Shivakumaran v. Canada (Citizenship and Immigration), docket IMM-1407-96

     IMM-1407-96

B E T W E E N :

     PARAMSOTHY SHIVAKUMARAN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.

     This is an application for judicial review of, and an Order setting aside, the decision of the Convention Refugee Determination Division, (CRDD), dated March 29, 1996 whereby it was determined that the applicant is not a Convention refugee within the meaning of that term in subsection 2(l) of the Immigration Act, R.S.C. 1985, c.I-2, as amended.

     The application was heard in Toronto on February 20, 1997 when decision was reserved. Having since then reviewed the full record of proceedings before the CRDD, including the transcript of its hearings, an Order is now issued dismissing the application for the reasons that follow.

     The applicant is a male Tamil, in his mid twenties at the time of the CRDD hearing, from Trincomalee, in northern Sri Lanka in an area fought over between the Sri Lankan Army ("SLA") and the Liberation Tigers of Tamil Eelam (the "LTEE"). He arrived in Canada on July 16, 1995 and then claimed Convention refugee status. His claim was considered at a hearing of the CRDD on January 8, 1996, and its decision at the end of March is the subject of this application for judicial review.

     The applicant worked for the Government in Trincomalee as a works supervisor with the Road Development Department from 1990 until August 1993. He was then transferred to a nearby town that was mainly inhabited by Sinhalese. He refused the transfer and resigned from his position. He did so because he believed that the area to which he would be transferred was subject to attacks by the LTTE and he did not believe that he could find protection from Government forces since he had no confidence that the SLA would provide protection to Tamils.

     After 1993 the applicant was unemployed. During the following year he participated in general clerical examinations with a view to qualifying for employment opportunities in Government agencies at the municipal or state or national level. He was not offered further employment.

     In December 1994, he claims that he was arrested, detained and tortured, by the SLA as a suspected supporter of the LTTE. He claims not to have been such a supporter although he was compelled, like many other Tamils, to work for them repairing their bunkers. During his detention in December he claims he was tortured and forced to name Tamil supporters. He did name one person before he was released when his mother posted a bail bond and he agreed to report from time to time as might be directed by the Army.

     In January he did report on two occasions on the 4th and 10th of that month. On the first occasion he was photographed and finger-printed for the first time and on the second occasion he claimed he was again tortured by the SLA who beat him and hung him upside down, throwing chili powder in his eyes, while questioning him about LTTE activities. That treatment he claims was routine for Tamils required to report to the Army. In January, 1995, the claimant left his home where he had lived with his mother and he moved to live with an uncle nearby. He claims he did not leave the area, despite his fears, because the ceasefire between the LTTE and the SLA was in force. He remained there until February 1995 when, after the authorities had come looking for him again at his home, he left the area for Kandy, a town some five hours away.

     He remained in Kandy living with a student friend for about three months in early 1995. While there he was questioned by police, and one officer, Sergeant Silva, extorted money from him on more than one occasion. In mid-June, 1995, Silva approached him for more money and informed him his name was on a list of persons wanted by security forces in Trincomalee. After this encounter the applicant left Kandy for Mayawa where he stayed for some twenty four days. He believed that it was unsafe for him to remain in Sri Lanka because, on the basis of the advice earlier received from Sergeant Silva, he was on a list of persons wanted by security forces of the Government as a suspected LTTE supporter. He claims to fear the police, the army and the EPDP forces (composed of Tamil supporters of the Government) because his name is on a wanted list. While in Mayawa, he made arrangements to leave Sri Lanka. With the assistance of an agent he travelled to Colombo on July 9, 1995. He remained there over night and left Sri Lanka on July 10 using a false passport. He arrived in Canada in mid July by way of New York.

