Federal Court Decisions

     IMM-1389-96

B E T W E E N :

     THANGAMMAH SANGARAPILLAI

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

    

     Respondent

     REASONS FOR ORDER

MacKAY J.:

     By this application for judicial review, the applicant seeks to have set aside a decision of a panel of the Convention Refugee Determination Division dated April 2, 1996, whereby it was determined that the applicant is not a Convention refugee within the meaning of that term as set out in s-s. 2(1) of the Immigration Act, R.S.C. 1985, c.I-2, as amended.

     When the matter came on for hearing in Toronto on February 18, 1997, decision was reserved. Having had the opportunity to review the record and consider submissions made at the hearing, an Order now issues dismissing the application. These are brief Reasons for that Order.

     At the time of the Convention Refugee Determination Division decision, in April, 1996, the applicant was 73 years of age, a female Tamil from the north of the country, in an area of fighting between the Tamil Tiger insurgents and the Sri Lankan armed forces. In the Fall of 1991, Sri Lankan forces occupied her village with support from the EPDP, a Tamil militant movement supportive of the government forces.

     On November 15, 1992, the applicant was detained by EPDP forces who demanded money from her which they expected her family would provide. They permitted her to go to Colombo to contact her son to obtain money. She arrived in Colombo on November 18 and there learned that her son, who lived and worked in that City, was in police custody on suspicion of being a Tiger supporter. She stayed with one of her relatives. On November 30, 1992, others from the EPDP called on her at the residence of her relative and demanded the money which their comrades in the north had previously sought from the applicant. They threatened that if she did not provide the money within a month she would be killed.

     After this effort of extortion she was asked by her relative to find another place to live. She lived at a lodge for a week before the EPDP again called on her and renewed their demand for money. She then made arrangements through relatives to leave Sri Lanka which she did on December 15, 1992, coming to Canada. After arrival here, with a son she claimed Convention refugee status.

     The claims of the applicant and her son were considered together and in 1993 their applications for refugee status were denied. That decision of October, 1993 was set aside and their claims were remitted for reconsideration.

     The panel hearing the matter anew met on February 8, April 19 and June 21, 1995. Its decision was rendered April 2, 1996 when it found that her son's application should be allowed but the applicant's application should be denied.

     The decision of the panel, as it relates to the applicant, is fairly brief. It provides, with footnotes omitted:

With regard to the female claimant, the panel finds that even if she were to have a well-founded fear of persecution, she would have an internal flight alternative (IFA)

The panel has considered the two-pronged test set out in Rasaratnam.

The female claimant's fear of persecution in Colombo is based on extortion by the Eelam Peoples Democratic Party (EPDP). The documentary evidence shows that the EPDP is keeping a low profile in Colombo. Whereas, in the past (before the last parliamentary elections), there were many allegations against the EPDP. Now, there are none. The panel finds that the influence of the EPDP has greatly diminished since November 1992, when they tried to extort the female claimant. Over three years have elapsed since that event. The panel finds that it is not probable that those individuals would be following up on their previous attempt to extort her. There is no evidence that they have tried to locate the female claimant since that time, either at her relative's residence in Colombo or elsewhere.

The female claimant's situation is clearly not related to that of the male claimant's. She was not even in Colombo at the time he was arrested by the police. Given the female claimant's age (73 years), it is not probable that she would be perceived as a Tiger. Indeed, this issue did not even arise.

The female claimant's son (the male claimant), although presently no longer residing in Colombo, would likely have established contacts there who could assist the female claimant. As well, the female claimant has another relative in Colombo with whom she resided during her stay there.

The panel finds that the female claimant does not have a well-founded fear of persecution in Colombo and it is not unreasonable in the circumstances for her to reside there.

     The issue raised by the application is whether the panel properly applied the test in Rasaratnam v. M.E.I., [1992] l F.C. 706 (C.A.) as elaborated by Mr. Justice Linden in Thirunavukkarusu v. M.E.I., [1994] l F.C. 589 (F.C.A.). The finding of an IFA requires a determination that it is objectively reasonable in all of the circumstances, including those particular to the applicant, to conclude that it would not be unreasonable for the applicant to seek refuge in Colombo, in this case, because there was no serious possibility of her persecution there.

     It is urged for the applicant that the Board did not take into account, in its assessment of the circumstances prevailing within Colombo and Sri Lanka at the time of its decision, documentary evidence which was important. That evidence is said to include a letter dated July 9, 1992 from the representative in Canada of the U.N. High Commissioner for Refugees describing circumstances in Sri Lanka, and cautioning that, in assessing possibilities of an IFA in Sri Lanka, factors such as the presence of close relatives or the duration of previous residence or past employment in the area should be important considerations. The letter in question was a significant factor in the decision of my colleague Mr. Justice Gibson in Kulanthavelu v. M.E.I., (1993), 71 F.T.R. 129 (F.C.T.D.). The letter was among the documents included by reference in the index of documentary evidence provided for the panel in this case by the R.F.O. Thus it was before the panel. The question raised by the applicant, in my opinion, appears to concern the appropriate weight to be given to that document. It was a timely document for the decision reviewed by Gibson J. for the decision there was made a few months after publication of the letter. In this case, the decision sought to be set aside was made almost four years after publication of that document and much has happened in Sri Lanka since then, and those subsequent developments were referred to in other documentary evidence before the panel. This argument, relating to the weight to be given to the letter in question, does not raise a ground for this Court to intervene, for in my opinion, the panel's decision would not appear unreasonable in light of all of the documentary evidence before it.

     The argument that documentary evidence was ignored by the panel is also directed to documents provided to the panel in December, 1995, after its hearings had concluded and before its decision was rendered. In its decision, the panel makes reference to the decline of the influence of the EPDP since November, 1992 when they had sought to extort money from the applicant. The source for that information was an address to the Immigration and Refugee Board in Toronto in January, 1995 by Professor Bruce Matthews. The applicant has contended that the conditions outlined by that address had changed significantly before the panel's decision in April, 1996 with the outbreak in mid-1995 of fighting in the north and attacks in various areas of the country, including Colombo, by Tiger militants. It is urged that these changes indicate very different circumstances from those prevailing in January, 1995. In view of those changes, it is urged that the panel, having made no reference to the adverse conditions referred to in documentary evidence submitted on behalf of the applicant in December, 1995, had virtually ignored it.

     I am not persuaded that this is so. In its decision the panel specifically notes that evidence presented at the hearing included "documents tendered by counsel (for the applicant) and the R.H.O. Post hearing evidence was received from counsel on December 14, 1995 and duly considered by the Panel". That evidence is specifically referred to in a footnote as exhibit C-10 to the panel's decision.

     In my view, the panel's decision demonstrates no reviewable error. It specifically notes that it did consider documents submitted in December, 1995 on behalf of the applicant. Its decision concerning circumstances within Colombo is supportable on some, if not all, of the documentary evidence submitted to it. Moreover it seems to me to have taken account of circumstances particular to the applicant, her age, the fact that she has a relative in Colombo with whom she resided when she was there, the fact that it was more than three years since the EPDP extortion attempts, and the fact that her son, who had lived and worked in Colombo, would likely have some contacts there who could assist the applicant. These are factors which, in my view, the panel could reasonably conclude were supportive of its decision that it was not unreasonable for her to reside in Colombo where she did not have a well-founded fear of persecution.

     For these reasons the application is dismissed.

     ___________________________

     JUDGE

OTTAWA, Ontario

March 5, 1997.