IMM-4423-96
BETWEEN:
GOPALASAMY PREMANATHAN and MALINI PREMANATHAN
and JANIFA PREMANATHAN (by her litigation guardian)
and JANARTHAN PREMANATHAN (by his litigation guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 8th day of August, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
Sandra J. Simpson
Judge
Ottawa, Ontario
August 29, 1997
Registry No. IMM-4423-96
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N :
GOPALASAMY PREMANATHAN and MALINI PREMANATHAN
and JANIFA PREMANATHAN (by her litigation guardian)
and JANARTHAN PREMANATHAN (by her litigation guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
EXCERPT OF ORAL REASONS
_________________________________________________________
BEFORE THE HONOURABLE MADAME JUSTICE SIMPSON
_________________________________________________________
HELD AT: Federal Court of Canada,
330 University Avenue,
Toronto, Ontario.
DATE: August 8, 1997
APPEARANCES:
Toni Schweitzer, for the Applicants
Kathryn Hucal, for the Respondent
The applicants are a husband and wife and their two children. They are Tamils from Sri Lanka and they seek judicial review of a decision of the Immigration and Refugee Board (the "Board") dated November 1, 1996, in which the Board found that they were not Convention refugees.
The application is based on three grounds:
i) that the Board erred in finding that the applicants were not credible, ii) that the Board's decision is incomprehensible, and (iii) that the Board erred in finding that the applicants had an internal flight alternative (an "IFA") in Colombo.
(i) CREDIBILITY
The applicants submit that the Board committed reviewable errors in its assessment of credibility that make it impossible to say with certainty that, absent the errors, the Board would have reached the same conclusion.
The Board found that the adult applicants were truthful about the persecution they experienced in Jaffna, but that the story they told about their trip to Colombo and events which occurred in Colombo was untrue.
This conclusion was based, in part, on the Board's belief that the husband held a travel pass issued by the Sri Lankan government. The Board concluded that someone with such a pass would not be arrested and detained in Colombo on suspicion of being a supporter of the Liberation Tigers of Tamil Eelam ("LTTE"). However, the respondent conceded that the Board had been mistaken and that, in fact, the adult male applicant had a pass which was issued by the LTTE and not by the government of Sri Lanka.
The Board also based its credibility finding on the fact that neither adult applicant could give the date on which the family left their home in Jaffna beyond saying that it was at the end of August 1995. As well, the wife was unable to say when her husband was detained during their two-week stay in Colombo, even though she was present when he was taken away and was involved in the payment of the bribe for his release.
The applicants' position is that the Board erred when it focused on the applicants' inability to recall these dates, when other evidence about the journey to Colombo and the events which took place in Colombo was given in great detail.
The respondent, on the other hand, says that, given the detailed nature of their accounts and the importance of the departure from Jaffna and the arrest in Colombo, it is odd that the dates were not part of the descriptions given by the applicants, and it is also odd that they were not forthcoming in response to questions at the hearing.
In my view, since the applicants' departure from their home was planned, and since they were only in Colombo for approximately two weeks, it was entirely reasonable for the Board to doubt the adult applicants' credibility, based on their inability to provide dates.
However, as the credibility finding was based on both the government pass and the absence of dates, I am not able to say with any certainty that the Board would have reached the same conclusion had it known that the male applicant did not have a government pass.
ii) THE NATURE OF THE DECISION
The applicants argued that the Board's decision involved reviewable errors due to inconsistent findings of fact and unintelligible findings.
I have concluded that there is no inconsistent finding in the language at the bottom of page 6 of the reasons, where the Board says
| Thousands of Tamils have been arrested over the years of tension and conflict, and, while many experienced abuse, most, like the principal claimant, were released after the authorities were satisfied as to their identity and were satisfied that they were not security risks. |
In my view it is very clear from the decision as a whole that the Board did not accept the applicants' version of events in Colombo. In that context, this passage can only sensibly be read as an alternative observation in the event that the applicants' evidence was true.
