Date: 20041020
Docket: IMM-9150-03
Citation: 2004 FC 1465
BETWEEN:
SATKUNADEVI BALASINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated October 29, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision of the Refugee Division dated the 29th day of October 2003, be set aside and the matter be referred back for redetermination by a differently constituted panel in accordance with such directions as the Court considers to be appropriate.
Background
[3] The applicant, Satkunadevi Balasingam, is a citizen of Sri Lanka who claims a well-founded fear of persecution on the basis of race and perceived political opinion. The applicant has two sons and two brothers living in Canada, and another son living in Germany. The applicant's husband who was a sergeant in the Sri Lankan police force, was killed by the Liberation Tigers of Tamil Eelam ("LTTE") in 1978.
[4] Commencing in mid 1990 when the LTTE controlled Jaffna, the applicant was arrested and questioned many times by the LTTE. She was accused of being an informant to the government forces and a traitor due to her late husband's role in the police force.
[5] After her husband's death, the applicant worked as a hospital attendant at Base Point Hospital in Point-Pedro. As an attendant, the applicant had access to medicines and other medical supplies. The LTTE demanded she steal medicine and supplies which she found very difficult to do.
[6] In early 1993, the LTTE arrested the applicant and kept her in detention in a bunker for two weeks . She was told that she would face the same fate as her husband if she did not cooperate. At one point in 1993, the applicant's mother became quite ill. The applicant paid the LTTE 100,000 rupees to be allowed to take her mother to Colombo where she cared for her mother until her death in February 2002.
[7] The applicant stated that after the initiation of the peace process, the LTTE starting going to Colombo and other places in Sri Lanka. The LTTE demanded money from business people in Columbia and the police ignored any complaints related to threats from the LTTE.
[8] While the applicant was living in the annex of a house owned by a businessman he was approached by the LTTE. They demanded money from him and made inquires about the applicant. The applicant stated she was frightened because she had defied the LTTE and was ill-treated by them when she was in Jaffna. She decided it was not safe for her to stay in Colombo. She obtained a Canadian visitor's visa with the intention of claiming refugee status in Canada. She left Sri Lanka on July 9, 2002.
Reasons of the Refugee Protection Division ("the Board")
[9] The Board found the applicant to not be a credible witness, noting the following:
1. The hearing began with the applicant adding a line in her Personal Information Form ("PIF") narrative to the effect that the LTTE had personally demanded money from her in Colombo. The Board put it to the applicant through her counsel that the Port of Entry ("POE") interview notes stated only that the applicant was thinking that she was all alone and "they" may come and harass her; "they" being clarified at the POE by the immigration officer as "the boys", namely the LTTE. After a requested recess, the applicant returned and retracted the addition that had been made in the narrative.
2. The applicant was asked repeatedly whether or not in fact she had any personal contact with the LTTE. She wavered on this, at one point stating that they had spoken only to her landlord, and another time saying that they did in fact speak to her. The Board was left with the impression that the applicant was still not being truthful about her experience in Sri Lanka.
3. The Board found that the applicant was indeed left alone in Sri Lanka after the death of her mother, and naturally enough wanted to join her children. She was asked and testified to having made inquiries as to whether she could obtain status in Germany and learned that she could only stay there temporarily. She was also given to understand by her children in Canada that they could not sponsor her and that she should therefore obtain a visitor's visa and make a refugee claim.
4. The Board did not believe that the applicant had any personal contact with the LTTE in Colombo. It believed that she did have some fear of the LTTE because of her experience with them in the past, but did not believe it was fear of the LTTE that caused here to leave Sri Lanka in July 2002. The Board accepted that there is ongoing extortion taking place by the LTTE in Colombo, but did not believe the applicant had personally been extorted or threatened by the LTTE in Colombo.
[10] The Board also found that the applicant had not rebutted the presumption of state protection noting the following:
1. The applicant was asked whether protection was available to her in Sri Lanka and she testified that there was none. The Board did not accept this statement. Colombo, although the LTTE has a greater presence there than it did, is not an area of armed conflict. Sri Lanka, as is noted in the most recent United States Department of State Report ("DOS") report is a "democratic republic with an active multi-party system." The DOS report indicates that the government generally respected the human rights of its citizens, however, there were serious problems in some areas. Unlike previous years, there were disputed reports of security forces committing extra-judicial killings and no reports of disappearances."
2. The Board stated that the onus was on the applicant to satisfy the panel that there is clear and convincing evidence that the state would be unwilling or unable to protect the applicant. This presumption of state protection applies to Colombo which is outside the area of armed conflict.
