Date: 19990629
Docket: IMM-4846-98
BETWEEN:
SOOSAIPILLAI, JOHN
JOHN, RITA
Applicants
-and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The applicants challenge by way of judicial review the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated 28 August 1998, in which the CRDD determined that the applicants are not Convention refugees within the meaning of subsection 2(1) of the Immigration Act. 1
Background
[2] The applicants, John Soosaipillai and his spouse Rita John, are citizens of Sri Lanka. The couple claimed Convention refugee status in Etobicoke, Ontario shortly after their arrival in Canada on 23 August 1997. Their claims are based on perceived political opinion, race, and membership in a particular social group, Tamils from northern Sri Lanka. The applicants have a son who came to Canada in July 1995 and was accepted as a Convention refugee.
[3] In the narrative portion of her personal information form, the female applicant sets out the circumstances that led to the couple"s claim for Convention refugee status. 2 She states that her family supported the Tamil United Liberation Front, a democratic political party which seeks a Tamil homeland in the north of Sri Lanka through peaceful means. The female applicant states that her family has been persecuted since 1984 by both the Sri Lankan forces and the LTTE. Their son had been arrested by the Sri Lankan Army in 1989, and in 1992 the applicants were forced from their village and used as human shields against the advancing LTTE. In the summer of 1997, the army rounded up and detained many Tamils in response to an LTTE attack on an army jeep. The applicants and the other detainees were lined up and the army fired shots. The next morning, the applicants were released on the condition that they report weekly to the army camp on Tuesdays with information about the LTTE. Afraid for their safety, the applicants left the north and made their way to Colombo.
[4] The applicants stayed at a lodge in Colombo and contacted their son, who by this time was in Canada. The police raided the lodge three times and questioned the applicants each time. They were allowed to remain in Colombo until the male applicant received medical attention, as he had become ill at the end of 1995. The police came to the lodge a fourth time, and the applicants were physically abused. The lodge manager intervened, perhaps by paying a bribe, and the applicants were not taken to the police station with the other detainees.
CRDD"s Decision
[5] The CRDD accepted that the applicants have a well-founded fear of persecution in the north of Sri Lanka, but concluded that they have a viable and reasonable internal flight alternative ("IFA") in Colombo.
[6] The CRDD applied the two-pronged test set out in Rasaratnam v. Canada (MEI)3 which is that it must be satisfied, on a balance of probabilities, that there is no serious possibility of a claimant being persecuted in the part of the country to which it finds an IFA exists, and that it would not be unreasonable for a claimant to seek refuge there.
[7] The CRDD was not satisfied that there exists more than a mere possibility that the applicants would be persecuted should they be returned to Colombo, and found that, while the female applicant"s treatment at the hands of police in Colombo may have been unpleasant, it did not operate so as to bring the applicants within the Convention refugee definition:
Although the female claimant testified that the claimants had been "tortured" in Colombo, she did admit on further (repeated) questioning that the extent of the mistreatment was being questioned, beaten (on one occasion), and almost (but not) taken to the police station. Unpleasant as this is to bear, this treatment in Colombo does not qualify as a significant period of systematic infliction of threats or personal injury, or as a single serious incident, that would amount to persecution within the meaning of the Convention refugee definition; nor does it give rise to a well-founded fear of persecution in Colombo if the claimants remain there. 4
[8] The CRDD relied on documentary evidence in support of its finding under this first part of the Rasaratnam test. This evidence appears to establish that Colombo"s residents, both Sinhalese and Tamil, are subjected to frequent identity checks. Generally, if a person can establish his or her identity and reason for being in Colombo, he or she is released quickly. The CRDD pointed out that the applicants possess birth certificates, which should allow them to establish their identities should the need arise.
[9] The CRDD also noted that the applicants do not match the profile of those Tamils who seem to encounter greater difficulties in Colombo:
The documentary evidence indicates that young Tamils, especially those travelling on their own who have recently arrived from the north, may have difficulty settling in Colombo [footnote omitted]. The claimants are travelling together, can establish that they have been out of Sri Lanka since August 1997, and are no longer classified as "young" for purposes of identity checks. Therefore the panel concludes that there is not a serious possibility that the claimants would be persecuted for Convention refugee reasons in Colombo. 5
[10] Turning to the second prong of the IFA test, the CRDD referred to Periyathamby v. Canada (MCI) 6 which states that the inquiry should be directed not at whether it would be unpleasant for the applicants to seek refuge in the IFA under consideration, but whether it would be unduly harsh to expect them to have sought refuge there. The circumstances surrounding the applicants are to be examined in the context of current conditions in Colombo.
[11] The CRDD concluded that it would not be unreasonable in all of the circumstances, including those particular to the applicants, for them to seek refuge in Colombo. The CRDD noted, however, that the male applicant, who is 55 years old, has health problems which include memory loss and impaired hearing. The female applicant, who is now 49 years old, has a grade six education and has never worked outside the home.
Analysis
[12] With respect to the serious possibility of persecution in Colombo, the applicants argues that since the persecution in the north was by government agents, no IFA is possible in the whole of Sri Lanka. While the burden remains on the applicants, who are seeking refugee status, to prove that no IFA exists, in a case such as this involving persecution by government authorities, I accept the argument that this burden will not be difficult to discharge.
[13] Indeed, the facts of the present case prove that persecution continued in Colombo The facts are that the applicants fled the north on August 5, 1997, were subjected to a persecution incident by the police on August 13, 1997, and fled the country on August 16, 1997.
[14] With respect to the reasonableness of the IFA, Mr. Justice Linden"s articulation of the concept in Thirunavukkarasu v. Canada (MEI) 7 is instructive:
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It should first be emphasized that the notion of an internal flight alternative (IFA) is not a legal defence. Neither is it a legal doctrine. It merely is a convenient, short-hand way of describing a fact situation in which a person may be in danger of persecution in one part of a country but not in another. The idea of an internal flight alternative is "inherent" in the definition of Convention refugee ... it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country. |
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[15] The question to be answered is whether it would be unduly harsh to expect the applicants, who are being persecuted in one part of the country, to move to another part of the country before seeking refuge abroad. An IFA cannot be speculative; rather, it must be a viable, attainable, and accessible option.
[16] In discharging the IFA burden upon them, the applicants argue that the documentary evidence before the CRDD was not given full and fair consideration.
[17] The applicants take issue with the CRDD"s treatment of a Response to Information request, dated 24 May 1996, which is based on a telephone interview with a community worker from the South Asia Women"s Community Centre. 8 The pertinent passage reads as follows:
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The source indicates that unaccompanied Tamil seniors from Jaffna who have moved to Colombo and been separated from their families face particular difficulties. They are without traditional means of family support and, according to the source, may face discrimination because of their ethnic background. Elderly Tamils in Colombo are encountering difficulties in accessing government services because they do not have proper residency rights nor are they likely to receive the nomination of local authorities to gain access to these services. These problems are compounded by language difficulties for elderly Tamil speakers, which also aids in identifying their ethnicity. 9 |
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[18] The applicants contend that the CRDD erred by not effectively dealing with this evidence which contradicts the CRDD"s conclusion that elderly Tamils can access social services in Colombo. |
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[19] I agree with this submission. I find that the CRDD"s finding with respect to the availability of an IFA was made without regard to the totality of the evidence before it, and in particular, without regard to the evidence which directly contradicts the CRDD"s conclusion. |
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[20] Accordingly, I set aside the CRDD"s decision and refer this matter to a differently constituted panel for reconsideration on the direction that the only issue for determination is whether an IFA exists. I also direct that, in reaching its decision, the CRDD hearing the redetermination accept my finding that the burden on the applicants of proving that no IFA exists in this case is not difficult to discharge. |
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FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4846-98
| STYLE OF CAUSE: SOOSAIPILLAI, JOHN |
JOHN, RITA
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, JUNE 29, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL J.
DATED: TUESDAY, JUNE 29, 1999
APPEARANCES: Mr. I. Francis Xavier
For the Applicants
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: I. Francis Xavier
| 2401 Eglinton Avenue East |
For the Applicants
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990629
Docket: IMM-4846-98
Between:
SOOSAIPILLAI, JOHN
JOHN, RITA
Applicant
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER AND ORDER |
__________________
1 Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
2 Applicants" application record, tab 4, p. 32.
3 Rasaratnam v. Canada (MEI), [1992] 1 F.C. 706 (C.A.).
4 Applicant"s application record, tab 3, reasons for decision, p. 4.
5 Applicant"s application record, tab 3, reasons for decision, p. 5.
6 Periyathamby v. Canada (MCI) (1995), 26 Imm.L.R. (2d) 179 (F.C.T.D.).
7 Thirunavukkarasu v. Canada (MEI), [1994] 1 F.C. 589 (C.A.).
8 Tribunal record, Response to Information Request LKA23863.E, pp. 116"120.
9 A January 1996 report from the Canadian High Commission in Colombo, attached to the Response to Information Request, reads as follows:
Elderly people could re-settle in Colombo and certainly could obtain pension and other benefits in Colombo. Availability of accommodation would depend on a case-by-case basis related to their income.
It is conceivable that parents who remain in Sri Lanka after their children have moved to the west might be subject to extortion, but by whom and to what extent and whether it differs from the general threat of such criminal activity is not known.
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