Srithar v. Canada (Minister of Citizenship and Immigration), docket IMM-158-97

     IMM-158-97

BETWEEN:

     SUNTHARALINGAM SRITHAR

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TREMBLAY-LAMER J.

     The Applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board denying him refugee status on account of the existence of a viable internal flight alternative within his homeland.

     The Applicant is a 31-year-old Tamil from northern Sri Lanka. He claims to have a well-founded fear of persecution if returned to his country of origin on the grounds of his perceived political opinion and membership in a particular social ground (young Tamil males who are being conscripted into armed services by the LTTE).

     The Applicant's story is set out in his Personal Information Form. It is briefly summarized as follows.

     When living in his home village of Myliddy, the Applicant was suspected by the Sri Lankan army of being a member of the rebel guerilla, the Liberation Tigers of Tamil Eelam (LTTE). As a result, he was twice arrested and detained by the government authorities. On one of those occasions, in March 1985, he was also beaten.

     In June 1990, as the fighting between the army and the LTTE escalated in Myliddy, the Applicant decided to move to the village of Ariyalai which was situated in an LTTE controlled area. There, the Applicant was forced to work for the rebel army. He was eventually "drafted" by the LTTE and ordered to report to their camp on October 30, 1995. The Applicant had no intention of joining the ranks of the army and accordingly, decided to flee Sri Lanka.

     Through an agent, the Applicant made arrangements to go to Colombo and then onto a safe country. However, even before he was able to leave northern Sri Lanka, the Applicant was arrested at an army checkpoint at Vavuniya because he did not have his national identity card. Despite his attempt to explain that he had lost his card in 1989 and to show the police report he had obtained confirming this, the Applicant was arrested and interrogated. He was accused of being a member of the LTTE. During his detention, he was apparently beaten. He was released upon payment of a bribe by the agent.

     The police refused to issue to the Applicant a pass to proceed to Colombo because they considered him to be a security risk. Nevertheless, with the help of the agent, the Applicant was smuggled into Colombo, where he remained in hiding until his departure for Canada ten days later.

     While the Board accepted that the Applicant had indeed a well-founded fear of persecution in northern Sri Lanka, it also found that he had a viable internal flight alternative within his homeland, in the capital city of Colombo. In reaching this conclusion, the Board correctly stated the applicable test for determining whether an IFA exists, as it is set out in Rasaratnam v. Canada (Minister of Employment and Immigration)¹ and Thirunavukkarasu v. Canada (Minister of Employment and Immigration).²

     With respect to the first part of the test, the Board was satisfied that, on a balance of probabilities, there existed no reasonable chance or no serious possibility of the Applicant being persecuted in Colombo. First, the Board was not persuaded that the Applicant had seriously been suspected by the army personnel at Vavuniya of being a terrorist. In support of its finding, the Board noted that the Applicant had been released after three days of detention upon payment of a bribe. The Board felt that if the army had really perceived the Applicant to be a terrorist, it would have dealt with him more seriously than it did. Thus, it found that the Applicant had been arrested for purposes of extortion.

     Second, the Board was not convinced that the Applicant would face more than a mere possibility of persecution in Colombo. While the Board acknowledged that newly-arrived Tamils in Colombo, and especially young Tamils from the northern region of the country, are often arrested by authorities in Colombo, the Board also found that this does not automatically constitute persecution. In fact, the documentary evidence indicates that young Tamils are arrested in order to establish their identity. Once their identity ascertained, they are released. In the majority of cases, the detention is brief. According to the Board, this is a legitimate measure instituted by a government trying to cope with terrorism.

     In view of the preceding, the Board concluded that if the Applicant could properly identify himself to authorities, which he could by presenting his birth certificate to the authorities or by obtaining a valid passport through the Sri Lankan embassy in Canada, it would not be unreasonable for him to seek refuge in Colombo.

