Kaillyapillai v. Canada (Citizenship and Immigration), docket IMM-1263-96

     IMM-1263-96

BETWEEN:

     SRIVASAN KAILLYAPILLAI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     This is an application for judicial review to set aside the decision of the Refugee Board rendered on March 20, 1996, wherein it determined the applicant not to be a Convention refugee.

     The applicant is a young Tamil male from northern Sri Lanka. The Board determined that he had good grounds for fearing persecution at the hands of the LTTE should he return to northern Sri Lanka given his experiences in that part of Sri Lanka and based on his political opinion. However, the Board found that Colombo presents a reasonable internal flight alternative (IFA) for the applicant. The Board made no adverse findings of credibility.

     The applicant did not obtain an LTTE pass to leave the North; his father arranged for an agent to take him from Jaffna to Colombo. On the day after his arrival in Colombo, he was arrested while standing at a bus stop, detained for 10 hours by the police, interrogated and beaten with a police baton. Upon payment of a bribe, he was released from the police station. The police told him to return to Jaffna as soon as possible and to report to the police station each week until he left the city. The applicant immediately made arrangements to flee Sri Lanka. He made a refugee claim immediately on his arrival in Canada on April 14, 1995.

     The governing issue on this application for judicial review is whether the Board erred in finding that Colombo was a valid IFA for the applicant.

     The Board found that the applicant's treatment at the hands of the police was not persecutory for the following reason:

Although, according to the claimant, he was mistreated by the police while in custody, the panel does not consider that the action of the police constituted persecution. The Sri Lankan authorities have instituted certain security procedures in response to terrorist bombings and assassinations in Colombo carried out by the L.T.T.E., which are aimed at the protection of the population at large. Thus, the roundups are an endeavour by the state to maintain security and control in a state plagued by civil strife.

     In Thirunavukkarasu,¹ Linden J.A. noted that the claimant, who had fled to Colombo, was subjected to arbitrary arrest and detention, as well as beatings and torture, at the hands of the Sri Lankan government during his time in Colombo. These arrests were motivated by the simple fact of the claimant being a Tamil. He stated the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beating and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety.

     In my opinion, the Board, in the present case, misdirected itself in law when it justified its finding of non persecution on the ground that certain security measures are aimed at the protection of the public at large and, thus, the roundups are an endeavour to maintain security and control in a state plagued by civil strife. In relying on this ground, the Board failed to make a proper determination as to whether the treatment experienced by the applicant at the hands of the agents of the State in Colombo amounted to persecution. Only after having made that determination properly can the Board proceed to determine whether, in all the circumstances, it would be reasonable for the applicant to relocate to Colombo. Accordingly, I find that the Board's decision is patently unreasonable.

     In reaching the conclusion that Colombo was not an IFA for the claimant in Thirunavukkarasu, Mr. Justice Linden emphasized that he had reached this determination on the basis of the evidence in that case and solely with respect to that particular claimant. He cited with approval the following passage of Mahoney J.A. in Rasaratnam,² at p. 711.

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there.

     In Thirunavukkarasu,³ Mr. Justice Linden set out the following test:

This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

     In Ganeshan,⁴ MacKay J., applying the test in Thirunavukkarasu, stated that the applicant for refugee status, to be successful, must demonstrate on the balance of probabilities that a reasonable person, looking at all of the circumstances of the case, including the particular circumstances of the claimant, would conclude that it is unreasonable for the claimant to be expected to reside at an IFA in a part of his or her own country.

     In assessing all of the circumstances, the Board is entitled to consider and weigh oral and documentary evidence and, when appropriate, the lack of any documentary evidence as of the time when the claim is heard by the Refugee Board.

     Accordingly, the decision is set aside and referred to a differently constituted panel for reconsideration.

     Counsel for the applicant requested that I certify the following question:

Does the definition of persecution include single incidents of severe physical injury?

     Counsel for the respondent did not support the request.

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     There are numerous decisions of the Supreme Court of Canada and of the Federal Court of Appeal which deal with the definition of a Convention refugee. I decline to certify the question.

     __________________________

     Judge

Ottawa, Ontario

February 27, 1997

__________________

¹      [1994] 1 F.C. 589 (F.C.A.).

²      [1992] 1 F.C. 706 (F.C.A.).

³      Supra, note 1, at p. 597.

⁴      Ganeshan v. M.E.I., IMM-1440-96 (February 21, 1997).