Date: 20040831
Docket: IMM-8065-03
Toronto, Ontario, August 31st, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
LAKSHMI SHRIYANTHI LEWIS
SANDESH DANIEL LEWIS
SHEVON JAKE LEWIS
JOHN FITZGERALD LEWIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Lewis family's refugee claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board because the Board found no objective basis for the applicants' alleged fear of persecution by the Janatha Vimukthi Peramuna (JVP). The Board further found that in any event, state protection would have been available to the family in Sri Lanka, had they sought it.
The Applicants' Allegations
[2] Lakshmi Shriyanthi Lewis and her husband John Fitzgerald Lewis are the parents of Sandesh Daniel Lewis and Shevon Jake Lewis. All are citizens of Sri Lanka. The family's claims are based upon the grounds of perceived political opinion and membership in a particular social group, that is, Ms. Lewis' family.
[3] Ms. Lewis alleges that while she was in attendance at the Open University in Nawala, she joined a students' committee. It was only after attending approximately 10 committee meetings that Ms. Lewis realized that the group had more of a political focus than an academic one. The group was, in fact, a JVP cell. At the time, the JVP was a socialist revolutionary movement.
[4] Upon becoming aware of the true nature of the organization, Ms. Lewis allegedly stopped attending meetings. Group members asked her why she was no longer coming to the meetings. Because she was afraid of the other members of the group, Ms. Lewis says that she did not disclose her reasons for leaving. Nevertheless, the other members allegedly became angry with her because she "knew everything", and she began receiving threatening telephone calls.
[5] Ms. Lewis left Sri Lanka for Japan in 1989, remaining there for several months. When she returned to Sri Lanka, she again began to receive threatening phone calls and letters. Ms. Lewis went back to work in Japan in December of 1990, returning to Sri Lanka briefly to get married. After the wedding, Ms. Lewis again returned to Japan, where she stayed for several years.
[6] Ms. Lewis returned to Sri Lanka in or before 1995. For several years she lived in Sri Lanka without difficulties. However, after running into a former JVP associate in 1998, Ms. Lewis says that she again began receiving threatening calls. As a result, she decided to return to Japan with her children, where she remained until July of 2000, when she and her children travelled to Canada to attend her mother's funeral. They made a claim for refugee protection three months later, on October 17, 2000.
[7] Mr. Lewis alleges that after Mrs. Lewis left for Japan in July of 2000, he began having problems with the JVP. Specifically, he says that people came to the house asking for Ms. Lewis. Mr. Lewis came to Canada in March of 2003.
The Board's Decision
[8] The Board found that issues relating to the agents of persecution and state protection were determinative in this case. The presiding member had a number of problems with Ms. Lewis' testimony. For example, Ms. Lewis' Personal Information Form or 'PIF' states that the purpose of the phone calls was to force her to attend meetings. However, in her oral testimony, she said that the person making the phone calls threatened to kill her. Similarly, Ms. Lewis claims in her PIF that her mother received threatening calls warning her that she and other members of her family would be killed, whereas in her oral testimony Ms. Lewis stated that the caller asked to speak to her, and that no threats were made to her mother. Ms. Lewis also provided inconsistent testimony as to the timing of the threats and when it was that the family had their phone disconnected. Similarly, Ms. Lewis gave varying estimates of the amount of time that she spent in hiding after the threats started in 1989. She was unable to explain these inconsistencies.
[9] Ms. Lewis stated that no reports were made to the police regarding either the harassing phone calls or the threats made by those who came looking for her at her home. Ms. Lewis stated that she could not trust the police because they were involved with the JVP. The presiding member pointed out that Ms. Lewis' father had been an Inspector of Police for several years, and had been responsible for wiping out the JVP in 1989-1990. (It appears that the organization was reconstituted in 1994 as a legitimate political party.) Given her father's police connections, the Board did not accept Ms. Lewis' explanation for her failure to seek state protection as being either reasonable or plausible.
[10] Ms. Lewis also stated that she did not report the telephone threats to the police when the calls resumed in 1998, because she had heard terrible things about police behaviour towards young women. The Board noted, however, that Ms. Lewis' husband could have accompanied her to the police station, in order to assist and protect her in filing a report. Ms. Lewis also stated that she had read that police officers were involved with the JVP. However, the Board noted that the JVP had been given legitimate political standing by 1994, rejecting this explanation as well.
[11] Given that 12 years had elapsed between Ms. Lewis' original involvement with the JVP and the incidents described by Mr. Lewis, and the fact that the JVP had since become a legitimate political party in Sri Lanka, the Board chose to ascribe little weight to Mr. Lewis' claim that the JVP came to the family home looking for Ms. Lewis in July of 2000. Similarly, the Board ascribed little weight to his claim that he was threatened, assaulted and told to join the JVP. The Board also rejected Mr. Lewis' explanation for his failure to seek state protection.
