. Francis Xavier
Scarborough, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041020
Docket: IMM-9445-03
BETWEEN:
VAITIALINGAM, AMBIKAPATHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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