Ottawa, Ontario, February 24, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") with respect to a decision of the Refugee Protection Division ("RPD") denying Maliniy Victoria Jesura's ("Applicant") application for refugee protection. In its decision dated April 5th, 2005, the RPD determined that the Applicant has not established a well-founded fear of persecution in Sri Lanka and therefore, that she is neither a Convention refugee nor a person in need of protection, as defined in sections 96 and 97 of the IRPA.
ISSUES
[2] The numerous issues raised by the Applicant can be summarized in the two following questions:
- Did the RPD err in fact or in law in determining that the Applicant would not be personally at risk if returned to Sri Lanka?
- Did the RPD err in fact or in law in assessing the current situation in Sri Lanka?
CONCLUSION
[3] For the reasons that follow, these two questions are answered in the negative and the application for judicial review is dismissed.
FACTS
[4] The Applicant is a 23 year-old Sri Lankan Tamil. Her mother died in June 1987 and her father in February 1988 during military operation in her village. In August 1991, her brother was hit by a shell and became handicapped. In 1995, the Applicant and her sister were allegedly harassed by members of the Liberation Tigers of Tamil Eelam (LTTE). The Applicant and her sister were insulted and threatened by LTTE members for refusing to join the movement.
[5] The Applicant submits that in 1996, soldiers of the Sri Lankan army questioned, humiliated, harassed and slapped the Applicant and her brother, as they were suspected of being members of the LTTE. After her sister left the family house, the Applicant remained alone with her handicapped brother.
[6] In February 2002, a ceasefire was signed between the Sri Lankan Government and the LTTE. In May 2002, the Applicant was asked again to join the LTTE. She refused and fled to Gurunagar in January 2003. In the end of April 2003, the LTTE kept urging her to join the movement. At one point, they allegedly tried to take her by force.
[7] The Applicant's aunt decided to send the Applicant to Canada. She arrived on December 17, 2003 and claimed refugee protection at the airport.
IMPUGNED DECISION
[8] The RPD found that the claimant has not established a well founded fear of persecution in Sri Lanka. The reasons for this determination are the following:
- The Applicant had no major problems with the army between 2000 and 2002 nor with the LTTE between 1995 and 2003, apart from indecent propositions and insults;
- The RPD did not believe that the applicant was ever personally targeted and persecuted by the Sri Lankan army;
- No evidence was presented to prove that given the 2002 ceasefire, there is a serious possibility that the Applicant would be recruited or otherwise persecuted by the army;
- The RPD view is that there is no serious possibility that the LTTE would recruit or harass the Applicant given the ceasefire;
- The Applicant lived alone with her brother in Sri Lanka and experienced no major problems for two years;
- No evidence was submitted to support a contention that the Applicant would be more vulnerable following the tsunami than she was before.
ANALYSIS
[9] To determine whether the Applicant would personally be at risk if returned to Sri Lanka, the RPD had to rely on findings of fact. Findings of fact are subject to a patent unreasonableness standard of review. As per paragraph 18.1(4)d) of the Federal Courts Act, R.S.C. 1985, c. F-7, this court should not intervene on question of fact unless the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732, at para. 4). The same standard of review applies to the assessment of country conditions, as it is also a question of fact (Thamotharem v. Canada(Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8).
[10] In my view, the RDP did not base its decision on erroneous findings of fact made in a perverse or capricious manner. The personal situation of the Applicant was not unreasonably assessed, and the country conditions in Sri Lanka were evaluated on the basis of the documentary evidence as a whole, including the recent Responses to Information Requests submitted by the Applicant (see footnote 6 at page 6 of the decision). Furthermore, the RPD did not err in finding that the Applicant would not be more at risk in Sri Lanka given the impact of the tsunami. In deciding that the Applicant did not established that she would be personally at risk in Sri Lanka, the RPD took into consideration the most updated information available stating that some women are raped or exploited in refugee camps. However, the RPD found that the Applicant lived along with her brother and did not experienced major problems. I agree with the Respondent that this was not a decision on the availability of an Internal Flight Alternative, but only an argument to support the conclusion that the Applicant does not have a well-founded fear of persecution. I do not find this to be a patently unreasonable finding.
[11] In addition, I note that Justice Campbell of the Federal Court, in Fernandopulle v. Canada, 2004 FC 415, [2004] F.C.J. No. 491, found no error in the RPD finding that the cease-fire between the government of Sri Lanka and the LTTE contributed to lessen human rights abuses in Sri Lanka and to bring normality in the country. This was not overruled by the Federal Court of Appeal (aff'd 2005 FCA 91, [2005] F.C.J. No. 412) and the Supreme Court of Canada refused to hear the appeal ([2005] S.C.C.A. No. 222). In light of the most updated evidence on country conditions in Sri Lanka, there are no reasons to review the assessment of country conditions made by the RPD.
[12] Parties were invited to submit a question for certification. However, they declined to do so.
[13] For these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed and that no question be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2850-05
STYLE OF CAUSE: MALINIY VICTORIA JESURASA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL QUÉBEC
DATE OF HEARING: FEBRUARY 21, 2006
REASONS FOR ORDER AND ORDER: NOËL S. J.
APPEARANCES:
| Me PIA ZAMBELLI
|
|
| Me MICHÈLE JOUBERT
|
SOLICITORS OF RECORD:
| Me PIA ZAMBELLI MONTRÉAL QUÉBEC |
|
| JUSTICE CANADA MONTRÉAL CANADA |