[12] Finally, the Board noted that if members of the JVP had really been interested in harming either Mr. or Ms. Lewis, there would have been ample opportunity for them to do so when the family was living in Sri Lanka, but that no harm had befallen them.
[13] As a result, the Board concluded that the applicants had not established that they would face a serious possibility of persecution if they returned to Sri Lanka. There was no reason for the JVP, now a legitimate political party in Sri Lanka with elected Members of Parliament, to have any ongoing interest in any of the applicants. Further, the Board was satisfied that even if the applicants were to encounter problems, state protection would be available to them.
Issues
[14] The applicants identify two issues on this application:
1. Did the Board ignore evidence regarding the basis for the applicants' fear of the JVP; and
2. Did the Board err in its finding as to the availability of state protection?
Did the Board Ignore Evidence Regarding the Basis for the Applicants' Fear of the JVP?
[15] The applicants assert that in finding that the current incarnation of the JVP would have no reason to have any ongoing interest in their family, the Board did not consider the evidence before it with respect to the role that Ms. Lewis' police officer father played in the eradication of the JVP movement. The Lewises acknowledge that the Board did make reference to Ms. Lewis' father's position in its reasons, but only in support of its finding that state protection would have been made available to the Lewis family. The Board failed to consider the possibility that JVP members might be interested in seeking revenge against the family for the father's actions.
[16] Contrary to the applicants' submissions, a review of the Board's reasons discloses that it was alive to the role that Ms. Lewis' father had played in the eradication of the JVP movement in the late 1980's and early 1990's. Nonetheless, when all of the circumstances were taken into account, including the passage of time, the fact that JVP members had ample opportunity to exact revenge but had never done so, and the change in the nature of the JVP organization, the Board found that the applicants failed to establish that they faced a serious possibility or persecution. Nor had they established that they would be subject to a danger of torture, or to a risk of cruel or unusual treatment or punishment. In my view, this conclusion was entirely reasonable, and should not be disturbed.
Did the Board Err in its Finding as to the Availability of State Protection?
[17] The applicants submit that in rejecting their explanation for their failure to seek state protection, the Board failed to consider Ms. Lewis' explanation as to why the police would be unwilling to help the family of a police officer. According to Ms. Lewis' affidavit, "the most important reason" why this was the case was because her father had been engaged in litigation against the police force.
[18] There were indeed newspaper articles and an affidavit from Ms. Lewis' father before the Board that indicated that the father had been engaged in litigation with the Sri Lankan police in the 1970's. The litigation related to the father's attempt to have charges laid against another officer who had allegedly assaulted him. The articles indicate that the father's application for a writ of mandamus was withdrawn when charges were laid against the other officer.
[19] A tribunal will be presumed to have weighed and considered all of the evidence before it, and the fact that some of the evidence is not specifically referred to in the Board's reasons does not mean that the evidence was ignored: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.). However, this is a rebuttable presumption. Where the evidence is important to a central issue, the court will be more willing to infer from a Board's silence that the evidence was ignored: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).
[20] Given Ms. Lewis's sworn statement that "the most important reason" why the Sri Lanka police would have been unwilling to protect her father was because he had engaged the force in litigation, it would seem at first blush to be arguable that the failure of the Board to mention this evidence amounted to a reviewable error. However, the applicants' argument is fatally undermined by the fact that although Ms. Lewis testified at some length at her refugee hearing with respect tothe facts relied upon in support of the family's claims, at no time in her testimony did she ever mention her father's more than 20-year-old lawsuit as a reason why state protection would not have been forthcoming. In these circumstances, the applicants have failed to rebut the Florea presumption, and this argument must also fail.
Certification
[21] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"A. Mactavish"
___________________________________
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8065-03
STYLE OF CAUSE: LAKSHMI SHRIYANTHI LEWIS
SANDESH DANIEL LEWIS
SHEVON JAKE LEWIS
JOHN FITZGERALD LEWIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 30, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: AUGUST 31, 2004
APPEARANCES BY:
Hart A. Kaminker For the Applicants
Stephen H. Gold For the Respondent
SOLICITORS OF RECORD:
Kranc & Associates
Barristers & Solicitors
Toronto, Ontario For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040831
Docket: IMM-8065-03
BETWEEN:
LAKSHMI SHRIYANTHI LEWIS
SANDESH DANIEL LEWIS
SHEVON JAKE LEWIS
JOHN FITZGERALD LEWIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER