Thiruchelvam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1120

                                                                                                                            Date: 20011016

                                                                                                                 Docket: IMM-4330-00

                                                                                          Neutral Citation: 2001 FCT 1120

BETWEEN:

                                       SARAVANAMUTHU THIRUCHELVAM

                                                                                                                                        Applicant

                                                                       - and -

                        THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                  Respondent

                                                    REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                 The applicant, in this judicial review proceeding challenging a July 10, 2000 decision by the Refugee Division of the Immigration and Refugee Board (the "tribunal") which rejected his refugee claim, is a fifty-four-year-old Tamil born in the Jaffna district of Northern Sri Lanka. His most recent refugee claim was heard together with that of his two minor children whose designated representative was the applicant's cousin because the applicant had been seriously hurt in a car accident in Toronto in 1998.

[2]                 His two children, sixteen and thirteen years of age, were granted refugee status but the applicant was not.

[3]                 This is the applicant's third refugee claim in Canada.

[4]                 He came to Canada in November 1989 making his first refugee claim which was rejected in 1990. After Citizenship and Immigration Canada began enforcement procedures to effect his removal, he voluntarily went to the United States for a ninety-day period, re-entered Canada and made a second refugee claim on July 24, 1996, which was rejected by the Refugee Division on June 19, 1997 and leave was refused by this Court on October 23, 1997.

[5]                 Once again, he voluntarily left Canada, going to the United States for a ninety-day period between June and September 1999, re-entering Canada and then making his third refugee claim which was once again turned down in this impugned July 10, 2000 decision.

THE TRIBUNAL'S DECISION

[6]                 The tribunal identified credibility, failure to claim elsewhere, agents of persecution and an internal flight alternative ("IFA") as the issues in the applicant's claim.

[7]                 Following the decision of Justice Rothstein, then of the Trial Division, in Vasquez v. Canada (The Minister of Citizenship and Immigration) (Docket IMM-1979-97, September 16, 1998) with supplementary reasons at (1998), 160 F.T.R. 142, as to issue estoppel, the tribunal ruled it had to decide if there were new facts, not reasonably available in 1997, that were sufficient to make a positive decision in the claim before it. It said counsel for the applicant raised these new facts:

(1)        circumstances in Sri Lanka, especially in the North and East have deteriorated to such an extent they can be called grave;

(2)        all of his family, wife and children, have left Sri Lanka and he would be on his own if he were to return to Sri Lanka; and

(3)        without a pass, Northern Tamils are not wanted in Colombo, which relates to the issue of IFA.

[8]                 The Tribunal then addressed the issue of why the applicant did not claim refugee status while he was in the United States and observed the claimant was aware he could claim there because he had received documents to that effect from the authorities in the United States. It noted he had a six-month visa but he decided to return to Canada. The tribunal found the following at page 3:

That [return to Canada] was his sole intention even after having been rejected twice by Canada. He felt that he could not survive in the U.S. on his own because he had no support; if unsuccessful, he feared that he would be deported to Sri Lanka and he did not like the situation in the U.S. He feared that he would be mugged in the U.S., although he was not, but when he returned to Canada he was mugged. Overall, the panel finds that his reasons why he did not claim refugee status in the U.S. are not reasonable. [emphasis mine]

[9]                 The tribunal drew a negative inference respecting the subjective element of the applicant's fear writing this at page 3:

I find his failure to claim in the U.S. inconsistent with a fear of being persecuted. He did not try to seek asylum in the U.S. after two previous claims had been rejected in Canada. This fear of being persecuted in Sri Lanka arose from his belief that the authorities would arrest him on his arrival at the airport because of his lack of identification documents such as a national identity card (NIC) and a passport. When it was pointed out to him that after 11 years in Canada, he should have obtained these documents from the Sri Lankan High Commission in Canada, his reply was that he did not want to get them and that he did not want to go back. [emphasis mine]

[10]            The tribunal then found there was no objective basis for his fear of persecution if he were returned to Sri Lanka. The tribunal mentioned the factors of the applicant's age and the length of time he has been away from Sri Lanka:

The claimant is 54 years old and if he were to return to the North where he still has property, he will not be at risk of LTTE recruitment. He is also well beyond the age of those suspected by the security forces of being LTTE supporters. Overwhelmingly, the documentary evidence refers to young Tamils at risk. Although the security forces continue to conduct mass detentions and arrests, the targets of those arrests are young people. Furthermore, the claimant gets support from an insurance company in Canada in connection with a car accident he was in and there is no reason why these payments would not continue while he is in Sri Lanka.

The United Nations High Commission for Refugees (UNHCR) has been present in Sri Lanka since 1987 and currently has six field officers in the country including one in Colombo. In a March 1999 Background Paper, the issue of return was addressed. The UNHCR is of the view that Sri Lankan asylum seekers whose claims have been processed through full and fair procedures and found not to be fulfill the refugee criteria, may be returned safely to Sri Lanka. [emphasis mine]

THE APPLICANT'S ISSUES

[11]            Counsel for the applicant raised three issues in support of the applicant's judicial review application.

[12]            The first issue relates to the tribunal's negative assessment of the applicant's subjective fear of returning to Sri Lanka based on his failure to claim in the United States where he sojourned for a brief 90-day period. Counsel for the applicant argued the following points:

(a)        The applicant testified clearly as to the reasons he would not proceed with a refugee claim in the United States. He had no family, friends nor support there with all of his family support being in Canada. He learned that he may face deportation back to Sri Lanka, if his claim failed there, and he feared crime in the U.S. Counsel argued these factors contributed to his belief that it would simply be unsuitable for him to seek protection in the United States;

(b)        He added the applicant was clearly familiar and knowledgeable of the entire Canadian refugee determination system and wanted to take advantage of the opportunity to launch a repeat claim, his sole reason for entering the United States;

(c)        He sought to distinguish the Federal Court of Appeal's decision in Ilie v. Canada (Minister of Employment and Immigration) (1994), 88 F.T.R. 220, a situation where the refugee claimant had travelled throughout signatory countries for approximately six months prior to making his claim in Canada. He argued the applicant retreated into the United States for a brief 90-day sojourn and he had no choice but to leave Canada in order to avail himself of the right to launch a repeat claim.

(d)       The fact the applicant had been informed that making a refugee claim in the United States was problematic and he could risk deportation to Sri Lanka was reasonable;

(e)       In summary, the applicant's explanations for not seeking protection in the United States was not so unreasonable as to support the negative inference drawn by the tribunal.

[13]            The second ground invoked by counsel for the applicant was that the tribunal erred by capriciously engaging in pure speculation, without any specialized knowledge, expertise or stated objective documentary evidence in support of its finding the applicant would have the benefit in Sri Lanka of insurance payments. Counsel said the tribunal had absolutely no evidence with regard to these payments. He argues this speculation by the tribunal impacted and was, in part, fatal to the decision as it directly relates to the key element of his claim -- the situation facing the applicant should he be forced to return. Counsel argues the Board failed to properly assess and consider existing evidence as to whether the actual situation in Sri Lanka awaiting the applicant would be unduly harsh.

[14]            The third ground advanced by counsel for the applicant is his submission the tribunal failed to consider the most recent documentary evidence regarding the objective conditions which may be faced by the applicant if forced to return to Sri Lanka.

ANALYSIS

[15]            Counsel for the applicant accepted that the principles in Vasquez were applicable in the determination of the applicant's third refugee claim.

[16]            Justice Rothstein based his decision in Vasquez on his interpretation of paragraph 46.01(1)(c) and subsection 46.01(5) of the Immigration Act which read:

[17]            Justice Rothstein ruled that paragraph 46.01(1)(c) was a statutory recognition of the common law principle of res judicata. He interpreted subsection 46.05 of the Act as an exception to the making of subsequent claims. He found the purpose of the provision was to enable the tribunal to take into account changes in country conditions.

[18]            Justice Rothstein then cited with approval the Supreme Court of Canada's decision in [1975] 2 S.C.R. 248">Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 on the requirements for issue estoppel as well as the Supreme Court of Canada's decision in Town of Granview v. Doering (1975), 61 D.L.R. (3d) 455. He held that issue estoppel precludes a party from presenting new arguments based on facts which were available at the time the first refugee claim was heard.

[19]            The Federal Court of Appeal in Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577, recently considered the circumstances where the Court would intervene in a tribunal's determination of the well-foundedness of a refugee claim. Justice Evans concluded "whether the admitted facts satisfied the statutory standard is a question of mixed fact and law within the expertise of the Board... . On such a question, the Board is entitled to a measure of judicial deference and the Court should not intervene unless satisfied that the Board was clearly wrong" [paragraph 17].