     The CRDD panel determined that it was not satisfied there was an objectively valid basis for the claimant's fear of persecution should he return to Sri Lanka. It did not believe the claimant's testimony was credible with regard to important aspects of that testimony. In addition, and as an alternative ground, the panel determined that the applicant had an internal flight alternative ("IFA") in Colombo. Finally, the panel noted that the claimant was unable to provide any evidence of presence in Sri Lanka after 1989 when a birth certificate was issued to him, and given significant implausibilities regarding events in 1994 and 1995 on which his claim was based, it concluded that he was not in Sri Lanka at the time of those alleged incidents.

     The applicant contends that the conclusions of the panel are contradictory and capricious and they should therefore be set aside. In particular, it is urged that the panel discounts much of the applicant's evidence about events in 1994 and 1995 and finds his evidence not credible and then turns to consider an IFA for the applicant and finally concludes that there was no evidence he was even in Sri Lanka at the time. It is urged that the panel's decision must be consistent, and this decision is not.

     I am not persuaded that there is any inconsistency between the panel's finding of credibility and its determination, clearly as an alternative ground, that there was an IFA available for the applicant to live in Colombo. Though the finding of an IFA is based upon recognition that the applicant would have good grounds for fear of persecution in part of the country, finding that grounds are not established but assuming that is the case only for purposes of considering the alternative ground of an IFA, does not, in my view, provide a basis on which this Court should intervene to set aside the decision of the panel.

     The findings of the panel concerning credibility of the applicant are said to be capricious and perverse. They are based on implausibilities which the decision of the panel sets out in significant detail with respect to eight different aspects of the applicant's testimony. While the Court might not have reached the same conclusions in relation to all of the matters dealt with by the panel, I am not persuaded that all, or a substantial number, of the findings of the panel based on implausibilities can be said to be unreasonable. Unless that is the case, the Court ought not to intervene.

     In considering the IFA available to the applicant in Colombo, the panel reviewed developments in Sri Lanka since August, 1994 when a new Government was elected to power. This was done on the basis of documentary evidence, in particular a November 1994 annual report by the Canadian High Commission in Colombo, a January 1995 address by professor Matthews to the IRB in Toronto and April 1995 articles from the New York Times and the Toronto Star. The latter dealt with circumstances after the breakdown of a truce between Government and Tiger forces.

     For the applicant the finding of an IFA is attacked on two bases. It is said that the panel did not take into account the applicant's fear of abuse and detention by state security forces. However that fear was based on the applicant's belief that he was on a list of persons wanted by state authorities and the panel found that the basis of his belief that he was on such a list was implausible. There was no objective evidence that he was on such a list and implausibilities found in his story were such that the panel did not conclude that there was an objective basis for his fear.

     The second argument against the finding of an IFA is that the Board relies on selective documentary evidence, ignoring evidence of continuing human rights abuses, particularly after the outbreak of violence, following a truce, in April of 1995. In short, it is urged that the panel did not consider current circumstances in Colombo and Sri Lanka when it concluded that an IFA was available to the applicant. Although the panel makes no specific reference in its decision to source documents after April 1995, its review of conditions in Sri Lanka is clearly supported by evidence that was before it. Moreover, absent an objective basis for finding that the applicant was on a list of persons wanted by authorities, there were no particulars relevant to the applicant that would appear to make him an object of persecution, at least away from northern Sri Lanka. There was no experience, for example, of living with difficulty in Colombo itself for he only spent one night there.

     The burden is upon the applicant to demonstrate good grounds for finding that he is a Convention refugee, including the responsibility to demonstrate that it would be unreasonable in all of the circumstances,

including circumstances peculiar to himself, for him to be expected to find a reasonably safe haven, an IFA, within his own country, away from the area in which he habitually had lived. In my view it is not here established that the finding of the panel was unreasonable.

Conclusion

     In my opinion the panel's findings in relation to credibility of the evidence offered by the applicant and its finding in regard to an available IFA in Colombo do not raise grounds on which the Court ought to intervene. I make no comment about the panel's concluding comments that the applicant did not establish that he was in Sri Lanka in 1994 and 1995.

     For these reasons an Order issues dismissing the application for judicial review.

     _________________________________

     JUDGE

OTTAWA, Ontario

March 7, 1997.