Federal Court of Appeal Decisions

     A-1649-92

IN THE MATTER OF the Immigration Act, R.S.C. 1985, c. I-2, S.C. 1988 C 35 and Amendments and Regulations thereto;

AND IN THE MATTER OF a decision of the Immigration and Refugee Board, Convention Refugee Determination Division, regarding the refugee claim of Thurairajah Chandrakumar et al.: File Nos. U92-02716, U-9107038/39/40;

AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms.

BETWEEN:

     THURAIRAJAH CHANDRAKUMAR

     CHANTHRIKA CHANDRAKUMAR

     PRAYANGAA CHANDRAKUMAR

     PRESSENNA CHANDRAKUMAR

     Applicants

     - and -

     THE MINISTER OF EMPLOYMENT

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicants seek judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") dated September 4, 1992, in which it was determined they were not refugees within the meaning of the Convention. The applicants are citizens of Sri Lanka, and base their claims for refugee status on a well-founded fear of persecution in that country on grounds of race, nationality, political opinion, and membership in a particular social group.

         The CRDD found that the applicants were not refugees within the meaning of the Convention. Firstly, the CRDD found that the principal applicant's act of renewing his Sri Lankan passport in Germany in 1990 indicated that he had sought or "re-availed" himself of the protection of his country. The CRDD stated the following, at page 7 of its decision:

. . . The panel reasons that the passport of the male claimant is a valid document and that the action of the claimant in 1990, during the time that he was a refugee claimant in Germany, in having his passport validly renewed by the Embassy of Sri Lanka in Germany, persuades the panel that the claimant, in 1990, sought the protection of his country. Furthermore, the panel notes that the male claimant's passport is renewed up to February 14, 1993. The panel reasons that the male claimant, because he possesses a valid passport issued by the government of Sri Lanka, is still under the protection of Sri Lanka. The panel is not persuaded by the evidence that the claimant can no longer seek the protection of the government of Sri Lanka.

         Secondly, the CRDD seems to have found that the applicants' fear of persecution was not or was no longer objectively well-founded, as the documentary evidence indicated that thousands of Tamils had returned to Sri Lanka in recent years, that civilians from the North and East could be sheltered in the South, and the number of reported incidents of human rights abuses decreased significantly from 1990 to 1991.

         The applicants' first submission is that the CRDD erred in finding that the principal applicant's renewal of his passport indicated he had re-availed himself of the protection of Sri Lanka. Professor James C. Hathaway's book The Law of Refugee Status¹ contains a detailed discussion of this issue. The main point to be drawn from Professor Hathaway's discussion is that the person who applies for a passport must have the intention to re-avail himself or herself of the protection of the state. Such an intention cannot simply be assumed. Beginning at page 193, Professor Hathaway makes the following observations:

First, the request for formal protection must be made voluntarily. . . . The request is not voluntary if, . . ., the refugee is seeking only to comply with an administrative directive issued by the country of reception, or indeed is under the mistaken impression that the maintenance of a valid passport or other status is expected of him.

Second, the diplomatic request must be made as an act of re-availment of protection, thus implying an intention to have one's interests defended by the issuing state. In contrast, most ordinary, purely practical forms of diplomatic contact, such as request for the certification of educational or occupational qualifications, or access to personal birth, marital, and other records, are dictated by practical necessity, rather than by a desire for protection. . . .

[. . .]

Since there is no automatic linkage between the issuance or renewal of a passport and the granting of protection, it is critical that the real reason it is being sought form part of the determination authority's considerations. Unless the refugee's motive is genuinely the entrusting of her interests to the protection of the state of her nationality, the requisite intent is absent.

