Date: 20030428
Docket: IMM-3606-02
Citation: 2003 FCT 673
OTTAWA, ONTARIO, this 28th day of May 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
THENMOLI RAMACHANTHRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (the "CRDD"), determining the Applicant is not a Convention refugee because she has an internal flight alternative ("IFA"). The Applicant's claim was heard on May 9-10, 2002. She received notice of the decision on July 17, 2002, by letter dated June 14, 2002. This application for review is made pursuant to section 72 of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (the "Act").
[2] The Applicant and her minor son, Ajanthan Ramachanthran (Date of Birth: April 7, 1986), had their claims for Convention refugee status heard at the same time. The son adopted the evidence of his mother, who was his designated representative. The son was found to be a Convention refugee.
Background
[3] The Applicant is from the northern part of Sri Lanka. She is married with two children. The Applicant and her husband have not lived in the same country since 1996, when he came to Canada and made what was ultimately an unsuccessful refugee claim. They have not been a couple since 1993.
[4] The Applicant's husband left Sri Lanka because of persecution. It appears that the husband's brother married the Liberation Tigers of Tamil Eelam's (the "LTTE") leader's sister. However, the tribunal in the husband's case did not believe the husband when he said he had been imprisoned and mistreated while in Columbo. It seems that the husband has been able to remain in Canada while his humanitarian and compassionate application is pending.
[5] The Applicant is a teacher. She has a B.Sc. and a diploma in education. From 1989 to May of 1993, she taught at Ramanathan College in Columbo. From 1993 to 1998, she taught and was deputy principal of a school in Valvettithurai. From 1999 until she left the country in 2001, the Applicant taught at Chithambara College, also in Valvettithurai. At the same time, she was a part-time teacher in computer studies at the Institute of Information Studies in Jaffna.
[6] According to the Applicant's Personal Information Form ("PIF"), the city of Valvettithurai is the home city of the leader of the LTTE. As a teacher, she was often approached by members of the LTTE to encourage her students to join the LTTE. While the Applicant's conscience would not allow her to campaign for the LTTE, she indicates that there were times when she requested that her students attend meetings and read LTTE materials in order to avoid serious personal consequences.
[7] As soon as the Applicant's daughter and son turned 13, both were harassed and pressured by the LTTE to join the movement. In 1999 and 2000, the Applicant's children were forcibly taken to LTTE hideouts and forced to attend indoctrination sessions and do hard labour.
[8] The Applicant and her children felt they were in serious jeopardy as of February 5, 2000. On that date, the Sri Lankan army carried out a cordon search in and around Valvettithurai. A Captain Silva searched the Applicant's home. When it was discovered that the Applicant had a computer in her home, she was extensively questioned by Captain Silva apart from her family in a bedroom. The Applicant advises that her mother was so afraid that the Applicant was being raped during the time she was being questioned by Captain Silva that she had a heart attack, and died the next day. Her father died a month later due to a brain haemorrhage which was, in the Applicant's opinion, brought on by excessive worries.
[9] On April 6, 2000, Captain Silva came to the Applicant's school and asked her to report to his camp. At the camp, Captain Silva asked her to fix the computer, which had been improperly installed. Because the Applicant is fluent in Sinhala, the Captain found her easy to communicate with, and asked her to provide information with respect to the LTTE, of which she had none. After two hours, the Applicant was allowed to leave.
[10] The Applicant was thereafter frequently required to go to the camp. She had to translate documents from Tamil to Sinhala, most of which were anonymous letters sent to the army about LTTE hideouts and supporters.
[11] Captain Silva eventually took a more personal interest in the Applicant. He often made known his attraction by touching her and complimenting her on her appearance.
[12] The LTTE found out the Applicant was visiting the army camp on a regular basis. On October 10, 2000, the LTTE sent a threatening letter to her, calling her a traitor and saying that, if she did not stop her contact with the army, the LTTE would kill her as a traitor by lamppost execution.
[13] After receiving the letter, the Applicant tried her best to avoid both Captain Silva and the camp. However, on November 21, 2000, Captain Silva came to the Applicant's school and insisted that she go to the camp. She had no choice but to accompany him. She explained to him that she had received a threatening letter from the LTTE. His solution was that the Applicant should provide him with sexual favours, in exchange for which he would provide her with whatever assistance she required. The Applicant declined. What happened next is unclear:
When I explained to him that I respected him as an honourable person and that I was married with children and that my heart and soul would not permit me do that. He pleaded with me for some time, and then became violent. I cannot put in writing what happened to me on that day.
