Date: 20041124
Docket: IMM-695-04
Citation: 2004 FC 1654
Toronto, Ontario, November 24th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
THEVARAJAH, ANTON FELIX
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Thevarajah' wife and three children have been accepted as Convention refugees in Canada. He has not been so fortunate. The family's life together in Jaffna, Sri Lanka was disrupted by the civil war and the children were at risk of being recruited by the LTTE. Mr. Thevarajah managed to get his son and two daughters to Columbo and from there to Canada in 1997. He and his wife fled by boat to India in 1998 and made their way from there to Singapore in 2001. Mrs. Thevarajah arrived in Canada in June 2001.
[2] Mr. Thevarajah was unable to reach Canada from Singapore until November 2002 and his claim for refugee status was not heard until December 2003. Conditions had changed in Sri Lanka and the panel of the Immigration and Refugee Board (the "Board") that heard his claim was not satisfied that it was well founded. The Board did not accept that there was a serious possibility that he would be persecuted for a Convention reason or face a risk to life or to cruel or unusual treatment or punishment were he to return to Sri Lanka. Moreover, it found that even if he were to face problems in the north, he could relocate to Columbo. Accordingly, the Board denied his claim.
[3] Mr. Thevarajah seeks judicial review of that decision on three grounds:
a) the Board erred in law in applying the wrong test of persecution,
b) the Board ignored evidence, and
c) the Board erred in finding that he could relocate within in Sri Lanka.
Did the Board err in applying the test for a well-founded fear of persecution?
[4] Credibility was not a significant factor in the Board's findings. It accepted that Mr. Thevarajah had been the subject of extortion attempts by the LTTE, as recently as July 1997. It concluded, however, based on the applicant's evidence, that the LTTE had not pressed the matter at that time and had not caused the applicant any further problems during the eleven months thereafter, prior to his departure from Sri Lanka.
[5] The Board also found that the claimant had offered no evidence that he was at risk from the Sri Lankan government authorities. He and his son had been briefly detained by the army when they went to Columbo in March of 1997. However, he had returned there with his daughters some months later with no incident.
[6] The Board's reasons indicate that it applied the test in Adjei v.Canada (Minister of Employment and Immigration),[1989] 2 F.C.680 as to whether there is a "reasonable chance" or "serious possibility" that the claimant would be persecuted were he to return to Sri Lanka and concluded there was no objective basis for that finding.
[7] Mr. Thevarajah submits that the incidents that he suffered have created a well-founded fear of persecution. Past persecution, as well as the most recent events should be considered when determining whether a fear is well-founded: Retnam v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (C.A.). His subjective fear can be based upon reprehensible acts committed against his family in the past: Salibian v. Canada (Minister of Citizenship and Immigration), [1990] 3 F.C. 250 (C.A.) at paras. 15-16.
[8] The respondent submits and I agree that the RPD considered the events that occurred prior to 1997, but it was still open to the Board to also consider that Mr. Thevarajah remained in Sri Lanka for 11 months with no problems after the most recent attempted extortion. The evidence of earlier threats of harm was not so compelling as to require the conclusion, as in Salibian, supra, that the claim of a fear of persecution was well-founded.
Did the Board ignore evidence?
[9] Mr. Thevarajah submits that the documentary evidence before the RPD indicated that the LTTE continued to harm Tamils in 2002 by extorting and conscripting elders. The army also continued to abuse Tamils by using them as human shields in 2000. None of the articles citing these abuses were referred to in the RPD's reasons. The Board need not refer to every piece of evidence, but where it directly contradicts their findings it must be acknowledged: Zheng v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 101 at 105 (F.C.T.D.); Ragunathan v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 253 (C.A.).
[10] The respondent contends that the whole of the documentary evidence considered by the Board, notably the Department of State Report referred to in the Board's reasons, indicated that in 2002 there were no large-scale arrests, detentions were brief, and unlike in previous years, arbitrary arrests and residential searches no longer took place on a broad scale. The Board was entitled to prefer the most recent and authoritative documentary evidence and was not required to refer to each article in its reasons.
[11] The Board did refer to a recent document submitted by the applicant, a news report from the British Broadcasting Corporation noting that there continued to be a political power struggle in Sri Lanka. It found that this report did not suggest any greater risk to the applicant in his home country.
[12] I can find no indication in the record that the Board ignored documentary evidence that contradicts its findings. Accordingly, I find no reviewable error in the Board's treatment of the evidence.
Did the Board err in finding an Internal Flight Alternative?
[13] Mr. Thevarajah has raised a number of issues respecting the Board's finding that he could relocate to Columbo.
[14] First the applicant argues that he was given inadequate notice that the question of an internal flight alternative ("IFA") would be an issue at his hearing. He points to the lack of any indication on the Refugee Protection Division screening form that the issue of an internal flight alternative would be raised at his hearing. Further he argues that the Board did not question him on relocation opportunities and breached a basic principle of natural justice in failing to give him the opportunity to address its concerns in that regard: Rasaratnam v. Canada, (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (1993), 163 N.R. 232 (F.C.A.)
[15] The respondent objected to the question of notice being argued at the hearing in these proceedings as no complaint of prejudice or procedural unfairness was raised in the applicant's notice of application, affidavit or memorandum of argument. Moreover, she argues that the authorities cited by the applicant predate the coming into force of the Immigration and Refugee Protection Act ("IRPA"). In refugee claim proceedings under IRPA, applicants are put on notice from the outset that they must show that they are at risk anywhere in their countries of origin.
[16] I don't accept that the principles regarding fair notice expressed in Rasaratnam and Thirunavukkarasu, supra, are no longer pertinent under IRPA. However, I note that the question of relocation to Columbo was in fact raised in the hearing before the Board, by the applicant's counsel, at pages 124-125 of the Certified Tribunal Record, and the applicant was given the opportunity to explain why we would not be comfortable moving to Columbo or any other army-controlled area of Sri Lanka. Moreover, applicant's counsel addressed the issue in her final submissions.
[17] It is clear from the record that the applicant was aware that he had to establish why he could not return to any part of Sri Lanka. That he was not successful in doing so does not mean that he was denied procedural fairness before the Board.
[18] The applicant next argues that as he has no relatives in Columbo and with his family now in Canada, it was unreasonable for the Board to find that he could relocate to that city or other government controlled regions of Sri Lanka. Failure to consider the absence of relatives in Columbo and the presence of children in Canada was a reviewable error with respect to the IFA analysis: Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269; Sooriyakumaran v. Canada (Minister of Employment and Immigration)(1998), 156 F.T.R. 285.
[19] The Board also failed to consider that Mr. Thevarajah lived as a de facto refugee in India for three years. He would be at risk from the government for having left Sri Lanka illegally and, while he has a birth certificate, he lacks a national identity card. Sri Lanka being a unitary state, he would be subject to persecution anywhere in the country, particularly the seat of government, Columbo.
[20] The respondent submits that Mr. Thevarajah did not demonstrate that he would face the alleged risk, that is from the LTTE, in every part of the country: Thirunavukkarasu, supra. He has presented no evidence that he would be subjected to persecution or any risk of harm if resettled in Columbo. The absence of relatives in a safe place is only an objectively reasonable basis to reject the IFA if the absence itself would jeopardize life and safety: Ranganathan [2001] 2 F.C. 164.
[21] The Board must be satisfied on a balance of probabilities that (1) there is no serious possibility of the applicant facing persecution in the IFA and (2) in all of the circumstances, it is not unreasonable for the applicant to seek refuge there: Rasaratnam supra. The standard of review for the Board's findings in this regard is patent unreasonableness: Mohammed v. Canada (MCI) 2003 FC 954, [2003] F.C.J. No.1217.
[22] In my view, it was not unreasonable for the Board to find that Mr. Thevarajah could have found refuge in Columbo in 2002, even if he still had need of protection from the LTTE, which it did not accept, some five years after they had last taken an interest in him and his family. There was simply no evidence before the Board to satisfy the onus on the applicant to show that he was at risk from the government other than the one brief incident of detention in 1997. While the lack of a national identity card might cause him some difficulty, he remained in possession of his birth certificate and could apply for another ID card.
[23] Had the Board accepted that the applicant had a well-founded fear of persecution at the hands of a central authority, then it would have been unreasonable to expect a refugee claimant to seek refuge by relocating to a part of the country controlled by that authority: Sharbdeen v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 300 (F.C.A.) and Balasubramaniam v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1452 (T.D.)(QL). However, there was no evidence before the Board to support this finding.
[24] Mr. Thevarajah finds himself in unfortunate circumstances that might well support an application for humanitarian and compassionate consideration. But I can find no error of fact or law in the Board's findings that would justify the court's intervention. Accordingly, his application will be dismissed.
[25] The applicant's counsel has proposed that the court certify as a question of general importance whether an IFA should be found in a unitary state where the persecution alleged arises from the government in power. The respondent is opposed on the ground that the issue simply does not arise on the facts of this case. The central decision made by the Board was that the applicant faced no risk of persecution. I agree with the respondent. No question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
2. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-695-04
STYLE OF CAUSE: THEVARAJAH, ANTON FELIX
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 22, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Mr. I. Francis Xavier
FOR THE APPLICANT
Ms. Kareena R. Wilding
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. I. Francis Xavier
Barrister & Solicitor
Scarborough, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041124
Docket: IMM-695-04
BETWEEN:
THEVARAJAH, ANTON FELIX
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER