Date: 19981001
Docket: IMM-4099-97
BETWEEN:
PATHMALOSANY SOORIYAKUMARAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] After identifying an internal flight alternative as the main issue, the Convention Refugee Determination Division concluded that this Sri Lankan applicant was not a Convention refugee on the ground that she would have a safe haven in Colombo.
[2] In 1995, the applicant"s only children, two boys then aged 11 and 13 who had been targeted as LTTE recruits, obtained refugee status in Canada where they continue to reside. The applicant made her refugee claim shortly after her arrival here in November 1996.
[3] In 1985, the applicant"s husband disappeared in the Vavuniya region and his fate remains unknown. Her parents are deceased. She has no other family members in Sri Lanka.
[4] In applying the twofold test for an internal flight alternative, the tribunal found that: (a) on a balance of probabilities, there was no serious possibility of her being persecuted in Colombo; and (b) in all the circumstances, including those particular to her, conditions in Colombo were such that it would not be unreasonable or unduly harsh to expect her to seek refuge there.1
[5] The second branch of the test concerning the reasonableness of the internal flight alternative in the context of the claimant"s particular circumstances was further defined by Linden J.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration):2
| ... the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad? |
| An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee. |
[6] In this case, the tribunal did not take into consideration the refugee status of the applicant"s two boys and their ongoing residence in Canada. The panel noted that it agreed "... with counsel"s statement that the Immigration and Refugee Board"s granting of Convention refugee status to the claimant"s minor children does not have any bearing on the case at bar". A review of the record, including the hearing transcript, discloses no such statement by the applicant"s counsel.
[7] The applicant"s well-founded fear of persecution in the northern part of Sri Lanka was not in issue before the tribunal. Her credibility and the allegations in her personal information form were not challenged. The presence in Canada of her two children, both minors and Convention refugees, is the kind of particular circumstance that the tribunal ought to have considered in assessing whether Colombo was an unduly harsh refuge for her.
[8] The relevance of the children"s situation in this case is unrelated to the principle of family unity or to an application for humanitarian and compassionate consideration. The applicant"s family situation is simply a human factor that ought not to be excluded in applying the second branch of the internal flight alternative test. This proposition has been stated most recently by Hugessen J. in Ramanathan v. The Minister of Citizenship and Immigration:3
| ... although the Board was perfectly conscious of the strong humanitarian considerations which argued in favour of the applicant's not being returned to Columbo, it deliberately closed its mind to them. I do not say that the Board would, if it had considered those matters, necessarily have arrived at a different conclusion. However, it seems to me that the factor of requiring an elderly, dependant and unwell person to live alone in a governmental or publicly supported home with governmental or publicly supported health and other social services provided to him when there is an alternative where he is presently living where he has the emotional and family support gained from close members of his family is something which should be considered when inquiring as to whether it would be unduly harsh to send that person from the latter situation to the former. |
[9] Counsel for the respondent was correct when she forcefully argued that virtually no evidence focussed on the impact of separating the applicant from her children. There was some reference to the plight of the children in the personal information form. However, I have concluded that the tribunal"s error nonetheless requires judicial intervention. It was an error in law for the tribunal to close its mind to the natural bond between a parent and her minor children, particularly when all three had established a fear of persecution in northern Sri Lanka. That special relationship speaks for itself and is a circumstance particular to this applicant which the tribunal had to consider before concluding that it would be unduly harsh for her to seek an internal flight alternative in Colombo prior to claiming refugee status in Canada.
[10] In the circumstances, it is not necessary that I address the applicant"s submissions concerning the tribunal"s finding on the first branch of the test.
[11] In response to the request of counsel for the respondent, submissions concerning a certified question may be filed on or prior to October 15, 1998.
Judge
Ottawa, Ontario
October 1, 1998
__________________1 See Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) at p. 711.