Balachandran v. Canada (Citizenship and Immigration), docket IMM-1627-96

     IMM-1627-96

B E T W E E N :

     KANDIAH BALACHANDRAN

    

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

    

     Respondent

    

     REASONS FOR ORDER

    

HEALD, D.J.

         This is an application for judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the Tribunal"), dated April 23, 1996. By that decision, the Tribunal determined that the applicant was not a Convention refugee because he had an internal flight alternative ("IFA").

Facts

         The applicant is a citizen of Sri Lanka. He was born on March 8, 1947. His claim to Convention refugee status is based on his membership in the Tamil community. He stated that he fears the LTTE, the Sri Lankan army, the police and Sinhalese "thugs" in Colombo.

         The applicant was personally detained by the LTTE in 1991 and 1992. During 1993, 1994 and 1995, the LTTE forced his daughter to work for them. In 1995, she was required to join the LTTE. As a consequence, and because he feared for her safety, he moved his family to Kilinochchi where they lived with relatives of his wife.

         The applicant sought work in Colombo. He stayed at a Lodge there and registered his name with the police. Almost immediately, the Lodge was raided and the applicant, along with other Tamil newcomers, was arrested and taken to the police station. There, he was interrogated and ordered to identify Tamils who belonged to the LTTE. As a consequence of his having been unable to identify anyone, he was assaulted by the police. Two days later, the Lodge owner negotiated his release for 25,000 rupees. The applicant was photographed, fingerprinted and released subject to an order to report to the police station on a weekly basis. However, since the applicant heard rumours of bodies having been found in rivers, he still had a great fear for his safety. Accordingly, assisted by an agent, he fled Sri Lanka.

    

Issues

         The Tribunal initially identified the following issues: identity, fear of persecution, and IFA. It accepted the applicant's identity. It also agreed that the evidence established that the applicant had a well-founded fear of persecution in the north of Sri Lanka. However, the panel proceeded to conclude that the applicant had an IFA in Colombo. On this basis, it was decided that the applicant was not a Convention refugee.

         At the hearing before me, counsel for the applicant submitted that this application turned on two issues: first, whether the Tribunal failed to adduce or properly have regard to the documentary evidence and second, whether the Tribunal failed to have regard to the particular circumstances of the applicant.

Analysis

1.      Failure to Have Regard to the Documentary Evidence

         With respect to the first issue, counsel for the applicant relies on a statement by the Board that the applicant "because of his age, would not fall into the category of Tamils at risk of harsh treatment by Colombo police."¹ Counsel submits that this statement is not supported by a specific reference to the evidence. The standardized country file for Sri Lanka contains thousands of pages of documentary evidence and the applicant argues that he cannot reasonably be expected to sift through all of them in order to comprehend the basis for the Tribunal's decision.

    

         With all due respect, I am unable to concur. While I agree it might have been better for the Tribunal to footnote or otherwise explain the documentary foundation for its statements, I am not prepared to find that the failure to do so amounts to a reviewable error.

         I so conclude because the statement that young Tamil males are more likely to be the victims of persecutory treatment is supported by an article to which the panel makes reference in the very next sentence.² Furthermore, the applicant does not deny that young Tamil males are at a higher risk than older Tamils. This fact is supported not only by the Matthews article³ but also by other documentary sources, including an Amnesty International report.⁴ Thus, whether the information came from the documentary evidence on file or from the Tribunal's specialized knowledge, the applicant was not misled nor was he unable to discern the basis for the Tribunal's decision.

         Had the unreferenced statement by the panel not been supported by any evidence or if it were contentious, I might find such an omission to be reviewable error. However, requiring on principle a footnote for every documentary reference, even when the applicant does not dispute the truth thereof, is to submit the Tribunal's decision to the sort of microscopic examination which this Court has repeatedly stated is inappropriate in an application for judicial review of this nature. ⁵

2.      The Particular Circumstances of the Applicant

         The second issue raised by counsel for the applicant concerns the Tribunal's finding that the applicant was unlikely to face persecution because of his advanced age. The applicant submits that the Tribunal failed to have regard to the particular circumstances of this applicant, namely, that upon his arrival in Colombo from Jaffna, he was arrested, assaulted, photographed, fingerprinted and ordered to report to the police. It was the applicant's submission that, given this treatment, he was not an ordinary elderly Tamil who would be unlikely to face persecution but had, in fact, already been persecuted.

         Counsel for the respondent argues that the Tribunal's conclusion was reasonably open to it given the documentary evidence concerning the risk faced by young Tamil males and the fact that the applicant was arrested, along with other Tamil newcomers, one day after a bomb blast in Colombo. The Tribunal was entitled to find that the applicant's arrest did not amount to targeted persecution but that his arrest was a consequence of security measures taken by the authorities in Colombo.

         Counsel for the applicant submits that this Court should not have regard to the circumstances surrounding the applicant's arrest since this factor was not mentioned by the Tribunal in its reasons. The only reference to the bomb blast is in the Personal Information Form (PIF) of the applicant.

         The precise text of the Tribunal's Reasons for Decision reads as follows:

The claimant decided to flee, instead of reporting weekly, because he had heard reports of bodies being found in the river. The panel notes that the claimant identified the victims as young Tamil males. We believe that the claimant, because of his age, would not fall into the category of Tamils at risk of harsh treatment by the Colombo police.

Documentary evidence before the panel indicates that in relation to arrest and detention, third party intervention and money play a vital role in the release.6

     . . . . .

It is the panel's view, in light of the above-noted documentary evidence, that there is no serious possibility that the police in Colombo would arrest and harm this older claimant if properly registered. The panel believes that there is insufficient evidence that a person of the claimant's age would face a reasonable chance of persecution.7

         Although the Tribunal does not expressly refer to either the bomb blast or to the arrest, photograph or fingerprinting, it is clear that its assessment of the risk of persecution faced by the applicant in Colombo was sufficiently particularized to rebut the suggestion that he was considered to be simply an ordinary elderly Tamil. The arrest of the applicant is described in the Tribunal's summary of facts.

         The applicant invites me to conclude that the Tribunal failed to consider the uncontradicted evidence that he had, in fact, been persecuted, but would have me look no further to see whether they considered the uncontradicted evidence of the bomb blast. Neither this Court, nor the Tribunal need catalogue every item of evidence in its reasons for decision. However it is essential for both the Tribunal and the Court to have regard to the totality of the evidence on the record in reaching their respective conclusions.

         In my view, the Tribunal's conclusion that this particular applicant would be unlikely to face persecution upon his return to Sri Lanka because of his age is supported by the applicant's own evidence concerning the circumstances of his arrest. The Tribunal not only had jurisdiction to consider the bomb blast but was required to consider it in determining the reliability and cogency of all of the other evidence in the record before it. The fact that the applicant had already been persecuted on a single occasion does not necessarily establish that such an event would be repeated, having regard to the rather unusual circumstances of this case.

         Accordingly, it was reasonably open to the Tribunal to conclude that the applicant had been arrested under exceptional circumstances and, given his age, would not be persecuted for a Convention reason if he returned to Colombo.

Conclusion

         For the foregoing reasons, I have concluded that the Tribunal did not commit reviewable error. The application for judicial review is therefore dismissed.

         At the conclusion of the hearing, both counsel stated that they did not wish to have any question certified. I agree that this is not a case for certification of a serious question of general importance pursuant to section 83 of the Immigration Act.

     "Darrel V. Heald D.J."

     JUDGE

Ottawa, Ontario

January 9, 1997

__________________

¹      Applicant's Application Record, page 13, Reasons for Decision of the Tribunal.

²      At footnote 12, the panel refers to, "Sri Lanka, the Civil War and the Crisis of Immigration," an address by Professor Bruce Matthews to the IRB, Toronto, January 19, 1995.

³      Ibid.

⁴      Sri Lanka: Balancing Human Rights & Security: Abuse if Arrest & Detention Powers in Colombo (February, 1994), Applicant's Application Record, Table of Contents, Item 11 listed as being at p. 140.
I note that, although the report itself was not contained in the Tribunal's record, reference was made to it in the index to the record. Counsel for the applicant conceded during the hearing that all documents listed in the index were deemed to be part of the record and so I need not consider whether the Hassan et al. v, M.E.I. (1993), 151 N.R. 215, decision of the Court of Appeal indeed has that effect.

⁵      Compare Boulis v. Canada (M.E.I.) , Vol. 26 D.L.R. (3d) 216 at 223 per Laskin J. (as he then was).

⁶      Exhibit R-1, item 3, pp. 25-53, "Sri Lanka, the Civil War and the Crisis of Immigration", Address by Prof. Bruce Matthews to the IRB, Toronto, January 19, 1995, pp. 39-40.

⁷      Applicant's Application Record, page 13, Reasons for Decision of the Tribunal.