Date: 20040130
Docket: IMM-3172-03
OTTAWA, Ontario, this 30th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
PARIMALAR SANGARAVELU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated April 1, 2003, which determined that the applicant is not a convention Refugee or a person in need of protection.
FACTS
[2] The applicant is a 37 year old Tamil citizen of Sri Lanka, who was born and raised in Colombo. She claims a fear of persecution, on the basis of her Tamil ethnicity, from a Sri Lankan policeman. In October 1995 the police allegedly arrested her on suspicion of being involved with the LTTE; she was beaten, humiliated, interrogated severely and detained for three days at the Slave Island police station. She was released on the condition that she could not relocate and that she report to the police when required.
[3] She arranged to flee Sri Lanka in 1997 because a police officer threatened to arrest her as an LTTE supporter since she rejected his sexual advances. She claims she had to bribe the officer to stop him from carrying out his threat, and that he warned her not to report him to his superiors. She was sponsored to come to Canada by one Mr. Sellathurai Krishnavasan whom her brother had arranged for her to marry. She arrived in Canada with landed status on April 19, 1997 on the condition that the arranged marriage occur within 90 days of her arrival. However, the marriage did not proceed because Mr. Krishnavasan was already co-habiting with another woman. The applicant then filed a refugee claim on June 24, 2002.
[4] The Board doubted the credibility of her refugee claim and found that the applicant was merely trying to bypass the immigration system. At page 4 of it reasons the Board states:
The claimant arrived in April 1997, a month after her fiancée took up housekeeping with someone else and her brother did not come back to Canada until July 1997. The panel finds that there are too many coincidences and that the whole marriage scheme was a sham to get the claimant into Canada, while bypassing the immigration system.
[5] With respect to the alleged threat from the police officer, the Board found that the applicant had failed to seek available state protection. At page 5:
The panel finds that this was criminal behaviour by the policeman and had the claimant gone to his supervisors, it would have likely been that he would not have been able to harm her as he would have been punished himself. The claimant said there was no protection by the authorities. The panel disagrees. The claimant did not seek protection in her own country and cannot look for international protection before she has done so.
[6] The Board also found that conditions for Tamils in Colombo had eased considerably and that the claimant was not at a particular risk of persecution by virtue of her ethnicity. At page 5:
There are other statements in this report that indicate that the conditions for Tamils in Colombo, has eased considerably. The panel finds that given the high level of security in Colombo, there is no more than a mere possibility of persecution by the LTTE in Colombo. In regards to the claimant's fear of the authorities, the panel finds that the claimant is not at risk of being a particular target of arrest and detention. She will be subjected to security checks, arrests and short detentions but the Federal Court has held that short detentions, for the purpose of preventing disruptions or dealing with terrorism does not constitute persecution.
[7] The Board then concludes as follows, at page 6:
The panel is sympathetic to the claimant's concern that all her family has left Sri Lanka, however, family re-unification is not part of the Board's mandate. The burden rests on the claimant to establish on a balance of probabilities that there is more than a mere possibility that she would suffer harm serious enough to amount to persecution, should she return to Sri Lanka today. In the panel's view, she has failed to meet this obligation.
Applicant's Position
[8] The applicant submits that the Board exceeded its jurisdiction in determining that her marriage arrangement was a scheme and a sham. The applicant submits that the Board raises a reasonable apprehension of bias in describing the applicant's arranged marriage as a "scheme" and "sham". The applicant submits that the Board failed to provide reasons for disagreeing that state protection was unavailable with respect to the threats of the police man, and that she failed to seek protection in Sri Lanka before fleeing.
Respondent's Position
[9] The respondent submits that a state is generally presumed to be able to protect a claimant, and that evidence of the state's inability to protect depends upon whether the applicant could reasonably have been expected to take more steps than she did in seeking protection. Finally, the respondent submits that the arranged marriage did not influence the Board's finding on the lack of an objective basis for fearing persecution in Colombo.
ANALYSIS
[10] The standard of review applicable to the Board's findings of fact is patent unreasonableness, and that as a whole, the Court not to substitute the Board's decision with its own, unless the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
[11] The Board used the words "scheme" and "sham" in describing the applicant's arranged marriage. This references the Board's conclusion that the applicant used the arranged marriage to flee Sri Lanka. I do not find that this raises a reasonable apprehension of bias, i.e. whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide the issue unfairly. See Committee for Justice & Liberty v. Canada (Nat Energy Board), [1978] 1 S.C.R. 369; and Satiacum v. Canada (Min of Employment & Immigration) (1985), 25 D.L.R. (4th) 466 (F.C.A.). In this case, the Board could not ignore the circumstances in which the applicant came to Canada. The Board does not disclose a bias against the applicant because it calls the applicant's arranged marriage a "sham" or "scheme" because in fact it was both. The arranged marriage was shown to be not bona fide when the applicant discovered her fiancee was living with another woman.
[12] In any event, the determinative issue in this application is whether the applicant had a well-founded objective fear of persecution. In this regard state protection is relevant. The applicant's reason for fleeing Sri Lanka was to escape from one particular police officer who was sexually harassing her. She did not report him to the authorities, i.e. seek state protection from his criminal behaviour.
[13] State protection was defined by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 per La Forest J., at paragraph 50:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided.. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. [emphasis added].
[14] The Board did not ignore evidence or err in its finding on state protection or on the objective risk of persecution faced by the applicant in Colombo. The applicant's own evidence was that the policeman warned her not to report him to his superiors. This shows that he did not believe that he would be immune from punishment. Furthermore, the evidence indicates that in Colombo Tamils are safe. While Tamils in Colombo may be detained they are not persecuted. What the applicant experienced was not persecution, but criminal behaviour by one rogue police officer. This finding of fact by the Board is not patently unreasonable. While the applicant's counsel ably argued that Tamil women face this type of sexual harassment without any recourse from the authorities, there is evidence before the board that such criminal behaviour by the police is prosecuted by the authorities. Applicant's counsel argues that prosecution only occurs in high profile cases where the woman is raped or killed. That distinction is not evident on the record before the Court, and cannot serve as a basis to set aside the Board's decision.
[15] This Court cannot find that the Board acted improperly or with bias, or unreasonable findings about state protection or about a lack of an objective basis for fear of persecution for Tamil women from Colombo.
[16] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3172-03
STYLE OF CAUSE: PARIMALAR SANGARAVELU v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
FEDERAL COURT
Date: 20040130
Docket: IMM-3172-03
BETWEEN:
PARIMALAR SANGARAVELU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER