Date: 19990923
Docket: IMM-5478-98
BETWEEN:
RAJINDER GEORGIO CANAGASURIAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer made at the Canadian Embassy in Manila, the Philippines, in which the visa officer determined that the applicant did not meet the requirements for permanent residence in Canada as a Convention refugee or by way of any other immigration category. The decision of the visa officer is dated the 4th of September, 1998.
[2] The applicant is a citizen of Sri Lanka. His claim to Convention refugee status is closely interrelated with that of his brother, Alino, who, together with his wife, was interviewed by the same visa officer as who interviewed the applicant and his wife, on the same day. Alino Canagasuriam"s application for permanent residence in Canada as a Convention refugee and by way of any other immigration category was also rejected. That decision was also the subject of an application for judicial review, which I heard immediately preceding the hearing of this application. My reasons for decision and order in Alino"s application are issued on the same day as these reasons and the related order.1
[3] The facts underlying this application and those underlying the application of the applicant"s brother, Alino, are closely interrelated. To illustrate this and to summarize the background to the applicant"s claim, I can do no better than to quote at length from his affidavit filed in support of this application. No issue of credibility of the applicant has been raised.
| 1. In March, 1996 my brother Alino Canagasuriam and his wife fled from Sri Lanka due to fear of persecution and travelled to Manila, Philippines. Subsequently in May of 1996 my wife and I also fled to Manila from Sri Lanka for the same reason. I applied to the United Nations High Commissioner for Refugees (UNHCR) in the Philippines, seeking protection from being returned to Sri Lanka. I provided a written statement to the UNHCR about my reasons for seeking refuge outside of Sri Lanka, and I was interviewed for over two hours by UNHCR officials about my claim. As a result of this interview, I was recognized by the UNHCR in the Philippines as a Convention refugee, by letter from the UNHCR dated May 21, 1996. |
| 6. My brother Alino and I, with our wives, attended for separate interviews at the Canadian Embassy in Manila on October 4, 1996. We were all interviewed by the same visa officer, Ms. P.A. Fraser. Our applications were refused in February, 1997, because Ms Fraser did not find that we met the definition of Convention refugee. We made an application for judicial review which was allowed, and eventually we were called for another interview at the Canadian Embassy, this time with John Burroughs, First Secretary, Immigration. We were interviewed in July, 1997. |
| 8. My claim to Convention refugee status is based on my fear of persecution in Sri Lanka for reasons of my political opinion. I will try to summarize the information I provided during the Canadian Embassy interview. |
| 9. I am the eldest of my parents" seven children. My father, Wilson Canagasuriam, was a Civil Engineer and worked for the Irrigation Department. My mother, Sybil Canagasuriam, was an English teacher. Our family moved around a great deal when I was young due to my father"s work but we eventually became established in Batticaloa, in the North-Eastern province of Sri Lanka, in about 1969. After my father died in 1973 I became the head of the family. |
| 10. I am a member of the Tamil ethnic community of Sri Lanka and we are Tamil Christians, belonging to the Roman Catholic Church of Sri Lanka. I attended St-Joseph"s College in Trincomalee and St. Michael"s College in Batticaloa. I left school after completing my "O" (Ordinary) Level Examinations in 1975 and began working to help support my family. |
| 11. In 1977 I supported the TULF (Tamil United Liberation Front), a political party which promised the Tamil people the creation of a separate homeland in Sri Lanka, "Tamil Ealam", because of the increasing discrimination against Tamils by the Sinhalese majority in Sri Lanka. However, the TULF could not fulfil its election promises and many young Tamils who were disillusioned with this began to agitate for an armed struggle to gain Tamil Ealam. |
| 12. Eventually the armed struggle began, led by the LTTE (Liberation Tigers of Tamil Ealam). The result of this development for the peaceful Tamil community was increasing repression by the Sri Lankan Army who were members of the Sinhalese ethnic community. Tamils were harassed, detained, beaten and many Tamils disappeared. Tamil homes and businesses in the south were looted and burned by the Sinhalese population and the Sri Lankan forces did little to protect the Tamils. |
| 13. Due to fear of these incidents, my mother sent me to Colombo to take a course in "Refrigeration and Air Conditioning" which I completed in 1979. In Colombo I experienced discrimination and insults because of my Tamil race. After passing my examinations I could not get a job in Colombo because of being a Tamil youth. |
