Date: 20000615
Docket: IMM-3619-99
BETWEEN:
JOSEPH IRUTHAYANATHAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning given to that expression in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 30th of June, 1999.
Background
[2] The applicant is a young male Tamil and a citizen of Sri Lanka from the north of that country. He claims that he has a well-founded fear of persecution if he is required to return to Sri Lanka on the basis of his race, nationality and perceived political opinion. In the late 1980s, he and one brother were arrested by Sri Lankan security forces on suspicion of being involved with the Tamil Tigers. Although many of those arrested at the same time were not so quickly released by the security forces the claimant and his brother were released after six days.
[3] When the area in which the applicant lived with his family fell under the control of the Tamil Tigers, money was extorted from the applicant"s family. During the period of Tamil Tiger control of the north of Sri Lanka, the applicant attended university in Jaffna, albeit that he was from time to time recruited by the Tamil Tigers "to dig bunkers and fill sandbags". He was forced to give blood and help with wounded combatants. When Sri Lankan security forces moved into the Jaffna area, the applicant evacuated to his home area in the north of Sri Lanka which remained controlled by the Tamil Tigers. The applicant attested that his youngest brother, apparently one of six brothers, was taken to work for the Tamil Tigers. The applicant attested: "we do not know what happened to him. We fear he died."
[4] In May of 1998, the Tamil Tigers "recruited" the applicant to work for them. He hesitated. He was forced to work for the Tigers. In June of 1998, the camp where the applicant was working for the Tamil Tigers came under attack. The Tigers withdrew. The applicant and fellow workers were left to their own devices but were directed to report to another Tiger camp in Mallavi.
[5] The applicant decided not to report as required. He began to make arrangements to leave Sri Lanka. In the course of his travel to Colombo for the purpose of leaving Sri Lanka, he was arrested, detained for six days and beaten by Sri Lankan military personnel.
[6] Despite his detention and beating, the applicant, with the support of his family and an agent, persisted in his travels to Colombo. He was eventually successful in reaching Colombo and thereafter left Colombo for Canada. He arrived in Canada in September of 1998 and made his claim to Convention refugee status.
The CRDD Decision
[7] The CRDD, in its reasons for decision, noted:
| International security and intelligence communities cite the LTTE [the Tamil Tigers] as one of the deadliest contemporary terrorist groups in the world. |
[8] In relation to the applicant"s recruitment to work for the Tamil Tigers in 1998, the CRDD wrote:
| The claimant"s description of the camp is not that of a forced labour camp. It is more like a work camp where, in some cases like that of the claimant, the de facto government of the day, the LTTE, conscripted some while others volunteered, to perform what might reasonably be deemed to be "national service". In times of war even democratic countries have required such service. The panel does not find such a mandated service to be persecutory, in and of itself, and does not find it unreasonable that residents were not free to come and go as they pleased. Neither were soldiers in the Canadian Army in World War II when they lived in barracks which were guarded and gated. |
[9] The CRDD"s analogy between conscription to work for the Tamil Tigers, "... one of the deadliest contemporary terrorists groups in the world", and service in the Canadian Army in World War II is hardly apt, but I am satisfied that nothing turns on it.
[10] The CRDD continued, later in its reasons:
| Unless the camp residents were volunteers and supporters of the LTTE it is not plausible that the LTTE would simply release some 30 men and tell them to make their own way to the next camp. It is especially not plausible that they would do so when they [the Tamil Tigers] were in need of soldiers to fight the advancing army. Therefore the panel does not believe the claimant"s account of not reporting to Mallavi. |
| It is obvious that it is not just the claimant who has a history of getting along with the LTEE. It is, with the possible exception of Separatnam [the youngest brother who was conscripted], every male in the family. And this leads the panel to question whether or not the claimant is telling the truth with regard to Separatnam. Why is Separatnam the odd man out? |
| In the final analysis the panel does not believe that he was. If he had been in 1995 then the claimant would not have remained at the family home until 1998 waiting for the axe to fall on his head. It is reasonable for the panel to infer from the fact that the claimant did remain that his brother was not taken by LTTE in the same way that none of the other brothers were. Indeed given what the panel knows of the LTTE and what the documentary evidence reveals it is more than passing strange that this claimant and his brothers had so little trouble with this terrorist group. Is it because they were, in fact, supporters of the LTTE? |
[11] The CRDD went on to conclude that there was no reasonable chance that the applicant would be subjected to persecution at the hands of the Tamil Tigers if he returned to Jaffna.
