Date: 20000531
Docket: IMM-573-99
Ottawa, Ontario, this 31st day of May, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE E. HENEGHAN
BETWEEN:
DANIEL GNANAPRAGASAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") rendered on December 29, 1998. In its decision, the Board determined that Daniel Gnanapragasam (the "Applicant") was not a Convention refugee.
[2] The Applicant is a citizen of Sri Lanka. He claims refugee status based on his perceived political opinion, race and membership in a particular group. He is a Tamil from the north of Sri Lanka.
[3] In its decision, the Board found the claimant to be generally credible and accepted that he was a Tamil. Nevertheless, the Board found that the claimant does not have a well-founded fear of persecution in Sri Lanka based on a ground listed in the Convention.
[4] After reviewing the documentary evidence, the Board was of the opinion that the claimant could return to the north of Sri Lanka. Moreover, as a result of his age, the Board found that the Applicant is not in the age group of Tamils who is at greatest risk. The Board held that generally, people of his age group are not specifically targeted by the army.
[5] In Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (T.D.), Madam Justice Tremblay-Lamer used the "pragmatic and functional approach" to determine the standard of review applicable to decisions of the Convention Refugee Determination Division. Madam Justice Tremblay-Lamer found that the appropriate standard of review remains "patent unreasonableness":
| Taking all these factors into account, as required by the pragmatic and functional approach, and having carefully considered the decisions of the Supreme Court in Pushpanathan and Baker, I am of the opinion that the appropriate standard of review for determinations of whether or not there is more than a mere possibility that the Applicant would face persecution in he were to return to India remains patent unreasonableness. |
| However, accepting a more deferential approach does not preclude this Court from intervening where there is a palpable error or where the Board"s conclusion is not supported by a reasonable interpretation of the facts. |
| At the end of the day, the decision will have to stand a thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal"s reasons are in accordance with the evidence to ensure that they are not clearly illogical or irrational.1 |
[6] The Applicant"s primary argument in this judicial review is that the Board ignored documentary evidence in arriving at its decision. The evidence that the Board is alleged to have ignored consists of the affidavit of Rudhramoorthy Cheran. The Applicant submitted this affidavit following the hearing before the Board.
[7] In support of his argument, the Applicant states that the Board did not comment on the affidavit of Mr. Cheran in its decision. The Applicant also argues that the Board ignored the affidavit of Mr. Cheran, dated November 1998, and based its decision on information dated January 1998 that "life is returning to normal" and "the government forces are in control in Jaffna". The Applicant claims that the January 1998 information is insufficient to justify a finding that the Applicant is not at risk, in light of the documentary evidence of Mr. Cheran dated November 1998.
[8] Paragraphs 28 through 35 of Rudhramoorthy Cheran"s affidavit describe developments in Jaffna as of November 1998:
| The Tamil Eelam administrative Service, which is the LTTE"s administrative service, sent a written notice to all magistrates in the areas of Jaffna governed by the Sri Lankan army ordering them not to report to work. These notices were delivered by hand as the LTTE readily able to have its supporters move about within army governed territory. The magistrates are not going to work as they fear being killed if they disobey the LTTE. Magistrate courts in Jaffna town, Point Pedro, Chavakachcheri, Kayts and Mallakam are not functioning as a result. Similar warnings were sent to lawyers, school principals, teachers and transport operators. This has created chaos in the civil administration. Posters also came up in Jaffna requesting the evacuation of all civilian residences situated close to military camps and check points. |
| 29. The campaign of warnings began after the assasination [sic] of the Jaffna mayor Ponnudurai Sivapalan, the second mayor of Jaffna to be recently assassinated by the LTTE. Sivapalan was killed on September 11, 1998. He was a friend of mine, so I visited his wife after his death, while I was in Colombo, Sri Lanka. |
| 30. The LTTE also continued to issue threats to members of all local government bodies to resign from their posts. While many members have resigned, those who resisted the LTTE demand have been assassinated. On October 6, 1998, EPDP member of the Karaveddy area local council, Kanagasabai Rasathurai, was shot dead. |