3. The applicant did not testify that she is afraid of human rights abuses at the hands of the Columbo police. Whereas the documentary evidence does state that the Colombo police has been guilty of human rights abuses with respect to young northern Tamils over the years, the same cannot be said with respect to older Tamils such as the applicant, even those who have been displaced from the North.
4. The Board held it was therefore not unreasonable to expect the applicant to approach the Colombo police or other agents of the state for protection should she require it. It was evident from the record that the applicant had never approached the Colombo police, or had any reason to do so. In the Board's opinion, the Colombo police would be interested in LTTE activity in Colombo. The Board had no evidence before it to indicate the police would not make efforts to protect an individual such as the applicant who feared persecution at the hands of the LTTE.
5. The Board held that the presumption of state protection was not rebutted in this case. Although extremely sympathetic to the applicant's situation as a mother who was left alone in Sri Lanka and wanted to be reunited with her family, the Board did not find her to be a credible witness or to have made out her claim.
[11] Having considered all the evidence, the Board determined that the applicant is not a Convention refugee or a person in need of protection.
Applicant's Submissions
[12] The applicant submitted that the Board erred in law by finding that the applicant should have availed herself of police protection, notwithstanding the Board's acceptance of LTTE extortion in Colombo, and the applicant's well-founded fear of the LTTE based on her past experiences.
[13] The applicant submitted that the Board conceded that the LTTE is practising extortion in Colombo. There was no evidence that the LTTE was being impeded by the authorities or that victims of the extortion were being protected. The applicant submitted that the Supreme Court of Canada in Ward, supra, held that examples of other persons who were "let down" by the government is one way to prove that the state will not or cannot provide protection.
[14] The applicant submitted that she was a victim of the LTTE in the past. While the applicant may or may not have been approached by the LTTE in Colombo, others have not been protected by the state. As the Board accepted that persons in Colombo are victims of the LTTE, the presumption of state protection has been rebutted.
[15] The applicant submitted that the Board also breached the duty of fairness in finding that state protection was available to the applicant. The issue of the availability of state protection was neither raised at the hearing, nor even checked on the screening form. The only question related to this issue was raised by counsel during the hearing.
[16] The Board's failure to discuss or otherwise indicate that it was looking at the issue effectively denied the applicant the opportunity to present evidence or make submissions. The applicant was therefore denied a meaningful opportunity to participate in the claim. This is a reviewable error.
[17] The applicant submitted that the Board further erred when it found that the only Tamils who are victims of abuse by the authorities are younger Tamils. There was no evidentiary basis for that finding.
Respondent's Submissions
[18] The respondent submitted that a determination with respect to credibility and state protection are findings of fact and are entirely within the Refugee Protection Division's expertise to make. Accordingly, the appropriate standard of review with respect to its factual findings is that of patent unreasonableness.
[19] The respondent submitted that the Board properly found that state protection was available to the applicant in Colombo. It noted that Colombo is not an area of armed conflict. The applicant is not afraid of human rights abuses by the Colombo police and the documentary evidence supports this. The Colombo police are interested in LTTE activity in Colombo. The applicant could therefore approach the Colombo police if should she encounter problems with extortion by the LTTE.
[20] The respondent submitted that the onus was on the applicant to provide clear and convincing confirmation that the state would not provide protection to her. The applicant's submission that there was no evidence that the LTTE was being impeded by the authorities or that the victims of the extortion were being protected does not satisfy the onus upon the applicant. The onus was on the applicant to show the Board evidence that the Colombo authorities were not taking action against the extortion or were not protecting the victims of extortion.
[21] The respondent submitted that while the Board acknowledged that extortion was taking place in Colombo, it was not satisfied that the applicant had a well-founded fear of persecution. The conclusion was reasonably open to the Board based on the evidence before it.
[22] The respondent submitted that there was no evidence of similarly situated individuals let down by the state. Based on the record before the Board, the evidence concerning extortion in Colombo was restricted to situations involving businessmen. The applicant is not similarly situated to such persons. Rather, she is an elderly Tamil woman who has no direct experience of extortion, has never requested protection and has never been refused assistance by the authorities. The applicant had not rebutted the onus upon her to provide clear and convincing confirmation of the state's inability to protect her.
[23] The respondent submitted that the Board's finding on state protection was not made in breach of the duty of fairness. The issue of state protection is an inherent part of the definition of Convention refugee. The respondent submitted that the applicant must show a subjective fear of persecution and this fear must be well-founded in an objective sense. Whether the fear is objectively justified relates directly to the issue of state protection. The onus is on the applicant to establish that she meets the definition of Convention refugee generally. The onus is thus also clearly on her to provide clear and convincing evidence of a state's inability to protect.
