Date: 20010212
Docket: IMM-1470-00
Neutral Citation: 2001 FCT 52
BETWEEN:
SIVAKUMARAN SINNADURAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[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 ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 29th of February, 2000.
BACKGROUND
[2] The applicant is a Tamil from the north of Sri Lanka. He has very little education. He is illiterate. In the north of Sri Lanka, he lived with his wife and children. He was a farmer but, in addition, he apparently had a special skill as a repairer of bicycles and motor bicycles. In the autumn of 1998, when the Tamil Tigers gave notice to him that they intended to recruit him on a full-time basis, he fled to Colombo with the aid of an agent. The applicant had a pass to stay in Colombo for only one week. He was warned not to over-stay. In the result, he quickly left for Canada. He left his wife and children behind in the north of Sri Lanka.
[3] The applicant's tale of difficulties in the north of Sri Lanka has a very familiar ring. From 1986 to 1988, he was arrested on three occasions by the security forces. In each case, he was detained, questioned and beaten. On at least two of those occasions, he was only released on payment of a bribe.
[4] When the Indian Peace-Keeping Force left the north of Sri Lanka, he began to come under pressure from the Tigers. He was subjected to extortion. He was forced to work digging bunkers, filling sandbags and performing other labour. Commencing in 1995, the pressure from the Tigers mounted. They became aware of his skills as a bicycle and motor bicycle repairman and exploited those skills. The applicant testified that between 1995 and the time he fled the north, he was regularly forced to aid the Tigers. The following exchange is recorded in the transcript of his testimony:
| Q. Most of the time, did you farm? |
| A. Yes, but during that period [1995 to 1998], whenever they come and demand that I go and help them, I had to go. |
| Q. So how many times did they ask you to help them in that three years roughly? |
| A. It could have been about 20 to 25 times. |
| ... |
| Q. And you would go for two or three days and dig bunkers and repair motorbikes? |
| A. Yes, exactly. That's right.2 |
[5] When the applicant fled to the south in company with his agent, he was stopped at a security forces checkpoint, detained, interrogated and beaten. He testified with regard to this experience:
| He [the interrogator] asked me if I have any connections with the LTTE. In response, I told him, "No, I am a farmer." Because when I registered my name, for my occupation I mentioned a cycle repairman. So they said they suspected that I have been helping the LTTE by repairing bicycles. I said, "I have nothing to do with the LTTE. I never helped the LTTE." He said, "No, no, you are not telling the truth. You are lying to me.", and he pointed at the gun and he said "You know with this what I can do for you? You have to tell me the truth." He demanded that I tell the truth. He kept on demanding that I tell him the truth. I tried my best to tell him that I have nothing to do with LTTE. There was a weapon on the desk, and he took hold of it, and he attacked me with that. When I defended myself with my hand, he attacked me on my back. He repeated that, "If you don't tell the truth, you won't be able to go back.".3 |
THE REASONS FOR DECISION OF THE CRDD
[6] In relatively brief reasons, following reference to the applicant's difficulties with the security forces during the 1980s, the CRDD wrote:
| His next and only other encounter with government forces happened ten years later in 1998 when he was making his way from the North to the South in preparation for leaving Sri Lanka for Canada. He was treated as all people coming from the North are treated by security forces who are constantly on the watch for terrorists trying to infiltrate into Colombo where Tiger terrorist incidents such as the late 1999 suicide bombings in which the President of the country was injured and 33 innocent civilians killed are common place. |
| Given the serious situation in the North of Sri Lanka and the continuing terrorist threat posed by the Tigers in and around Colombo the panel finds that the questioning, arrest and detention of suspects is a legitimate action on the part of security forces. Even though such questioning is sometimes harsh it does not in this case amount to persecution under the terms of 1951Convention. [emphasis added] |
"Harsh" in the circumstances of this matter involved a threat to use a gun and a beating with a gun.
[7] In Thirunavukkarasu v. Canada (Minister of Employment and Immigration)4, Mr. Justice Linden wrote at page 601:
| As the appellant argues, the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beating and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety. |
While I regard the foregoing to be an accurate statement of the current state of the law, I find it not to be determinative in this matter. The test for Convention refugee status is forward looking. Whether or not the applicant suffered persecution in the past at the hands of security forces, the fundamental question that was here before the CRDD, as it is before it in all matters of this nature, is the determination of the risk that an applicant faces if he is required to return to the state where he alleges a fear of persecution.
[8] The determinative findings of the CRDD relate to the allegation of the applicant that he was given two weeks notice by the Tigers that he would be recruited, presumably to allow him to put his affairs in order, and that he left his family without arranging for their safety. The CRDD wrote:
| The panel finds the claimant's account of his fear of the Tigers to be implausible for a number of reasons. |
| First of all it is not plausible that the Tigers would issue the claimant an invitation to flee. Surely that is exactly what their proposition [as alleged by the applicant] amounted to. ... |
| The Tigers are not stupid. They would not have given the claimant two weeks notice. They would have taken him right away if they were in need of manpower. |
[9] The CRDD continued:
| In addition the panel does not find plausible the claimant's account of leaving his family behind without making some arrangements for their safety. ... |
| ... |
| In the end the panel simply does not believe the claimant's story of his fear of the Tigers and finds it to be a tale manufactured to make an asylum claim in Canada. |
[10] In all of its reasoning leading to the foregoing conclusion, the CRDD ignores the applicant's testimony regarding his special skill, that of bicycle and motor bicycle repair, regarding the Tigers' special interest in that skill, apparently in the context of their struggle and the environmental conditions in which that struggle is being carrying on, and as to the suspicions of the security forces with respect to the applicant, given that special skill and their presumed knowledge of its particular interest to the Tigers.
[11] While the conclusion reached by the CRDD might have been reasonably open to it on a more complete analysis, I conclude that the decision here under review cannot stand in the absence of that more complete analysis. Looking forward to the return of the applicant to Sri Lanka, the question obviously arises whether, given the applicant's special skill, his testimony regarding the exploitation of that skill by the Tigers and the presumed knowledge of the security forces of that skill, whether the applicant would face persecution at the hands of the Tigers or of the security forces or both. In the absence of such an analysis, I conclude that the CRDD erred in a reviewable manner by arriving at its decision without having regard to the totality of the relevant evidence particular to the circumstances of this applicant that was before it.
[12] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicant's claim to Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[13] At the close of the hearing of this matter, I indicated to counsel that I would distribute my reasons and provide an opportunity for them to make submissions on certification of a serious question of general importance. I look forward to receipt of any submissions in this regard before the close of business at the Registry of the Court in Toronto on Friday, the 16th of February, 2001.
___________________________
J.F.C.C.
Ottawa, Ontario
February 12, 2001
__________________2 Tribunal Record, pages 000425 -426.