Pathmanathan v. Canada (Minister of Citizenship and Immigration), docket IMM-4869-97

Date: 19981204

Docket: IMM-4869-97

BETWEEN:

     INTHIRANY PATHMANATHAN

Applicant

-and-

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

     REASONS FOR ORDER

NADON, J.

[1]      The Applicant seeks to set aside a decision of the Convention Refugee Determination Division ("CRDD") dated October 24, 1997 which determined that she was not a Convention Refugee.

[2]      The following are the relevant facts as alleged by the Applicant: she is a 53-year-old Tamil woman from the Province of Jaffna, Sri Lanka who suffers from polio. In January 1992, her home was destroyed by bombing. In August 1992, she and her husband fled an army attack on their town. They moved to another town in Jaffna where there was constant bombing by the armed forces. In April 1996, the Applicant had to move to another town to escape an army attack. At that time her husband had disappeared, presumably arrested by the army, and she has since been unable to locate him. Her health worsened and she was admitted to a hospital under government control where a friend told her that the Liberation Tigers of Tamil Eelam ("LTTE") wanted to arrest her because they suspected that her husband had passed on information to the army about the LTTE. She arranged with a friend to smuggle herself illegally to Colombo and then out of the country. The Applicant stated that she would not be able to reside in Colombo because she feared abuse at the hands of the Sri Lankan Police for being a Tamil and because she believed that she would not be permitted to relocate to Colombo.

[3]      The first issue raised by the Applicant is whether the CRDD erred by determining that the Applicant would be safe in Colombo, based on her age. The relevant portions of the CRDD decision read as follows:

"The Sri Lanka authorities have instituted certain security procedures in response to terrorist bombings and assassinations in Colombo, carried out by the LTTE, aimed at the protection of the population at large. Thus, the checkpoints and roundups are an endeavour by the state to maintain security and control in a state plagued by civil strife.

The claimant went from Vavuniya to Colombo without any difficulties from the authorities. She did not encounter any authorities during her brief three-day stay in Colombo before leaving Sri Lanka on June 21, 1996.

The panel is mindful that the refugee definition is forward-looking. If the claimant were to go back to Sri Lanka, it is likely that she would be questioned at the Sri Lankan port of entry as to her identity and background. She does have a photocopy of her NIC and marriage certificate proving her identity, and documentary evidence states that Sri Lankans living abroad, including refugee claimants, can obtain valid Sri Lankan passports through the country"s mission in the host country.

It is significant to note that the United Nations High Commissioner for Refugees (UNHCR) has taken the position that persons may be returned to Sri Lanka in an orderly and safe manner if after a fair determination process they have been found not to warrant asylum. The UNHCR has further removed the cautionary provision, from two years back, that failed asylum seekers be returned only if family or friends are permanently established in Colombo. The panel finds that the UNHCR position in this regard has much persuasive value.

Also, the claimant is not a "young male or female Tamil" that appears to be the focus of the scrutiny of the police identity checks. Accordingly, the panel does not believe that the claimant has good grounds for fearing persecution should she return to Colombo.

The panel then assessed whether the claimant could reasonably live in Colombo. Guided by Thirunavukkarasu, the panel does not view the lack of family or friends in Colombo as a barrier to her return there, for as the case so clearly sets out, "neither is it enough for refugee claimants to say that they have no friends or relatives there or that they may not be able to find suitable work there." If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then an IFA exists and the claimant is not a Convention refugee.

                             ......

Documentary evidence shows that there is a large Tamil community in Colombo (over 350,000, approximately 150,000 of whom are refugees from the North), and health and social services are available, as well as broadcasting in the Tamil language and Tamil newspapers. The claimant would be able to seek the assistance of this particular Tamil community. The need for Sinhalese language skills in Colombo is not apparent.

Therefore, the panel finds that it would not [be] unduly harsh for the claimant to seek refuge in Colombo. Thus, the panel concludes that Colombo would be a viable IFA for the claimant.".

[4]      There was evidence before the CRDD to support its conclusion that the Applicant would be safe in Colombo. Documentary evidence¹ indicates that the Government of Sri Lanka made it clear that it is fighting a war against the LTTE and not against the Tamil people. The documentary evidence is also to the effect that those who are at risk of being harassed in Colombo are primarily young male Tamils suspected of having LTTE connections.

[5]      The CRDD also relies on the fact that the UNHCR has removed the cautionary provision that failed asylum seekers should be returned only if family or friends are permanently established in Colombo. This evidence, and not the Applicant"s age alone, explains the conclusion reached by the CRDD.

[6]      The Applicant further contends that the CRDD erred in finding that she could resettle in Colombo. The CRDD relied upon the 1996 Report of the Canadian High Commission and the UNHCR Report of September 9, 1996. The UNHCR wrote in an "Information Update on Sri Lanka" that,

"[Tamils from Jaffna who came to Colombo] normally do not face a major problem once they were cleared to go to Colombo, since the security check has been done before and they hold a pass which shows that they had been cleared for Colombo...it was also confirmed that particularly in Colombo the treatment of detainees remained correct and the torture and other forms of mistreatment were not practiced by the police and security authorities in Colombo.".

[7]      The Applicant submits that there was before the CRDD evidence which contradicted the "Information Update on Sri Lanka" of September 9, 1996. Specifically, the Applicant referred to the UNHCR Report of March 1997. That Report, states in part, that

"With the continuous hostilities in the Northern and Eastern regions of Sri Lanka, the issue of safe areas or internal flight alternatives for internally displaced Sri Lankans continues to concern governments and international and local human rights and refugee organizations (UNHCR, 26 May 1994). According to reports on the human rights situation in the country and the international jurisprudence which has developed, internal flight alternative may be difficult, and in many instances impossible to apply in the context of Sri Lanka, particularly for individual refugees or small families (the category of refugees and asylum seekers most common in the European context) (The British Refugee Council, February 1997). Jurisprudence has also established that an internal flight alternative does not exist if one is required to live in a refugee camp (Goodwin-Gill, 1996, 74).

Given the recent political debate and discussion in the Netherlands regarding the treatment of asylum applications lodged by citizens originating from Sri Lanka, UNHCR emphasizes that the validity of individual asylum claims need to be judged on their own merits, taking into consideration the specific circumstances surrounding each case (19 March 1997). While UNHCR appreciates all initiatives to further improve the human rights situation in Sri Lanka, the organisation considers that the security situation in the Northeastern part of the country is still precarious due to the ongoing armed conflict. An asylum seeker coming from Sri Lanka can therefore have a well founded fear of persecution and might be in need of international protection ...".

[8]      The fact that the CRDD did not make explicit mention of this Report does not, in my view, mean that the Report was ignored. The UNHCR Report of March 1997, the UNHCR Report of September 9, 1996 and the 1996 Report of the Canadian High Commission were before the CRDD. On the basis of this evidence, the CRDD concluded that the Applicant could resettle in Colombo. That finding is not, in my view, perverse or unreasonable.

[9]      Another issue raised by the Applicant is whether the CRDD erred in finding that the Applicant did not know whether her husband was arrested by the army. In her affidavit, the Applicant says the following:

"My husband was away from my friend"s house when the army moved into Chavakachcheri and I believed that he would have been arrested by the army because I learnt through other neighbours who also moved to Kilinochchi that my husband was arrested by the army and some people have seen this. While in Kilinochchi, my friends and I took several steps to find my husband however I have had no luck in locating him.".

The CRDD characterized these same facts in their decision as follows:

"[The Applicant] found out that her husband had been arrested. To this day, she does not know where her husband is. ... The claimant believes that her husband was captured by the army. No concrete proof was given concerning this. In fact, the claimant does not know for sure what has happened to her husband.".

It is clear from the foregoing passages that the CRDD did not wrongly characterize the knowledge held by the Applicant with respect to the whereabouts of her husband.

[10]      The last issue raised by the Applicant is whether certain comments made by the CRDD in its decision raise a reasonable apprehension of bias against the Applicant. At pp. 6 and 7 of its decision, the CRDD states that,

"The claimant has 10 years of education and no work experience. She does have difficulty moving around because of the results of polio. However, there are many sedentary jobs available for this intelligent and educated individual.

The panel takes guidance from Justice Muldoon, wherein he states,

Now, it is undoubtedly legally irrelevant to think that if she is going to go on welfare because she cannot find a job, there is not reason why it should not be in her own country rather than in Canada. It seems that her job prospects would be no better in Canada than they would be in Sri Lanka; and indeed in Canada, because of the technological development of the society, she would have poorer job prospects undoubtedly than in Sri Lanka where she was educated. So, whereas it may be legally irrelevant, it cries out in common sense and it is not unthinkable to think that thought. If she is going to be thrown on welfare she might as well be thrown on welfare in her own country rather than in this country.".

In my view, the comments made by the CRDD do not raise a reasonable apprehension of bias. Further, I do not see how the Applicant can suggest that the CRDD discriminated against her because of her disability. The comments made by the CRDD were made in the context of its discussion of whether the Applicant could reasonably live in Colombo. It is clear, in my view, that the Applicant's claim was not dismissed because she was a disabled person. No reasonably informed person could come to that conclusion.

[11]      For these reasons, this application for judicial review shall be dismissed.

                             (Sgd.) "Marc Nadon"

                                 J.F.C.C.

Vancouver, British Columbia

04 December 1998

__________________

     ¹      Exhibit R-1, Human Rights Information Package , tab 2.2, United States Department of State, Country Reports on Human Rights Practices for 1995, March 14, 1996.