Date: 20000324
Docket: IMM-1812-99
BETWEEN:
CHITHIRA SINNIAH
SINNIAH VELUPPILLAI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicants have challenged by way of judicial review a decision dated March 5, 1999 of the Immigration and Refugee Board ("Board") that denied their refugee claims. The applicants are a father and daughter who are citizens of Sri Lanka. They have claimed Convention refugee status by reason of their Tamil ethnicity and perceived political opinion.
[2] In its decision, the Board found that the female applicant was not credible and provided detailed reasons in support of its finding. With respect to the 76 year old male applicant, the Board found that his claim had no objective basis. In support of that finding, the Board stated as follows:
| The male claimant was asked why the Sri Lankan Army (SLA) would be interested in a 76-year-old man going back to his home to live. He responded that the army consider him to be a Liberation Tiger of Tamil Eelam (LTTE) person and might shoot him. When asked how he came to this conclusion, the claimant said that it was because he abandoned a good job and the army will wonder why and conclude he is aiding and abetting the Tigers. The panel finds no objective basis to the claimant"s fear. While it is possible, albeit not probable, that the army in Colombo came to such a conclusion, given that he came from the North, no evidence was adduced that he lived in Jaffna after the SLA took control of the area in 1995. The panel finds no persuasive evidence to suggest that the SLA in Jaffna would have any interest in the male claimant or that the SLA would view him as other than an elderly Tamil who is going home. While it could be argued that young people are most at risk in the Jaffna area, this is not the profile of the male claimant. Absent any persuasive evidence that the SLA targets for persecution elderly Tamils who have or at least had property in the Jaffna area, the panel sees no valid basis to his claim, the male claimant"s speculations, which are not a valid basis for a determination, notwithstanding. |
[3] The Board also found, on the basis of the documentary evidence, that both applicants could return to their home area of Jaffna without facing a serious possibility of persecution. The Board made no adverse finding of credibility against the male applicant.
[4] Counsel for the applicants attempted to demonstrate in his submissions that the adverse finding of credibility made by the Board in relation to the female applicant was flawed. I cannot agree. In my opinion, the detailed and cogent reasons provided by the Board in support of its adverse finding of credibility are supported by the evidence in the record. I am therefore satisfied, on the basis of the evidence in the record, that it was reasonably open to the Board to find that the female applicant was not a credible witness.
[5] Counsel for the applicants further submitted, among other things, that it was unreasonable for the Board to find that the male applicant could return to Jaffna, an area controlled by the Sri Lankan army. In particular, counsel submitted that if it was "possible" for the army in Colombo to have considered the male applicant to be someone who aided and abetted the LTTE on the basis that he "came from the North", it was not open to the Board to conclude that he could return to Jaffna, in northern Sri Lanka, an area controlled by the army. In support of that submission, counsel relied on Sharbdeen v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. 300 (F.C.A.), in which Mahoney J.A., writing for the Court, stated as follows, at page 302:
| Once a well-founded fear of persecution at the hands of the national army in a part of the country it controlled had been established, it was not reasonable to expect the respondent to seek refuge in another part of Sri Lanka controlled by the same army. Such a finding would require an evidentiary base which the learned trial judge correctly found not to exist. |
[6] In my opinion, the principle enunciated in Sharbdeen has no application in the present case on the basis that the male applicant failed to adduce sufficient evidence at the hearing to establish a well-founded fear of persecution in Colombo [See also Karthikesu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 772, IMM-2998-93, (May 26, 1994) (T.D.) at paras. 5-6].
[7] Counsel for the applicants also submitted that the Board ignored documentary evidence favourable to the applicants in arriving at its conclusion that they could return to their home area of Jaffna without facing a serious possibility of persecution. I cannot accept that submission. I have concluded, on the basis of all the evidence in the record, that it was reasonably open to the Board to make that finding.
[8] In arriving at my decision in this matter, I have carefully considered the evidence in the record, as well as all of the issues raised by counsel for the applicants. In my opinion, the Board"s decision was reasonably open to it on the evidence in the record.
[9] The application is dismissed. Counsel for the parties will be provided with an opportunity to make a request for certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before March 27, 2000, concerning the certification of a precise question. Counsel for the respondent shall file a written response, if any, on or before March 28, 2000. Judgment will be issued by no later than March 29, 2000.
| ___________________________ |
Ottawa
March 24, 2000
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