| 14. I returned to Batticaloa and eventually got a job as a hotel clerk in Sigiriya Village Hotel in Sigiriya town. I worked there until December of 1985. During this period, we were under constant pressure in Batticaloa from the Sri Lankan Armed Forces who suspected all Tamils of being terrorists. We were also under constant pressure from the LTTE who wanted all the Tamils in the community to support them and who were recruiting Tamil youth to their ranks even against their will. I managed to keep my job in the hotel by ignoring all the insults and discrimination due to my race and by trying to stay on good terms with my Sinhala colleagues. In 1983, I was visiting Colombo when the communal riots against the Tamils began and I saw the looting, burning and killing of Tamils with my own eyes. I had to take refuge with other Tamils in a refugee camp for about two weeks. |
| 15. In 1986, I got another hotel job in Negambo and during this time I took a course in "Personnel Management" which I completed in April of 1987. During this period I experienced harassment and discrimination for being Tamil, and especially whenever there was an incident involving the LTTE. Due to this continuing problem, I took the opportunity to accept a job in Saudi Arabia in July of 1987 and I lived in Saudi Arabia working as a supervisor of cleaning in a hospital until June of 1988 when I returned to Sri Lanka. |
| 16. In November of 1988 I married a Sinhalese woman, Ms. Kamani Kumari Boyagoda, whom I had met and fallen in love with in Sigiriya Village when I was working in the hotel there. This marriage was against the wishes of my family, and Kamani"s family also opposed the marriage. I thought our marriage would create harmony between my family and the Sinhalese community. Kamani was Buddhist, but she converted to Catholicism after our marriage. She was eventually accepted by our family after the marriage, and her mother has come to accept the marriage. However, her relatives have had no contact with us since the marriage. |
| 17. From 1989 until March of 1993 I worked as an Administrative Manager-Accountant for the Y-SHE Holidays (Private) Limited travel agency, located in the Galadari Merideen Hotel in Colombo, at Lotus Road, Colombo 01. My wife and I lived separately from other members of my family at that time. I was not involved in political activity. However, just because I am a Tamil, the police arrested me in 1990. They told me that they wanted to teach me a lesson. I was arrested on a Friday so that I would remain in custody over the weekend, but fortunately my brother Alino, who was studying to be a lawyer, managed to have me released. I was never charged with an offence. The police just arrested me to harass me and intimidate me since I am Tamil. At that time I tried to leave the country because I was tired of being caught between the LTTE and the Sri Lankan Armed forces. However, my attempt to leave at that time was not successful. |
| 18. In April of 1993 I began working as an Accountant-Administration Manager at Eagle Informatic Systems (Private) Ltd. in Colombo. Since the war had broken out between the LTTE and the Sri Lankan government forces in 1990, I had arranged for all my remaining family members to move to Colombo from Batticaloa because the situation in Batticaloa was extremely dangerous. My mother was in very bad health because of the constant shelling, the round-ups and mistreatment of Tamils, etc. We had to be registered with the police but we were still in danger of arrest because anyone with a grudge against us would tell the police we were "Tigers." We experienced a lot of harassment and hardship due to this. In about 1992 we moved to a house in Mount Lavinia, where we stayed until April of 1994. Later we moved to another house in Mount Lavinia where we stayed until January of 1996. My family members who were living together in Mount Lavinia during this period included my brother Alino and his wife, my brother Antonio, and my mother (until she left to visit my sister Leonie in Canada in 1995). |
| 19. Our family was becoming scattered during this period. In March of 1989 my sister Leonie married a Tamil doctor and moved with him to England and then to Canada. My other sister, Charmaline, who was a teacher in Batticaloa, had to flee to Kandy after she was arrested by the Sri Lankan army. My younger brother Antonio was beginning to get involved with another Tamil militant group, the EPRLF, so my mother arranged to send him to Colombo. My sister Miriam married a Christian "Hill country Tamil", who was educated in the Sinhalese language and culture and who is not identified as a Tamil. She moved to live with his family. We had little contact with her after her marriage because her family did not want it to be known that they are Tamil. |
| 20. However my family members continued to experience persecution due to the fact that they are Tamil and are suspected of opposition to the Sri Lankan government. My brother Marino who was working in the advertising field in Colombo, was constantly being harassed by the Sri Lankan army and police. He was harassed by the authorities because he was associated with Mr. Lucien Rajakarunanayake, a journalist who in the late eighties was very critical of the UNP Government. My brother Marino had also taped a conversation between Sri Lankan pilots who had bombed civilian targets in 1987 and an article about this incident was published in foreign newspapers. Because of this harassment, my brother Marino went to England in 1990 and applied for refugee status there. |
| 21. During this period, my younger sister Charmaline, who was in Colombo at that time, was arrested twice just because she is Tamil. Charmaline received a proposal of marriage of a Tamil resident of Holland and she left for Holland in November of 1993. As it turned out, the partner was not acceptable, so she left Holland and went to Canada in April of 1994 where she was accepted as a Convention refugee. My younger brother Antonio was shot at and because of fear for his safety my mother arranged to send him to Abu Dhabi in 1992 but was unable to proceed further and was forced to return to Sri Lanka. He tried again in 1993 to reach England, via Bangkok but after eight months he was returned to Sri Lanka. |
| 22. On June 29, 1995 my bother [sic] Alino married Arul Shanthy in a civil ceremony. After the marriage, our mother left for Canada to visit my sister Leonie in Halifax. She extended her visitor"s visa in Canada after our situation deteriorated in Sri Lanka in late 1995 and 1996. She has now been accepted as a Convention refugee by the Immigration and Refugee Board (Convention Refugee Determination Division) in Canada. Her refugee claim was based on her fear of persecution because of what had happened to the rest of our family in Sri Lanka. |
| 23. In November of 1995 my cousin Paul Purusothman Thiagarajah, the son of my mother"s brother, who was in the reserve police force, was taken by the Kotehena police and kept in the Criminal Investigation Bureau on a trumped up charge. He was suspected of being a member of the LTTE and of passing information to the LTTE. My brother Alino tried to visit as his lawyer but was not permitted to speak to him and was warned by an officer that if he tried to interfere in that case they would kill him (Alino). |
| 24. Paul was assaulted while he was in custody and his left arm muscle was permanently damaged. He had been tied up and hung from his thumbs and then beaten, and as a result of this he had a hollow space on his upper left arm just above the elbow where the muscle should be. Alino persuaded the magistrate to order that Paul be remanded to the Welikade prison hospital until he was released. After 3 attempts, Paul was released on bail. Upon his release he was ordered to report to the Kotehena police station every week but he was afraid they would harm him so he went into hiding. |
| 25. After the incident our situated changed very dramatically. My brother Alino continued to fight against injustice and for the rights of the Tamil people who are being abused by the police and the armed forces under the "Prevention of Terrorism Act". After Paul"s release, the police and security forces began to visit us and search the house which we all shared. During these visits they abused and threatened us. I was fortunate not to be present at any of these searches. |
| 26. On one of these visits, however, my wife was at home, and the police examined her I.D. card and saw that one of her surnames is "Boyagoda". They asked her what her relationship was to Ajith Boyagoda who is commander of the ship" Sagarawardene." Ajith Boyagoda was not an "LTTE activist" as stated in the refusal letter. His ship was attacked by the LTTE and Commander Boyagoda was taken prisoner. However, apparently he is now suspected of assisting the "Sea Tigers", the LTTE"s naval forces. When my wife explained to the police that he is her first cousin, the son of her father"s brother, she was insulted very harshly and threatened that we would both be killed. They told her that they suspected us of passing information to the LTTE so that they could select their targets to destroy the Sri Lankan Navy. |
| 27. In January of 1996 a friend and a co-tenant of my brother Alino"s wife, Miss Ganakumari, was arrested by the Fort Police when she was going to the passport office to obtain her passport. She was a student and a former associate of Professor Thurairajah, former Vice-Chancellor of Jaffna University. (Professor Thurairajah was a key person in the operation of a large underground bunker and hospital built by the LTTE in Neerveli, Jaffna, which was captured by the Sri Lankan Armed Forces in November of 1995.) Miss Ganakumari was ordered to be detained for questioning by the Fort Police, the Criminal Investigations Department, the National Investigation Bureau, the Criminal Detective Bureau and the Special Investigation Unit. My brother Alino represented her in the proceedings being taken against her and managed to get her released on bail. She went into hiding after her release and then fled to England where she is now residing. |
| 28. In December of 1995 and January of 1996 the security forces came [to] search our house and question us on 2 or 3 occasions. On other occasions in January of 1996, according to information we received from neighbours, they arrived in unmarked vehicles in civilian clothes and made enquiries in the neighbourhood about my brother Alino. These plain-clothes units of the security forces are very notorious in Sri Lanka for causing people to "disappear" even up to now. Our best friend"s brother disappeared like this. |
| 29. In January 1996 there was information that a Sinhalese woman married to a Tamil who is Inspector of Police for the LTTE police force, had come to Colombo to assassinate the President. When this information began to circulate, our landlord told us to leave immediately although we had a lease until April 1997. Also at a roadblock at this time, we were searched and questioned about this, since my wife is also a Sinhalese woman married to a Tamil. ... |
[4] I am satisfied that all of the foregoing evidence, albeit in a different form and perhaps not as well organized, was before the visa officer whose decision is here under review.
[5] In his decision letter, the visa officer wrote:
| I have carefully reviewed the information contained in your application and provided during your interview. I have concluded that you are not a Convention Refugee as defined in the Regulations as you have failed to establish that you have a well-founded fear of persecution for one of the reasons enumerated in the definition. |
| During your interview, you indicated that your house had been searched three times. On only one occasion was your wife present. You were not present for any of the searches. |
| You also stated that neighbours had reported the presence of unmarked cars in the neighbourhood. You stated that you were told by your neighbours the authorities were looking for you and you feared they would make you "disappear". |
| A third incident refers to events at a road block where your wife was searched in an inappropriate way. |
| In my opinion, these events do not contain an objective element that would result in an apprehension of persecution. By your own admission, your wife"s maiden name is the same as that of a known LTTE activist. Although the police acted inappropriately and rudely toward your wife on the one occasion when she was present in the house, I do not believe that this forms part of a pattern of harassment such as to constitute persecution or reasonable apprehension of persecution. |
| I have also discounted the report of the unmarked cars. There is no objective evidence that shows that these vehicles ever existed nor that they were searching for you. In any event, the authorities knew where you resided and had been to your house as indicated above. |
| As for the incident at the road block, I can find no evidence that indicates that the authorities were targeting you or your family. This appears to have been a routine road block at a time of serious troubles in Sri Lanka. |
| I must conclude that you have not demonstrated a well-founded fear of persecution for one of the grounds stated in the refugee definition. I find that you are not a Convention Refugee as defined in the Immigration Act. |
| Your application was also assessed to determine whether you qualify in another immigration category. I have determined that you do not qualify in the immigration category of Independent because you are not qualified in an occupation which is currently in demand in Canada. Consequently, I must refuse your application for permanent residence in Canada. |
[6] By reference to Ghorvei v. Canada (Minister of Citizenship and Immigration)2, Adjei v. Canada (Minister of Citizenship and Immigration)3 and Retnem v. Canada (Minister of Employment and Immigration)4, I allowed the application of the applicant"s brother essentially on the basis that the visa officer made three reviewable errors. The visa officer erred (1) by failing to consider the fact that the applicant was recognized as a refugee under the mandate of the UNHCR and distinguishing that recognition; (2) by failing to take into account that the definition of Convention refugee is forward looking, and thereby failing to analyse whether the applicant"s alleged fear of persecution is well-founded if he were required to return to Sri Lanka; and (3) by failing to consider the "cumulative effect" of the applicant"s past experiences.
[7] The same reviewable errors are apparent on the face of the decision in respect of the applicant herein. In this regard, the visa officer"s failure to consider the cumulative effect of the applicant"s past experiences in assessing the well-foundedness of his claimed fear of persecution is particularly critical.
[8] The principle of "cumulative effect" is endorsed in both the Immigration Policy Manual and the UNHCR Handbook. It states:
| An applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds".5 |
[9] Thus, for the same reasons cited in respect of the brother"s application for judicial review, this application will also be allowed.
[10] As in the case of the Alino Canagasuriam"s hearing before me, counsel for the applicant herein recommended certification of a question regarding the obligations of a visa officer who is considering an application for entry to Canada as a Convention refugee by an individual who has been recognized as a refugee under the Mandate of the United Nations High Commissioner for Refugees, while counsel for the respondent recommended against certification of a question. No question will be certified herein.
__________________________
Judge
Ottawa, Ontario
September 28, 1999
__________________
1 See Court file: IMM-5281-98.
2 (1997), 138 F.T.R. 149 (F.C.T.D.).
3 [1989] 2 F.C. 680 (F.C.A.), (not cited before me).
4 (1991), 13 Imm L.R. (2d) 317 (F.C.A.), (not cited before me).
5 United Nations, Office of the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, 15.
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