Date: 19980420
Docket: IMM-3588-97
BETWEEN:
KANDASAMY YOGANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision is dated the 30th of July, 1997.
[2] The applicant is a 40 years old Tamil from the Jaffna region of Sri Lanka. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Sri Lanka by reason of his alleged political opinion and his membership in a particular social group, namely, Tamils from the north of Sri Lanka. He is a qualified seaman.
[3] During the 1980's, the applicant was subjected to threats and extortion at the hands of the Tamil Tigers. In addition, when he failed to make a "contribution" to the EPRLF, he was arrested, beaten and accused of supporting the Tigers. From November 1989 until March of 1992, the applicant travelled the world in the course of his employment as a seaman. In that time, despite the fact his ship put into port in a number of countries that are signatories to the Refugee Convention, he made no claim to refugee status.
[4] The applicant returned to Colombo in March, 1992 where he stayed at an Inn and registered with the police. He was arrested by security forces, detained for three days, and interrogated about his involvement with the Sea Tigers. He was released on payment of a bribe and on condition that he would leave Colombo. He was fingerprinted and photographed. In the result, he returned to Jaffna. From that time until April of 1995, except for one brief visit to Colombo for medical treatment for a member of his family, he remained in Jaffna where he again came under pressure from the Tigers. In April of 1995, he returned to Colombo for the purpose of again going to sea. Once again he was arrested, detained for one and a half days, interrogated and beaten. He was accused of collaborating with the Tigers. Upon his release on payment of a bribe, he went to sea on a one year contract of employment.
[5] Once again, during his world travel, his ship put in at a number of ports in countries that were signatories to the Refugee Convention. In none of these countries did he made a refugee claim until, nearing the end of his employment contract, he was advised that the contract would not be renewed and that he would therefore have to return to Sri Lanka. His next port of call was Halifax. He jumped ship there and, ten days later after his ship had departed, he made his refugee claim.
[6] At the opening of the hearing before the CRDD, one of the members identified the issues as "... identity, internal flight alternative, failure to claim elsewhere, delay [in] claiming, [possibly] credibility and genuine well-foundedness of fear." The same member directed counsel for the applicant to focus on events from the time of the applicant's arrest in Colombo in March of 1992 forward. Thus, it would appear that the CRDD presumed re-availment on the part of the applicant when he returned to Sri Lanka in 1992. It would also appear that the CRDD took for granted that the applicant had a genuine objective basis to a fear of persecution if he returned to the Jaffna area.
[7] The CRDD concluded that the applicant had failed to demonstrate a subjective fear of persecution and that, in addition, if required to return to Sri Lanka, he had a viable internal flight alternative to Colombo. It wrote:
| The claimant returned to Sri Lanka after each [most recently the 1989 to 1992] trip abroad, in spite of his stated fear of persecution. He did not claim refugee status at his earliest opportunity during either trip [presumably the 1989 to 1992 and 1995 to 1996 voyages]. Therefore, the panel finds that the claimant's behaviour, in not making a refugee claim at the earliest opportunity, shows a lack of a subjective fear of persecution. It would be reasonable that the claimant make his claim at the first opportunity, of which he had many "first" opportunities. |
Later, the CRDD wrote:
| ... considering all the circumstances, including those particular to the claimant, the panel does not find that conditions in Colombo would be unduly harsh to expect the claimant to seek refuge there and to reside there peacefully among those large numbers of his fellow citizens of Tamil ethnicity who do so, rather than seeking out international protection. |
[8] In Hue v. Canada (Minister of Employment and Immigration)2, Mr. Justice Marceau wrote:
| While we do not dispute that the delay in making a claim for refugee status may be an important factor to take into consideration in trying to assess the seriousness of an applicant's contentions, we disagree completely with the Board's reasoning in the present case. It seems to us obvious that the Applicant's fear is in relation to his having to return to the Seychelles and as long as he had his sailor's papers and a ship to sail on, he did not have to seek protection. |
Despite the able argument of counsel for the respondent, even assuming re-availment in 1992, I conclude that exactly the same can be said of the applicant in this matter in respect of his 1995-96 voyage. The applicant had his "sailor's papers" and "a ship to sail on". In the circumstances, he did not have to seek protection. He was safe from persecution in Sri Lanka. At the first opportunity following notification that his employment contract would not be renewed, and that he would therefore have to return to Sri Lanka, he made his claim to refugee status. In the light of the binding authority in Hue, I conclude that the CRDD's finding of a lack of subjective basis to the applicant's fear of persecution cannot stand.
[9] I turn then to the finding in respect of an internal flight alternative. In reaching this finding, the CRDD relied heavily on a UNHCR letter dated September 9, 1996 that painted a reasonably optimistic picture of Colombo as a place where Sri Lankan Tamils can take refugee. While acknowledging a much less sanguine report of The Refugee Council (U.K.) prepared after the UNHCR letter and at least partially in rebuttal of it, that was also before it, the CRDD provided no explanation for preferring the one document to the other. It wrote:
| A profile of this claimant indicates to the panel that he is not a member of those Tamils at greatest risk of persecution, that is, young single male Tamils. |
And later:
| In our view, the claimant does not fit the profile of those who are most at risk in Colombo, that is, young single Tamil males and females. |
| [emphasis in original] |
The foregoing are general descriptions of Tamils most at risk. It may be true that the applicant is neither "young" or "single". But he is a Tamil who, on two short stays in Colombo, was arrested by authorities, interrogated, in one case beaten, in one case photographed and fingerprinted, in one case accused of collaboration with the Sea Tigers and in both cases released on the condition that he immediately leave Colombo. Thus, he was not like the vast majority of other Tamils in Colombo who are able to live there in safety. The CRDD appears to have ignored these facts regarding the applicant's recent experiences in Colombo in determining that that city represented a viable internal flight alternative for the applicant. In so doing, I conclude that it committed a reviewable error by failing to take into account the personal circumstances of the applicant.
[10] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD will be set aside, and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination.
[11] Neither counsel recommended certification of a question. None will be certified.
________________________
Judge
Ottawa, Ontario
April 20, 1998
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