Date: 20040621
Docket: IMM-4956-03
Citation: 2004 FC 881
OTTAWA, Ontario, this 21st day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
SHENBAHADEVI KUGAPERUMAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF PROCEEDINGS
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) holding that the applicant is neither a refugee nor a person in need of protection.
[2] The applicant raises as a procedural error a claim of reasonable apprehension of bias. The applicant further raises as substantive grounds an error in the application of section 96 of the Immigration and Refugee Protection Act (the Act) and a failure to properly consider section 97.
BACKGROUND
[3] The applicant is a 67-year-old Tamil citizen of Sri Lanka who had lived in Colombo since 1955. She is a retired teacher.
[4] The applicant claimed that she had been subject to mistreatment from the Singhalese population from 1958 until she left for a year-long stay in Canada in 1994. The mistreatment included being stopped and questioned by police and the army, the information extracted from her was used by militant groups to demand money from her.
[5] The applicant left Sri Lanka in 1994 to attend a wedding in Canada and stayed for one year. She then returned to Sri Lanka where she was subject to the same extortion threats.
[6] She then left Sri Lanka for India where she stayed for two years and eight months. Once again she returned to Sri Lanka where once again the extortion threats commenced.
[7] The applicant, for the third time, left Sri Lanka in 2001 for Hong Kong, then Singapore and then Malaysia returning to Sri Lanka where her problems once again started up.
[8] While until 2000 the source of the applicant's troubles seemed to be a combination of the army, police and young Tamils, that situation changed and from 2001, particularly aggressive Buddhist monks intent on raising money joined that group of extortioners and harassers who had targeted her.
[9] While the applicant left Sri Lanka on several occasions, she made no claim for protection until 2001 when she attended a wedding in Canada.
[10] The Board rejected her claims under sections 96 and 97 of the Act holding that the incidents complained of did not either individually or cumulatively constitute persecution. The Board also considered her failure to claim protection in 1994 and her re-availment in 1995 and 2000. The board rejected her explanation of why she failed to claim, finding her explanation not to be credible.
[11] The Board further found that her behaviour was inconsistent with subjective fear, that she did not fit the profile of a person in whom the Tamils would be interested and that in terms of risk of life, she was not a high risk individual.
ANALYSIS
[12] The applicant raises as a preliminary matter a claim that the Board member, by reason of her comments that she knew the applicant's community background, raised a reasonable apprehension of bias.
[13] On this issue, I find firstly that the comments in themselves do not raise a reasonable apprehension of bias. While it is preferable for adjudicators to limit such comments, it was not a legal error to do so in this instance. Secondly, the applicant waited until filing her further memorandum of fact and law to raise the issue. Either the applicant waived her objection by reason of delay or never had a serious concern about the comments.
[14] With respect to the issues pertaining to section 96 of the Act, the Board's conclusion, that the incidents complained do not amount to persecution, is reasonable. The incidents are not of the same gravity or nature as those described in Munoz v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1824, relied on by the applicant. The decisions are readily distinguishable.
[15] It was open to the Board to find that the attempted extortion incidents did not amount to persecution. The applicant's own conduct is also consistent with such a conclusion.
[16] With respect to the Board's section 97 consideration, the applicant complains that the Board failed to assess whether she would face a personal risk of cruel and unusual treatment, in particular the risk of torture.
[17] While the Board is required to consider section 97 separate from section 96 unless the facts lead to a co-mingled analysis, the Board cannot be expected to pursue matters under section 97 which are not in issue.
[18] The applicant based her claim on persecution due to ethnicity, a section 96 claim. Further, the applicant complained of risk due to extortion not a risk of cruel and unusual treatment or a risk of torture.
[19] The Board gave consideration to that part of a section 97 analysis which the facts and arguments put in issue. In that regard, the Board cannot be faulted.
[20] The applicant says that the matters of re-availment were relevant only to the section 96 issue. With respect, on these facts what the applicant asks the Court to do is ignore evidence that the applicant did not consider herself subject to section 97 risk.
[21] While subjective fear is not determinative of a section 97 analysis, the facts related to its existence or non-existence can be relevant to whether such a risk exists objectively, particularly where there is no objective evidence advanced.
[22] One cannot ignore the fact that the applicant was free to move in and out of the country at will, that whatever happened to her (and might happen in the future) was not so serious as to put her life or well-being in danger.
[23] Therefore, this application will be dismissed.
[24] I have considered the parties' submissions as to a certifiable question. However, since this decision is so significantly fact specific, I do not find that a certifiable question arises.
ORDER
IT IS HEREBY ORDERED that this application for judicial review be dismissed. No question is certified.
(s) Michael L. Phelan"
J.F.C.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4956-03
STYLE OF CAUSE: Shenbahadevi Kugaperumal v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 18, 2004
REASONS FOR ODER AND ORDER: The Honourable Mr Justice Phelan
DATED: June 21, 2004
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Michael Crane
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General
Ottawa, Ontario FOR THE RESPONDENT
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