Date: 19980212
Docket: IMM-1924-97
BETWEEN:
KAILASAPILLAI PONNUDURAI
KANAGAMBIKAI PONNUDURAI
SHARMILA PONNUDURAI
MENAKA PONNUDURAI
NIDHYAKALYAN PONNUDURAI
Applicants
- 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 applicants not to be Convention refugees within the meaning assigned to that term in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 9th of April, 1997.
[2] The applicants are a husband and wife and three of their five children. At the date of the hearing before the CRDD, Sharmila was twenty-one years of age. Menaka was seventeen years of age. Nidhyakalyan was ten years of age. The applicants are Tamils from the north of Sri Lanka. The applicants based their claims to Convention refugee status on an alleged well-founded fear of persecution if required to return to Sri Lanka by reason of their perceived political opinion and their membership in a particular social group.
[3] The principal applicant, Kailasapillai, was briefly employed as an engineer in Colombo in 1979. As a Tamil, he was discriminated against and physically attacked by those he supervised who were all Sinhalese. He returned to his native Jaffna. From 1980 to mid-1996, the principal applicant was employed in Oman. By reason of deteriorating conditions in the north of Sri Lanka, the principal applicant's wife and his two daughters moved to join him in Oman in March of 1985. The youngest of the applicants was born in Oman.
[4] During the period of the principal applicant's employment in Oman, members of the family returned to Sri Lanka on at least three separate occasions. The first return of note was to Jaffna in 1988. On that occasion, the applicants were subjected to threats and extortion. In July of 1992, the principal applicant got as far as Colombo in an effort to visit his critically ill mother in Jaffna. He remained in Colombo "under difficult circumstances", for nearly two weeks before returning to Oman without seeing his mother. In July of 1994, the applicants other than the principal applicant visited Colombo, once again by reasons of the medical condition of a family member who remained in Sri Lanka. They were there subjected to extortion by both a Tamil militant group and the police, the latter being suspicious of the two daughters who did not then have in their possession national identity cards. The two daughters were threatened by the police with detention.
[5] Following termination of the principal applicant's employment in Oman, the applicants came to Canada and made their claims to Convention refugee status.
[6] The CRDD determined the applicants to have good grounds for fearing persecution at the hands to the Tamil Tigers should they return to northern Sri Lanka. However, the CRDD went on to examine whether the applicants had a reasonable internal flight alternative (I.F.A.) to Colombo and concluded that they did. It concluded:
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... none of the claimants fit the profile of a young male or female Tamil recently arrived from the North [emphasis added] who appear to be the focus of police roundups for identity checks. |
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The CRDD further concluded that it would be objectively reasonable for the applicants to live in Colombo, without fear of persecution. It noted the principal applicant's concern that Tamils arriving from the north of Sri Lanka were severely restricted in the amount of time that they could stay in Colombo. It noted that this concern was supported by documentary evidence. With regard to this concern the CRDD concluded:
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However, the claimant is not a "newly-arrived Tamil from the North" and, therefore, would not be subjected to this limitation. |
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[7] Counsel for the applicants urged that the CRDD's conclusion that, since the applicants would not be arriving directly from the north of Sri Lanka they would not be subject to a limitation on their stay in Colombo, was pure speculation not reasonably open to the CRDD. I note that there was no evidence before the CRDD to which counsel for the applicants could refer me to the effect that Tamils originally from the north of Sri Lanka, but arriving in Colombo after a long absence from that country, were limited as to the amount of time they could stay in Colombo. In the absence of such evidence, I conclude that it was reasonably open to the CRDD to find that the applicants would be entitled to settle in Colombo if they were to arrive from Canada after an absence of more than ten years from Sri Lanka, with the exception of brief visits.
[8] Despite the able argument of counsel for the applicants, I can find no reviewable error in the CRDD's determination that the principal applicant and his wife, together with their young son, have an IFA to Colombo.
[9] The CRDD recognized that the daughters aged seventeen and twenty-one, were not identically situated to their parents and their younger brother. It wrote:
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The panel also considered whether Sharmila Ponnudurai and Menaka Ponnudurai, ages 21 and 17 respectively, are members of a particular social group at risk. The evidence indicates that most at risk are young Tamil men and women, particularly those who have recently travelled to Colombo from the North and East. Given the forward-looking nature of the definition, we must look at the profile they would characterize upon their return to Sri Lanka, that is, they would not after returning from Canada be recently arrived from the North, and they would be able to prove it with documents and their airline tickets. Furthermore, although they are originally young Tamils from the North and, according to the Canadian High Commission in Colombo, adolescents are at risk of being detained for security checks, the fact that they would be with their parents in Colombo to assist them leads the panel to conclude that they do not have good grounds for fearing persecution should they return to Colombo with their parents. |
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[10] In reaching the foregoing conclusion, the CRDD ignores the evidence before it to the effect that, when the young women were in Colombo with their mother and younger brother in July of 1994, money was extorted from the family by a Tamil militant group and the young women were threatened with detention by the police and only avoid detention on the payment of a bribe. Further, while the CRDD acknowledges that the young women are in an age group that is most at risk in Colombo, it appears to discount this risk by reason of the fact that, if required to return to Sri Lanka, they would not be arriving in Colombo directly from the North and would be arriving with their parents.
[11] The CRDD does not acknowledge the documentary evidence before it, indicating that young women similarly situated to Sharmila and Menaka are at risk of being targeted in Colombo, not merely by governmental authorities who might reasonably suspect their political opinions, but also by Tamil militants seeking to exploit their recent return to Sri Lanka after an absence of many years.
[12] Counsel for the respondent referred me to no evidence that was before the CRDD that would suggest that the presence of the young women's parents in Colombo would be sufficient protection in all of the circumstances to ensure that there would not be a reasonable possibility that the young women would be subjected to persecution.
[13] Based upon the foregoing concerns, while the conclusion of the CRDD with respect to Sharmila and Menaka and an IFA for them in Colombo might have been reasonably open on a more thorough analysis of the totality of the evidence, in the absence of that more thorough analysis reflecting that it was cognizant of the totality of the evidence, I conclude that the CRDD committed a reviewable error in finding that it would be objectively reasonable for Sharmila and Menaka to live in Colombo without fear of persecution.
[14] For the foregoing reasons, this application for judicial review will be dismissed in respect of the applicants Kailasapillai Ponnudurai, Kanagambikai Ponnudurai and Nidhyakalyan Ponnudurai. It will be allowed in respect of the applicants Sharmila and Menaka Ponnudurai. In respect to these latter two applicants, the decision of the CRDD will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Counsel for the applicants recommended three questions for certification. I am satisfied that the first two of those questions do not arise on the evidence that was before the CRDD in this matter. The third question, as revised in submissions at the close of the hearing, would read something as follows:
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Can it be presumed, in the absence of evidence as to how similarly situated people are treated, that a refugee claimant who is outside his country of origin must be treated more favourably if he returns to his country of origin by reason of his absence from that country, than members of the same social group who have not been absent? |
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Counsel for the respondent recommended against certification of such a question by reason of its generality and therefore by reason of the fact that an answer to it would not necessarily be dispositive of an appeal from my decision in this matter. I am in agreement with the position of counsel for the respondent. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
February 12, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1924-97
| STYLE OF CAUSE: KAILASAPILLAI PONNUDURAI, ET AL. |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 11, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: FEBRUARY 12, 1998
APPEARANCES:
Mr. Raoul S. Boulakia
For the Applicants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Mr. Raoul S. Boulakia
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980211
Docket: IMM-1924-97
BETWEEN:
KAILASAPILLAI PONNUDURAI, ET AL.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
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