Date: 19981030
Docket: IMM-4319-97
BETWEEN:
KALADEVI KULANTHAVLU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board") that the Applicant is not a Convention refugee.
[2] The Applicant is a young Tamil female from Jaffna Town, in the North of Sri Lanka.
[3] In her Personal Statement, the Applicant stated that she came to Canada because she fears she will be killed by the Liberation Tigers of Tamil Eelam (the "LTTE"), the police or the army if she returns to Sri Lanka.
[4] The Board determined that she was not a Convention Refugee, based on the fact that it did not find parts of her evidence credible and that even if her evidence had been found credible, there was an Internal Flight Alternative ("IFA") in Colombo.
[5] I do not find it necessary to address the question of credibility in the North, in light of the Board"s conclusion that even if she had been found credible, she still had a viable IFA in Colombo.
[6] The Applicant generally submits that the Board failed to consider relevant evidence before it, concerning the situation of Tamils from the North, and Tamil women in particular, in Colombo. As a result, the Applicant submits, the Board"s finding that the Applicant had a viable IFA in Colombo is not supported by the evidence.
[7] The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam1 and clarified in Thirunavukkarasu.2 To find an IFA the Board must consider whether the Applicant faces a reasonable chance of persecution in the IFA locale and whether, considering all the circumstances, including those particular to him or her, it would be reasonable to seek refuge there.
[8] In the present case, the Board relied on the documentary evidence, more particularly on the note from the United Nations High Commissioner for Refugees (UNHCR) which states 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."3 The Board also considered the fact that the UNHCR had removed the cautionary provision that failed asylum seekers be returned only if family or friends are permanently established in Colombo.4
[9] The Board notes that the war is against the LTTE, not the Tamil people, and those at risk of harrasment in Colombo are predominantly young male or female Tamils who are suspected of having LTTE connections. The fact that when the Applicant was detained in the past, she was released after a few days, indicates that she is not suspected of LTTE connections. The Board acknowledged that she was beaten while in detention, but found that one incident cannot be characterized as persecution.
[10] While police beatings of this sort are obviously shocking, one such incident is not evidence of a systematic pattern of persecution. What is important, in my view, is not so much to decide if this one incident can be characterized as persecution, but to determine if the Applicant faces a reasonable chance that this abuse could reoccur in the future. On the evidence, it appears that young Tamils in Colombo are more likely to be subjected to security checks than the general population. These checks may or may not result in detention, which may include beatings. In my opinion, if simply being a young Tamil makes you more vulnerable to this type of abusive treatment than the general population, the Board must be very cautious in its assessment.
[11] The Board accepted that upon her return to Colombo the Applicant would be subjected to security checks, which she may find frightening or inconvenient. However, the Board also found that now that she has a National Identity Card, she can establish her identity and any future detention will be brief.
[12] After a careful reading of the documentary evidence before the Board, I am satisfied that, although I could have come to a different conclusion, there was sufficient evidence to support the Board"s finding. The evidence indicates that:
| |
The Human Rights Task Force (HRTF) as well as Amnesty International report that of those detained and held at police stations for identification checks 90% are released within 48 hours. |
|
| |
With regard to "brutal" treatment: the treatment of people held in short-term detention for identification checks is regarded by local and international NGOs (eg. Home for Human Rights and ICRC) as being consistent with law, the primary problem being one of overcrowding. During such short-term detention the risk of physical and mental abuse is very low, the few incidents which have occurred are isolated and not systematic. (My emphasis).5 |
|
[13] Therefore, based on this evidence, it was reasonable for the Board to conclude that a recurrence of the abusive treatment is unlikely; and, therefore, that the Applicant does not face a reasonable chance of persecution in Colombo.
[14] The second stage of the test to determine if Colombo would be a viable IFA is whether or not it would be reasonable in all the circumstances, including those particular to the Applicant, to seek refuge there.
[15] The Board considered her education, age and background, the size of the Tamil population in Colombo, and the lifting of the UNHCR"s cautionary provision mentioned earlier.6 In reaching its conclusion that, in the circumstances, it would not be unduly harsh for her to seek refuge in Colombo, the Board stated:
| The Applicant is an intelligent 27 year old woman with 11 years of education and sufficient background to facilitate her incorporation into the work force in Colombo. The documentary evidence sets out that there is a large Tamil community and health and social services are available, as well as broadcasting the Tamil language and Tamil newspapers. The Applicant would be able to seek the assistance of her particular Tamil community. The need for Sinhalese language skills in Colombo is not apparent.7 |
|
[16] In my opinion, based on the evidence before it, the Board"s determination that it would not be unduly harsh for the Applicant to seek refuge in Colombo was also reasonable.
[17] The Applicant has failed to show, on either part of the test, that the Board erred in its consideration of Colombo as an IFA.
[18] Consequently, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 30, 1998.
__________________
1 Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.).
2 Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 (C.A.).
3 Exhibit R-1, Sri Lanka: National Issues Package , item 1.8, Canadian High Commission, Colombo, Issues Relating to the Return to Sri Lanka of Failed Asylum Seekers, February 1996, p. 2, [citing UNHCR, Geneva, February 1995.]
4 Transcript of hearing, CRDD File No.: (18 August 1997), U96-05555 at 12-13.
5 Applicant"s Application Record at 64.
6 Supra, note 4.
7 Applicant"s Application Record at 13.
Email this Content