Date: 19990924
Docket: IMM-3729-98
OTTAWA, ONTARIO, THIS 24th DAY OF SEPTEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
MARNICKAM DUTTON JESURATNAM and
THAYADEVI JESURATNAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the applicants" application for judicial review of the decision of the Convention Refugee Determination Division dated June 10, 1998;
UPON review of the parties" written submissions and the hearing of September 3, 1999 in Toronto, Ontario;
IT IS HEREBY ORDERED THAT:
| This application for judicial review is dismissed. |
"Allan Lutfy"
J.F.C.C.
Date: 19990924
Docket: IMM-3729-98
BETWEEN:
MARNICKAM DUTTON JESURATNAM and
THAYADEVI JESURATNAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
| _. Marnickam Dutton Jesuratnam and his spouse Thayadevi are citizens of Sri Lanka. The applicants fear persecution because of their Tamil origin and Mr. Jesuratnam"s former status as a senior judge in Sri Lanka. |
| _. On more than one occasion, the panel of the Convention Refugee Determination Division made clear that it accepted unequivocally the applicants" credibility.1 However, despite its acceptance of the applicants" subjective fear, the tribunal concluded that there was insufficient evidence concerning the objective element of their well-founded fear of persecution. In the words of the tribunal: |
| ... there is an absence of evidence of a judge receiving a reprisal by members of the LTTE or the JVP. ... The male claimant was the only Tamil High Court Judge working in a predominantly Sinhalese area, as he indicated he passed judgment on LTTE and JVP suspects and members without incident. |
...
| There is a possibility that the ongoing strife, attacks on civilian targets by the LTTE in Colombo and lack of a meaningful peace process could once again lead to the horrific ethnic rioting which occurred in Colombo in 1983. There is also a possibility that the claimants could face a reprisal flowing from the male claimant"s work in Sri Lanka a decade ago. These, however, appear to be less than the standard required in Adjei.1 The panel determines that there is no more than a mere possibility that the claimants would be persecuted as a result of his former status as a judge of the High Court and a Tamil. The same finding is made for the female claimant. [Emphasis added.] |
_____________
| 1 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A.). |
| _. Counsel for the respondent did not seriously question the applicants" initial submission that where documentary evidence is not available, "the claimant may still be able to establish that the fear was objectively well-founded by providing testimony with respect to similarly situated individuals."2 However, the parties differ on the tribunal"s assessment of the evidence concerning the objective component of the test. |
| _. Counsel for the applicants, in his forceful presentation, argued that the tribunal erred in not recognizing that their credible evidence could satisfy both elements of the twofold test. More specifically, he states that the tribunal failed to consider important evidence that was filed by the applicants some six weeks subsequent to the hearing. As I understand this argument, the applicants take up the proposition set out by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),3 where he intervened because of the Refugee Division"s failure to consider certain evidence: |
| Finally, I must consider whether the Refugee Division made this erroneous finding of fact "without regard for the material before it." In my view, the evidence was so important to the applicant"s case that it can be inferred from the Refugee Division"s failure to mention it in its reasons that the finding of fact was made without regard to it. ... The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant"s claim. [Emphasis added.] |
| _. In this case, Mr. Jesuratnam testified concerning two death threats he received while a judge in Sri Lanka. In 1986, the Liberation Tigers of Tamil Eelam made the first threat because of the huge fines he was imposing on certain Tamils when he was serving as a District Judge in Batticaloa.4 Within a month of this incident, Mr. Jesuratnam was appointed as a High Court Judge and served in Anuradhapura. In 1988, when he was a High Court Judge in Colombo, Mr. Jesuratnam received a death threat from the People"s Liberation Front, commonly referred to as the JVP, because he had sentenced one of their supporters to prison. There is no evidence that the death threats, serious in themselves, were followed with further physical reprisals against Mr. Jesuratnam. In my view, this explains the tribunal"s statement that he worked as a judge "without incident".5 |
| _. Shortly after the 1988 death threat, Mr. Jesuratnam accepted an appointment in Fiji where he worked as a judge until 1993. He then retired from judicial service and returned to Sri Lanka. Except for an eight-month period in 1995 during which he lived in Jaffna, he resided in Colombo from August 1993 to July 1996, when he left Sri Lanka to seek refuge in Canada. |
| _. At the very end of the hearing, the tribunal summarized, accurately in my view, the applicants" reasons for fearing persecution in Sri Lanka as set out in the personal information documentation and their testimony. In his comments, the panel member clearly emphasized the incidents of hooliganism and robbery that Mr. and Mrs. Jesuratnam had encountered since their return to Sri Lanka in 1993. He also took into account the contemporary volatile political environment and commented that the applicants had previously been threatened as had human rights advocates, some of whom were killed.6 |
| _. The panel member also noted Mr. Jesuratnam"s testimony that a judge was killed in Mullaittivu, in north eastern Sri Lanka.7 However, he invited the applicants to provide more evidence concerning the threats to judges in Colombo: |
| You mentioned a judge in Mullaittivu who was killed, but we are particularly interested in the situation of judges in Colombo. So I"m asking your counsel to take some time to see if you can find with you [sic] more information about persecution that judges in Colombo or the south have faced. And also, because you indicated an old fear (phoen) from the JVP, whether you have any documentary evidence concerning the resurgence of the JVP, if they are active.8 [Emphasis added.] |
| _. In my view, these comments disclose that the panel member understood Mr. Jesuratnam"s testimony concerning the death threats he received in Batticaloa in 1986 and in Colombo in 1988. It was open to the tribunal to request further evidence concerning the persecution of judges in Colombo, particularly since Mr. Jesuratnam was able to continue his judicial career through 1988 in Sri Lanka, the country to which he returned in 1993 after his service in Fiji. In making this request, the panel member was providing the applicants with the opportunity of supplementing the record with further evidence of persecution against judges in southern Sri Lanka. |
| _. The tribunal acknowledged having received the applicants" supplementary documentation and submissions subsequent to the hearing. The principal source of this information was an attorney who practised in Sri Lanka until June 1988. His affidavit, which was supported with some documentary evidence, referred to the LTTE assassination of the judge in Mullaittivu in 1985, who may have been killed because of other alleged activities as a government agent. He also referred to the killings of a judicial official in northern Sri Lanka in 1985 and an acting magistrate in an undisclosed location in 1988. |
| _. The tribunal"s failure to refer, in a specific manner, to this additional evidence in its reasons is not, in my view, a reviewable error. The new information referred to incidents between 1985-88, with no specific reference to the plight of judges in Colombo and southern Sri Lanka, as requested at the end of the hearing. The supplementary evidence was consistent with the testimony of Mr. Jesuratnam concerning the threats he received during the same period, but did not respond directly to the concerns expressed by the tribunal. The new information submitted on behalf of the applicants was not the kind of "important evidence", in the circumstances of this decision, which Justice Evans referred to in Cepeda-Gutierrez.9 |
| _. In my opinion, the tribunal"s reasons for decision deal comprehensively with its perception of the relevant issues. It determined that the harassment suffered by the Jesuratnams since their return to Sri Lanka in 1993 did not constitute persecution. The tribunal focussed on the applicants" experiences in Sri Lanka since 1993, principally in Colombo. When read in this context, the reference to the "absence of evidence",10 in the reasons for decision concerning reprisals against judges, is better understood. Even if I had been convinced that "insufficient evidence" would have more accurately described the material before the tribunal, I would not intervene in the circumstances of this case. I am satisfied that the supplementary evidence did not alter the tribunal"s concern, expressed at the end of the hearing, that the applicants had not established they were Convention refugees |
| _. Accordingly, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question in the circumstances of these reasons for order. |
| _. This case requires a final comment concerning the applicants. Mr. and Mrs. Jesuratnam are 72 and 61 years of age respectively. Their eldest child is a citizen of Canada. Their two other children were found to be Convention refugees and are currently permanent residents in Canada. The youngest child received her refugee status at the end of the same hearing conducted with respect to her parents" claims. I would hope that the Minister and her officials would favourably consider these humanitarian and compassionate considerations in determining the applicants" future status in Canada. |
"Allan Lutfy"
Ottawa, Ontario J.F.C.C.
September 24, 1999
__________________1 In describing Mr. Jesuratnam"s testimony, the tribunal noted: "It should be stated at theoutset and emphasized that the male claimant was an articulate, straightforward and utterly credible witness. His demeanor, his manner of expression and the clarity of his oral statements are consistent with his evidence concerning his former occupation as a judge in Sri Lanka and the status he held in Sri Lanka during his working years." In the penultimate paragraph of his reasons, the single Board member repeated this view: "As a final note I wish to reiterate once again the panel"s finding that the claimants were credible, straightforward witnesses."
2 Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at 666. See also Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 723-24.
3 [1998] F.C.J. No. 1425 (T.D.) at paragraph 27.
4 Tribunal record, pp. 761 and 772.
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