Federal Court Decisions

     IMM-1256-96

BETWEEN:

     YOKANANTHAM ARUMUGAM

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     The applicant seeks to set aside the decision of the Refugee Division dated March 20, 1996, that determined that he is not a Convention refugee.

     The applicant is a citizen of Sri Lanka and of Tamil ethnic origin who came to Canada on September 25, 1995, and claimed Convention refugee status on the basis of a well-founded fear of persecution by reason of his race, nationality, political opinion and membership in a particular social group.

     The Refugee Division accepted that the applicant had a well-founded fear of persecution in those parts of Sri Lanka under the control of the LTTE. However, it found that the applicant had an Internal Flight Alternative (I.F.A.) in Colombo.

     Therefore, the governing issue on this application for judicial review is whether the Board erred in finding that Colombo was a valid I.F.A. for the applicant.

     The applicant surreptitiously left his farm and business situated about 25 kilometres from Jaffna, with his uncle, in July 1995 and selected Colombo as a potential place of safety away from his problems with the Tigers. On crossing into government-controlled territory, he passed through an army check-point and proceeded to Vavuniya where he obtained the required police permission to take the train to Colombo.

     The applicant and his uncle stayed in Ajantha lodge in Colombo and registered with the police. The applicant's intention was to try to start a business in Colombo. Three days later, the lodge was raided and 35 Tamils, including the applicant and his uncle, were arrested. Those arrested were males and females of different ages. They were taken to a police station where the applicant was accused of being an LTTE militant or supporter.

     When the applicant denied this, he was slapped across the face and hit with the butt of a gun. The applicant thought that he was going to be killed. The applicant was held there for two days and then he and about fifteen other detainees were taken to another detention centre. The applicant testified that he was transferred to the second detention centre to go through a full inquiry. The applicant was accused of being a member of the Tigers and subjected to various forms of harassment. An army officer said that "Tamils are Tigers and they all should be killed". Those of the detainees who were moved to this second detention centre were Tamils who had been taken from different lodges. The applicant was held at this second place for four days.

     The applicant's uncle payed a bribe to secure the applicant's release. The applicant testified that when he was released he was warned not to stay in Colombo, that he should return to the north, and that he would be killed if he was arrested again. Before the applicant was released, he was photographed and fingerprinted.

     After his release, the applicant suffered from pain as a result of the treatment he had received and applied some medicine to his injuries.

     The applicant stayed in Colombo for about one month after his release from detention.

     The Board was not satisfied that the evidence established that there was a reasonable chance the applicant would be persecuted if he were to return to his country of origin, since the evidence clearly suggested that an I.F.A., in the particular circumstances of the claimant, was available to him, that is Colombo.

     The Board did not make any negative credibility findings against the applicant.

     Counsel for the applicant submitted that the Board's decision was not sound in law and relied on the two-prong test in Rasaratnam v. M.E.I., [1992] 1 F.C. 706, a decision of the Federal Court of Appeal delivered by Mahoney, J.A.

In my opinion, in finding the I.F.A., the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refugee there.

     Counsel for the applicant also submitted that the Board, in not recognizing his treatment at the hands of the agents of the state in Colombo as being persecution, had failed to follow the statement in Thirunavukkarasu¹ that beatings of suspects can never be considered perfectly legitimate investigations, however dangerous, the suspects are thought to be. Counsel submits that the treatment experienced by the applicant amounts to persecution and therefore it was not open to the Board to find that there was not a serious possibility that the applicant would face persecution in Colombo.

     The Board did not overlook or ignore the evidence that the applicant had been detained and mistreated in Colombo. However, the Board concluded that there was less than a serious possibility that he would suffer persecution because there was evidence that the situation for Tamils in Colombo was improving.

     Based on the record before me, I have concluded that the Board erred, firstly, in not making a determination as to whether the treatment received by him at the hands of agents of the state in Colombo amounted to persecution and, secondly, in not determining whether, in the circumstances, it would be reasonable for the applicant to relocate to Colombo. As a result, the decision is patently unreasonable.

     Accordingly, the decision is set aside and referred to a differently constituted panel for reconsideration.

     __________________________

     Judge

Ottawa, Ontario

February 17, 1997

__________________

¹      Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589.