Date: 19990519
Docket: IMM-4318-98
BETWEEN:
MOHANAMBIKAI GENGESWARAN
NILANI GENGESWARAN
URVASI GENGESWARAN
KASTHURI GENGESWARAN
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD") rendered on July 29, 1998, wherein the applicants were determined not to be Convention refugees.
[2] The applicants are a Tamil woman and her three children, aged 12, 9 and one year old. All are citizens of Sri Lanka. They claim to have a subjective and well-founded fear of persecution based on their membership in a particular social group, namely Tamils from Jafna, and based on perceived political opinion. The adult applicant claims she fears arrest by the police if she is returned and her children, particularly the older one, could be recruited by the Liberation Tigers of Tamil Eelam (LTTE).
[3] The adult applicant's husband was taken by the LTTE and forced to work in a camp. She has not heard from him since he was taken in September, 1997. After her husband was abducted, the applicants went to Colombo with the help of her husband's friends. She obtained a medical note for her youngest child, which enabled them to pass through the military checkpoints. Once in Colombo, the applicants stayed with another friend who owned a lodge and she contacted her brother in Germany to obtain financial assistance.
[4] According to her PIF, on November 15, 1997, while still at the lodge, the police arrived and rounded up the Tamils and took them to the police station; the adult applicant was interrogated and threatened. She was strip searched and forced to place her arms above her head and turn around in front of a male police officer. After being detained for two days, the applicants were released upon the payment of a bribe by the friend who obtained the money from her brother. Before being released, the adult applicant was fingerprinted and forced to sign a document in Sinhalese, which she cannot read. She claims she signed the document because she felt pressured to obtain their freedom. The applicants then fled Sri Lanka with the help of her brother in Germany.
[5] The Board determined they were not Convention refugees based on a lack of credibility in the presentation of their evidence and because, if they were found to have a well-founded fear of persecution in the north of Sri Lanka, they had a viable internal flight alternative in Colombo.
[6] The issues are the following:
| 1) Did the Board fail to assess the eldest child's risk of persecution by being forcibly recruited by the LTTE and thereby commit an error of law? |
| 2) Did the Board make its IFA determination without regard to the evidence before it? |
[7] At the hearing, the applicant stated that she feared that her children, in particular the eldest child, would be the subject of forcible recruitment by the LTTE. The Board acknowledged this fear, indicating that the child was at the lower end of the targeted age range, but did not resolve the issue of whether she had a well-founded fear of persecution.
[8] In Iruthayathas v. M.C.I., (1994), 82 F.T.R. 150, Reed J. ruled that for the Board to focus its attention on the position of the main applicant and not to assess the likelihood of the children being the subject of persecution is an error which dictates that the Board's decision must be set aside.
[9] In the Board's decision, it states that the claims of the minor applicants rise and fall on the testimony of the adult applicant. The lack of credibility and the viable IFA means that the claims of the minors must also fail.
[10] In my opinion, the Board did not adequately assess the likelihood of the eldest child being recruited by the LTTE. According to the documentary evidence, young Tamil girls are recruited from as young as 10 to 12 years old; Supplementary RCO Disclosure (January, 1998 at 4.2.1-2). The applicant's eldest daughter is 12. The Convention is a forward looking document. Therefore, it is not sufficient to state that the child is at the lower end of the targeted age group. If she is at the lower end of the targeted age group, then she will be a part of that group for the next few years. In such a case, it is insufficient to simply state that she is at the lower end and refuse her claim. The Board's failure to adequately assess her claim, as in Iruthayathas, is an error which dictates that the Board's decision must be set aside.
[11] In the present case, the Board found there were numerous credibility and plausibility issues, but it chose instead to focus on the presence of an IFA in Colombo. The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam, [1992] 1 F.C. 706 and clarified in Thirunavukkarasu, [1994] 1 F.C. 589. In Rasaratnam, Justice Mahoney found that the test involved two steps:
| First, the Board must be satisfied on the evidence before it that the circumstances in the part of the country to which the claimant could have fled are sufficiently secure to ensure that the appellant would be able "to enjoy the basic and fundamental human rights". |
| Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there. |
[12] Justice Linden clarified the second branch further in Thirunavukkarasu:
| Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the individual claimant and the particular country involved. this is an objective test and the onus of proof rests on the claimant on this issue. |
| ... |
| 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 realistically surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or staying there. |
[13] In their deliberations, the Board found that the applicant did not fit the description of the young Tamil, sought after by the authorities as being a suspected LTTE terrorist. This, coupled with the fact that they can easily establish their identities with the authorities, the Board concluded that they did not have more than a mere possibility of having a well-founded fear of persecution. the Board pointed to the large Tamil population in Colombo and stated that the person who owned the lodge would be available to assist them while they were in Colombo. This latter point, the Board decided, differentiated the applicants from those without assistance, who may not have a viable IFA in Colombo. In my opinion, the Board's conclusion is patently unreasonable.
[14] First of all, there was documentary evidence, which the Board did not discuss, which stated that young Tamil women, with their children, are being recruited by the LTTE for terrorist activities. Although there is no obligation on the Board to discuss every piece of evidence, it is required to address those pieces which contradict the Board's finding on key issues. As stated by Evans J. in Cepeda-Gutierrez, (October 6, 1998, IMM-596-98):
| However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to the evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
[15] I agree with Evans J., the absence of any analysis of the documentary evidence which directly contradicts the Board's finding that the applicants do not fit the description of those suspected of terrorist activity permits this Court "to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence".
[16] Secondly, the Board concluded that the applicants would not have a well-founded fear of persecution because only Tamils arriving in Colombo from the north would be suspected of being members of the LTTE. The Board did not point to any documentary evidence to support this finding. In fact, as the applicants point out, there is documentary evidence to the contrary, which states that "Colombo human rights agencies say Tamils arriving from abroad and residing in Colombo, come under suspicion because of the LTTE threat to the city...". The same reasoning applies to this situation, the Board's failure to consider the documentary evidence, on point, which goes directly against its conclusion permits the Court to infer an erroneous finding of fact.
[17] Finally, the Board considered and did not reject the opinion of Bruce Mathews in a recent updated letter on Colombo, where he notes that "Colombo may not be viable internal flight alternative for someone arriving in Colombo without knowing anyone there". The Board went on to state that this was not the applicant's situation since she had already stayed with the person who owned a lodge in Colombo and he could assist her. However, in my opinion, the difference between having a viable IFA or not requires something more than a friend of a friend, who assisted her over a year ago, in a volatile political environment; there should be a closer established relationship. Nonetheless, on this point, the Board has the discretion to consider and weigh the evidence as it sees fit.
[18] The Board failed to consider the risk of persecution to the children and erred in establishing a viable IFA, since it can be inferred that the Board's decision was made without regard to pertinent documentary evidence.
[19] In its reasons, the Board spent a considerable amount of time outlining various credibility and plausibility concerns regarding the testimony of the adult applicant. Nevertheless, it went on to decide the case based solely on the IFA. As a result of this decision and owing to the above errors, the Board's conclusion should not be allowed to stand.
[20] The application for judicial review is granted and the matter is remitted for reconsideration before a differently constituted panel.
JUDGE
OTTAWA, Ontario
May 19, 1999