     While the Board's findings may appear reasonable at first blush, they are not, in my opinion, reasonably open to it on the evidence. What brings me to this conclusion is the fact that the Board neglected to address in its decision the army's refusal to issue to the Applicant a pass to proceed to Colombo. In fact, the Applicant was ordered not to go to Colombo. This is a vital piece of evidence. In failing to analyze its possible implications on the Applicant's future treatment at the hands of authorities in Colombo, the Board failed to consider the particular circumstances of the Applicant and how they relate to the documentary evidence. As previously stated, the documentary evidence shows that the majority of newly-arrived Tamils in Colombo are briefly detained for purposes of identification and then released. However, what about young Tamils who are in Colombo under circumstances similar to the Applicant, that is who have previously been denied permission to establish themselves in the city by the same authorities? Is it reasonable to believe that once they have established their identity they would also be released? The Board never addressed these questions, nor attempted to distinguish the documentary evidence. This constitutes an error of law.

     I find support for my conclusion in the comments of my colleague MacKeown J. in Jeyachandran v. Solicitor General of Canada³ who disposed of a similar case in a similar fashion. In Jeyachandran, the Applicant was also a Tamil from northern Sri Lanka. He had been arrested in Colombo, detained and released upon payment of a bribe. He had also been warned by the authorities to go back to Jaffna and not to return to Colombo again. In reviewing the Board's decision, McKeown J. held that ignoring the particular circumstances of the Applicant amounts to an error of law:

There is no doubt that appreciation of the evidence is a matter for determination by the Board, however, in this case it neglected to distinguish the documentary evidence as I have stated above. It also failed to relate the evidence before it to the particular circumstances of this applicant. In my view the Board has ignored, in its conclusion, the statement of the Colombo police authorities that the applicant was to return to Jaffna and not ever return to Colombo. Furthermore, the Board failed to consider this statement with respect to the issue of state protection or with respect to the documentary evidence which indicates a difference in treatment between Tamils from Colombo and Tamils from the north.4

     I also have a second reservation about the Board's decision. It pertains to its assertion that the money extorted from the Applicant by the army personnel at Vavuniya was a result of police corruption and did not constitute grounds for persecution. This Court has previously held that extortion can indeed amount to persecution. However, such a finding depends on the circumstances of the case. It is a question of fact which must be determined by the Board having regard to all the evidence.

     In the case at bar, I agree that the army's demand for monetary payment from the Applicant does not constitute past persecution since the circumstances of the case show no systemic infliction of threats or personal injuries.⁵ Rather, as the Board correctly held, the Applicant's experience at the hands of the army personnel in Vavuniya was an isolated, single event. However, I also find that the Board did not address the issue of future persecution for purposes of extortion. This amounts to an error of law, as Gibson J. observed in Velauthapillai v. Canada (Solicitor General):⁶

I conclude that the CRDD erred in law, whatever its analysis might have been with regard to the earlier attempt to extort funds from the applicant, by failing to analyze whether or not the applicant, if she were to return to the north of Sri Lanka, would be exposed to further extortion attempts with related threats and whether such attempts and threats, in the conditions that existed in northern Sri Lanka at the time the CRDD reached its decision, would raise for her a serious possibility of persecution at the hands of the LTTE.

     The Board should have examined the documentary evidence to determine whether or not the Applicant would face a reasonable possibility of being extorted in the future.

     For the foregoing reasons, I am satisfied that the application for judicial review must be allowed. There is no need to examine the reasonableness of the IFA. The errors identified above are sufficient in and of themselves to set aside the Board's decision. Accordingly, the matter will be remitted to a differently constituted panel for rehearing and redetermination.

     At the close of the hearing, Counsel for the Applicant requested the two following questions to be certified.

Whether, where state protection ought to be offered to an internally displaced refugee, state security forces instead resort to extortion, this repudiates the assumption that state protection can be reasonably expected.

Whether, when an internally displaced refugee has been ordered by state security forces to return to the region he was fleeing, this repudiates the assumption that state protection can be reasonably expected.

     Counsel for the Respondent did not favour certification. I am in agreement with the position of Counsel for the Respondent. No question will be certified.

OTTAWA, ONTARIO

This 10^th day of October 1997

    

                                 JUDGE

__________________

¹ "1992 > 1 F.C. 706 (C.A.).

² "1994 > 1 F.C. 587 (C.A.).

³ (March 30, 1995), IMM-779-94 (F.C.T.D.).

⁴ Ibid. at 4.

⁵ Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 at 134 (F.C.A.).

⁶ (1994), 88 F.T.R. 315 at 318 (T.D.).