The use of "boiler-plate" language on the bottom of page 9 of the reasons was unfortunate. It read
| Given the foregoing internal inconsistencies, contradictions and implausibilities, the panel concludes that the claimants are not credible nor trustworthy. |
This choice of language was unfortunate because it is clear that there were no internal inconsistencies or contradictions in the evidence. However, this language does not detract from the overall clarity of the reasons and certainly does not make them unintelligible.
(iii) THE IFA
For the purpose only of this part of the analysis, I accept the truth of the adult applicants' account of the events in Colombo. The adult applicants testified that they had planned to make their home in Colombo. However, on their first night in a lodge catering to Tamil refugees, the police detained the adult male applicant and several other Tamils residing at the lodge. The male applicant testified that he was interrogated and beaten by the police who suspected him of having affiliations with the LTTE. He was detained for three days until a bribe was paid for his release.
The police required that he report to the police station twice a week starting the next day. When he reported the next day, he waited for five hours before being taken into a room to identify other Tamils as possible LTTE sympathizers. When he could not recognize any other detainees, he was again beaten and told that he must identify at least three LTTE members the next time he reported or else "face the consequences". The male applicant testified that he was afraid for his life and did not report again.
The male applicant contacted his brother who resided in Nigeria. The brother put the applicants in touch with an agent who assisted their departure from Sri Lanka by providing false passports. They left on September 15th and arrived in Canada on October 24, 1995, via Singapore and the United States. They claimed Convention refugee status almost two months later on December 14, 1995.
The applicants submitted that the Board erred both in finding an IFA in Colombo and further in failing to address the question whether the IFA was unreasonable for the applicants, because the adult male applicant faced the risk of random arrest followed by possible abuse and short detentions. However, in my view, the Board did address the issue of reasonableness. At page 3 of its reasons, the Board said, in the middle of the page:
| However, I have also examined the evidence to see if there is any place in Sri Lanka where the claimants could live safely, and whether it would be reasonable in all the circumstances for the claimants to seek refuge there. |
And further, at page 11 of the decision,
| Having considered the documentary evidence and the circumstances particular to the claimants, I believe that the IFA test, as found in Rasaratnam and Thirunavukkarasu, has been met and that it would not be unreasonable for the claimants to live in Colombo. |
I can find no error in the Board's treatment of either aspect of the IFA issue. While it would certainly be most unpleasant to face the prospect of random round-ups and routine reporting to the police with the possibility of abusive treatment, I am satisfied that once the authorities understand that the adult male applicant has no ties to the LTTE and cannot identify its members, the applicant's difficulties will diminish. Accordingly, I cannot find a reviewable error in the Board's findings that Colombo is an IFA and that the situation for the adult male applicant in Colombo is not unreasonable.
The applicants further submitted that the Board erred when it concluded, contrary to what the documentary evidence indicated, that the adult male applicant had a good chance of securing employment in Colombo and establishing the family there. In my view, if this was an error, it was immaterial as the prospects for obtaining a job are not relevant to the reasonableness of an IFA.
As well, the applicants submitted that the Board erred in not referring specifically in its reasons to a March 1995 document prepared by the Board, which was a series of questions and answers directed to providing an update on IFAs in Sri Lanka. At page 24 of that document, it is noted that the University Teachers for Human Rights suggested in their 1993 document that:
| ...there is a 'strong likelihood' that rejected asylum-seekers returning to Colombo from abroad will be pressured by the government to return to the north or east... |
The Board's hearing took place in July of 1996. In this circumstance, I am not prepared to conclude that the Board committed a reviewable error by not referring to information which predated a 1993 publication.
CONCLUSION
The Board's decision on the issue of the applicants' IFA in Colombo did not involve a reviewable error. Accordingly, in spite of Board's credibility finding, which cannot be accepted, the applicants are not Convention refugees and the application for judicial review will be dismissed.