IMM-3595-96
B E T W E E N:
PREMALATHA PUVANENDIRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated September 30, 1996. By that decision the Board determined that the applicant is not a Convention refugee.
Facts
The applicant is a citizen of Sri Lanka. She based her claim for refugee status on her political opinion, her nationality as a Tamil, and her membership in a particular social group, namely, a young Tamil from northern Sri Lanka who fears recruitment by the Liberation Tigers of Tamil Eelam ("L.T.T.E."). Because of her persecution in northern Sri Lanka, she went to Colombo with her uncle on July 15, 1995. The next day the lodge where they were staying was raided by the police. She and her uncle were taken into custody. The applicant remained in custody for two days. She was accused of supporting the L.T.T.E. She said she was refused proper meals and was sexually assaulted by a police officer who attempted to remove her dress. She was slapped on her cheek. She was released from detention after paying a bribe. Before being released she was photographed, fingerprinted and advised to report to the police on a weekly basis.
Analysis
My perusal of the Board's reasons persuades me that the panel was fully aware of the actions of the police officers in this case. In coming to its conclusion, the Board did not ignore the applicant's evidence. In my view, it is apparent that the Board gave greater weight to the documentary evidence before it which indicated that the authorities in Sri Lanka were becoming increasingly respectful of the human rights of detained persons. While not condoning the impropriety of the actions of some of the police officers, it is apparent that the Board concluded, on the totality of the evidence, that the applicant had not made out a claim to refugee status.
In my view, on this record, such a conclusion was reasonably open to the Board and cannot be said to be unreasonable1.
Fundamental Justice
The applicant has also claimed a breach of fundamental justice because the Board based its decision on an issue in respect of which notice was not given and counsel was not allowed to address. This is a reference to the issue characterized by the applicant as the prosecution versus persecution issue. In my view, that issue is not central to this decision because the Board based its decision on a careful review of the objective likelihood of the applicant facing persecution in the light of present conditions in Colombo.
Conclusion
For all of the above reasons, the within application for judicial review is dismissed.
Certification
Counsel for the applicant suggested that the following question be certified pursuant to Section 83 of the Immigration Act:
| "Is the Board required to provide notice before rendering its decision that it is considering the issue of prosecution versus persecution?" |
I decline to certify this question because it would not be dispositive of this application for judicial review. The fact that the Board stated, additionally, that such harm would be prosecution not persecution does not negate the ratio of the Board's decision, namely, that an objective basis for the fear was lacking.
"Darrel V. Heald"
D.J.
Toronto, Ontario
July 8, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3595-96
STYLE OF CAUSE: PREMALATHA PUVANENDIRAN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JULY 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: JULY 8, 1997
APPEARANCES:
Mr. Michael F. Battista
For the Applicant
Ms. Cheryl Mitchell
For the Respondent
SOLICITORS OF RECORD:
Wiseman Gordon D.
205-1033 Bay Street
Toronto, Ontario
M5S 3A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3595-96
Between:
PREMALATHA PUVANENDIRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Compare Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.)