The panel did not press the Applicant for details beyond confirming unwanted physical contact.
[14] It was after this incident that the Applicant realized how much danger both she and her children were in. She moved from Valvettihurai to Jaffna. However, the situation in Jaffna was no safer. The Applicant put her daughter in a boarding school, while she and her son hid in the home of a friend. Nevertheless, her children were harassed by both the LTTE and the army. On December 14, 2000, the Applicant's minor son was arrested by the army at a check point. He was detained and questioned about the LTTE. He was also beaten. The Applicant, with great difficulty, located the army camp. The army initially denied having the Applicant's son. After she paid a large bribe, the son was released.
[15] At this point, the Applicant decided to leave Sri Lanka. She paid a large sum of money and got a pass from the army to travel with her children to Trincomalee on January 31, 2001. The Applicant had to leave her daughter in Trincomalee when she left for Canada on March 2, 2001. The Applicant and her son arrived in Canada on March 5, 2001. She and her son made their refugee claims to an immigration officer the same day they landed in Toronto.
[16] She indicated that she has no life in Sri Lanka. She has spent large sums of money to obtain passes to Trincomalee. She is also very frightened for her daughter, whom she virtually abandoned in Trincomalee. She fears for her life if returned to Sri Lanka.
The CRDD Decision
[17] With the permission of the Applicant, the hearing proceeded before a one-member panel.
[18] The panel noted that, in order to be considered a Convention refugee, the evidence must establish that there was a reasonable chance or serious possibility that the Applicant would be persecuted if she returned to Sri Lanka. The panel also recognized that the definition of Convention refugee is forward-looking and that the fear of persecution has to be assessed at the time of the examination of the claim to refugee status. Of necessity, the particular circumstances and experiences of each claimant must be factored into the decision-making process, since these bear some relevance to the subjective component of establishing that there is a well-founded fear of persecution. Additionally, the Applicant was required to establish that her fear was reasonable given the objective situation.
[19] The panel, in its reasons, identified the following as issues of relevance:
1. Identity;
2. Objective basis for fear of persecution;
3. Internal flight alternative; and
4. Credibility.
[20] The issue of an internal flight alternative, however, was not marked off on the CRDD File Screening Form and Disclosure Order sent to the Applicant.
Identity
[21] Based on the identification information presented to the panel at the time of the hearing, the panel concluded that the Applicant was a Tamil recently from the north of Sri Lanka, which is the time material to her claim.
Objective Basis for Fear of Persecution
[22] The tribunal found that the Applicant had a well-founded fear of the LTTE in the north of Sri Lanka, since the LTTE has been known to make good on threats to persons who are considered to be traitors or who are accused of cooperating with the Sri Lankan security forces.
[23] With respect to the Applicant's claim of a fear of persecution from the Sri Lankan army, the panel found this was not well-founded:
She had been of assistance to the army, helping them with computer problems and translation of documents from Tamil into the Sinhala language. Captain Silva had taken a personal interest in her and she had resisted his sexual advances. She was able to obtain a travel pass from the army to travel to Trincomalee. This suggests to the panel that the army, apart from Captain Silva, had no particular interest in her while she lived in Jaffna.
Internal Flight Alternative
[24] The panel found that, even if it were to conclude that the Applicant had a well-founded fear of persecution by both the LTTE and the army, she had an IFA in Colombo. The panel arrived at this conclusion based on the following:
1. the Applicant lived in Columbo from 1967 to 1979 when she went away at school;
2. from 1989 to 1993 she worked in Columbo, teaching at Ramanathan College;
3. the Applicant's National Identity Card ("NIC"), issued in 1992, has an address in Columbo;
4. the Applicant is fluent in Sinahala;
5. the Sri Lankan army gave her permission to leave the north, indicating that she was not considered to be a threat or danger;
6. given her work history and language skills, it was not unreasonable for her to flee to Colombo.
[25] Given the Applicant's age and NIC with a Colombo address, the panel found that the Sri Lankan security forces did not pose a threat to her that could be considered persecutory.
[26] The panel also noted that the Applicant had heeded the LTTE's warning and had ceased going to the army camp. The panel believed that the LTTE would not come looking for her in Colombo and that she would be safe there.
Credibility
[27] The panel found that the Applicant's testimony was mostly consistent with her PIF, both of which dealt with her experiences since her husband left in 1996 and that any inconsistencies either did not go to the heart of the claim or else the Applicant had provided plausible explanations.
Issues
[28] 1. Did the Refugee Division tribunal err in misconstruing evidence or ignoring evidence?
2. Did the Refugee Division err by making a decision based on a finding that the Applicant had an internal flight alternative, given that this issue was not raised at or prior to the hearing, thereby failing to observe the principles of natural justice and procedural fairness?
3. Did the Refugee Division err in law by determining the Applicant had an IFA in Colombo?
Arguments
The Applicant's Position
[29] The Refugee Division gave notice to the Applicant in the CRDD File Screening Form and Disclosure Order that credibility, identity and the objective component of a well-founded fear of persecution would be the issues to be addressed at the hearing. At the beginning of the hearing, the panel identified credibility, identity and change of circumstances as the issues relevant to the claim.
[30] It is the submission of the Applicant that the issue of an IFA was not identified by the Refugee Division at any time during or prior to the hearing. The Applicant was not afforded the opportunity to address the IFA issue with evidence and argument.
[31] According to Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, the issue of an IFA must be expressly raised, in advance of or at the hearing, by the panel and the claimant afforded the opportunity to address it with evidence and argument. In failing to do this, the Applicant submits that the panel failed to observe procedural fairness and the principles of fundamental justice.
[32] In Kulanthavelu v. Canada (Minister of Employment and Immigration ), [1993] F.C.J. No. 1273, the following point was made:
[T]here is an onus on the Minister and the Board to warn the claimant if an IFA is going to be raised. A refugee claimant enjoys the benefit of the principles of natural justice in hearings before the Refugee Division. A basic and well-established component of the right to be heard includes notice of the case to be met (see, for example, Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1114). The purpose of this notice is, in turn, to allow a person to prepare an adequate response to that case. This right to notice of the case against the claimant is acutely important where the claimant may be called upon to provide evidence to show that no valid IFA exists in response to an allegation by the Minister. Therefore, neither the Minister nor the Refugee Division may spring the allegation of an IFA upon a complainant without notice that an IFA will be in issue at the hearing.
[33] The fact that the Applicant was a resident of Colombo was within the knowledge of the panel from the beginning. It was aware the Applicant's NIC was issued to her in Colombo, despite not having a translation for the back of the card.
[34] The panel had all the information required to identify an IFA as an issue prior to the hearing, if indeed an IFA became an issue based on the Applicant's previous residence in Colombo.
[35] The panel, however, did not give notice to the Applicant that an IFA would be an issue when they sent her the screening form. While the panel raised some issues with respect to the timing of the Applicant's stay in various places and her travel route, this was with respect to the issue of credibility rather than an IFA.
[36] The panel clearly noted that an IFA was not an issue before asking the Applicant if there was any reason why she could not live in Colombo.
[37] The panel only asked three questions on the issue of an IFA. This is an insufficient amount of questioning upon which to base a finding that the Applicant had an IFA in Colombo.
[38] When the hearing resumed the next day, the panel did not question the Applicant's statement at the port of entry regarding her time in Colombo. These questions were asked to resolve credibility concerns.
[39] Directing counsel to deal with the issue during oral submissions, without having identified it as an issue, does not meet the standard set by the Court for identifying, dealing with, and making a determination on the issue of an IFA.
[40] It is further submitted by the Applicant that, having made determinations in favour of the Applicant with respect to identity, credibility, and the well-foundedness of her fear of persecution, the only decision that was open to the panel was to determine the Applicant to be a Convention refugee.
[41] The panel's finding that it would not be unreasonable for the Applicant to seek refuge in Colombo was not based on the evidence before it, and was made without taking into consideration all of the circumstances as required by law.
[42] In finding that the Applicant had an IFA, the panel only took into account her work history in Colombo and her language skills. The panel erred in not analysing whether the proposed IFA was a realistic, attainable option.
[43] In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, it was held that an IFA cannot be speculative or theoretical. In Kulanthavelu, supra, it was stated that the availability of suitable work, relatives, duration of previous residence, etc., are factors that, in the context of all of the evidence regarding the circumstances of each applicant, go to whether or not it is objectively reasonable for an applicant to live in a proposed IFA destination without fear of persecution.
[44] According to the two-prong test set out in Rasaratnam, supra, the panel must first be satisfied, on a balance of probabilities, that no serious possibility of persecution exists if the Applicant should flee to the area that is proposed as an IFA. Secondly, the conditions in that part of the country must be such that it is not unreasonable, in all the circumstances, for the Applicant to seek refuge there.
[45] It is submitted that the panel failed to consider all the circumstances related to Colombo as an IFA, particularly the following:
1. the Applicant's son was found to be a Convention refugee. It is unreasonable to expect the Applicant to seek refuge in Colombo with a minor child who has a well-founded fear of persecution in Sri Lanka. According to Huggessen J. in Ramanathan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1210 (T.D.), a test for whether an IFA is unduly harsh or unreasonable is bound to involve the consideration of factors that are also considered in the course of a humanitarian and compassionate decision. If these factors were not considered, it is arguable there would be nothing left;
2. the evidence before the panel was that the Applicant fled Colombo and went to the northern region of Sri Lanka in 1993 because of difficulties she had with the security forces. It is not reasonable to suggest the Applicant should flee to a city that she left in the past due to persecution;
3. the Applicant is a young woman. The panel ignored its own guidelines that deal with Women Refugee Claimants Fearing Gender-Related Persecution in determining the availability of an IFA. The panel should have considered the ability of the Applicant, as a woman, to travel safely to the IFA and stay there without facing undue hardship.
The Respondent's Position
[46] At the outset of the hearing, the panel noted discrepancies in the Applicant's documents regarding when she was in Colombo, and asked her to address those inconsistencies.
[47] The Respondent submits that the issue of an IFA was expressly addressed during the hearing as the following excerpt from the hearing transcript makes clear:
Presiding Member: (inaudible) okay, now, I notice it's not an issue on the, on the Screening Form, but you did live (inaudible) in Colombo for some time, '89 to '93. According to your PIF. So that's a four-year period. According to the POE notes you were there from '83 to '95. And we did not get your National Identity Card translated. But Mr. -
Interpreter: Yes
Presiding Member: -Anthonipillai, I would appreciate it if you would translate for me the information on the back side-
Interpreter: Yes
Presiding Member: -- of the National Identity Card (inaudible) okay, if you can read it -
Interpreter: Yes.
Presiding Member: - I would appreciate that, thank you.
Interpreter: You want only the second page?
Presiding Member: Yes, because well, the first page I have here, that gives you just (inaudible) the date of issue and the name.
Interpreter: And (inaudible) I have the page which you gave, the second page of the army identity card is also there.
Presiding Member: Yes, I know, I'm only interested -
Interpreter: Only (inaudible) this one.
Presiding Member: (inaudible) Mm-hmm.
Interpreter: National ID card, Thenmoli Ramachanthran, there is the name. Female, (inaudible) date of birth, 9851, sorry, 9861, 05, 13, at Valvettiturai, that was born at, (inaudible). Then, (inaudible) at birth, two, four, one, eight, or (inaudible) my eyesight. Yes, (inaudible).
Presiding Member: Mm-hmm.
Interpreter: Colombo (inaudible).
Presiding Member: (inaudible)--
Interpreter: And then you have the numbers there.
Presiding Member: Thank you. So Madam, you have a National Identity Card issued to you in '92, when you were living in Colombo, and your own question 22 you were in Colombo in May 1993, and this card was issued in November 1992.
Claimant: Yes.
Presiding Member: And as I said, the (inaudible) of IFA was not an issue at the admissibility hearing, but in light of the fact that you have documents that establish that you lived in Colombo for a period of time, and that you have a National Identity Card issued to you with a Colombo address, is there any reason why you couldn't live in Colombo?
Claimant: (inaudible) I was teaching in Colombo and that was the time (inaudible). May 1, 1993, after that the (inaudible). My husband was (inaudible) they were (inaudible) and my husband was detained at the (inaudible). In a big Jeep they came and my husband gave his address so they came to our (inaudible) documents to, regarding Liberation Tigers (inaudible). Despite the fact I said no, there are nothing, they don't believe. And the belongings which I already had, they brought it outside and (inaudible) on the ground, and they (inaudible).
Presiding Member: Yes, but Madam, that was in 1993, I'm talking about today, 2002, almost 10 years later. Could you live in Colombo today?
Claimant: Cannot reside.
Presiding Member: Why?
Claimant: There is no safety provision for me there.
Presiding Member: Do you have any friends or family there?
Claimant: Physically in Colombo, none.
Presiding Member: Madam, (inaudible) that you worked for that school?
Claimant: They may be there now, but I do not have any knowledge regarding where their whereabouts are.
[48] The hearing resumed the next day. At that time, the panel asked questions with respect to the Applicant's parents.
Presiding Member: Were your parents from Colombo, Madam?
Claimant: Pardon me (inaudible)?
Presiding Member: Were your parents, according to the POE notes, that my parents' place is in Colombo. Is your parents' place in Colombo?
Claimant: My parents at some point in their life, worked in Colombo. At the time I lived with them.
Presiding Member: When they were in Colombo, you lived with your parents.
Claimant: Yes, I was a child, small child, I lived with my parents.
[49] Counsel for the Applicant made oral submissions. The following excerpt is relevant to the IFA issue:
Presiding Member: Deal with the IFA in Colombo, would you please?
Counsel: No, Madam Chair. Although the parents were working in Colombo, although she taught for a brief period in Colombo, she left Colombo because of problems. She went back to Jaffna.
And at the time she came to Colombo, she didn't have any relatives or any friends known to her living in Colombo to provide any support. And the evidence clearly indicates that she was operating from Trincomalee, to obtain her passport and to make travel arrangements. She did not even stay for a long period of time in Colombo. She was travelling between Trincomalee and Colombo.
So if she felt comfortable, if she felt that there was any possibility of her settling in Colombo, she would have definitely done that, and she did not do so because she feared that her life would be at risk if she were to go back and live in Colombo.
And she is not very old, she is young. And she would fall within the profile of the age group that is vulnerable in Sri Lanka. Although she is married, although she has two children, yet for all intents and purpose, the Sri Lankan army would consider her a young person.
[50] The Respondent submits that the Court should only interfere if the panel's findings are patently unreasonable or are made in a perverse or capricious manner or without regard to the material before it.
[51] The Court must show significant deference to findings of fact made by a panel of the Refugee Division. The standard of review of decisions of the Refugee Division is generally patent unreasonableness except for questions involving the interpretation of a statute, in which case, the standard becomes one of correctness (see Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.); Sserwanga v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1664 (T.D.); Ssemakula v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 475 (T.D.) ; and Kazemian v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1179 (T.D.)).
[52] The Respondent submits that it is clear from the tribunal record that the issue of an IFA was raised by the panel, contrary to the submissions of the Applicant. This Court has stated that where the issue of an IFA is raised during the course of a hearing, and where the Applicant does not give any indication that they have been taken by surprise or need an adjournment to better prepare for the issue, the failure to give notice before the hearing does not constitute a reviewable error (see Vidal v. Canada (Minister of Employment and Immigration) [1997] F.C.J. No. 643 (T.D.); Ramanathan v. Canada (Minister of Citizenship and Immigration)[1998] F.C.J. No. 1210 (T.D.); Rasaratnam v. Canada (Minister of Citizenship and Immigration) [1992] 1 F.C. 706 (C.A.); and Balasubramaniam v. Canada (Secretary of State) [1994] F.C.J. No. 64 (C.A.)).
[53] The issue was raised during the hearing and the Applicant had the opportunity to respond and present evidence. The hearing was adjourned overnight. Had the Applicant wished to provide further evidence on this issue, she had the opportunity to do so (see Yassine v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 949).
[54] The Respondent also submits the IFA was properly assessed. The panel gave reasons that specifically addressed both prongs of the Rasaratnam, supra, test. The panel took into account the following:
1. the Applicant lived in Colombo from 1967 to 1979, and again from 1989 to 1993, when she taught at the Ramanathan College;
2. the Applicant's NIC has a Colombo address and she is fluent in Sinhala;
3. the Sri Lankan army gave her permission to leave the north, thus indicating she was not considered a threat or a danger;
4. the Applicant heeded the LTTE warning and ceased going to the army camp. As a result, the Applicant would be safe from the Tigers in Colombo;
5. it is not unreasonable in all the circumstances to expect the Applicant to seek refuge in Colombo.
