Date: 20000609
Docket: IMM-3865-99
Ottawa, Ontario, the 9th day of June, 2000
Present: Mr. Justice Pelletier
BETWEEN:
MAREENA RAJENDIRAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Refugee Division of the Immigration and Refugee Board decided the claim by the applicant, a Tamil from northern Sri Lanka, on the basis of the persecution she had allegedly suffered at the hands of the Tigers. However, instead of basing her claim on persecution by the Tigers, the applicant apparently based it on the fear she had of the police in Negombo, a town located in southern Sri Lanka. A reading of the Refugee Division's reasons indicates that the explanation concerning the applicant's fear of the police is immediately followed by the conclusion that Negombo offered her an internal flight alternative. I find this juxtaposition curious.
[2] Briefly, the facts are as follows. The claimant and her family are Tamils from northern Sri Lanka. During the war, their village was bombed. In addition, they were victims of extortion by the Tigers. More specifically, the Tigers demanded money of them in order to subsidize their soldiers. The Tigers also made the claimant and her family perform forced labour. In February 1994, to put an end to this persecution, the family went to Negombo, a town located in the vicinity of Colombo, where the claimant's sister Premee and her husband lived. In July 1994, the claimant's mother left Sri Lanka to go to Canada, leaving her husband, the claimant and her two sisters with Premee. The mother did what was needed to arrange marriages for the claimant's two sisters, thereby allowing them to join her in Canada. The claimant's father died in Negombo in 1995. The claimant, for her part, was still waiting for her mother to find her a husband so she too could rejoin her family in Canada.
[3] That is how things unfolded until late 1996, when Premee's home was searched twice by the police. No one was mistreated during these searches and the police did not appear to be concerned by the claimant's presence within her sister's family. On March 17, 1997, the police came to Premee's home and arrested the claimant and took her to the police station, where she was forced to undergo an interrogation that lasted a full day. The police accused her of having passed information to the Tigers. Although the claimant was not mistreated in any way during the interrogation, she was in a state of terror. There was no physical or sexual assault. The claimant was released that same day after her brother-in-law paid the police a bribe. Fearing she would be subjected to further interrogations of this nature or worse, the claimant, with the help of her brother-in-law, found a smuggler who took her to Canada where she claimed refugee status.
[4] It would appear that there are two ways of approaching the applicant's claim. The Refugee Division's analysis is as follows. The applicant was a victim of persecution by the Tigers. She escaped this persecution by moving to Negombo, a place of internal flight for the applicant. The police took an interest in the applicant but did not persecute her. So Negombo was still a place of internal flight for the applicant.
[5] However, the Refugee Division could have commenced its analysis by noting that the applicant was completely safe in Negombo. Following her arrest, in March 1997, she had a subjective fear of persecution by the police. However, the police did not persecute her. Thus, there is no objective basis to justify the subjective fear of persecution felt by the applicant. Now, the definition of Convention refugee requires that a person claiming refugee status have an objective fear and an objective foundation to justify that subjective fear. In this case, the applicant does not conform to the definition of Convention refugee and thus her claim must be dismissed.
[6] In so far as the application for judicial review is concerned, the applicant alleges that the Refugee Division was obliged to warn her that the question of internal flight alternative ("IFA") would be raised so that she could organize her evidence accordingly. The respondent argues that the issue was addressed orally in the Refugee Division hearing. This, according to the respondent, meets the need for advance notice. The respondent explains that this kind of advance notice is sufficient, according to the decisions in Balachandran v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 365 and Jakariya v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1119. I agree with the respondent.
[7] The source of confusion on this point is the fact that while the applicant was treating Negombo as the place of persecution, the respondent was treating this town as a place of safety. Notwithstanding this, the question of internal flight to a place other than Negombo was raised in the course of the hearing of the applicant's claim. Furthermore, the applicant's counsel addressed the Refugee Division on the issue of internal flight alternative. It must be said, therefore, that the applicant was aware of the fact that the internal flight alternative was at issue, and if she wasn't she should have been. Thus she had an opportunity to speak to this issue of internal flight at the hearing. Furthermore, the approach the applicant appears to have adopted in relation to her claim raised the same issue, that is, was the applicant safe in Negombo. The Refugee Division decided this issue by saying she was, which meant that Negombo was a place of internal flight or that there was no objective basis to justify the applicant's subjective fear. In either case this put an end to the applicant's claim. For these reasons, the application for judicial review must be dismissed.
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board, dated July 27, 1999, the reasons for which are dated July 15, 1999, is dismissed.
J.D. Denis Pelletier
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3865-99
STYLE: MAREENA RAJENDIRAM v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 28, 2000
REASONS FOR ORDER OF PELLETIER J.
DATED: JUNE 9, 2000
APPEARANCES:
LISE GINGRAS FOR THE APPLICANT
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARC CHÉNARD FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE RESPONDENT