[24] The respondent further submitted that the fact that the screening form did not specifically note the issue of state protection is not a sufficient basis upon which the applicant could overcome the onus upon her to meet the legal test as a refugee. The applicant did address the issue of available protection in her submissions but this evidence was not sufficient. Additionally, the Board did not specifically restrict the issues at the hearing such that the applicant was unfairly led to believe that the issue of state protection would not be in question.
Issues
[25] The issues as framed by the applicant are:
1. Did the Refugee Protection Division err in law in finding that the applicant was not at risk from the LTTE?
2. Did the Refugee Protection Division err in law vis-a-vis the issue of state protection as defined by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
Relevant Statutory Provisions
[26] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
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(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Analysis and Decision
[27] This Court is divided on the applicable standard of review to be applied in an assessment of the availability of state protection. Since I am of the opinion that the Board's decision was reasonable it does not matter which is the applicable standard. Further, since a finding that testimony is not credible is a question of fact, a standard of patent unreasonableness applies to this aspect of the application.
[28] Issue 1
Did the Refugee Protection Division err in law in finding that the applicant was not at risk from the LTTE?
The applicant at the relevant time, was a 61 year old woman originally from Northern Sri Lanka who was residing in Colombo. The Board determined that the applicant had some fear of the LTTE due to her past contact with them.
[29] The applicant submitted that the LTTE were now committing extortion against Tamils in Colombo. The Board did not accept that the applicant had personally been extorted or threatened by the LTTE in Colombo. Based on the evidence, this is a reasonable conclusion.
[30] The Board then went on to find that the applicant should have availed herself of state protection while in Colombo. The applicant submitted that others similarly situated to her were not protected hence, it was not necessary for her to seek state protection before going to Canada. The applicant bases this argument on the remarks of LaForest J. in Ward, supra, stated at pages 724 to 725:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
And at page 726:
. . . A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. . . .
[31] The evidence before the Board was that it was usually businessmen who suffered from extortion by the LTTE. Hence, the applicant submitted that because these persons were not being protected by the police, she need not seek the protection of the police based on the statements set out in Ward, supra.
[32] I do not agree with the applicant on this submission. LaForest J. in Ward, supra, refers to "similarly situated individuals". The applicant is not similarly situated to the businessmen for whom the police could not provide protection. The applicant should have sought the protection of the police in Colombo. The documentary evidence speaks of the Colombo police being guilty of human rights abuses with respect to Northern Tamil males. The same cannot be said of persons such as the applicant. There is no evidence that the Colombo police would not be interested in LTTE activity in Colombo. I agree with the Board that the applicant had not previously approached the police in Colombo because she had no need to.
[33] It must be remembered that there is a presumption that a state such as Sri Lanka can protect its citizens unless the applicant provides clear and convincing evidence that the state is unable or unwilling to protect a citizen such as the applicant. Further, it should be remembered that international refugee law was only meant to come into play when a state was unable or unwilling to provide a citizen the protection that would be expected from the state. In the present case, the applicant did not submit that she was afraid that the police would commit human rights abuses against her.
[34] I am of the view that the Board's decision with respect to the availability of state protection was reasonable. I have considered the references to the documentary evidence made by the applicant, but the references have not persuaded me that the Board's decision was unreasonable.
[35] The applicant also submitted that it was a breach of the duty of procedural fairness on the part of the Board, not to list as an issue, the availability of state protection. I would note that the RPD File Screening Form, at page 47 of the record, did not have state protection checked. However, the transcript, at page 401 of the tribunal record, shows that the applicant's then counsel did speak briefly with respect to state protection. On the facts of this case, I am not persuaded that a breach of procedural fairness occurred, since the issue of state protection was noted by the then counsel for the applicant.
[36] The application for judicial review is therefore dismissed.
[37] The applicant did not wish to submit a proposed serious question of general importance for my consideration for certification. The respondent shall have one week from the date of these Reasons to submit any proposed serious question of general importance and the applicant shall have five days to submit any response to the submitted question.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
October 20, 2004
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9150-03
STYLE OF CAUSE: SATKUNADEVI BALASINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 4, 2004
REASONS FOR ORDER BY: O'KEEFE J.
DATED: OCTOBER 20, 2004
APPEARANCES BY:
Micheal Crane
FOR THE APPLICANT
Alexis Singer
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041020
Docket: IMM-9150-03
BETWEEN:
SATKUNADEVI BALASINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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