Sandnam v. Canada (Minister of Citizenship and Immigration), docket IMM-1621-97

     Date: 19980309

     Docket: IMM-1621-97

BETWEEN:

MARY THERESA SANDNAM

SAMUEL INASAND SANDNAM

AND MINOR

NELSON ROHITH SANDNAM

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY, J.:

[1]      This is an application for judicial review seeking review of a decision of the Immigration and Refugee Board, dated March 26, 1997, whereby the applicants were found not to be Convention refugees.

[2]      The applicants are Sri Lankan Tamils. They are three members of a family. Samuel Inasand Sandnam, the father, was born and lived most of his life in Colombo. His wife, Mary Theresa Sandnam, and the couple's minor son, Nelson Rohith Sandnam, were both born in Jaffna. The adult applicants lived in Colombo until 1983, then they fled to Jaffna in the wake of anti-Tamil riots in Colombo. The father returned to Colombo in 1984 while his wife remained in Jaffna until 1987 when she concluded it was too dangerous to remain there and she returned to Colombo with their son.

[3]      In 1990, two of Mrs. Sandnam's relatives from Jaffna came to stay with the family in Colombo en route to seeking employment overseas. While they were visiting, the police arrested the two guests and Mr. Sandnam. He was released after five days when his mother paid a bribe, but not before suffering physical abuse at the hands of the police. Thereafter, Sinhalese neighbours were antagonistic towards the family and they received some threats, apparently from some Sinhalese outlaws. In July, 1992, Mr. Sandnam was detained again after the arrival of two more visitors from Jaffna, friends of the family. Again he was abused by police before he was released, following the intervention of his employer. In September 1992, he was arrested, when suspected of selling automotive parts to Tamil Tigers. He was again beaten and abused by authorities before he was released. Thereafter, the family fled Sri Lanka and came to Canada where they made claims to be Convention refugees. The basis of their claim is their membership in a particular social group, mainly, Tamils in Sri Lanka. They fear they could find no refuge in Jaffna and that if returned to Colombo, they would be in jeopardy from the police, having to account for their long absence from Sri Lanka.

[4]      After they left Sri Lanka Mr. Sandnam's mother was bothered by police, seeking the whereabouts of the applicants, and then seeking to extort money believed to be payable by the applicants, then in Canada. That harassment led the mother to flee to India in 1993.

[5]      The CRDD panel considering their claim to refugee status concluded that it was not persuaded there is a reasonable or serious possibility they would be persecuted in Colombo if they were to return there. Indeed, it was not satisfied there was more than a mere possibility of persecution if they were returned. In the panel's view, Mr. Sandnam's arrests in 1992 were isolated incidents.

[6]      The panel concluded that there was not evidence Mr. Sandnam was a suspected Tiger supporter. He was released unconditionally in 1992 following his final arrest, and his release then was not a result of intervention by his family, his employer or as a result of bribery. Moreover, since he was a member of the large, longstanding Tamil community of Colombo, the panel believed the applicants would have no difficulty obtaining identity documents and documents of their period in Canada, and that their friends would attest to their status as Colombo Tamils.

[7]      For the applicants numerous errors by the panel are urged. The most significant of these are that, it is urged, the panel misconstrued the basis of the claim as one arising from isolated incidents in 1992, and that it ignored the evidence of continuing interest of the authorities in pursuing the adult male applicant even after the family had left Sri Lanka.

[8]      On the first of these, it is urged that the panel erred in law by its failure to comprehend the nature of the claim as one based on fear arising from arrests in 1990 and later in 1992, which demonstrated that he was considered as a suspect and liable to detention at any time. It is true that the Board's decision makes no specific reference to the 1990 arrest, but rather focusses on the two arrests in 1992 which ultimately led to departure of the applicants from Sri Lanka. Nevertheless, for each of the three arrests, the applicant knew the basis on which the arrest was made. His unconditional release on the third occasion in September 1992, is a ground the panel relies on for its conclusion that it was not satisfied that the claimants were suspected LTTE supporters when they left Sri Lanka. That conclusion is disputed on behalf of the applicants, but it does not seem to me to be irrational and it is supportive of the panel's assessment of the basis of the claim. Merely because the panel did accept that the evidence demonstrated that the adult male applicant was subject to continuing suspicion, harassment and detention does not mean the panel did not understand the claim put forward. On the basis of the facts before it, the panel concluded, not unreasonably in my opinion, that there was not more than a mere possibility the claimants would be persecuted by the police if they should return to Colombo.

[9]      On the second matter, it is true that the panel made no reference to the interest of the authorities in pursuing the applicants after they had left Sri Lanka. In other cases, where there is clear evidence of that, particularly where there is continuing interest up to the time of the hearing, failure by the panel to assess that evidence has been found to be a basis for setting aside its decision. In this case the evidence is sparse in referring to the circumstances following their departure from Sri Lanka. The adult male's PIF includes the following:

In his affidavit in support of his application for leave and for judicial review, the male adult applicant avers that "... I fled Sri Lanka due to a fear of persecution by the police, and that the police troubled my mother and sister to turn me in after I fled."

[10]      There was no further evidence of police interest in the applicants after they left Sri Lanka. The evidence noted above was related to events not later than 1993, some four years before the hearing before the panel. In my view, in the circumstances of this case failure of the Board to refer in its decisions to the interest of the authorities in pursuing the applicants, after they had left Sri Lanka, does not constitute error that would warrant intervention by the Court.

[11]      For the applicants several other errors are said to have been made by the panel in its decision. With respect, most of those are based on conclusions inferred from the decision of the panel and not conclusions stated by it. For example, the decision refers to documentary evidence attesting to Tamils facing harassment, and even persecution, in the course of security checks carried out by Sri Lankan authorities in Colombo, but the panel notes it was not satisfied there is more than a mere possibility that these claimants would be persecuted by the police, or by the Sinhalese community, if they return to Sri Lanka. The panel did not make a general assumption, in my view, that Tamils from Colombo are never persecuted, as is suggested in argument on behalf of the applicants.

[12]      The panel's decision does place considerable reliance on the facts that the claimants had lived in Colombo as a family unit for about five years before they left the country in 1992; that the male claimant and his father were born in Colombo and come from a large and longstanding Tamil community there; that the applicants have friends there and would have documents supporting their claim to identity as Colombo Tamils who have not lived in the north since 1987 in the case of the mother and young son, and undoubtedly for a longer time in the case of the male adult claimant. The latter acknowledged his belief that he could obtain new passports without difficulty, and the panel found no reason that he and his family should return to Colombo without adequate identity documentation, which would minimize difficulties on their arrival there which difficulties they professed to fear.

[13]      In all of the circumstances, on the basis of the evidence before the panel, it is my conclusion that its decision is not unreasonable or without support in the evidence. I am not persuaded that the panel erred in law or that a basis is here established that would warrant intervention of the Court.

[14]      For these reasons, this application for judicial review is dismissed.

                 W. Andrew MacKay

                                         Judge

OTTAWA, Ontario

March 9, 1998