[20]            The certified record contained the Refugee Division's decision on the applicant's second claim. The issue then was whether the applicant could establish a well-founded fear of persecution and was there a reasonable IFA available.

[21]            That tribunal ruled the applicant had no objective fear of being considered an LTTE supporter by the Sri Lankan authorities acknowledging the massive invasion of the Jaffna Peninsula in 1995 by the Sri Lankan Army. That tribunal based its decision on the applicant's age and his time away from Sri Lanka. The tribunal hearing his second claim also considered Colombo as a reasonable IFA taking into account a UNHCR report; it discounted his fear that with only emergency papers, he would be arrested at the airport and detained. That tribunal was of the view he would be able to obtain a valid Sri Lankan passport for his return to Sri Lanka and, when there, would be able to obtain a national identity card ("NIC"). It said he would be able to settle safely in Colombo and government social and free medical services would be available to him.

[22]            As noted, the constraints of Vasquez, supra, confined counsel for the applicant to argue new facts and circumstances. I note the panel examining his second refugee claim assumed, without deciding, he had a subjective fear of persecution.

[23]            As I see it, on this point, there were two components to the tribunal's finding the applicant lacked a subjective fear of persecution: his not making a claim in the United States and his lack of appropriate documentation on his return to Sri Lanka would lead to his arrest and detention.

[24]            Both counsel agreed that not making a claim when an appropriate opportunity arose, while not a decisive factor, is an important one to be considered. The test is whether, in all of the circumstances, it was reasonable for the claimant in Canada not to have done so in another Convention country. (See Ilie, supra, Huerta v. Canada (Minister of Citizenship and Immigration) (1993), 157 N.R. 225 (F.C.A.) and Ibis v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 86.

[25]            The question is whether the tribunal's finding of lack of subjective fear was unreasonable on the basis of the applicant's failure to make a claim in the United States when his intention was to stay there for the minimum 90-day period in order to return to Canada to make a third claim after twice being denied refugee status in Canada. To this aspect must be added the element of his refusal to obtain from the Sri Lankan Embassy or Consulate appropriate papers for his return eliminating his fear of being arrested at the airport for lack of proper documentation.

[26]            I cannot conclude, in the particular circumstances of this case, the tribunal's decision on this point was unreasonable. As I see it, the tribunal weighed all of the factors advanced by the applicant against the fact Canada had rejected him twice and a previous panel had ruled that he could obtain proper papers eliminating any basis for his fear of being arrested and detained in Sri Lanka.

[27]            While applicant's counsel was correct in his second ground that the tribunal speculated on whether the payments the applicant was receiving from the insurance company would continue in Sri Lanka, I am of the view this conclusion was not material to its overall finding, objectively speaking, and that there was no basis for any fear of persecution should the applicant return to Sri Lanka. I reach this conclusion for the following reasons:

(1)        the evidence indicates the applicant's solicitor was negotiating a lump sum settlement rather than installment payments;

(2)        the applicant had property in Sri Lanka and he offered no evidence of his wealth; and

(3)        in any event, based on the Federal Court of Appeal's recent decision in the Minister of Citizenship and Immigration v. Ranganathan, docket A-348-99, December 21, 2000, humanitarian and compassionate considerations (such as absence of relatives) are precluded.

[28]            The applicant's third ground must also fail. While the applicant is correct when he says the tribunal did not specifically refer to the US DOS 1999 Human Rights Report on Sri Lanka as well as the Amnesty International 1999 Report for that country, the record indicate these two reports were specifically introduced into evidence by the RCO.

[29]            On this point, counsel for the respondent pointed to the Supreme Court of Canada's judgment in [1973] S.C.R. 102">Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102, where Laskin J., as he then was, said this:

I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.

[30]            I am in agreement with counsel for the respondent these two reports do not represent a change of country conditions sufficient to nullify the findings of the previous tribunal hearing his second claim he had no well-founded fear of persecution particularly if he returned and lived in Colombo.

[31]            I decline to certify a question raised by counsel for the applicant as to whether a tribunal has an obligation, in its reasons, to demonstrate it looked at the most recent evidence on country conditions. I agree with counsel for the respondent the answer to this question in this case is found in the Supreme Court of Canada's decision in [1973] S.C.R. 102">Woolaston, supra.

DISPOSITION

[32]            For all of these reasons, this judicial review application is dismissed.

                                                                                                                           "François Lemieux"

                                                                                                                                          J U D G E        

OTTAWA, ONTARIO

OCTOBER 16, 2001