[55] On the issue of returning to Colombo with a minor child who is a Convention refugee, the Respondent submits this argument is without merit. The Applicant's son, as a Convention refugee, would not be returning to Colombo with his mother. Separation from family members is not one of the humanitarian & compassionate factors that is taken into account in assessing an IFA.
Analysis
Standard of Review
[56] The Respondent submits the standard of review of decisions made by the CRDD is one of patent unreasonableness, unless the CRDD is interpreting a statute, at which time the standard becomes one of correctness. The Applicant makes no submissions on the issue of standard of review.
[57] In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (QL) (T.D.), a case cited by the Respondent, Pelletier J. stated at paragraph 5:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise.
[58] Also in Ali v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 361 Heneghan J. commented as follows at paragraph 5:
The standard of review applicable to decisions of the Board is whether the findings of the Board are patently unreasonable; see Conkova v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 300 (QL) (T.D.). In this case, the question is whether the finding of the Board on the issue of an IFA in Tanganyika, on the basis that he would not be pursued by the police, is reasonably supported by the evidence.
[59] In the present case, the standard of review is whether it was patently unreasonable for the panel to conclude that it was reasonable, on a balance of probabilities, for the Applicant to avail herself to an IFA, namely the city of Colombo.
The Internal Flight Alternative
[60] According to Kaburia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 676 (T.D.), at paragraph 9:
The definition of Convention refugee requires a claimant to have a well-founded fear of persecution which renders the claimant unable or unwilling to return to his or her home country. The ability to find a safe refuge within a claimant's home country therefore precludes a finding that the claimant is unable or unwilling to avail himself or herself of the protection of his or her home country. This is the fact situation contemplated in the notion of an internal flight alternative. See: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A).
[61] In this case, the Applicant says she was not given sufficient notice that an IFA would be an issue. I disagree. The notice given by the panel was sufficient in this instance.
[62] In Balasubramaniam, supra, the Court of Appeal stated at paragraphs 3 to 6:
At the beginning of the hearing before the Board, the presiding member indicated that the IFA was an issue the Board wanted to be addressed. The appellant was questioned by the Refugee Hearing Officer (RHO) and expressed his fears if he were to be returned to the Jaffna, Colombo and Kandy areas. Points of clarification were sought by the presiding member with regard to Colombo.
The appellant pleads before us that the notice given by the Board was insufficient in that it did not give the appellant the opportunity to respond adequately to the IFA issue and this would explain the paucity of evidence as noted by the Board.
There is no doubt that the notice given by the Board complies with the jurisprudence of this Court as stated by Mahoney J.A. in Rasaratman v. Canada (Minister and Employment and Immigration), [1992] 1 F.C. 706, and later reaffirmed by Linden J.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1172.
Counsel representing the claimant gave no indication that he was taken by surprise or that he needed an adjournment to better prepare for the hearing.
[63] In Rajendiram v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 912, Pelletier J. indicated that sufficient notice had been given when the issue of an IFA was raised in the course of the hearing and Applicant's counsel subsequently addressed the issue. Pelletier J. went on to indicate that it "must be said, therefore, that the applicant was aware of the fact that the internal flight alternative was at issue, and if she wasn't she should have been."
[64] In Vidal v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 643 (T.D.) at paragraphs 10 and 11, Gibson J. found there was sufficient notice in the following circumstances:
Thus it would appear, first, that notice given at the opening of a hearing before the CRDD that internal flight alternative is an issue is sufficient notice, particularly in circumstances where counsel representing the claimant gave no indication that he or she was taken by surprise or that an adjournment was needed to better prepare for that issue. Here, no notice whatsoever would appear to have been given. Nonetheless, counsel representing the Applicants gave no indication that she was taken by surprise or that she needed an adjournment to better prepare and evidence on the issue of internal flight alternative was indeed presented.
In the circumstances, by extension from Balasubramaniam, I conclude that the Applicants herein suffered no prejudice by the failure to give notice that internal flight alternative was in issue and that therefore the failure to give notice did not constitute a reviewable error.
