Date: 19971118
Docket: IMM-259-97
BETWEEN:
NADARAJAH NANTHARAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated December 20, 1996. In that decision, the Board determined that the applicant is not a Convention refugee.
Facts
[2] The applicant is a Tamil citizen of Sri Lanka. He claims a well-founded fear of persecution by reason of his membership in a particular social group. He stated that he was unable to live in Jaffna because of constant persecution by the LTTE. He moved to Colombo in 1993. In July of 1993 and December of 1994, he was detained and abused by the police. The applicant's cousin, who also lived in Colombo, disappeared in May of 1995. His body was found in July of 1995. The applicant was unaware of the identity of his cousin's killer. However, he reported the matter to an organization known as the Home for Human Rights. As a result, the Red Cross and Amnesty International became involved. The police asked that he attend for interviews concerning his cousin. He was initially prepared to cooperate with the police. However, he was contacted by individuals whom he believed to be members of the state security forces. They warned him that if he continued his involvement in the investigation, he himself would be killed.
[3] The applicant relocated to Vavuniya where he was detained and tortured by a Tamil militia called Plote. Plote was associated with the Sri Lankan armed forces. At this juncture, the applicant decided to flee Sri Lanka. He said that he hired an agent to help him and while he was waiting to meet with this agent, he was detained and tortured once more. His further evidence was that he had to continually pay bribes to the army who often abused him.
[4] In May of 1995, he was issued a Sri Lankan passport. On June 16, 1996 he left Sri Lanka, flying from Colombo to Hong Kong. He surrendered his valid passport to the agent there, and then travelled to Canada on a false passport.
The Board's Decision
[5] The Board concluded that there was not an objectively valid basis for the applicant's fear of persecution if he were to return to Sri Lanka. The Board observed that the applicant was detained and subsequently released after an investigation. He was not charged with any offence. The Board referred to the documentary evidence which indicated that the President of Sri Lanka was instituting thorough investigations into the death of Sri Lankan citizens, with the full assistance of authorities in Colombo. The Board concluded that the applicant was not of any interest to the authorities in Colombo. It referred to documentary evidence to the effect that torture by the police occurred only in isolated cases. On this basis, the Board concluded that the applicant would only face a mere possibility of persecution if he were to return to Colombo.
Issues
| 1. Did the Board err by finding that there was no objective basis to the applicant's claim? |
| 2. Did the Board err by considering whether the applicant would be charged with a legal offence and detained, when he actually feared extra judicial persecution, not legal prosecution? |
| 3. Did the Board err by "having no regard to the totality of the evidence, in failing to recognize that the objective evidence showed the applicant's cousin was murdered by the state security forces or a militia allied to them - not in an unknown tragedy the security forces are sincerely concerned with?"1 |
Analysis
1. Objective Basis for Fear
[6] The applicant submitted that the Board ignored the evidence before it to the effect that the President of Sri Lanka had cancelled two inquiry commissions before they had fully considered some 20,000 complaints. On the other hand, there was documentary evidence before the Board which would entitle it to conclude as it did. I refer to the evidence that while security checks are common, torture is not generally practiced by the police and security authorities in Colombo. While acknowledging the fact that the applicant's cousin had disappeared, the Board concluded, after weighing the evidence, that the Sri Lankan authorities were not particularly interested in the applicant. In Brar v. M.E.I.2, the Federal Court of Appeal concluded that questions with respect to the weight of evidence are within the jurisdiction of the Refugee Division, as the trier of fact. Accordingly, the applicant has not demonstrated reviewable error on this ground.
2. Extra-Judicial Persecution
[7] The applicant's submission is that the Board evaluated his claim by considering whether the applicant was at risk of legal prosecution and in so doing erred in law. The Board considered the possibility of the applicant being harmed and concluded that the possibility of such harm emanated from the police and security authorities. The Board did observe that the applicant had not been charged with an offence. However, the applicant's claim was not characterized solely as one of a fear of persecution by the police. The Board also examined the cousin's disappearance but concluded that this applicant was not of any interest to the authorities. In my view, such a conclusion was reasonably open to the Board on this record.
| 3. The Totality of the Evidence |
[8] The applicant submits that the Board failed to have regard to the totality of the evidence. He fears being killed by people who specifically threatened him. In his view, the documentary evidence contradicts the Board's view that Tamils are not necessarily at risk when they are detained. On the other hand, the recent documentary evidence from the UNHCR establishes that the suggestion of constant and general harassment of Tamils exaggerates the true situation. Security and identification checks take place but resultant detentions are few in number and the time of detention is short in most cases.
[9] In my view, based on the totality of the evidence, the Board was reasonably entitled to reach the conclusion which it did.
Conclusion
[10] For the foregoing reasons, the within application for judicial review is dismissed.
Certification
[11] Neither counsel suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.
"Darrel V. Heald"
D.J.
Toronto, Ontario
November 18, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-259-97
| STYLE OF CAUSE: NADARAJAH NANTHARAJ |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: NOVEMBER 17, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: HEALD, D.J.
DATED: NOVEMBER 18, 1997
APPEARANCES:
Mr. Raoul S. Boulakia
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD:
Raoul S. Boulakia
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19971118
Docket: IMM-259-97
BETWEEN:
NADARAJAH NANTHARAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 See paragraph 26 - Applicant's Memorandum of Argument - Applicant's Application Record, page 91.
2 F.C.A., May 29, 1986, A-987-84 per Thurlow C.J.
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