Date: 20010611
Docket: IMM-922-00
Neutral reference: 2001 FCT 641
Between:
Navaneethan SRIKANDARAJAH
Plaintiff
- and -
The Minister of Citizenship and Immigration
Defendant
REASONS FOR JUDGMENT
NADON J.
[1] The plaintiff is asking the Court to set aside a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on January 20, 2000 that the plaintiff is not a Convention refugee.
[2] The plaintiff was born on March 23, 1976 and is a national of Sri Lanka. He claimed refugee status on account of his alleged political opinions and membership in a particular social group, namely young male Tamils. He left his country in January 1999 and came to Canada on February 15. He claimed refugee status the same day.
[3] His hearing before the Refugee Division was held on December 9, 1999 and on January 20, 2000 the Refugee Division dismissed his claim on the ground that an internal flight alternative existed, specifically to Colombo. At p. 2 of its decision the Refugee Division said the following:
The Refugee Division determined that Mr. Navaneethan SRIKANDARAJAH is not a "Convention refugee" for the following reasons: Having assessed the entire evidence presented, both documentary and testimonial, the Division concluded that the test has been met and that the claimant has a valid Internal Flight Alternative (IFA) in Colombo.
[4] Accordingly, in the case at bar the Court must determine whether the Refugee Division made an error in concluding that an internal flight alternative existed for the plaintiff in Colombo. In my opinion, the answer to this question is no.
[5] The plaintiff raised a further point in support of his application to quash the Refugee Division's decision. In the plaintiff's submission, there was an appearance of bias by the Division as a Member asked the plaintiff several times if he could return to live in Colombo. At paras. 34 to 37 of his memorandum, the plaintiff put forward the following argument:
[TRANSLATION]
34. Further, the repeated questions asked by the Member suggested that he had paid great attention to a particular aspect of the plaintiff's claim, namely the alternative of internal flight to Colombo, and used it to devastating effect in his examination, without paying attention to the rest of the evidence.
35. The purpose of the examination was not to clarify an unclear point or reconcile apparent inconsistencies, but to set a trap. This method creates an appearance of bias . . .
36. The plaintiff considers that the tribunal had already decided, even before the hearing, that the plaintiff had an opportunity of flight in Colombo.
37. The plaintiff submitted that this was an obvious appearance of bias which required intervention by this Honourable Court.
[6] I have read and reread the transcript of the plaintiff's testimony, given on December 9, 1999. In my opinion, there is no merit in this argument by the plaintiff. I was unable to see anything from reading the transcript that could suggest an appearance of bias on the part of the Refugee Division. The fact that the Division questioned the plaintiff about the possibility of living in Colombo does not in any way create an appearance of bias by the Division. As I have just indicated, in my opinion there is nothing in the evidence to support the plaintiff's argument on this point.
[7] On the principal question, namely the existence of an internal flight alternative to Colombo, the plaintiff submitted that the Refugee Division erred in relying on documentation covering 1997 and 1998 when documentary evidence dated December 9, 1999 contradicted part of the 1997 and 1998 documentary evidence.
[8] The documents dated December 9, 1999 referred to by the plaintiff were in Exhibit B of the plaintiff's affidavit, dated March 21, 2000. In para. 14 of his affidavit the plaintiff stated the following:
14. But, in more recent documents, deposed [sic] as Exhibit B, it is demonstrated that the situation for Tamils in Colombo has changed dramatically.
[9] The documents (Exhibit B) were not part of the tribunal's record. Although counsel for the plaintiff stated at para. 19 of his memorandum that they were filed at the hearing, there is no basis for such a conclusion. It goes without saying that a statement by counsel for the plaintiff does not suffice to establish that the documents in question were actually filed at the hearing before the Refugee Division. Consequently, the plaintiff's argument based on this most recent documentation cannot succeed.
[10] The plaintiff also maintained that the Refugee Division made an error in ignoring extensive documentary evidence that young male Tamils in Sri Lanka were particular targets of the police authorities. The Refugee Division concluded that the plaintiff was not in any way part of a class of persons who were at risk in Colombo. In other words, in the Refugee Division's view the plaintiff was not in danger of persecution in Colombo.
[11] After relating the fact that the plaintiff had worked and studied in Colombo for several years, that he was registered there, that he spoke English and Singhalese, and finally that he travelled regularly between Colombo and his residence located in Chilaw, 80 km away from Colombo, the Refugee Division concluded that by ceasing to travel and taking up residence in Colombo the plaintiff could undoubtedly find a genuine place of refuge. In support of this conclusion, the Refugee Division cited the following:
Mr. William and Mr. Nair stated:
"The key issue (at check points) is always verification of identity. A person with a National Identity Card (NIC) showing a Colombo address will generally pass more easily than someone whose NIC shows a Jaffna address. Mr. Nair mentioned that few soldiers speak Tamil, so crossing check points can be very tedious for Tamils who do not speak Sinhalese. On the other hand Tamils who do speak Sinhalese can pass in as little as 30 seconds. Mr. Godfrey stated that at check points people must be able to prove they are who they say they are. The person most at risk of being detained is someone recently arrived from the North or East who was born there, is not registered in Colombo, has no ID card, no place to stay, no job, etc., but the risk decreases as each variable is removed from the mix. He stated that all residents of Colombo, including Sinhalese, are regularly stopped and checked, and indicated that the frequency with which someone is stopped depends more on the distance and routes travelled than it does on his or her ethnicity, neighbourhood or newness to Colombo."
[12] The plaintiff did not persuade me that in concluding as it did the Refugee Division made an error of either fact or law where that would be a basis for my intervention.
[13] For these reasons, the application for judicial review will be dismissed.
O T T A W A, Ontario
June 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-922-00
STYLE OF CAUSE: NAVANEETHAN SRIKANDARAJAH v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 20, 2000
REASONS FOR JUDGMENT BY: NADON J.
DATED: June 11, 2001
APPEARANCES:
Mario Blanchard FOR THE PLAINTIFF
Marie-Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Mario Blanchard FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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