IMM-4351-96
BETWEEN:
NAVAMALAR SIVASUBRAMANIYAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 8th day of August, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
Sandra J. Simpson
Judge
Ottawa, Ontario
August 29, 1997
Registry No. IMM-4351-96
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N :
NAVAMALAR SIVASUBRAMANIYAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
EXCERPT OF ORAL REASONS
_________________________________________________________
BEFORE THE HONOURABLE MADAME JUSTICE SIMPSON
_________________________________________________________
HELD AT: Federal Court of Canada,
330 University Avenue,
Toronto, Ontario.
DATE: August 8, 1997
APPEARANCES:
Rhonda M. Marquis for the Applicant
Kevin Lunney for the Respondent
The applicant is seeking judicial review of a decision of the Immigration and Refugee Board (the "Board") dated October 29, 1996 in which the Board found the applicant not to be a Convention refugee.
The applicant is a fifty-two year old Tamil woman from Sri Lanka who seeks Convention refugee status in Canada. She originally applied for Convention refugee status in 1993. That application was denied by the Board in a decision dated June 27, 1994 (the "First Decision").
Thereafter, an application for leave and for judicial review was filed with this Court. It was heard and dismissed by an Order dated March 28, 1995. The applicant then left Canada for the United States, but she returned to Canada in April of 1996.
The Board heard the applicant's second Convention refugee application on September 11, 1996 (the "Hearing") and rendered a negative decision on October 29, 1996 (the "Second Decision").
At the Hearing, the Board indicated that it accepted the applicant's earlier evidence about her fear of persecution in areas of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam ("LTTE") and that it found that no credibility issue arose. On this basis, it was decided that the applicant would not give oral evidence at the Hearing. Accordingly, the Hearing involved submissions from counsel for both parties, which included the presentation of documents dealing with the current (i.e., September 1996) reasonableness of Colombo as an IFA for the applicant.
The Board's Second Decision was three pages in length, but much of it dealt with background and procedure. The dispositive part of the Second Decision is produced below in its entirety, and I have underlined what I view to be the significant statements.
| 'I find that after carefully examining the country documentation before me, I have to agree with the previous panel in their IFA analysis and that the extortion attempts were not related to the Immigration Act (underlined in original document). It is also noted that the extortion problem has somewhat lessened since 1993 and that there are support groups available to help the claimant establish herself. I find that whether or not the claimant was detained at a routine security identity check in May 1993 makes no impact on whether the IFA area is safe today. I do not agree with counsel's submissions that country conditions have changed substantially since 1993. Even though the war between the LTTE and the government worsened in the North and North-east, there are some indications of an improvement of the government's human rights record. |
|
| I find that that (sic) there are no changes in the claimant's case substantial enough to warrant a positive decision. I find that there is no reasonable chance the claimant would be persecuted upon return to the IFA area in Sri Lanka. Therefore the Refugee Division finds Navamalar Sivasubramaniyam not to be a Convention Refugee...' |
|
The applicant's position is that the Second Decision is grossly inadequate and for this reason offends the requirement for comprehensive reasons set forth in Syed v. Canada (M.E.I.) (1994), 83 F.T.R. 283 (T.D.). The applicant says that this matter should be redetermined by a differently constituted panel of the board.
Specifically the applicant submits:
(1) that the Second Decision does not incorporate the First Decision;
(2) that the Second Decision does not refer to any of the documentation which accompanied the applicant's counsel's submissions; and
(3) that the Second Decision does not squarely address the second prong of the IFA test, which is the reasonableness or otherwise of the IFA in the circumstances of the applicant.
I will deal with each submission in turn.
(1) In my view, the IFA analysis, in the First Decision, is clearly incorporated by the language I have underlined at the start of the Second Decision. In the First Decision, the Board considered the applicant's fear of detention and harassment and the reasonableness of Colombo as an IFA for the applicant.
At page 7 of the First Decision, the Board concluded:
| The panel, on the balance of probabilities, is of the opinion that there is no reasonable possibility of the claimant being persecuted in Colombo and that it would not be objectively unreasonable, in the particular circumstances of the claimant, for her to seek refuge there. |
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(2) It is true that the Second Decision does not specifically refer to any of the documentation submitted on the applicant's behalf. It is noteworthy that, at the date of the Hearing, tension in Colombo had heightened and security measures were stricter by reason of events in Colombo since the First Decision. These included the oil refinery bombing of October 1995, the January 1996 bombing of the Central Bank, and the July 1996 attack on a commuter train.
However, in the Second Decision, the Board notes, in the second underlined passage, that it has considered changes to country conditions since 1993 and feels that they have not been substantial. The question is whether this reference to the applicant's counsel's submissions and documents is sufficient. Those documents describe the increase in tension and note that women are sometimes arrested and subjected to minor harassment, but not to serious abuse.
I have concluded that there is nothing so dramatic in the applicant's submissions or documents that it required specific attention in the Second Decision.
I am satisfied that the applicant's material was considered, because the Board said that it was considered. I am also satisfied that the applicant's documents did not materially affect the Board's view of the applicant's case, because the Board said that as well, in a passage I have underlined.
(3) It is also true that the Second Decision does not squarely address the issue of unreasonableness. However, it was addressed in the First Decision, as I pointed out above, and the Board said in the Second Decision, in the third passage I have underlined, that there were no changes "...in the claimant's case substantial enough to warrant a positive decision." I think this passage can fairly be read to include the issue of unreasonableness as it was definitely part of the applicant's IFA case.
CONCLUSION
The application will be dismissed, but I feel constrained to add that this dismissal is not intended to be an endorsement of the Second Decision. In my view, it is a minimal effort which has just barely managed to withstand judicial review. It does not reflect a professional approach to the applicant's claim and should not serve as a model for decisions in other cases.
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