Date: 19980615
Docket: IMM-3403-97
OTTAWA, ONTARIO, JUNE 15, 1998
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
SAKUNTHALA MURALIDHARAN
and SHARVEN KUMAR MURALIDHARAN,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is granted and the decision of the Board set aside and the matter referred back for rehearing by a differently constituted panel.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19980615
Docket: IMM-3403-97
BETWEEN:
SAKUNTHALA MURALIDHARAN
and SHARVEN KUMAR MURALIDHARAN,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), wherein it was determined that the Applicants are not Convention refugees.
The principal Applicant and her minor child are Tamils from Sri Lanka. Their refugee claim is based on the grounds of perceived political opinion and membership in a particular social group (northern Tamils).
In her Personal Information Form, the principal Applicant describes how she was persecuted in Jaffna, first, at the hands of the Sri Lankan army, then by the Indian Peace Keeping Force, and finally, by the LTTE, which attempted on several occasions to recruit her and extort money from her. She finally left Jaffna with her husband and young child in October 1995. They had been ordered out of Jaffna by the Sri Lankan army. They relocated in Killinochchi, and then, in July 1996, in Mankulam. On October 15, 1996, her husband disappeared while on a trip to Vavuniya to buy food for the family.
A month later, on November 15, 1996, the Applicant was once again ordered to join the LTTE to train for fighting. She fled to Colombo. Two days after her arrival, she was arrested and detained by the police. She was eventually released upon payment of a bribe with the condition that she return to the North. Fearing that she would be forced to go back to Jaffna, she arranged to flee the country.
The Board rejected the Applicants' claim. It was not convinced that the principal Applicant had been detained in Colombo or that she had been ordered to return to the North. The Board also held that the Applicants did not have a prospective fear of persecution because they disposed of a viable internal flight alternative ("IFA") in Colombo.
The Applicants submit that the Board's decision with respect to the IFA is not sustainable, because it relied on old documentary evidence and an outdated 1996 UNHCR report. I agree with the Applicant on this point. The Board should have relied on the more recent 1997 UNHCR report that presented a less optimistic picture of the situation faced by Tamils in Colombo. The report states that "an IFA may be difficult or in some cases impossible in Sri Lanka" and concludes that an asylum seeker coming from Sri Lanka can therefore have a well founded fear of persecution and might be in need of international protection. In addition, the tribunal had before it the British Refugee Council Report which also presented a grim picture of the situation faced by Tamils in Colombo.
For these reasons, the application for judicial review is granted, the decision of the Board set aside and the matter referred back for rehearing by a differently constituted panel.
Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 15, 1998.
TRIAL DIVISION NAMES OF COUNSEL ASOLICITORS OF RECORD
COURT FILE NO.: IMM-3403-97
STYLE OF CAUSE: Sakunthala Muralidharan and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 11, 1998
REASONS FOR ORDER BY:The Honourable Madame Justice Tremblay-Lamer
DATED: June 15, 1998
APPEARANCES:
Mr. Lorne Waldmanfor the Applicants
Mr. Kevin Lunneyfor the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
Toronto, Ontariofor the Applicants
Mr. George Thomson
Deputy Attorney General of Canadafor the Respondent