Date: 19981027
Docket: IMM-140-98
BETWEEN:
THILAGAVATHY JAYABALASINGHAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
[1] The panel did not question the credibility of the applicant and assumed, for the purpose of its decision, that the applicant does have a well-founded fear of persecution in the North of Sri Lanka. Therefore, the panel had to determine whether there is an IFA available to her in Colombo.
[2] The panel concluded that, given the claimant"s age, her previous treatment by police after her arrival in Colombo, and the documentary evidence, there is no more than a mere possibility that she would be persecuted if she is required to return to Colombo. That finding is not unreasonable.
[3] The panel then went on to consider the circumstances of the claimant. The panel asked itself whether it would be unduly harsh or unreasonable in all the circumstances to require the claimant to relocate to Colombo. However, the panel went on to describe the test in these words:
| The test for "undue hardship" and "unreasonable in all the circumstances," while not defined, must be examined in light of the circumstances of the place of the IFA and in light of the Immigration Act as a whole. The reference to "undue" in the case law seems to require some additional or extraordinary hardship in relation to the claimant"s circumstances and in relation to the place of the IFA. This would seem to bring the threshold beyond the humanitarian and compassionate considerations and procedures provided in the Immigration Act for persons other than Convention refugees. |
[4] The panel then concluded that while recognizing that the claimant"s circumstances in Colombo would be difficult, this would be neither unduly harsh nor unreasonable in all of the circumstances.
[5] In Thirunavukkarasu v. Canada, [1994] 1 F.C. 597 (C.A.), Mr. Justice Linden stated that an IFA must be sought if it is not unreasonable to do so, in the circumstances of the individual claimant. This is an objective test. 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. He concluded at page 599 "Thus, the objective standard of reasonableness which I have suggested for an IFA is the one that best conforms to the definition of Convention refugee".
[6] He also framed the question in terms of whether it would be unduly harsh to expect the claimant, who is being persecuted in our part of his or her country, to move to another less hostile part of the country before seeking refugee status abroad and provided examples.
[7] This is an objective test and the onus of proof rests on the claimant. This test is a flexible one. Therefore, the panel must be satisfied that, in all circumstances, including circumstances particularly applicable to this applicant conditions in Colombo, at all relevant times, were such that it would be objectively reasonable for the applicant to seek refuge there.
[8] This panel elevated this test by requiring "some additional or extraordinary hardship" in relation to the claimant"s circumstances and in relation to the place of the IFA. According to this panel "This would seem to bring the threshold beyond the humanitarian and compassionate considerations and procedures provided in the Immigration Act for persons other than Convention refugees".
[9] In my opinion, this panel misdirected itself in formulating a test other than the objectively reasonable test.
[10] There was evidence of the applicant"s particular circumstances at the time she fled to Colombo and sought refuge in Canada. She was a widow, in her sixties, with no relatives or friends or any connections in Colombo, who has never worked outside the home and who does not speak English or Sinhala but only Tamil. There was conflicting documentary evidence on the availability of social and medical services for elderly Tamils.
[11] These circumstances should have been examined by the panel in the light of the objectively reasonable test.
[12] In the circumstances, I find that the panel erred in law in reaching its decision on the availability of an IFA. Accordingly, the decision of the panel is set aside and a new hearing before a differently constituted panel is ordered.
"John D. Richard"
A.C.J.
Toronto, Ontario
October 27, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-140-98
| STYLE OF CAUSE: THILAGAVATHY JAYABALASINGHAM |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, OCTOBER 13, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: RICHARD J.
DATED: TUESDAY, OCTOBER 27, 1998
APPEARANCES:
Ms. Helen P. Luzius
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD:
| Helen P. Luzius |
| 1610-372 Bay Street |
| Toronto, Ontario |
| M5H 2W9 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981027
Docket: IMM-140-98
Between:
| THILAGAVATHY JAYABALASINGHAM |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER