Federal Court Decisions

     IMM-1507-96

B E T W E E N:

     THEVI SABAPATHY

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

     This is an application for judicial review of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) dated April, 25, 1996. In that decision, the Board found the applicant not to be a Convention refugee. The two issues raised by the applicant are:

(1) whether the Board's conclusion that the applicant did not have a subjective fear of persecution was made without regard to the material before it; and

(2) whether the Board's conclusion that it was reasonable for the applicant to avail herself of the internal flight alternative (IFA) in Colombo is perverse, capricious or made without regard to the material before it.

     The applicant is a 63 year old Tamil woman from Annalativu, a small island in the district of Jaffna in Sri Lanka. She claims a fear of persecution at the hands of the LTTE (Tigers) and government security forces by reason of her race, political opinion and membership in a particular social group.

     The applicant left Sri Lanka for the first time in 1987. She went to England to visit her son where she remained for three months. She then came to Canada and claimed refugee status in 1988. That claim was later withdrawn as the applicant was of the view that conditions in Sri Lanka had changed for the better, and thus she returned to Sri Lanka.

     The applicant testified that after June 1990, the situation in Sri Lanka drastically changed for the worse because the Tigers set up their own administration in the Jaffna peninsula and began extorting money from people in order to finance their struggle for the Tamil people.

     In March 1991 some Tigers came to the applicant's home and demanded Rs. 50,000. Fearing detention, the applicant gave into their demands. In October 1991, the army entered and took control of Annalativu, and as a result, the applicant fled with her sister to the city of Jaffna. In January 1992, the Tigers came to the applicant's home in Jaffna and demanded Rs. 500,000. The applicant told them that she did not have the money. In response, she was told by the Tigers to go to Colombo to make arrangements to get the money from her children living abroad, and was given two months in which to come up with the money. The applicant did go to Colombo, but with the intention of leaving Sri Lanka because she knew that her children would not financially support the Tigers.

     While in Colombo, the applicant was granted an immigration visa to the U.K. under the sponsorship of her son who lives there. She thus left Sri Lanka for the U.K. on February, 22, 1992, lived with her son, and gained U.K. permanent residence status. However, the applicant got into a dispute with her son and his wife, and thus came to Canada on a visitor's visa to be with her other children. The visitor's visa expired and the applicant claimed refugee status.

     Although the applicant had surrogate protection in the U.K due to her permanent residence status, the Board found that status expired by virtue of her extended absence from the U.K. Thus, the Board found that the applicant was not excluded from the Convention refugee definition because she had surrogate protection elsewhere. However, the Board went on to find that the applicant did not have a well-founded fear of persecution in Sri Lanka.

     On the basis of the applicant's abandonment of protection in the U.K. and her delay in bringing a claim for refugee status in Canada, the Board concluded that the applicant did not have a subjective fear of persecution. Alternatively, it also concluded that the applicant did not have an objective basis for her fear of persecution because of the existence and viability of an IFA in Colombo, a region which is under government control. The Board noted that it was young Tamils who are most at risk of harassment by government security forces possibly leading to persecution. It found that the applicant did not fit this profile and, as such, on a balance of probabilities, did not face a serious possibility of being persecuted in Colombo. It further concluded that it would not be unreasonable for the applicant to seek protection in Colombo, a city with a large and growing Tamil population. It noted that documentary evidence indicated that the Sri Lankan government is committed to the rule of law which has resulted in qualitative improvement in the area of human rights.

     The Board accepted that the psychiatric report entered into evidence by the applicant concerning her mental disorders was relevant in determining whether it was reasonable for her to avail herself of the IFA in Colombo. However, it went on to conclude that it would not be unreasonable for her to seek refuge in Colombo because the documentary evidence indicated that the Sri Lankan government provides free health services and social services, including monthly allowances to disabled, sick and elderly persons.

     The applicant argues that, in reaching the conclusion that she did not have a subjective fear of persecution in Sri Lanka because she had voluntarily given up protection in the U.K., the Board ignored evidence concerning her mental disorders and the breakdown of her relationship with her son in the U.K. In this respect it is argued that the applicant's mental disorders would affect the rationality of her decision to give up protection in the U.K., and that the breakdown of her relationship with her son would mean that he would no longer support her, thereby forcing her to give up protection in the U.K.

     I am unable to accept the applicant's arguments for two reasons. First, with respect to the evidence of the applicant's mental disorders, I do not think that the psychiatric report from Dr. T. Sooriabalan provides any evidence that the applicant suffered from any mental disorders at the time she gave up protection in the U.K. She left the U.K. in April 1993, and Dr. Sooriabalan's report, which is dated 29 June 1995, is based on a June 21, 1995 interview of the applicant. The report does not indicate how long the applicant has been suffering from the mental disorders found.

     Secondly, Dr. Sooriabalan's conclusions regarding the applicant's state of mental health do not clearly support the applicant's contention that she may be prone to making irrational decisions. His conclusions stated in the report are as follows:

Mrs. Sabapathy has certain physical symptoms such as giddiness, headache, etc. She feels tired all the time and experiences poor concentration and very poor short-term memory.

On mental status examination, I found Mrs. Sabapathy to be dressed appropriately, answered the questions relevantly. Her mood was very depressed. She has feelings of hopelessness, experiences disturbed sleep, disturbed appetite, nightmares, loss of interest in life in general, very poor concentration and short-term memory.

In my opinion, this lady is suffering from severe depression and post-traumatic stress disorder. Due to the severity of these conditions, I have started her on an antidepressant and hope to see her regularly for supportive psychotherapy and review of her mental status. [pp. 33-34]

     Although the report indicates that the applicant suffers from severe depression and post-traumatic stress, it does not state that these disorders lead to irrationality. Thus, I find that the following conclusion reached by the Board that the report only has limited value is correctly made:

The panel is satisfied that the medical evidence [Dr. Sooriabalan] assists in explaining the confusion evident in the claimant's testimony. This report contributed to the panel's concern with respect to the ability of the claimant to appreciate the nature of the hearing. It was not until the November 1995 sitting that counsel asked for the appointment of a designated representative, to which the panel readily acceded.

The psychiatrist reiterates much of the story found in the claimant's PIF narrative and opines that the difficulties she encountered have caused her to suffer from severe depression and post-traumatic stress disorder. The panel does not question that the claimant suffers from these medical ailments and that she has a problem clearly remembering several events.

...

The medical report helps explain inconsistencies and contradictions in the claimant's testimony. The panel is not making adverse findings with respect to her credibility. The medical evidence, therefore, is relevant only on the question of the reasonableness of the IFA. [Reasons at pp. 21-22] [Emphasis added]

     The applicant also argues that in finding a lack of a subjective fear of persecution on her part, the Board ignored her evidence explaining the delay in claiming refugee status. In this respect, the Board gave the following reasons:

An additional factor against finding in the claimant's favour with respect to the subjective element is her delay in claiming refugee status after her 1993 journey to Canada. She claimed six months after her arrival, in October 1993. The witness confirmed that this was the second time the claimant made a refugee claim in Canada, having claimed in 1988 and subsequently withdrawing that claim when she returned to Sri Lanka in 1989. Counsel submitted that there was no need for the claimant to claim in Canada before October 1993 because at that time she still had status in the U.K. The panel does not find this reasoning persuasive in light of the claimant's testimony that at the time of her journey to Canada in April 1993 it was her intention to remain here. Delay in itself need not be fatal to a positive determination, however, in this claim it is another factor indicating a lack of subjective fear. [Reasons at pp.16-17] [Emphasis added]

     In particular, the applicant argued that the Board ignored her explanation for the delay in that she was in possession of a valid Canadian visitor's visa which did not expire until September 1993. Although the Board did refer to the applicant's explanation that she delayed claiming refugee status because she still had status in the U.K., which did not expire until October 1993, I agree it did not deal with the explanation involving her visitor's visa to Canada. That said, however, I do not think that the delay consideration was critical to the Board's finding that the applicant lacked subjective fear. As expressed in the passage just quoted, the central factor considered in reaching this conclusion was the applicant's actions in giving up protection in the U.K. Accordingly, I give no weight to this argument.

     For the above reasons, I find that the Board did not commit a reviewable error in concluding that the applicant did not have a subjective fear of persecution.

     The applicant has also argued that the Board erred in finding that the applicant has an IFA. The law on this issue is well settled. In Rasaratnam v. M.E.I., [1992] 1 F.C. 706, the Appeal Division of this Court held that the IFA concept is inherent in the Convention refugee definition, and held in the following words at 711 that two criterion must be established before an IFA can be said to be available, namely, whether an IFA in fact exists, and whether it is reasonable in the particular circumstances of the applicant to avail himself or herself of it:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the Appellant being persecuted in Columbo (sic) and that, in all the particular circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the Appellant to seek refuge there.

     In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 at 598 (C.A.), the Appeal Division also made the following findings:

Thus, IFA must be sought, if it is not unreasonable in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

...

Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

     It is clear to me that the Board properly applied the law on this issue, and in so doing, fully considered the evidence, including the applicant's particular circumstances. I find that the Board did not commit a reviewable error in concluding that the applicant did have an IFA.

     Accordingly, this application is dismissed.

                         Douglas R. Campbell

                         Judge

VANCOUVER

March 27, 1997