IMM-1527-96
BETWEEN:
NALINI KRISHNAKUMAR
LAKSMAN KRISHNAKUMAR
THINISHAN KRISHNAKUMAR
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated April 2, 1996, holding that the applicants are not Convention refugees.
The applicants seek an order requiring the CRDD to declare them Convention refugees or, in the alternative, an order setting aside the tribunal's decision and referring the matter back to a differently constituted panel for redetermination.
I. FACTS
The applicants, Nalini Krishnakumar and her two minor children, Laksman Krishnakumar and Thinishan Krishnakumar, are citizens of Sri Lanka. They came to Canada on June 28, 1995, from Singapore. The principal applicant claims to be a Convention refugee on the basis of a well-founded fear of persecution because of her political opinion and membership in a particular social group (young female Tamil). Specifically, she fears persecution from the Tamil rebels in the northern region of Sri Lanka and the government authorities in the capital city of Colombo.
The facts on which the applicant bases her claim were for the most part accepted by the CRDD1. Here follows a summary of the events as set out in the applicant's Personal Information Form and the reasons of the CRDD.
In Sri Lanka, the applicant lived in Jaffna Town where her husband owned and operated a restaurant. She was employed as a bookkeeper at a local hospital. While in Jaffna, she claims that her family was persecuted by the Tamil rebels. In particular, her husband was coerced by the Liberation Tigers of Tamil Eelam ("LTTE") into giving money to the guerilla organization in return for being able to continue to operate his business.
In October 1994, her husband's brother was accused of spying on the LTTE. He was arrested by the rebels and sentenced to death. The applicant's husband protested his brother's death sentence. As a result, he was himself arrested by the Tamil rebels and tortured. The applicant visited the LTTE camp every day demanding to see her husband. She was also arrested on November 14, 1994 and detained for two weeks, during which time she was harassed. She was released on November 28, 1994 and her husband on February 2, 1995.
Soon thereafter, the applicant and her family were allowed by the LTTE to leave Jaffna in order for her husband to receive medical treatment, his health having badly deteriorated due to his incarceration. They were issued a pass on condition that they return to Jaffna within three weeks.
In Colombo, the family was harassed by the local authorities. On two occasions, they were arrested and detained by the police who suspected them of having connections with the LTTE. The first incident occurred on April 21, 1995. The applicant and her family were arrested along with the other residents of the lodge in which they were staying, following a terrorist attack by the LTTE in Trincomalee. They were detained for two days and released on their own recognisance after providing proof of their identification. The applicant had to pay 30,000 rupees to have her husband released.
The second incident happened on June 3, 1995. The applicant was arrested while her husband and children were away. She claims to have been detained for two weeks and released on condition that she report to the police every two weeks. A sum of 15,000 rupees was paid to the police as a bribe.
The family left Colombo on June 28, 1995, for Singapore. They were only able to make travel arrangements to Canada for the principal applicant and her children.
II. CRDD DECISION
The issue before the CRDD was whether Colombo constitutes a viable internal flight alternative ("IFA"). The tribunal concluded that the capital city did meet the two-prong test established by the Federal Court of Appeal in Rasaratnam v. Canada (Min. of Employment & Immigration)2 and Thirunavukkarasu v. Canada (Min. of Employment & Immigration)3.
First, the panel was not satisfied that there was an objectively valid basis for the applicant's fear of persecution should she return to Colombo. Specifically, the panel found that the 37-year-old mother of two infants who possessed identity documents did not fit the profile of those suspected and targeted as terrorists and supporters of the LTTE by the authorities, namely young Tamils from the North without identity documents. The applicant's own testimony supported this finding:
| a) On April 21, 1995, the applicant was detained for a short period of time; |
| b) She was arrested because of roundups of Tamils in Colombo following an LTTE terrorist attack; |
| c) The applicant was never ill-treated while being detained by the police; |
d) The police only questioned the applicant about her identity;
e) No conditions of release were imposed on the applicant.
As for the alleged two-week detention, the CRDD concluded that the applicant fabricated the story. The panel thought it unlikely that the applicant would have been detained for such a long period unless she was suspected of having LTTE links. However, it is doubtful she was suspected of being an LTTE supporter since her husband was not detained at that time, nor was she interrogated by police, nor were conditions imposed upon her release.
The CRDD also found that the documentary evidence did not support the applicant's contention that she is in danger of being persecuted in Colombo:
| a) Although, Tamils are increasingly being arrested, they are detained for short periods of time (48 hours on average) and released after their identity documents have been checked. |
| b) The Sri Lankan government is attempting to combat human rights violations in that country. Sri Lankan authorities have established a special investigation unit to look into allegations of police corruption. |
Given the circumstances and relying on Arumugam4, the CRDD concluded that the applicant should have made the effort to avail herself of the protection of the Sri Lankan state before seeking international protection.
Second, the CRDD concluded that Colombo was a reasonable IFA in the circumstances. The following reasons were given:
| a) There are over 350,000 Tamils residing in Colombo, of whom approximately 150,000 are refugees from the north; |
| b) The applicant's knowledge of English and Tamil, and her past work experience suggest that an IFA in Colombo is reasonable and viable. |
III. ISSUES
The main issue raised by the application is whether the CRDD committed a reviewable error in finding that Colombo was a viable IFA.
IV. ANALYSIS
The applicants set out a number of errors committed by the panel. These include unreasonable inferences, misconstruction of evidence and failure to apply relevant evidence. Admittedly, some of the comments by the panel might be ambiguous or unfortunate, but I would not think that they impugn the validity of the decision. Futhermore, issues relating to plausibility or credibility have long been held to be within the competence of the panel and are not usually source of intervention under judicial review.
The CRDD has acquired over the years extensive expertise in finding Colombo an IFA for Sri Lankan refugee claimants. The CRDD cannot use this expertise frivolously or irresponsibly, but otherwise, its findings in general or its judgment calls in particular must be viewed and interpreted in that context.
V. CONCLUSION
Counsel for the applicants argued the case in an impressive manner, but as I have said, however, I see no convincing grounds to intervene. The application must therefore be denied.
L-Marcel Joyal
_________________________
J U D G E
O T T A W A, Ontario
July 7, 1997.
__________________1 The CRDD did reject certain parts of the applicant's story. This issue will be addressed when discussing the panel's decision.
2 "1994 > 1 F.C. 589 (C.A.).
3 "1994 > 1 F.C. 589 (C.A.).
4 (1994), 28 Imm. L.R. (2d) 185 (F.C.T.D.).
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1527-96
STYLE OF CAUSE: NALINI KRISHNAKUMAR et al v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, July 7, 1997 REASONS FOR ORDER OF The Honourable Mr. Justice Joyal DATED: July 7, 1997
APPEARANCES
Mr. Manuel Jesudasan FOR THE APPLICANT
Mr. David Tyndale for THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Manuel Jesudasan FOR THE APPLICANT Scarborough, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada