Date: 20010827
Docket: IMM-5368-99
Neutral Citation: 2001 FCT 952
BETWEEN:
RASIAH BALASUBRAMANIYAM
MALINY BALASUBRAMANIYAM
NESHANTHENY BALASUBRAMANIYAM
SINDUJA BALASUBRAMANIYAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] The applicants seek to set aside the October 25, 1999 decision of a Post Claim Determination Officer (PCDO) in which it was determined that the applicants are not members of the Post-Determination Refugee Claimants in Canada (PDRCC) class.
[2] The applicants, husband, wife, and two daughters, all Hindu-Tamil citizens of Sri Lanka, claimed Convention refugee status upon their arrival in Canada in August 1997. On December 7, 1998 the Convention Refugee Determination Division (CRDD) rejected their claims on the basis of their negative credibility findings. A subsequent application for judicial review of this determination was dismissed.
[3] In rejecting the PDRCC application, the PCDO concluded that: "It would be unreasonable for the applicants to return to their former residence where they would be at risk. However, the applicants have an IFA in Colombo.".
[4] The key issue on this application for judicial review stems from a recent change in Sri Lankan law which the applicants state would put them at risk should they be forced to return to Sri Lanka. The applicants state that an amendment to the Immigrants and Emigrants Act (Act) of Sri Lanka, which came into force in July 1998, and subsequent to the hearing of their refugee claim puts them at risk of future persecution. They state that should they return to Colombo, they would be arrested and liable to a severe penalty and inhumane treatment for their unlawful departure from Sri Lanka.
[5] Pursuant to section 45 of the Immigrants and Emigrants Act it is an offense for a person to leave Sri Lanka in contravention of any provision of the Act. Section 35 of the Act states that "No person ... shall if he is a citizen of Sri Lanka, leave Sri Lanka unless he has in his possession a Sri Lankan passport". Prior to July 1998, a person found guilty of a contravention of the Act was liable to a fine of not less than 200 R and not more than 5,000 R or a term of imprisonment of not less than three months and not more than five years or both. In July 1998, the punishment of an offence under section 45 of the Act was amendment to provide for a mandatory minimum term of imprisonment of not less than one year and a fine of not less than 50,000 R.
[6] With respect to this submission, the PCDO stated:
PDRCC submissions informed the applicants would be arrested upon return to Colombo because they departed Sri Lanka unlawfully. They would be subject to a mandatory custodial sentence of one year and a fine of 50,000 RS. Submissions do not inform specifically what the family did, however, a review of the PIFs indicates the applicants showed passports that the agent gave them at the security checks and at the airport and the documents used to travel to Canada were Canadian passports and they were fraudulent. The PIF relates these documents were retrieved by the agent and I can only speculate what has happened to them, but the evidence needed to prosecute the applicants for departing Sri Lanka is no longer present. Even if prosecution is still somehow possible, I do not consider this to be inhumane treatment. Canada has similar laws. Section 57 of the Criminal Code of Canada informs persons who forge a passport or knowing that a passport is forged, uses, deals with or acts on or causes or attempts to cause any person to use, deal with or act on it as if the passport were genuine, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. The applicants are in possession of identity documents and can apply through the Sri Lankan High Commission in Ottawa for Sri Lankan passports. It would not be unreasonable for the applicants to return to Colombo.
[7] The applicants submit the PCDO erred in finding that the evidence needed to prosecute the applicants for their illegal departure from Sri Lanka is no longer in existence because the fraudulent passports were returned to the applicant's agent. They state that in making this finding the PCDO confused the offence of misuse or fraudulent use of a passport with the offence of unlawfully leaving the country. They state that even though they would have passports issued by the Sri Lankan High Commission in Canada they would still be at risk of arrest because the offence for which they are liable is leaving the country without being in possession of Sri Lankan passports and not the use of forged passports. Their new passports would not have exit stamps to prove that they were in possession of the passports when they left Sri Lanka.
[8] The applicants also submit that the PCDO's conclusion that even if they were prosecuted it would not constitute inhumane treatment, is clearly wrong. They argue the PCDO based this conclusion on the basis that the punishment for the use of a forged passport under the Criminal Code of Canada is imprisonment for a term not exceeding fourteen years. They submit that the punishment under the Criminal Code of Canada for use of a forged passport is an irrelevant consideration.
[9] The applicants also submit the PCDO's failure to consider the vigorous enforcement of these new provisions against Tamils and the unduly harsh treatment of Tamils in Sri Lankan jails, constitutes reviewable error. As well, the applicants submit the PCDO failed to assess the risk to the children should the adult applicants be incarcerated for one year.
[10] Relying on the reasons of the Federal Court of Appeal in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, the respondent argues that the Act is an ordinary law of general application in Sri Lanka and should be given a presumption of validity and neutrality with the onus being on the applicants to show that the law is either inherently or for some other reason discriminatory or harmful.
[11] I accept that the Immigrants and Emigrants Act of Sri Lanka, on its face, is an ordinary law of general application to all citizens of Sri Lanka. I also accept that the penalty provisions of the Act are equally applicable to all those found guilty of an offence under the Act. It does not necessarily follow, however, that the enforcement of the Act is racially neutral, that the penalty itself does not constitute an extreme sanction, or that the incarceration following conviction will not result in inhumane treatment.
[12] Article 61 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status recognizes that the imposition of severe sanctions for illegal departure may justify the recognition of a person as a refugee if it can be shown that the motives for leaving the country are related to one of the reasons enumerated in the 1951 Convention. However, in the absence of any evidence from the applicants, I am not in a position to comment on the severity of the penalty having regard to the nature of the offence. Furthermore, to do so in the context of a judicial review would be, in effect, revisiting the applicants' refugee claims.
[13] Having said this, I accept the applicants' submission that the PCDO was mistaken regarding the nature of the offence for which they could be arrested and consequently minimized the likelihood of arrest upon their return to Sri Lanka. The applicants did tender some documentary evidence which shows that Tamils are specifically targeted in the enforcement of the Act and significant documentary evidence regarding the plight of Tamils in Sri Lankan jails. In my view, the PCDO's assessment in this respect was incomplete. Specifically, PCDO failed to assess the risks associated with incarceration the applicants would face as returning Tamils.
[14] As well, given the real possibility that the adult applicants would be arrested and detained, and the fact that they do not appear to have any other family members in Colombo, the PCDO failed to undertake an independent risk assessment for the minor applicants.
[15] For these reasons, the application for judicial review is allowed, the October 25, 1999 decision is set aside, and the matter is remitted for reconsideration by a different PCDO.
[16] As the question submitted for certification is unrelated to the determinative issue on this application for judicial review, no question will be certified.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
August 27 , 2001
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