| 31. Disappearances and other Human rights abuses are on the increase. On November 5, 1998 the following people disappeared after arrest by the Army in Jaffna: |
| Selvaraj Lavanaraj (12), seventh year student of Jaffna Hindu college; |
| Rasiah Thavarasa (32), from Kopay; |
| Poopalasingam Uthayakumar (23), from Kokuvil; |
| Manikkam Nageswaran (26), from Point Pedro; |
| Arumugam Chandramohan (25), from Karanavai; |
| Iyathurai Baskaran (20), from Kudatahnai. |
| 32. On October 16, 1998, the high priest of the Selvachannithy Hindu temple in Jaffna disappeared. It was feared that he had been arrested by the Army but no information could be obtained. It was only in October 29, 1998, after repeated complaints that officials of the Human Rights Commission in Jaffna located him in custody at the army camp. |
| 33. Although the number of reported disappearances was highest in 1996 after the military reclaimed Jaffna, disappearance of Tamil civilians continues to be a severe problem. Although I believe the number of disappearances decreased since the 1996 campaign, I also believe the number of disappearances is grossly under-reported. |
| 34. Up until August, 1998, censorship was handled by an office that was part of the civil administration of the Sri Lankan government. Since August censorship has been administered directly by the military, and the censorship now covers all of Sri Lanka. This has made it even more difficult to report on Human Rights abuses in Jaffna. |
| 35. I believe the reason the rate of disappearances was higher in the late 1995 and 1996 period was that the army was attempting to consolidate control of the area. I believe the following decrease was not so much due to a change in attitude on the part of the army as the fact that they had carried out a palnned [sic] surge in disappearances for that purpose at that time. The army continue to "disappear" individuals when it wishes. |
[9] In response to the Applicant"s submissions, the Minister of Citizenship and Immigration (the "Respondent") argues that the Board could not have ignored the evidence as the Board specifically refers to the affidavit of Mr. Cheran on page 1 of its decision. The Respondent also maintains that it is the Board"s responsibility to assess the evidence and to determine the weight to be accorded to each piece of evidence. Morever, the Respondent argues that there is no obligation for the Board to refer to each piece of evidence.
[10] It is well established that the Board need not refer to each and every piece of evidence submitted. In Florea v. Canada (Minister of Employment and Immigration)2, Justice Hugessen wrote:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.3 |
[11] Similarly, in Woolaston v. Canada (Minister of Manpower and Immigration)4, Justice Laskin stated:
| I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.5 |
[12] Moreover, I would note that the Board did in fact refer to Mr. Cheran"s affidavit in summarizing the evidence produced at the hearing and after hearing.
[13] The affidavit of Mr. Cheran describes a bleak situation in Jaffna. Mr. Cheran recounts that the mayor of Jaffna was assassinated by the LTTE and that the LTTE continues to issue threats to members of local governments. Mr. Cheran also notes that a number of individuals have disappeared, although these individuals are for the most part considerably younger than the Applicant. However, given the contents of the Cheran affidavit, it does not appear that the Board acted in a patently unreasonable manner in relying on other documentary evidence which was submitted. When there is conflicting documentary evidence, the Board is entitled to choose the documentary evidence which it prefers. (See, for example, Ganiyu-Giwa v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 506, IMM-3526-94 (March 28, 1995) (F.C.T.D.).
[14] The Board"s decision that the Applicant would not be at risk upon return to Sri Lanka cannot be isolated from the Board"s conclusion that the Applicant does not have the profile of an individual who would be targeted in the north of Sri Lanka. This conclusion is supported by the documentary evidence.
[15] In light of the evidence before me and the submissions of counsel at the time of the hearing, I cannot conclude that the Board ignored evidence or committed any reviewable error.
[16] Accordingly, this application for judicial review is dismissed.
[17] Counsel for the parties have seven days following their receipt of these reasons to request that a question be certified.
ORDER
[18] IT IS ORDERED that the application for judicial review be dismissed.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
May 31, 2000
__________________
1Ibid. at para. 15-17.
2[1993] F.C.J. No. 598, A-1307-91 (June 11, 1993) (C.A.).
3Ibid. at para. 1.
4[1973] S.C.R. 102">[1973] S.C.R. 102.
5Ibid.
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