Date: 20000619
Docket: IMM-2440-99
BETWEEN:
ARULMALAR RAJASEGARAM
SUISSAN RAJASEGARAM and YATHUSAN RAJASEGARAM
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] These reasons relate to the judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Review Board, in which the applicants were determined not to be Convention refugees. Arulmalar Rajasegaram (herein after "the applicant") is the mother of the other two applicants, who were seven and four years old at the time of the Board decision.
[2] The Board stated that there was no reliable evidence establishing the identity of the two young children. It did not appear to question that they were children of the applicant, but it could not ascertain where, or in what country they had been born. The applicant did not produce birth registrations for the children.
[3] Counsel for the applicant argues that this finding was not open to the Board because it did not raise the issue with the applicant at the hearing, and it ignored the evidence of the applicant as to when and where the children had been born. The Board did raise the issue at the hearing. It asked whether "any new identity documents - birth certificates for the two children" had become available since the earlier proceeding, and was told that there were none. The Board is not required to accept the uncorroborated evidence of an applicant when objective evidence is usually available. The Board is entitled to question whether the non-existence of such objective evidence arises because there are facts disclosed therein, (perhaps the whereabouts of the applicant at the relevant time) that conflicts with her evidence concerning her reasons for claiming refugee status.
[4] Counsel for the applicant argues that the Board erred when it found that the applicant was not a Convention refugee because: it cited out of date information for its finding that it was unlikely that she would face persecution if returned to northern Sri Lanka; that it did not consider more recent information that demonstrated that the LTTE was more in control of that area than they had been at an earlier date. The Board cited reports of November 6, 1997 and of May and July 1998, the latter being contained in a disclosure package dated October 1998.
[5] The reports that counsel asserts were ignored by the Board carry dates of July - October 21, 1998. I cannot conclude that the Board ignored this evidence. The Board acknowledged that he LTTE was attempting to destabilize the northern region of Sri Lanka. The reports that it is alleged were ignored, attest to this activity. The Board, nevertheless, concluded that the Sri Lankan army had established a durable presence in the north, and "civilian life is slowly returning to normal" (emphasis added).
[6] While the Board found the applicant and her two young children, whose claim depended upon hers, not to be Convention refugees, it found an older son, Rajeepan Rajasegaram to be a Convention refugee. Rajeepan is a ten year old child of the applicant. His birth registration was provided, so there was no question about his identity. The panel concluded:
| ... the panel believes that there is a serious possibility that the oldest child, by reason of his age, being in the age group at risk of recruitment by the LTTE, has a well-founded fear of persecution in Sri Lanka and could be at particular risk in the North. |
[7] Counsel for the applicant argues that it is unreasonable to have found that Rajeepan is a convention refugee but his mother and two younger siblings are not.
[8] A review of the jurisprudence indicates that the Board did not err. The reason for finding the older son to be a Convention refugee was based on evidence that the LTTE was forcefully recruiting ten year old children. In Pour-Sharidi v. Canada (Minister of Employment and Immigration) (June 10, 1997, A-721-94) the Federal Court of Appeal made it clear that indirect persecution was not a basis of claiming refugee status; there has to be a personal nexus between the claimant and the alleged persecution on one of the Convention grounds.
[9] The finding of the Board that the older son had a well-founded fear of persecution in the north, does not make the applicant"s claim well-founded. Also, while the younger siblings will eventually become ten years old, in time, the Board would be speculating to assume that, at that later time, the threat by the LTTE to ten year old children will be as severe as the Board found it to be at the date of its decision. What is more, the Board was not able to be certain that the younger children had been born in Sri Lanka, given the failure to produce birth certificates for them.
[10] The main concern that arises from the Board"s decision is the splitting of the family, if the oldest son is left in Canada as a Convention refugee, while the mother and the younger children are deported. This is an issue that should be considered in the context of a humanitarian and compassionate review application. It is not a ground upon which to set the Board"s decision aside.
"B. Reed"
J.F.C.C.
Toronto, Ontario
June 19, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2440-99 |
| STYLE OF CAUSE: ARULMALAR RAJASEGARAM |
| SUISSAN RAJASEGARAM and YATHUSAN RAJASEGARAM |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: MONDAY, JUNE 19, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: MONDAY, JUNE 19, 2000
APPEARANCES: Helen P. Luzius
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Helen P. Luzius
Barrister & Solicitor
3080 Yonge Street
Suite 5030
Toronto, Ontario
M3N 2N1
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000619
Docket: IMM-2440-99
Between:
| ARULMALAR RAJASEGARAM |
| SUISSAN RAJASEGARAM and YATHUSAN RAJASEGARAM |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |