Federal Court Decisions

     IMM-2491-96

BETWEEN:

     MICHAEL, VICTORIA PONNIAH,

     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 "Tribunal") dated June 26, 1996. By that decision, the Tribunal determined that the applicant was not a Convention refugee.

FACTS

     The applicant is a seventy-one year old Sri Lankan Tamil who arrived in Canada on July 18, 1994. From 1982 to 1994 he lived in Jaffna.

     During that time, he faced harassment and extortion from Tamil militants. In February of 1994 he fled to Colombo. Shortly after arriving there, he registered his name and address with the authorities. Several weeks later, during a security check, he was taken to the police station where he was detained for two days during which he was questioned concerning the LTTE (the "Liberation Tigers of Tamil Eelam") and then released without the imposition of any conditions but advised to stay away from public places. He stayed in Colombo with a family friend for approximately five months. He then obtained a visitor's visa to come to Canada.

THE DECISION OF THE TRIBUNAL

     The Tribunal concluded that the applicant was not sought out for any particular reason by the authorities. He was arrested as part of a regular security check involving newly-arrived Tamils. During his subsequent stay of approximately five months with a family friend in Colombo, he was not approached personally by the authorities.

     The Tribunal observed that the applicant is not youthful looking and, therefore does not fall into the category of "Young Tamils", a group identified in the documentary evidence as being particularly at risk of being suspected of LTTE terrorism. On this basis, the Tribunal concluded that it was extremely unlikely that the applicant would be perceived as a terrorist threat and thus subject to the detention or interrogation faced by younger Tamils.

     The Tribunal further noted the presence in Colombo of a large Tamil community which has provided support and refuge for many displaced Tamils. It also observed that the applicant has numerous friends and acquaintances in Colombo who are capable of and are likely to provide him with assistance. In view of these circumstances, it concluded that conditions in Colombo were such that it presented a viable Internal Flight Alternative (IFA). On this basis, the Tribunal dismissed the applicant's application for refugee status.

ANALYSIS

     With respect to the IFA submission, the relevant jurisprudence is to the effect that the tribunal must be satisfied, on a balance of probabilities, that there was no serious possibility that the applicant would be persecuted in Colombo. The Tribunal must also be satisfied that, in all the circumstances, including circumstances particularly applicable to this applicant, conditions in Colombo, at all relevant times, were such that it would be objectively reasonable for the applicant to seek refuge there.¹

     The tribunal considered both aspects of this test. It considered the applicant's age, and the fact that he had friends and acquaintances in Colombo. It also had regard to the documentary evidence which established the existence of a large Tamil community in Colombo. That evidence also established that Tamil-language newspapers and radio as well as government services were available there. The tribunal concluded, based on this evidence, that it was reasonable to conclude that there was no serious possibility of persecution of the applicant in Colombo.

     The applicant made reference to a statement by the Tribunal which reads as follows:

The panel noted that the claimant is not youthful looking, and, therefore, does not appear to fit the profile of young Tamils, a group which has been identified in documentary evidence as being particularly at risk of being suspected LTTE terrorists in Sri Lanka and in Colombo.2

and at page 000014 of the Record, the Tribunal concluded:

Having regard to his advanced age and elderly appearance, it is extremely unlikely the claimant will be perceived as a terrorist threat or subjected to the type of detention or interrogation younger Tamils might face.

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The applicant then makes reference to a further statement by the Tribunal that the applicant appeared "healthy and able-bodied".³

     In view of these seeming inconsistencies, the applicant makes the following submission:

The Board considered the claimant as an advanced aged elderly person for the purpose of making him an unsuitable candidate for persecution in Colombo and in the same breath, it had made him a healthy and able-bodied person to consider that it was reasonable for him to seek an IFA in Colombo. These two facts are at odds and, therefore, one conclusion based on one of these facts should fail. This failure of one conclusion would defeat the IFA analysis of the panel.

     I am unable to agree with this submission. I accept the respondent's view that age and health are two different factors. The age of the applicant was an important factor in determining the applicant's profile and thus relevant in determining whether there was a serious possibility that he would be persecuted in Colombo. On the other hand, the health of the applicant is relevant to a consideration of the applicant's particular circumstances. Based on the documentary evidence, the Tribunal concluded that young Tamils were the targets of repeated harassment and detentions. The Tribunal also concluded, correctly in my view, that the applicant at age seventy-one, clearly, does not fit this profile. In assuming the applicant's particular circumstances, the panel noted, inter alia, that the applicant appeared healthy and able-bodied, and was, therefore, capable of withstanding security checks.

     On this record, I have concluded that the Tribunal's decision was reasonably open to it. In the case of Tawfik v. M.E.I.,⁴ it was stated:

There is no necessity for the Board to refer in detail to all of the evidence before it [Hassan v. M.E.I.¸ (Unreported, Court file A-831-93, October 22, 1992 (F.C.A.)]. The Board is one with recognized expertise, and unless its conclusions of fact from all the evidence before it can be said to be capricious or perverse, this Court may not intervene.

---

     For the reasons given supra, I have concluded that the Tribunal's conclusions herein were, most certainly, not capricious or perverse.

CONCLUSION

     For the above reasons, the within application for judicial review is dismissed.

     Neither counsel requested that a serious question of general importance be certified pursuant to Section 83 of the Immigration Act. I agree with that view. Accordingly, no question will be certified.

                         Darrel V. Heald

                         Deputy Judge

Ottawa, Ontario

April 24, 1997

__________________

     ¹      See Rasaratnam v. M.E.I. [1992] 1 F.C. 706; see also Thirunavukkarasu v. M.E.I. (1993) 163 N.R. 232 (F.C.A.).

     ²      Tribunal Record - Page 000007.

     ³      Tribunal Record - Page 000018.

     ⁴      F.C.T.D., August 23, 1993, 93-A-311.