Date: 20010322
Docket: IMM-1991-00
Neutral Citation: 2001 FCT 218
BETWEEN:
RAJESWARY NAVARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[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 Act[1]. The decision of the CRDD is dated the 23rd of March, 2000.
[2] This was the applicant's second negative decision from the CRDD. Her first application for Convention refugee status was rejected by the CRDD by decision dated the 18th of August, 1997. An application for leave and for judicial review in respect of that decision was dismissed by this Court on the 23rd of January, 1998.
[3] In its reasons in support of the decision now under review, the CRDD wrote:
The panel hearing the first claim made three significant findings:
- that the claimant's fear of the Liberation Tigers of Tamil Eelam (LTTE) was well-founded, (the LTTE were in control of the Jaffna peninsula at the time);
- that the claimant's evidence in the central part of her claim (massive extortion by the LTTE) was not credible; and
- that the claimant had a viable internal flight alternative (IFA) in Colombo.
At the start of the hearing, the panel advised counsel that it was not in a position to rehear the same facts heard by the original panel as it was not prepared to overturn the findings of that panel. The evidence brought forward in the current claim must be evidence that, by due diligence, could not have been brought forward in the original claim. The panel understands that a person may not be a Convention refugee today, but may be one tomorrow because of changes in the conditions in his or her country of origin. If a repeat claim involves a determination of the same issues that were determined by the first panel, the principles of res judicata will apply unless the claimant can show that he or she has new relevant facts (i.e. change in country conditions) which "could not have been ascertained by reasonable diligence."
In support of its reliance on the principles of res judicata, perhaps more accurately described as issue estoppel, the CRDD cited Grandview (Town) v. Doering[2].
[4] While the issue of whether or not res judicata or issue estoppel was properly relied upon by the CRDD was raised in written materials filed on behalf of the applicant, it was not pursued before the Court.
[5] In its reasons, the CRDD notes that, in her oral testimony before it, the applicant continued to rely on her concern regarding massive extortion by the Tamil Tigers against herself and members of her family living in Canada. The CRDD notes that this particular evidence was rejected on the applicant's first claim as not being credible. The CRDD adopts the same position on the second hearing. It further notes that the applicant has a sister living in Jaffna, a home there and a son living in the Vanni area. It observes that the applicant "...provided no evidence that either her son or her sister have suffered persecution or face serious harm." It concludes that:
...there is not a serious possibility that the claimant would be persecuted if she were to return to Jaffna today.
[6] In further support of its finding that the applicant no longer has a well-funded fear of persecution in the Jaffna region, the CRDD relies on the documentary evidence before it. It writes:
The panel notes a significant change of circumstances in Sri Lanka since the claimant left her country. One is that after the army took control of Jaffna in 1995-96, hundreds of thousands of Tamils originally displaced by the hostilities, returned from the Vanni to Jaffna area. Also, a strict pass system operates now so that an IFA in Colombo is only a slim possibility. The question remaining then is whether it is objectively reasonable in today's conditions for the claimant to return to Jaffna.
Counsel advised the panel that his documentation package reflected events since the claimant left Sri Lanka. I have reviewed the entire package and note particularly documents referring to the Jaffna area.
In summarizing the burden of the documentary evidence with specific cross-references to that evidence, the CRDD notes that Tamils with a certain profile, primarily young Tamils, and in addition politically aligned Tamils and government officials, are also at risk. It concludes:
Given this and given the profile of the claimant, a 67 year-old woman with no official or organizational connections, we find that there is not a serious possibility that she would be persecuted either by the LTTE or by the security forces, if she were to return to Jaffna.
[7] Counsel for the applicant urged that the CRDD erred in a reviewable manner in its assessment of the documentary evidence, that in fact that documentary evidence disclosed that at the time of the hearing before the CRDD, the Jaffna region was a "war zone", that Tamil villages and communities were often subjected to indiscriminate shelling and bombing and that, in the result, no Tamil in the Jaffna region, regardless of profile, was safe from persecution.
[8] It is trite to say that the assessment of evidence before the CRDD is at the heart of its role. In Hassan v. Canada (Minister of Employment and Immigration)[3], Mr. Justice Heald, for the Court, wrote:
Counsel for the appellant submitted, however, ... that other portions of the [documentary evidence] ... were ignored by the Board and that such a circumstance represents a valid ground of appeal. I respectfully disagree. In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced and, consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency ... . [citation omitted]
[9] I am satisfied that precisely the same could be said here. Whether or not this Court or counsel for the applicant would have assessed the totality of the documentary evidence, taken together with the applicant's own testimony, in the same way, is not the issue. I am satisfied that the CRDD's assessment of the totality of the evidence before it was reasonably open to it.
[10] Counsel for the applicant referred me to Abdi v. Minister of Employment and Immigration[4] where Madame Justice Simpson wrote at paragraph 13:
The Board is not obliged to refer to all the documentary evidence it relies on in its decision. However, in this case, it did not even allude to the existence of documentary evidence which supports the applicant's position that his fear is not the general fear felt by all in Somalia. He fears the specific targeting of his subclan by the Abgal subclan.
[11] I am satisfied that the first sentence of the foregoing quotation is here applicable and the last two sentences are simply not applicable on the facts of this matter. The totality of the applicant's testimony indicates that this applicant's fear is indeed the general fear felt by all Tamils in the Jaffna region of Sri Lanka. It is a fear of the impact of the continuing hostilities in that region. It is not a fear of "specific targeting" by any particular sub-group.
[12] In light of the foregoing, this application for judicial review will be dismissed.
[13] Neither counsel recommended certification of a question. No question will be certified.
_____________________________
J.F.C.C.
Ottawa, Ontario
March 22, 2001
[1] R.S.C. 1985, c. I-2.
[2] [1976] 2 S.C.R. 621 at 638.
[3] (1992), 147 N.R. 317 (F.C.A.).
[4] (1993), 70 F.T.R. 209.