Date: 20030129
Docket: IMM-375-02
Neutral Citation: 2003 FCT 98
Toronto, Ontario, Wednesday the 29th day of January, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
PONNAMMAH RASAIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention
Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated December 19, 2001, wherein the CRDD determined that the Applicant is not a Convention Refugee.
[2] The Applicant is a citizen of Sri Lanka. She claims a well-founded fear of
persecution at the hands of the Sri Lankan army and Tamil militant groups, including the Liberation Tigers of Tamil Eelam (LTTE).
[3] Due to a cognitive impairment, the Applicant was unable to testify at her refugee
hearing. The CRDD appointed her daughter, to act as the Applicant's designated representative, and received testimony from both her daughter, and her daughter -in-law.
[4] The Applicant claimed to have been harassed regularly by the LTTE, forcing her
to cook for them and make "donations" of small amounts of gold. She claims that in 1999 the LTTE brought injured cadres to her property and hid weapons in the rafters of a vacant house that belonged to her. She also claimed that the Sri Lankan army took her to a camp and threatened her life when they learned of the LTTE presence on her property. The Applicant left Sri Lanka with her son and his wife based on a fear that the army might find the weapons and hold them responsible, but if they went to the army on their own, they would be destroyed by the LTTE.
[5] The CRDD found that there were significant concerns about the Applicant's
credibility, and that many of these concerns were not resolved through the testimony
received. In the end, it chose to decide the case on the basis of whether an objective basis
existed for her fear of persecution.
[6] The CRDD found that the Applicant lacked an objective basis for her fear, as she
did not meet the profile of targeted individuals in Sri Lanka. Though she was subject to continued discrimination, the CRDD determined that, even cumulatively, this pressure did not amount to persecution. The CRDD said:
What distinguishes discrimination from persecution is the degree or seriousness of harm. In general, the courts have stated that acts of discrimination must be sufficiently serious and inflicted for such a long time that the claimant's physical or moral integrity has been threatened. Even if we were able to accept the account of all the incidents in the claimant's PIF as reliable, we find that being the victim of theft of money and jewellery, being forced to cook, do manual labour, shelter wounded militants, witness the "manhandling" of a son, and being verbally abused and threatened when suspected by the army of LTTE involvement, does not, even cumulatively, amount to persecution. (Applicant's Application Record, p. 15)
...
In our view, what the Tigers asked the claimant to do for them during the time the LTTE was the de facto government in her area from 1990-95, was no more than the price every resident had to pay to enjoy their protection and does not amount to persecution. At present the army controls her home area and therefore the claimant has little to fear from the LTTE. As well, the claimant need not fear the security forces in her home area in Jaffna. Even if the Tigers did hide weapons on her vacant property it does not advance the claim. The army did not find them when they were in hot pursuit of the Tigers at the time, nor, apparently while the claimant was still in Sri Lanka, as she was issued a valid passport in October, 1999, and left the country without incident. What did or may happen to the weapons can be no more than speculation. (Applicant's Application Record, p. 17) [Emphasis added]
[7] The CRDD further determined that, based on her age and profile, she was not a
victim of persecution at the hands of either the LTTE or the Sri Lankan Army:
Undoubtedly the claimant, should she return to her home area, might be at risk of a stray shell or bullet should hostilities resume; however, such a risk is shared by everyone living near a combat zone and is not evidence of individual or collective targeting for a Convention reason. There is no persuasive evidence before us that the army or the LTTE engages in the practice of deliberately targeting civilians in contested areas. There is also no reliable evidence before us that elderly Tamils are of any interest to the security forces unless they are suspected of providing assistance to the LTTE, and we find no persuasive or reliable evidence that the claimant is at serious risk in that regard should she return to Sri Lanka.
The claimant's real fear, we find, is the hardships that civil war brings to those who are old. We find that the evidence does not establish that the claimant faces a serious possibility of persecution in Sri Lanka for any Convention reason. (Applicant's Application Record, p. 18)
[8] Thus, the CRDD completely discounted the existence of the weapons placed in
the rafters of the Applicants house.
[9] The Applicant brings this judicial review challenging the reasonableness of the
CRDD's conclusion regarding the objective basis for the Applicant's fear. The Applicant submits that the documentary evidence makes it plain that the consequences to the Applicant of the army discovering the weapons would be severe, and that there is nothing to suggest that the Applicant would be treated benignly should they be discovered on her property, regardless of her age or profile.
[10] In my opinion, it is a reviewable error for the CRDD to refuse the Applicant
solely on the basis of her age and profile. The documentary evidence provided by the Applicant indicates that many people of all ages are targeted by the LTTE. The 1999 U.S. Department of State Country Reports on Human Rights Practices for Sri Lanka, preferred by the CRDD over other documentary sources, includes the following statements:
The Government generally respected the human rights of its citizens in areas not affected by the insurgency; however, the ongoing war with the LTTE continued to be accompanied by serious human rights abuses by the security forces. Security forces committed numerous extrajudicial killings, and almost certainly killed prisoners captured on the battlefield. In addition up to 15 individuals disappeared from security force custody in Vavuniya and in the east. In the past, persons also have disappeared or have been killed after last being seen near the army's forward defense lines in the north, areas civilians are ordered by the military to avoid. The circumstances of such disappearances and killings were unclear, and with the many military offensives and forward defense line changes throughout the year, the risk to civilians remained high. Torture remained a serious problem, and prison conditions remained poor. Arbitrary arrests--including short-term mass arrests and detentions--continued, often accompanied by failure of the security forces to comply with the protective provisions of the Emergency Regulations (ER). Impunity for those responsible for human rights abuses also remained a serious problem. Little progress was made in resolving cases of extrajudicial killing or disappearance. In most cases, there was no investigation or prosecution at all, giving the appearance of impunity for those responsible for human rights violations. No arrests were made in connection with the disappearance and presumed killing of at least 350 civilians whom the security forces suspected were members or sympathizers of the LTTE in Jaffna in 1996 and 1997. (Tribunal Record, p. 115)
[11] In addition, I find that by discounting the presence of weapons in the Applicant's
house, the CRDD did not properly apply the test for prospective fear of persecution. It is an unrefuted fact that the weapons exist in a situation where their discovery places the Applicant in grave danger of persecution. Whether or not they have been found, or whether they will be found, does not change this fact. In my opinion, to discount this fact makes the CRDD's decision patently unreasonable.
[12] I further find that the Applicant's refusal of the sponsorship offer by her daughter
in 1997 does not undermine her claim. It was not unreasonable for the Applicant to prefer living in Sri Lanka if given the choice. It was not until 1999 that the weapons were placed in her property and she was subsequently arrested that her fear of persecution was heightened. In my opinion, the adverse inference drawn by the CRDD in relation to this
incident is erroneous, as the incident in 1999 forms the central basis for this claim and the sponsorship was made in 1997.
ORDER
Accordingly, the CRDD's decision is set aside and the matter is referred back for
redetermination by a different panel.
"Douglas R. Campbell"
_____________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-375-02
STYLE OF CAUSE: PONNAMMAH RASIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JANUARY 28, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JANUARY, 29, 2003
APPEARANCES BY: Mr. John Guoba
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: John M. Guoba & Associates
Barristers and Solicitors
211 - 2425 Eglinton Avenue East
Toronto, Ontario
M1K 5G8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030129
Docket:IMM-375-02
BETWEEN:
PONNAMMAH RASIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER