Date: 20030626
Docket: IMM-3200-02
Citation: 2003 FCT 786
Ottawa, Ontario, Thursday the 26th day of June 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FRANCIS MANOHARARAJAH PACKYANATHER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Packyanather is a citizen of Sri Lanka of Tamil ethnicity. He claims Convention refugee status on the basis of a well-founded fear of persecution based on his race, his imputed political opinion, and his membership in a particular social group. That social group is described to be Northern and Eastern Tamils facing persecution from the Sri Lankan Authorities, various militant Tamil groups aligned with the Sri Lankan Authorities, and the Liberation Tigers of Tamil Eelam ("LTTE").
[2] By its decision dated May 24, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") found that Mr. Packyanather was not a Convention refugee. This decision flowed from the conclusions of the CRDD that Mr. Packyanather failed to establish the well-foundedness of his fear of persecution and, in the alternative, he has a viable internal flight alternative.
[3] Mr. Packyanather's claim, in summary, is as follows. His difficulties began in 1989 when he was working as a printer. He was forcibly taken by the LTTE to do printing for a period of one and one-half months. Five months after he was released by the LTTE, he was taken by a group of anti-LTTE militants, known as the Tristar. He was accused of having willingly provided his services to the LTTE, and was detained, beaten and interrogated for a period of 5½ months. Mr. Packyanather escaped the Tristar and travelled to Colombo in July of 1990. He remained in Colombo for three days and after that left Sri Lanka.
[4] Mr. Packyanather travelled to Russia, where he remained for 2½ years. He then left Russia to travel to Czechoslovakia, where he remained for 2½ months. In 1993, he went to Germany, and made an unsuccessful refugee claim. After exhausting all avenues of recourse in Germany, Mr. Packyanather went to the United States on December 14, 2000. One day later, he entered Canada and made his refugee claim here.
[5] Three reviewable errors in the decision of the CRDD are asserted by Mr. Packyanather.
[6] First, he argues that the CRDD erred in rejecting his evidence that on his return to Sri Lanka he would be picked up by the military because he did not register with the police during the three days he spent in Colombo in July of 1990. The CRDD did not find his concern to be reasonable or plausible, stating that "[a]lthough the registration requirement was approved in 1983, it was never seriously enforced until June 1990. We find, on a balance of probabilities, that after twelve years, the fact that he did not register in July 1990 is something that will not cause him to be "picked up". Mr. Packyanather says that because July comes after June, the CRDD's conclusion was contradicted by its own reasoning.
[7] I am satisfied, however, that the CRDD's conclusion that Mr. Packyanather was not likely to be picked up should he return to Sri Lanka was not based upon confusion as to whether June follows July. Rather, Mr. Packyanather had testified that during those three days he was in Colombo in July of 1990, the owner of the lodge where he stayed had told him that he should be registered. However, while the authorities made checks at other nearby lodges, they did not check on either Mr. Packyanather or the lodge where he was staying. Given that Mr. Packyanather encountered no difficulty in Colombo in 1990, it was not patently unreasonable for the CRDD to find it implausible that the authorities would apprehend him twelve years later for a transgression that went unnoticed at the time.
[8] Mr. Packyanather was then asked once again why he believed that the military would be interested in him after twelve years, and he referred to his experience of being picked up by the Tristar and then escaping. Of this testimony the CRDD wrote:
He was reminded that this incident did not take place in Colombo and, therefore, the military in Colombo would not know or remember what happened in the North in 1989-1990. The claimant was unable to respond.
[9] Mr. Packyanather argues that in rejecting this testimony the CRDD again erred, this time by presuming policies and procedures not in evidence before it, to the effect that the army in the North does not share information with the army in the South of Sri Lanka.
[10] I do not agree that the CRDD so erred. First, Mr. Packyanather was not picked up by the army in the North. He was picked up by the Tristar, a separate, paramilitary group. Second, Mr. Packyanather was repeatedly asked by the CRDD to explain the basis of his fear that he would be picked up by the military because he had escaped from the Tristar. Mr. Packyanather gave no answer except that he feared this because those who had detained him in the North might now be living in Colombo. Mr. Packyanather did not point to the treatment of other similarly situated individuals, or to anything in the documentary evidence to support this fear, or testify that he had learned that anyone was looking for him. The burden was on Mr. Packyanather to establish by credible evidence a well-founded fear of persecution. The CRDD was not obliged to accept Mr. Packyanather's fears or suppositions which were not based upon facts in evidence.
[11] Finally, Mr. Packyanather says that in considering the existence of an objective fear of persecution and an internal flight alternative, the CRDD erred by relying upon out-of-date documentation, and by discrediting the documents provided on his behalf.
[12] This cannot be so, because the footnote to the reasons of the CRDD dealing with the documentary evidence shows that the CRDD relied upon the same documents referred to by Mr. Packyanather's counsel in order to reach its conclusions.
[13] To the extent that Mr. Packyanather also says that the CRDD ignored important documentary evidence or misconstrued the documentary evidence, Mr. Packyanather neither put before the Court the documentary evidence which was before the CRDD, nor cited any particular documentary evidence which he says the CRDD ignored. In the absence of such evidence, no reviewable error is established with respect to the CRDD's use of the documentary evidence.
[14] For these reasons, the application for judicial review will be dismissed. Counsel posed no question for certification, and no question arises on this record.
ORDER
[15] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3200-02
STYLE OF CAUSE: Francis Manohararajah Packyanather v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, June 4, 2003
REASONS FOR ORDER:
AND ORDER: Honourable Madam Justice Dawson
DATED: June 26, 2003
APPEARANCES:
Ms. Helen P. Luzius FOR THE APPLICANT
Ms. Amina Riaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Helen P. Luzius
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT
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