Date: 19980123
Docket: IMM-771-97
BETWEEN:
THIYAGARAJAH NAGAMUTHU
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 in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 29 of January, 1997.
[2] The applicant is a Tamil from the north of Sri Lanka born in July of 1948. He arrived in Canada in June of 1996. Although not indicated in his Personal Information Form or explicitly recognized by the CRDD, it would appear that he bases his claim to Convention refugee status on an allegedly well-founded fear of persecution if returned to Sri Lanka by reason of his ethnicity and his membership in a particular social group, that is, Tamils from the north of Sri Lanka.
[3] The CRDD, in its reasons for decision, acknowledge that the applicant "... suffered hardship in the north of Sri Lanka from the Sri Lankan army and the Liberation Tigers of Tamil Eelam". In the result the applicant testified, he fled the north to Colombo where he stayed in a lodge and did not register with police. The day after his arrival in Colombo, he was arrested by security officers and taken into detention where, in the words of the CRDD, "... he was pushed, beaten and questioned". He was released in the evening of the day of his arrest upon payment of a bribe. His release was conditional on him reporting daily to the police. He determined to leave Sri Lanka in the light of his difficulties and did so, according to his evidence, obtaining funds and a genuine passport, and making travel arrangements, all in one day.
[4] While the CRDD found certain of the applicant's testimony regarding his travel from the north of Sri Lanka to Colombo and the speed with which he was able to arrange to leave Sri Lanka to be not credible, it accepted that he had a well-founded fear of persecution in the north. It then went on to examine what it described as "the central issue in this claim", namely, whether the applicant had an internal flight alternative ("IFA") to Sri Lanka. The critical portion of the CRDD's analysis and its conclusion in this regard are in the following terms:
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The panel reviewed the most recent documentary evidence pertaining to detentions and the treatment of detainees in Colombo. Although the Human Rights Watch World Report for 1997 indicates a graver picture than the UNHCR letter of September 1996, the panel is not persuaded, on the balance of probabilities, that there is a serious possibility that the claimant would be persecuted in the IFA [Colombo]. The panel is of the view that the claimant, a 48-year-old Tamil, does not fall within the profile of those most at risk, namely, young Tamil men and women. Furthermore, it does not believe that he is wanted by the authorities. The panel believes that the army would not have allowed him to proceed to Colombo from Vavuniya, nor would the security forces have released him from detention, if either suspected him of being a LTTE militant, or if they wanted him for any reason. In light of this evidence, the panel does not find the claimant has a well-founded fear of persecution if he were to return to Colombo. |
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Furthermore, the panel does not find it unreasonable, considering the particular circumstances of the claimant, for him to return to Colombo. The claimant has a history of employment and education, with teaching experience in college, as well as self-employment as a teacher. He has previous experience of living outside the north from his school years in Kandy, and is fluent in English. There is a well-established community of approximately 300,000 Tamils in Colombo which has already provided refuge and support for displaced Tamils. There is no evidence to indicate that the government is thwarting such efforts, or that it discriminates against Tamils in its social policies which allocate nearly 16% of the budget to housing, social services and welfare, and 5% for health services and a network of hospitals, clinics and dispensaries, which provide treatment free of charge. |
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For the reasons noted above and after careful consideration of all the evidence, the Refugee Division determines [the applicant] not to be a Convention refugee. |
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[5] Counsel for the applicant relied on Jeyachandran v. The Solicitor General of Canada2 and Srithar v. The Minister of Citizenship and Immigration3, among other jurisprudence, to support the position of the applicant that the CRDD erred in a reviewable manner in its IFA analysis in this matter. I am satisfied that both of these cases are distinguishable. In Jeyachandran, the applicant was a young Tamil male from the north of Sri Lanka who also fled to Colombo and was also taken into detention. When he was released from detention he was "... given a stern verbal warning to go back to Jaffna and not to return to Colombo again." The evidence before the CRDD in this matter discloses no equivalent warning that would have required the applicant to return to the north or face whatever consequences might flow from staying in Colombo. Srithar also was a matter in which the applicant was a young Tamil male from the north of Sri Lanka. He was refused a pass to proceed to Colombo. In fact, he was ordered not to go Colombo. He was subjected to extortion by the Sri Lankan military. Such was certainly not the case here.
[6] Counsel for the applicant focussed in particular on the following extract from the CRDD's reasons as quoted above:
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There is a well-established community of approximately 300,000 Tamils in Colombo which has already provided refuge and support for displaced Tamils. There is no evidence to indicate that the government is thwarting such efforts, ... |
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[underlining added by me for emphasis] |
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Counsel urged that the indication that there is no such evidence is just simply wrong. In support of this submission he referred me to passages from the documentary evidence that was before the CRDD regarding limiting of access to Colombo by Tamils from the north, limiting the length of stays for Tamils from the north who are granted access to Colombo and the closing down of lodges in Colombo to which Tamils from the north ordinarily turn on their arrival in Colombo.
[7] I read the words in the decision of the CRDD that are under examination to indicate that there was no evidence before it that the Sri Lankan government was thwarting efforts by the Tamil community in Colombo to provide refuge and support for those displaced Tamils who, by whatever means, find themselves in Colombo. Evidence of limiting of access, of limiting of stays and closure of lodges is not contradictory to the finding of the CRDD.
[8] If counsel for the applicant had been able to refer me to evidence on the record before the CRDD that in fact rendered its assertion of "no evidence" incorrect, I would have agreed that the assertion would then constitute a reviewable error4. There can be no question that the assertion is crucial to the CRDD's decision that the applicant was not a Convention refugee. Counsel for the applicant simply failed to support his submission in that regard.
[9] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto,Ontario
January 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-771-97
| STYLE OF CAUSE: THIYAGARAJAH NAGAMUTHU |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 22, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: JANUARY 23, 1998
APPEARANCES:
Mr. Raoul Boulakia
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Mr. Raoul Boulakia
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980123
Docket: IMM-771-97
BETWEEN:
THIYAGARAJAH NAGAMUTHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 [1995] F.C.J. No. 487 (QL)
3 [1997] F.C.J. No. 1323 (QL)
4 See for example, Abdi v. The Minister of Employment and Immigration, A-871-92 (11 May, 1994) (unreported) (F.C.T.D.)
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