Date: 19990708
Docket: IMM-3550-98
Ottawa, Ontario, this 8th day of July, 1999
Present : The Honourable Mr. Justice Pinard
Between :
Sikkandar JAKARIYA
Applicant
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board dated June 17, 1998, in which it determined the applicant was not a Convention refugee, is dismissed.
JUDGE
Date: 19990708
Docket: IMM-3550-98
Between :
Sikkandar JAKARIYA
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated June 17, 1998, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The applicant is a citizen of Sri Lanka who alleges a well-founded fear of persecution on the grounds of race, religion and membership in a particular social group, namely a young Sri-Lankan Muslim, and on imputed political opinion, namely on suspicion of being a Liberation Tigers of Tamil Eelam (LTTE) member.
[3] In its decision, the Board determined as follows:
| DETERMINATION |
| After examining the evidence as a whole, the panel finds that the claimant is not a "Convention refugee", based on the fact that he did not establish a well-founded fear of persecution in Sri Lanka for reasons of religion, membership in a particular social group, and imputed political opinion. Moreover, the panel determined that the claimant had a reasonable Internal Flight Alternative (IFA). |
[4] First, I note, as pointed out by the applicant's counsel, that the word "race" is not mentioned in the above abstract of the decision. The respondent, however, argues that the Board's reasons are not to be read microscopically and relies on Miranda v. M.E.I. (1993), 63 F.T.R. 81 where this Court held at pages 81 and 82:
| For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. |
And also as stated by Laskin J. (as he then was) in Boulis v. The Minister of Manpower and Immigration, [1974] S.C.R. 875 at page 885:
| . . . Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by s. 15(1)(b) and of the evidence addressed to them, without detailed reference. . . . |
[5] In the case at bar, it is clear from the decision read as a whole and from the record1 that even though the word "race" is not expressly mentioned by the Board, the latter duly took the applicant's race into account. For example, at page 1 of its reasons, the Board notes as follows: "The panel assessed the ethnic and religious background of the claimant, namely, a Tamil-speaking Muslim. . . .".
[6] As regards the question of the existence of a viable IFA in another part of the country, the Board stated the following:
| In his written submissions Me Goldstein argued that the claimant was not given an opportunity to prepare an adequate response to the question of IFA to Colombo. He further argued that the claimant was asked by the Board whether or not he had friends in Colombo, and that the Board did not give the claimant the opportunity to present his response in a clear and direct manner. |
| Earlier in the first sitting of the hearing, the claimant was asked if he could live in Colombo. His response was that he could not because people from the North are not liked in Colombo, and because the Sinhalese are in the majority. Later, he was again asked if he could avail himself of government protection in Colombo and again whether he could live in Colombo. To this, he again responded that because he does not know anyone because the Sinhalese are the majority and because he is not familiar with the area that he could not live there. Although the claimant acknowledged that he was aware of the vast number of Tamils living in Colombo, he could offer no reasonable explanation as to why he could not establish himself in Colombo. |
| The panel gave the claimant ample opportunity to explain why he could not settle in Colombo, and therefore rejects the arguments of Me Goldstein. |
| If in the claimant's opinion he would as a young Tamil Muslim continue to have difficulties in the North, the panel concludes that an IFA to Colombo is a realistic attainable option. |
| Moreover as stated in a report by the Social Affairs Reporting Unit-Canadian High Commission-Sri Lanka [footnote omitted], Colombo, and indeed other areas of the country are credible alternatives for those who seek to leave areas where fighting occurs. The notion of Colombo as an alternative site of residence is supported by the United Nations High Commissioner for Refugees, and Dr. Bruce Matthews of Acadia University who has studied the issue in depth. |
[7] In making a finding that an IFA exists, the Board is required to be satisfied on a balance of probabilities that there is no serious possibility of the applicant being persecuted outside of a particular region of the country, and that in all of the circumstances, including those particular to the applicant, conditions outside of that region are such that it would not be unreasonable for the applicant to seek refuge there. The onus is on the applicant to show that an IFA is not available (see Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 and Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706). However, there is an onus on the Minister and the Board to warn the applicant if an IFA is going to be raised.
[8] Applying those principles to the facts established by the evidence in the present case, I find that the questioning of the Board with respect to the IFA issue, although not extensive, was sufficient enough to indicate to the applicant that this issue was at stake. Furthermore, I also note that counsel for the applicant sent further submissions on the IFA issue after the hearing. I am also of the opinion, in the circumstances, that the applicant has not discharged his burden of showing that the inferences drawn by the Board, which is a specialized tribunal, could not reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315).
[9] Given the above finding that an IFA exists, which is sufficient to deny the applicant his claim for refugee status, it will not be necessary to deal with any other issue.
[10] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
July 8, 1999
__________________
1 See the specific pages of the official and complete transcript contained in the Board's record which are referred to by the respondent in paragraph 8 of her Further Memorandum of Argument.