Date: 20000829
Docket: IMM-3953-99
BETWEEN:
MAYURAN SHANMUGANATHAN
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision by the Refugee Division on July 20, 1999 by which the Division concluded that the plaintiff was not a Convention refugee.
FACTS
[2] The plaintiff, who is 10 years old, is a citizen of Sri Lanka. He is a Tamil from Kodikamam. He was born in Colombo, as indicated by his birth certificate.
[3] In 1995 the family decided to move to Vavuniya, following the war. In 1996 the plaintiff's sister came to Canada, where she was granted refugee status.
[4] During 1997 and 1998 the members of the People's Liberation Organisation of Tamil Eelam (PLOTE), a Tamil group supporting the government, began harassing the plaintiff's father.
[5] In July 1998 the plaintiff alleged that the members of PLOTE entered his house and ordered the plaintiff and his brother to put up their hands. The parents were detained and subjected to assault and battery for two days.
[6] In January 1999 the police and PLOTE came to the house to see the plaintiff's parents. As they were not there, they damaged the furniture and took the plaintiff to the police station. They also told the grandmother they would release him as soon as the father replaced him. The police suspected the plaintiff's father of supporting the Liberation Tigers of Tamil Eelam (LTTE).
[7] The plaintiff was grabbed by the scruff of the neck during the interrogation. He was released the following day, when his parents came to look for him. The plaintiff's father was arrested, beaten and held for three days.
[8] Following these events, the plaintiff was increasingly nervous and did not want to go anywhere. He even refused to go to school. The parents decided to send him to Canada through an agent. He left Sri Lanka on January 31, 1999. He arrived in Canada on February 6, 1999, and claimed refugee status the same day.
[9] He alleged a fear of persecution for his membership in a social group and his political opinions.
REFUGEE DIVISION'S DECISION
[10] As the plaintiff was a minor, he was represented by his aunt. After consulting the directives for minor persons claiming refugee status, the Division was prepared to give him the benefit of the doubt.
[11] However, the Division was not persuaded that the plaintiff had a fear of persecution. He was only held once and for a short period of time. When he was asked what happened during the detention, he indicated that he was held by the scruff of the neck. The Division considered that this was not a persecutory act.
[12] The Division considered that according to the plaintiff's story, it was the father who was persecuted. However, the parents were still at Vavuniya. The father has continued working at the same place since the family's move to Vavuniya.
[13] The Division concluded that the plaintiff had no fear of persecution if he returned to Sri Lanka.
[14] The Division was concerned by the fact that the plaintiff alleged that his family lived at Kodikamam before moving to Vavuniya in 1995, whereas he was born in Colombo. The plaintiff's birth certificate indicated an address in Colombo. The Division was not able to conclude whether the family had lived in Colombo.
[15] The Division then denied refugee status.
PLAINTIFF'S ARGUMENTS
[16] The plaintiff submitted that the Division erred since the case law clearly indicates that a refugee status claimant does not have to prove past persecution, simply a risk of future persecution if he returns to his country of origin.
[17] The plaintiff submitted that the fact that he was grabbed by the scruff of the neck and briefly detained might seem harmless or insignificant in the eyes of the Division: it has to be analysed in light of the fact that the plaintiff was only 10 years old when this happened. What might be inconsequential for an adult placed in the same circumstances might have a much greater effect on a boy of ten.
[18] The plaintiff alleged that the fact that his father held employment until the last moment was not as such a relevant matter which the members of the division could use as a basis in making their decision.
[19] The plaintiff maintained that despite the fact that the plaintiff's parents were the principal targets of the authorities, the fact remained that the plaintiff was arrested and detained in place of his parents, and was thus a victim of persecution.
[20] Finally, as to the fact that the plaintiff was too young to be persecuted, in the opinion of panel members, the plaintiff alleged that the members had erred in view of the documentary evidence in the record which confirmed a type of persecution for children of the plaintiff's age.
DEFENDANT'S ARGUMENTS
[21] The defendant submitted that it was for the Refugee Division to decide whether the acts of which the plaintiff was a victim amounted to persecution.
[22] The defendant maintained that the Refugee Division's conclusion that a single incident of detention for a short period, during which the plaintiff was held by the scruff of the neck, did not constitute persecution within the meaning of the Convention is not a patently unreasonable conclusion.
[23] The defendant argued that the mere fact that the Division noted that the plaintiff was not a victim of persecution in his country of origin did not in any way mean that it was requiring proof of prior persecution.
[24] The defendant drew the Court's attention to the fact that the Division noted that it was the father who appeared to be persecuted, not the plaintiff. Added to the evidence that the plaintiff's family was still living in the same town, the defendant maintained that it was not unreasonable for the Division to conclude, based on the evidence as a whole, that there was no serious likelihood the plaintiff would be persecuted in Sri Lanka.
[25] As to the plaintiff's argument that he had a fear of persecution simply because of his membership in a particular social group, namely the family, this Court has already dismissed such an argument.
[26] Further, the defendant maintained that there was no connection between the documentary evidence on the compulsory enrolment of young Tamils by the LTTE and the plaintiff's fear of being persecuted by the police in place of his father. The plaintiff never alleged a fear of persecution by the LTTE.
Did the Refugee Division err in refusing to grant the plaintiff refugee status?
ANALYSIS
[27] The Refugee Division had to determine whether the plaintiff had a fear of persecution for his political opinions and membership in a particular social group, his family, as required by s. 2 of the Immigration Act. The Refugee Division was prepared to give him the benefit of the doubt. However, it was not persuaded that he had established a fear of persecution.
[28] The decision indicated the Refugee Division's reasons:
The panel is not satisfied that the claimant established a well-founded fear of persecution should he return to Sri Lanka. Claimant has no previous examples of past persecution. Claimant detained for a brief period. However when asked what happened to him during this incident, claimant said at one point he was held by the scruff of the neck. The panel determined that this is not a persecutory act.
[29] Although the prior decisions have established that the plaintiff does not have to prove that he had himself been persecuted in the past or would be persecuted in the future (Saliban v. Canada (M.E.I.), [1990] 3 F.C. 250), it was not unreasonable for the Board to conclude that the plaintiff had not been persecuted, or at least that his detention and the harassment suffered did not constitute persecution.
[30] The Refugee Division considered that the father was subjected to a measure of persecution and the detention of the plaintiff was intended solely to force the father to appear.
[31] The Division did not have to determine whether the father or mother had been or were subjected to persecution.
[32] In Sagharichi v. Canada (M.C.I.) (1993), 182 N.R. 398, Marceau J.A. said at p. 2:
The incidents recited by the appellant in her testimony were no doubt unfortunate as they constituted in all appearances incidents of discrimination or even possibly harassment; but both members, in their respective reasons, make it clear that for them they were not serious or systematic enough to be characterized as persecution, or to lead to a conclusion that there was a serious possibility of persecution in the future.
. . . . .
It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[33] In Sheikh v. M.E.I., [1990] 3 F.C. 238, MacGuigan J.A. added at 246:
I should also add that I do not interpret the panel's reference to the absence of past persecution as amounting to a requirement of past persecution to establish the objective element of his claim, viz. that his fear was well-founded, rather the panel was merely noting an absence of relevant evidence.
[34] Both parties were agreed that the plaintiff had a subjective fear: this was not at issue.
[35] As to objective fear, the plaintiff did not persuade the Court that the Division made an error in assessing the evidence before it that could justify this Court's intervention.
[36] Although as both counsel mentioned the case is one deserving of sympathy, the tests for determining whether the plaintiff is a Convention refugee have to be applied.
[37] For these reasons, the application for judicial review is dismissed.
[38] Counsel for the plaintiff submitted the following question:
[TRANSLATION]
Are the tests to be applied in determining refugee status the same for an adult as for a minor child?
[39] Counsel for the defendant submitted that this was an interesting point but, first, the plaintiff did not raise it in his submissions, and in any case the point is not conclusive.
[40] I entirely concur in the argument of counsel for the defendant, and in the case at bar I conclude that there is no basis for certifying the question.
Pierre Blais Judge
OTTAWA, ONTARIO
August 29, 2000
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-3953-99
STYLE OF CAUSE: MAYURAN SHANMUGANATHAN
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 1, 2000
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: AUGUST 29, 2000
APPEARANCES:
MARTIN FORGET FOR THE APPLICANT
LOUISE-MARIE COURTEMANCHE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARTIN FORGET FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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