Date: 20050331
Docket: IMM-4720-04
Citation: 2005 FC 432
BETWEEN:
PONNIAH SIVAGURUNATHAN
THEVARATNAM SIVAGURUNATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants Ponniah Sivagurunathan and Thevaratnam Sivagurunathan are spouses, each in their early seventies and Tamil citizens of Sri Lanka. For more than two decades, Ponniah Sivagurunathan served as a member of his country's air force. In 1975, he concluded his service with the rank of sergeant. Over the past thirty years, the couple has feared harassment by government authorities and Tamil militants during Sri Lanka's civil war.
[2] The Sivagurunathans seek Convention refugee status principally as victims of extortion. On February 20, 2003, the Liberation Tigers of Tamil Eelam sought 100,000 rupees from the applicants but settled for a payment of one-half that amount. At the time of this event, Mr. Sivagurunathan apparently described himself as a pensioner.
[3] In July 2003, the applicants entered Canada with visa permits to visit their daughter. Shortly thereafter, they filed their refugee claims.
[4] The Refugee Protection Division characterized Mr. Sivagurunathan's testimony as straightforward and forthright, without embellishments or inconsistencies. However, the tribunal concluded that the applicants do not have a well-founded fear of persecution:
The claimants are not young Tamils. No one perceives them to be militants. They are not known to be related to Tamil terrorists. It is the claimant's onus to demonstrate that he would face ongoing demands, which would amount to persecution. The panel finds that the claimants do not have a well-founded fear of persecution.
The panel has considered all three grounds under ss. 96 and 97(1) of the Act and finds that there is no serious possibility that the claimants will be harmed in Sri Lanka, regardless whether the alleged harm would amount to persecution, a risk to their lives, a risk of cruel and unusual treatment or punishment or a danger of torture. [Emphasis added]
Parenthetically, counsel noted the similarity between the tribunal's language and the words used by Justice Simpson in an earlier Sri Lankan extortion case: Krishnapillai v.Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1024 (T.D.) (QL) at paragraph 9.
[5] In response to the applicants' first submission in this application for judicial review of the Refugee Protection Division's negative determination, I have not been persuaded that the panel's use of the word "would", in the extract from the decision repeated in the previous paragraph, indicates a misunderstanding of the appropriate legal test. In my view, on a reading of the extract as a whole, the panel was describing the type of "ongoing demands" the applicants were required to establish and not their onus of proof: Nilani v. Canada (Minister of Citizenship and Immigration), 2004 FC 1041 at paragraph 7. The second paragraph in the extract demonstrates that the panel understood the correct threshold to be "serious possibility" of persecution.
[6] Similarly, on the record in this case, the tribunal could conclude that there was no evidence of sanctions amounting to persecution by the L.T.E.E. against pensioners who refuse to meet the demands of extortionists. The applicants lived in Sri Lanka for seven months after the February 2003 extortion. There is no suggestion that they were troubled for further payments after the first incident. Counsel for the applicants argues that the tribunal ignored documentary evidence. I have reviewed the passages relied upon by counsel and am satisfied that they are easily distinguishable from the circumstances faced by the applicants in this case.
[7] The circumstances concerning the incidents of extortion in Vygthilingham v. Canada (Minister of Citizenship and Immigration), 2004 FC 796, Packiam v. Canada (Minister of Citizenship and Immigration), 2004 FC 649 and Nadarajah v. Canada (Minister of Citizenship and Immigration), 2004 FC 500, differ from those in this proceeding. Despite these precedents, it was open to the tribunal in this case to reach its negative determination on the record before it.
[8] Finally, the applicants argue that if the tribunal's decision is free from reviewable error in its section 96 analysis, the Court should nonetheless intervene in view of the failure to assess the claims thoroughly under section 97. I do not agree. On the facts in this proceeding, the tribunal could dispose of the issues related to section 97 as it did.
[9] In dismissing this application for judicial review, I note that none of the applicants' three children live in Sri Lanka and that they have one daughter who resides in Canada. It may well be that the respondent will want to determine the applicants' final status in Canada on the basis of humanitarian and compassionate considerations.
[10] Neither party suggested the certification of a serious question in this proceeding and none will be certified.
O R D E R
This application for judicial review is dismissed.
"Allan Lutfy"
OTTAWA
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4720-04
STYLE OF CAUSE:
PONNIAH SIVAGURUNATHAN
THEVARATNAM SIVAGURUNATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 2005
REASONS FOR ORDER
AND ORDER BY: The Chief Justice
DATED: March 31, 2005
APPEARANCES:
Michael Crane FOR APPLICANTS
Stephen H. Gold FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Barrister & Solicitor
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT