Date: 20000301
Docket: IMM-2192-99
BETWEEN:
PUNITHAVATHY PUNNIASINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that term by subsection 2(1) of the Immigration Act .1 The decision of the CRDD is dated the 1st of April, 1999.
Background
[2] The applicant is a Tamil citizen of Sri Lanka. Until June of 1997, the applicant lived together with her husband and 3 children in the Vanni region in the north of Sri Lanka. The applicant worked as an assistant teacher. Her husband was a farmer.
[3] In the years and months leading up to June, 1997, the locality where the applicant and her family lived was controlled by the Tamil Tigers. The applicant was pressed by the Tigers to distribute literature and to speak in favour of the Tigers" cause in her classroom. She refused to do so.
[4] In May of 1997, the Sri Lankan army captured villages close to where the applicant and her family lived. The applicant and other residents of her village became frightened that the army would capture their village and arrest their children on suspicion that the children were Tiger supporters. At that time, the Tigers had approached the applicant and her husband with a request that the two older children join their movement. In the result, in June of 1997, the applicant"s husband and the two older children left the north for Colombo where the applicant"s husband hoped to find employment through the aid of a friend.
[5] Following the departure of the applicant"s husband and two older children, the applicant was harassed by the Tigers who made threats against her and the child who remained with her. After further threats in November of 1997, the claimant and her youngest child fled with the objective of joining the rest of the family in Colombo. Not surprisingly, the applicant and her youngest child encountered detention, questioning, mistreatment and delay before they reached Colombo.
[6] On reaching Colombo, the applicant and the youngest child determined that the rest of the family had had no success in settling in Colombo. They had left Sri Lanka. Their destination and whereabouts were unknown.
[7] The applicant and the youngest child hid out in Colombo for approximately one week after which, with the support of the applicant"s parents in Canada, they too fled Sri Lanka, in their case for Canada, arriving here on the 22nd of May, 1998. They promptly filed Convention refugee claims.
[8] In mid-February, 1999, the applicant"s husband made contact with her from Moscow where he and the two older children were then situated. The applicant obtained very little additional information regarding their status and plans.
The decision of the Convention Refugee Determination Division
[9] The CRDD determined the applicant"s youngest child to have a well-founded fear of persecution if she were required to return to Sri Lanka, given her age and vulnerability to recruitment by the Tigers. In the result, she was determined to be a Convention refugee.
[10] The CRDD reached a different conclusion with respect to the applicant. It concluded:
| ... given that the claimant"s older children and husband are no longer in Sri Lanka, [and, implicitly, that her youngest child would not be required to return to Sri Lanka] in the opinion of the panel, this 42-year-old claimant would face less than a mere possibility of persecution at the hands of the LTTE [the Tigers] should she return to Sri Lanka. |
Later in its reasons, the CRDD wrote:
| ... the panel considers the claimant to be beyond the age range of those in whom the LTTE [the Tigers] is interested. |
The CRDD concluded in respect of the applicant:
| The claimant stated that she fears the LTTE [the Tigers] and the SLA [the Sri Lankan Army]. However, based upon the testimony and the documentary evidence, the panel is not persuaded that such fears have an objective basis. |
[11] While the CRDD briefly comments on the issue of an internal flight alternative for the applicant to Colombo, I am satisfied that its conclusion in that regard is not central to its decision.
Analysis
[12] The CRDD, in its reasons, makes no reference to documentary evidence before it regarding the ruthlessness of the Tigers in meting out vengeance, and making examples of, those that they regard as traitors to their cause. The applicant refused to cooperate with the Tigers in the distribution of literature and the supporting of the Tiger cause in her classroom. Further, she was seen by the Tigers to be complicit in the failure to make her two elder children available to join them and in securing the escape of those children and their father to beyond the reach of the Tigers. Finally, she achieved safety for her youngest child and put herself beyond the reach of the Tigers. The CRDD engages in no analysis of the risk that the applicant would face at the hands of the Tigers, given their likely perception of her as a traitor, if she were now required to return to the north of Sri Lanka.
[13] Further, the CRDD does not acknowledge that the applicant, being now unable to demonstrate in any credible manner the whereabouts of her husband and two older children, might be seen by the Sri Lankan Army in the north to be the husband and mother of three persons who might very well be lost from view because they had joined the Tigers. There is no analysis whatsoever of the risk the applicant would face by reason of any such perception on the part of the Sri Lankan Army.
[14] In its analysis, the CRDD seems to focus exclusively on the risk that the applicant might face, if she were required to return to the north of Sri Lanka, of being herself forcibly recruited to the Tigers.
[15] I am satisfied that these omissions in the analysis on the part of the CRDD amount to reviewable error. While the decision of the CRDD that there is an insufficient evidentiary basis for a finding of an objective basis to the applicant"s fear of persecution if she were required to return to the north of Sri Lanka might be reasonably open to it, its analysis is entirely incomplete and insufficient to support such a finding.
Conclusion
[16] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD here under review will be set aside and the applicant"s application for Convention refugee status will be referred back to the Immigration and Refugee Board for re-hearing and redetermination by a differently constituted panel.
[17] No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
TORONTO, ONTARIO
March 1, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: PUNITHAVATHY PUNNIASINGAM |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATES OF HEARING: TUESDAY, FEBRUARY 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
| DATED: WEDNESDAY, MARCH 1, 2000 |
| APPEARANCES: Ms. Helen Luzius |
| SOLICITORS OF RECORD: Helen P. Luzius |
Barrister and Solicitor
1610-372 Bay St.,
Toronto, Ontario
M5H 2W9
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20000301
Docket: IMM-2192-99
Between:
| PUNITHAVATHY PUNNIASINGAM |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2.
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