         In the case at bar, the CRDD did not engage in an analysis of the intention of the principal applicant in renewing his passport. Rather, the CRDD seems to have assumed that the simple action of renewing the passport, without more, was sufficient to establish re-availment of the protection of Sri Lanka. Such an inference, in my view, is unreasonable. In Benitez v. Canada (Solicitor General)², Mr. Justice Gibson made the following comments on this very issue, at page 226:

The second issue is the issue of re-availment through the passport applications made in the United States by the applicants. I do not regard the comments of the CRDD in this respect as central to its decision but, in my view, the CRDD should have, in the interest of fairness, at the request of counsel for the applicants herein, reopened the hearing to provide an opportunity for the applicants to present evidence as to their motivation in applying for passports from outside El Salvador and from the safety of the United States of America.

If this were the only issue, then, on the basis that I find the comments of the CRDD in this respect not to be central to their decision, I would not set aside on this ground alone, but it is not the only issue.

         Here, the CRDD committed a similar error by failing to explore the principal applicant's motivations in applying to renew his Sri Lankan passport while in Germany.

         The applicants' second submission is essentially that the CRDD ignored the evidence of extensive human rights violations in Sri Lanka that provide support for the objective element of their refugee claims.

         The CRDD, in its decision, recites a number of facts concerning the situation in Sri Lanka which it apparently relied on as indicating that matters had improved since the applicants fled there for Germany, and that there was therefore no objective basis for their fear. Having read the documents cited by the CRDD, it is my respectful submission that the latter misconstrued the information contained therein and/or took it out of context in a manner that misrepresents the overall picture of the situation in Sri Lanka at the relevant time. For instance, the Board states that "[I]n recent years many thousands of Tamils have returned to Sri Lanka." In fact, the paragraph from which this quote is taken reads as follows:

Sri Lanka generally denies entry to refugees or displaced persons from other countries. The Government does not help refugees who attempt to stay in the country while seeking permanent residence elsewhere. There were over 674,000 internally displaced persons in Sri Lanka in June. Most lived in camps, primarily financed by the Government, in the northeast or adjacent provinces. The United Nations High Commissioner for Refugees operated in Sri Lanka, supporting government refugee efforts in noncombat zones. Over 135,000 Sri Lankan Tamil refugees left for southern Indian between June 1990 and September 1991; the majority left in 1990. In addition, as many as 70,000 Sri Lankan Tamils have sought refuge in Western Europe and North America over the last few years. Tens of thousands of Sri Lankan workers, most of them females, returned to Sri Lanka from the Persian Gulf area before and during the Gulf War.

         This extract gives no indication that the "thousands" of Sri Lankans who returned to Sri Lanka from abroad were Tamils. Moreover, the impetus for their return seems to have been the outbreak of the Persian Gulf War, and not any marked improvement in the Sri Lankan situation. In this context, it is my opinion that the inference drawn by the CRDD - i.e. that the return of thousands of Sri Lankans indicated a change for the better in Sri Lanka - was perverse and capricious, and based on a fundamental misconstrual of the evidence before it.

         I must also agree with the applicants that the CRDD ignored evidence in the Report of the Canadian Human Rights Mission to Sri Lanka of 1992. In my view, the CRDD erred by relying on one short paragraph in a newspaper article discussing the Canadian Human Rights Mission to support the proposition that civilians could be sheltered in the south of Sri Lanka, while ignoring the substance of the report produced by that Human Rights Mission. The Report makes repeated reference to the atrocities and flagrant human rights abuses committed by both the Sri Lankan government forces and the LTTE.

         Finally, I also consider that the Board's finding that, while still widespread, there had been a decrease in the number of human rights abuses from 1990 to 1991, is scarcely supportive of its conclusion that the applicants' fear of persecution is not objectively well-founded. If anything, such a finding seems to support the opposite conclusion.

         Given the absence of a negative credibility finding by the CRDD, I find that the above errors made by the CRDD are of serious consequence, and the application is therefore allowed. The impugned decision will be set aside and a rehearing by a differently constituted panel of the CRDD ordered.

OTTAWA, Ontario

May 16, 1997

                                

                                         JUDGE

__________________

     ¹      Toronto: Butterworths, 1991.

     ²      (1993), 66 F.T.R. 224 (F.C.T.D.).