Date: 19980831
Docket: IMM-4310-97
BETWEEN:
NAGESU KANDIAH and
AMBIGANITHI NAGESU
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 Convention refugees within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act. The decision of the CRDD is dated the 23rd of September, 1997.
[2] The applicants are Tamil citizens of Sri Lanka from the Jaffna region. They are husband and wife. While the applicants met in Colombo in 1947 and lived there briefly in the late 1940's, thereafter they lived in the north of Sri Lanka. From 1947 or 1948 until 1991 the applicants lived and farmed, and raised their two sons, in Pungudutiya. Thereafter, under harassment and extortion from the L.T.T.E., they lived in other locations in the Jaffna region. In October of 1995, the applicants were forced by the L.T.T.E. to move to Kilinochchi. They continued to be subject to extortion. Finally, in May of 1996, when the extortion became too oppressive, the applicants purchased passes to go to Colombo and left the deeds to their properties in the Jaffna region with the L.T.T.E. as security for amounts that they had promised to pay.
[3] Like many Tamils arriving in Colombo from the North, the applicants experienced difficulties with the police in Colombo. In the result, they raised a substantial sum to pay for the services of an agent who arranged for them to come to Canada, to join their two sons.
[4] While the CRDD found some elements of the male applicant's testimony to be implausible, it made no generalised finding with regard to credibility. Nor did it , in specific terms, find the applicants to have a well-founded fear of persecution in the north of Sri Lanka. However, such a finding can be implied from the fact that it based its determination that the applicants are not Convention refugees solely on a determination that they have a viable internal flight alternative ("IFA") to Colombo.
[5] In Rasaratnam v. Canada (Minister of Employment and Immigration), Mr. Justice Mahoney wrote at page 711:
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In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there. |
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Thus, it is now well established that to find an IFA, a two-part test must be satisfied. On the facts of this matter, I can find no reviewable error on the part of the CRDD when it concluded that it was satisfied, |
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... on a balance of probabilities, that there was no serious possibility of the [applicants] being persecuted in Colombo... |
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[6] I reach a different conclusion with respect to the CRDD's determination that, |
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... in all the circumstances including circumstances particular to [the applicants], conditions in Colombo were such that it would not be unreasonable for the [applicants] to seek refuge there. |
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An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. |
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[8] In this matter, the CRDD wrote: |
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The panel looked at the male claimant's particular circumstances, i.e., he is 69 years old. Documentation before the panel states that elderly people such [as] the claimants could resettle in Colombo and certainly could obtain pension and other benefits in the capital city. Two forms of social assistance are available to seniors in Colombo. Sarbothaya is an organization in Colombo that helps all lower-income groups, including seniors in need, by providing food, shelter and small sums of money on an infrequent basis. This organization also has some housing facilities available. The Sri Lankan government, for its part, provides a program known as the "purpose allowance" or "poor-related allowance" which is a monetary stipend given to a senior on the basis of his or her personal income and savings. |
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By his own evidence, the male claimant demonstrated to the panel that he and his wife are not without resources in Colombo. He testified to being able to raise eight lakhs to give to the agent for passage out of Colombo and to Canada. When asked how he managed to raise this large amount of money, the male claimant stated that apart from his own money which he brought from the North, he was able to borrow the bulk of the amount from friends. In the panel's view, it would not be unduly harsh to expect the claimants to resettle in Colombo which the panel sees as a realistic attainable option. |
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Given the above documentary evidence with respect to Tamils in Colombo; the availability of a social network which can help the claimants resettle in Colombo; the male claimant's ability to raise a large sum of money in a short period [of] time while in Colombo by asking friends who live there; the claimants' profiles, i.e., a 69-year-old male Tamil and a 64-year-old female Tamil who cannot be recruited by the LTTE because of their age and who are even considered by the LTTE to be too old and sick for their independence war, and who were not even arrested by the Colombo police during the raid on the lodge, the panel does not find that the claimants face a reasonable chance of persecution that would preclude their return to Colombo. The panel does not find it unreasonable to expect the claimants to try, at the very least, to resettle in Colombo, which it finds to be a viable IFA for them. |
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[9] Before me, counsel for the respondent acknowledged that the CRDD's finding that the male applicant was able to raise a large sum of money in a short period of time while in Colombo by asking friends who live there simply did not accord with the evidence. The applicants are essentially without assets. They have no family and no friends in Colombo. They have not lived there for many years. There is simply no evidence that they would be able to raise funds to support themselves in Colombo. The CRDD's analysis, on the second aspect of the IFA test, therefore stands or falls on its finding regarding the availability of social services or a universal "social network". |
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[10] Social services in Colombo, whatever their merits, would only be available to those who are permitted to live in Colombo and to access those services. The CRDD's analysis is simply incomplete. It makes no finding that, if returned to Sri Lanka from Canada, the applicants, whose experience and heritage are in the north of Sri Lanka, would be permitted to stay in Colombo where the evidence clearly establishes a permit system is in place for Tamils from the North. There is no finding that, in the words of Mr. Justice Linden in Thirunavukkarasu, the IFA destination is "realistically accessible" to the applicants other than as a transit point. |
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[11] I return to the quotation from Thirunavukkarasu above: "An IFA cannot be speculative or theoretical only; it must be a realistic attainable option". Thus, on the facts of this matter, Colombo must be "realistically accessible" to the applicants. Any barriers to getting there and staying there must be reasonably surmountable. In the light of the pass system that exists, I conclude that the CRDD's analysis is flawed. It simply fails to demonstrate that the IFA identified by it for the applicants is anything more than speculative or theoretical only. That is not to say that the conclusion reached by the CRDD might not have been available to it on the totality of evidence before it. But its analysis simply fails to demonstrate that the test for an IFA has been met. |
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[12] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD under review 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. |
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[13] Neither counsel recommended certification of a question. No question will be certified. |
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1 R.S.C. 1985, c.I-2
2 [1992] 1F.C. 706 (C.A.)
3 [1994] 1F.C. 589 (C.A.)
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