Date: 19980126
Docket: IMM-833-97
BETWEEN:
SHYAMA USHANDHINI MAHALINGAM
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 term by subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 6th of February, 1997.
[2] The applicant is a Tamil national of Sri Lanka. She was born in June, 1961 in Colombo and, prior to coming to Canada, lived her life there. She would appear to base her claim to Convention refugee status on an alleged well-founded fear of persecution if she were required to return to Sri Lanka by reason of her ethnicity and her perceived political opinion.
[3] The facts underlying the applicant's claim are essentially not in dispute. Following her schooling, she was employed as a flight attendant by Air Lanka for some thirteen years. She was suspected of being implicated in a theft of property of a client of the airline. She was suspended from her employment while the matter was being investigated. She was fully exonerated and reinstated with full pay for the period of time while she had been suspended. The applicant felt that she had been discriminated against as a Tamil and determined not to return to her employment.
[4] Sometime later, she was a passenger on a bus that was stopped for a routine inspection. The bus was later stopped a second time and she was taken off the bus and taken into detention on the basis that she was suspected of involvement with the Tamil militants. While in detention for less than 24 hours, she was subjected to inexcusable indignities. She filed a complaint in the Supreme Court of Sri Lanka alleging that her fundamental rights had been breached.
[5] The applicant arrived in Canada on the 5th of June, 1995 on a six-month visitor's visa. In November of the same year, while still in Canada, she made a claim to Convention refugee status. Her claim was supported by a letter from her brother in Sri Lanka advising her not to return.
[6] In July of 1996, the claim filed by the applicant in the Supreme Court of Sri Lanka was resolved in her favour. The terms of settlement required the officer in charge of the facility where the applicant had been detained to give a written apology to the applicant and to pay a sum, the equivalent of about $500 Canadian, to the National Defence Fund. The applicant determined to nonetheless continue with her refugee claim.
[7] In its reasons for decision, after reciting the facts, the CRDD wrote:
| Despite this satisfactory resolution of the complaint, the claimant said that she was still fearful to return to Sri Lanka. The fear is what the police may do to her as they are, no doubt, displeased about the outcome of the complaint. The panel does not share this view. We feel that the police would be very cautious in their approach to the claimant. If they behave in an unbecoming manner, they run the risk of being penalized for their conduct in view of the court's order in favor of the claimant. We feel as a Tamil woman, she would not, with impunity, be harassed or unduly interrogated or detained without cause by the police who had been found blameworthy for their past conduct towards her. It would be highly speculative to find that despite the protection offered to her by the court, the police would continue to humiliate and harass her. |
| Where protection has been sought by a claimant from acts or conduct which caused her to have a subjective fear of persecution and it has been obtained, then the claimant can no longer have a well-founded fear of persecution. The facts of this claim show that the claimant did have a subjective fear of persecution. She sought redress from the state which was granted to her. Her claim no longer has an objective basis. [underlining added by me for emphasis] |
[8] After citing from Canada (Attorney General) v. Ward2 to the effect that a state's inability to protect is a "lynch-pin" in the analysis of a Convention refugee claim, the CRDD continued:
| The Refugee Division for the above reasons finds that the claimant, having had a subjective fear of persecution, sought and obtained the protection of the state thereby making her fear not well-founded. [underlining added by me for emphasis] |
[9] The CRDD found the applicant's fear that the police would again "humiliate and harass her" to be "highly speculative". That fear was supported by the letter from her brother and, to some degree, by the documentary evidence that was before the tribunal3. The CRDD chose to reject the applicant's "speculation" and to substitute in its place what might be described as its own "speculation" or "feeling" that, the applicant having been successful in her fundamental rights complaint, the police would not again humiliate or harass her. For its own speculation or feeling, the CRDD cited no evidence in support.
[10] In Minister of Employment and Immigration v. Robert Satiacum4 Mr. Justice MacGuigan wrote:
| The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45, 144 L.T. 194 at 202, (H.L.): |
| The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. |
| In R. v. Fuller (1971), 1 N.R. 112 at 114, Hall J.A. held for the Manitoba Court of Appeal that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions." Subsequently a unanimous Supreme Court of Canada expressed itself as in complete agreement with his reasons: [1975] 2 S.C.R. 121 at 123, 1 N.R. 110 at 112. |
[11] In the absence of some evidence, cited by the CRDD and weighed against the evidence to the contrary to support its "feeling", I conclude that the CRDD here resorted to a speculative and conjectural conclusion which was clearly central to its decision. In so doing, it committed a reviewable error. That is not to say that the decision of the CRDD with respect to the applicant's claim to Convention refugee status might not have been reasonably open to it. Obviously I make no finding in that regard. Its decision was simply not open to it on the basis of the very limited analysis provided by it.
[12] For the foregoing reasons, this application for judicial review will be allowed. Neither counsel recommended certification of a question. No question will be certified.
___________________________
Judge
Ottawa, Ontario
January 30, 1998
__________________3 See pages 116 of the applicant's record and 636 of the tribunal record.