[12] With regard to the applicant"s alleged fear of persecution at the hands of Sri Lankan security forces, particularly the military, the CRDD concluded rather summarily:
| The panel also find that there is no reasonable chance that the claimant has anything to fear from the Army. The Army, for security reasons, routinely detains young Tamils and questions them. This happened to the claimant in the late 1980s and in 1998 following his alleged failure to report to the LTTE camp in Mallavi. Even if the claimant was beaten on both these occasions, as he alleges he was, the panel does not find that this amounts to persecution. |
[13] The CRDD concludes that the applicant "...does not have good grounds for fearing persecution should he return to Sri Lanka". While that conclusion is related primarily to the applicant"s fear of the Tamil Tigers, it quite clearly extends to his alleged fear of the Sri Lankan security forces as well.
The Issues
[14] Against the foregoing background and summary of the CRDD"s decision, the sole issue before the Court, generally stated, was whether the decision of the CRDD was reasonably open to it on the basis of the totality of the material before it and on the basis of its own analysis.
Analysis
[15] I am satisfied that the CRDD"s conclusion regarding the lack of a well-founded fear on the part of the applicant of persecution at the hands of the Tamil Tigers was reasonably open to it. The CRDD"s speculation regarding the support of the applicant"s family for the Tamil Tigers was nothing more than that, speculation. That speculation was reasonably open to it. Certainly the treatment of the applicant and four of his brothers at the hands of the Tamil Tigers was inconsistent with the perception of the Tigers as "...one of the deadliest contemporary terrorist groups in the world." Similarly, the speculation that the applicant"s youngest brother may not have been recruited and died in the service of the Tamil Tigers was reasonably open. I have greater difficulty with the CRDD"s very brief analysis of the applicant"s alleged fear of persecution at the hands of the Sri Lankan security forces, particularly the army, if he is required to return to Sri Lanka.
[16] The CRDD does not cast doubt on the applicant"s claim that on two occasions when he was detained by the Army, he was beaten.
[17] The applicant wrote in his narrative summary that formed part of his Personal Information Form:
| In June 1998, the army began to advance into the area [where the applicant was labouring on behalf of the Tamil Tigers]. There was bombing and shelling. The LTEE evacuated the camp. Detainees [such as the applicant] where ordered to report to the LTTE camp in Mallavi. We were warned that if we failed to report to the camp, as ordered, we would be severely punished. |
| I went to my uncle"s house in Pannankammam. I contacted my father and explained my situation. I remained in hiding while my uncle arranged a guide. The guide promised to take me to safety. The guide took me to Vavuniya in July 1998. We travelled through jungle paths to Uyilankulam on Mannar road. Some people were allowed to go to Mannar. I was detained and sent to Good Shed detention camp in Vavuniya. |
| While I was at Good Shed camp I was taken to Thandikkulum army camp for 0interrogation. I was accused of being involved with the LTTE. The army said that they had information that I had helped the LTEE. I was stripped naked and beaten. I was threatened. I was held at the camp for six days. I was fingerprinted and photographed. I was told that I would not be allowed to travel to Colombo. |
| The guide returned to my uncle and my uncle came to Vavuniya. My uncle was able to arrange payment of a bribe to members of a pro-government militant group (PLOTE) that worked with the army. An agent was arranged. After the money was paid, I was given a pass to go to Colombo for seven days. I was warned that the pass would not be extended and told that I would be arrested if I stayed longer. |
| The agent took me to Colombo on September 3, 1998. He took me to a Lodge in Pettah. The owner registered me with the police. While I was at the lodge, the police came. They checked my ID and my pass and questioned me. They told me that the pass would not be extended or renewed and warned me that I would be arrested if I did not leave before the pass expired. Five people were arrested that day. |
| I left Sri Lanka on September 7, 1998. I cannot return to Sri Lanka. I defied the LTTE. I fear the LTTE. In Vavuniya, the army accused me of being involved with the LTTE. I was beaten. The police and army have told me that I will be arrested if I try and stay in Colombo. I cannot live in Sri Lanka.2 [emphasis added] |
[18] Accepting, as I have, the CRDD"s conclusion regarding the applicant"s fear of persecution at the hands of the Tamil Tigers, I reach a different conclusion with regard to the CRDD"s conclusion regarding the applicant"s fear of persecution at the hands of the Sri Lankan security forces. In Thirunavukkarasu v. Canada (Minister of Employment and Immigration)3, Mr. Justice Linden wrote on behalf of the Court at page 601:
| The appellant"s testimony reveals that he was subjected to arbitrary arrest and detention, as well as beatings and torture, at the hands of the Sir Lankan government during his time in Colombo. These arrests were motivated by the simple fact of the appellant"s being a Tamil. As the appellant argues, the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beating and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety. |
[19] The foregoing is entirely inconsistent with the CRDD"s finding that the beatings to which the applicant alleges he was subjected at the hands of the Sri Lankan army do not amount to persecution. That finding by the CRDD would appear, on the face of its very brief analysis of the basis for the applicant"s fear at the hands of the Sri Lankan army, to be absolutely central, if not alone, in its support for the conclusion that that fear on the part of the applicant is not well-founded. While jurisprudence at the trial level of this Court would appear to be divided as to whether beatings can, of themselves, constitute persecution, the foregoing authority from the Court of Appeal would appear to stand unchallenged.
[20] The applicant, in the foregoing extract quoted from his Personal Information Form, attests to his difficulties with the Sri Lankan army and the security forces in Colombo in the course of his flight from Sri Lanka. Accepting, as I feel bound to do, the view of the Federal Court of Appeal expressed in Thirunavukkarasu, supra, that beatings in detention, alone, can constitute persecution, I find that the CRDD"s conclusion that the applicant would face no reasonable chance of persecution at the hands of the army, or for that matter, any other Sri Lankan security force if he were required to return to Sri Lanka, to be unsupportable on the basis of the CRDD"s very brief analysis in this regard.
[21] The applicant had serious difficulties getting from the north of Sri Lanka to Colombo in order to make good his flight from Sri Lanka. He was detained, he was interrogated, he was fingerprinted and photographed and he was stripped naked and beaten. In Colombo, he was advised by the police that he could no stay there beyond the limit of his seven-day pass. I take it as a given that, if the applicant were required by Canadian authorities to return to Sri Lanka, to the alleged safe-haven in the north, he would have to travel back to Colombo. In so doing, he would be exposed to Sri Lankan security authorities and, more particularly, to the risk of further detention and beating. In the absence of a fuller analysis by the CRDD as to why this avenue of return of the applicant to his alleged safe-haven in the north of Sri Lanka would not expose him to a reasonable chance of persecution, I must conclude that the CRDD"s decision in this regard simply is not reasonably open to it.
Conclusion
[22] Based upon the foregoing analysis, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside, and the applicant"s application for Convention refugee status in Canada will be returned to the Immigration and Refugee Board for reheaing and redetermination by a differently constituted panel.
Certification of a question
[23] The respondent shall have ten (10) days from the date of the issuance of these reasons to make representations on certification of a question, having first served them on counsel for the applicant. Counsel for the applicant shall have ten (10) days thereafter within which to serve and file responding representations. The respondent may within three (3) working days of the service on him of the applicant"s response, file any reply.
(Sgd.) "Frederick E. Gibson"
Vancouver, British Columbia
June 15, 2000
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Joseph Iruthayanathar v. MCI |
| PLACE OF HEARING: Toronto, Ontario |
| DATE OF HEARING: June 7, 2000 |
| REASONS FOR ORDER OF GIBSON, J. |
APPEARANCES:
| Mr. Michael Crane For the Applicant |
| Ms. Ann-Margaret Oberst For the Respondent |
SOLICITORS OF RECORD:
Michael Crane
Barrister and Solicitor
| Toronto, Ontario For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
__________________
1 R.S.C. 1985, c. I-2.
2 Tribunal Record, page 247.
3 [1994] 1 F.C. 589 (F.C.A.).
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