[65] In Waruiru v. Canada (Secretary of State), [1994] F.C.J. No. 1688, Gibson J. found at paragraph 14:
No notice of the IFA issue was given to the Applicants in advance of their hearing before the CRDD. However, clearly, if not in specific terms, notice of an IFA issue was given to the Applicants and their Counsel during the course of the hearing. Conduct of Counsel at the hearing clearly amounted to a waiver to any earlier or more formal notice. Further, at that time, arrangements were agreed to to allow submissions to be made.
[66] In the case at bar, the issue of an IFA was expressly raised once the panel accepted the documents that established the Applicant had lived in Colombo for a period of time. Although this occurred late in the day, the hearing was adjourned until the next day, which gave the Applicant time to address the issue, or to ask for a further adjournment in order to organize her evidence to fully deal with the IFA. She also gave evidence on why she did not consider Colombo to be a safe place for her.
[67] Counsel for the Applicant did not request a further adjournment, did not object to the panel questioning the Applicant with respect to Colombo as an IFA, and addressed the issue of Colombo as an IFA in his oral submissions. In the circumstances, sufficient notice was given.
Reasonableness of the Conclusion that the Applicant had an IFA in Colombo
[68] I note from the outset that there is no mention in the materials of the treatment of Tamils in Colombo, or any evidence whatsoever that will assist the Court in determining the conditions the Applicant faces in Colombo. However, this is not an issue that is argued by the Applicant. Nor is any evidence provided to suggest that Colombo is not generally a safe place for a single Tamil woman except the Applicant's statement that "there is no safety provision for me there."
[69] In Kaburia, supra, Dawson J. noted as follows:
In Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), the Court held that in order to invoke an internal flight alternative, the CRDD must be satisfied first, that on a balance of probabilities there is no serious possibility of a claimant being persecuted in the part of the country to which it finds an internal flight alternative exists, and second, in all of the circumstances, including the circumstances particular to the individual claimant, it would not be unreasonable for the claimant to seek refuge there.
[70] The Applicant argues that the panel only considered her language skills and her work history in Colombo in determining that Colombo was an IFA. It did not consider whether an IFA in Colombo was a realistic, attainable option. She will be returning to Sri Lanka with her minor son who is a Convention refugee, and she has fled Colombo in the past because of difficulties with the authorities. According to the Applicant, the panel's decision is also flawed in that it did not consider the ability of a woman to travel safely to the proposed IFA.
[71] The Respondent says that the Applicant's son will not be accompanying her, and separation of family members is not a consideration when determining whether an IFA exists. The panel properly applied the two-prong test in Rasaratnam , supra, in finding the Applicant had an IFA in Colombo.
[72] According to Rasaratnam, supra, the burden of proof is on the Applicant to establish, on a balance of probabilities, that there is not an IFA. As noted above, the IFA test has two aspects which must be considered separately. The Applicant must establish there is more than a mere possibility of persecution in the areas which have been identified as a potential IFA. If the Applicant is able to prove this, the inquiry into the possibility of an IFA ceases at this point.
[73] However, if the panel concludes there is no more than a mere possibility of persecution in the area identified as an IFA, it is still open to the Applicant to establish, on a balance of probabilities, that it would not be reasonable to expect her to avail herself of the IFA.
[74] At that point, the panel would be required to make an individual assessment of the particular circumstances of the Applicant before applying the IFA. A principled statement on this point was provided by the Federal Court of Appeal in Thirunavukkarasu, supra, at paragraph 12:
Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.
[75] It does not appear from the materials before me that the Applicant is contending the panel erred in finding that there was no more than a mere possibility of persecution in Colombo. The Applicant's arguments seem to rest on whether it was reasonable to expect the Applicant to avail herself of the Colombo IFA.
[76] In considering the reasonableness of Colombo as an IFA for the Applicant, the panel stated:
Furthermore, given her work history in that city as well as her language skills, the panel finds that it would not be unreasonable in all the circumstances for the claimant to seek refuge there.
[77] With respect to the issue of the consideration of minor children, I note that, while the Respondent states that the Applicant's son will not be accompanying her to Sri Lanka because he is a Convention refugee, there is no evidence either mother or son is willing to be separated.
[78] In Sooriyakumaran v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1402, Lutfy J., as he then was, made the following finding in circumstances similar to that of the Applicant at paragraphs 7, 8 and 9:
The applicant's well-founded fear of persecution in the northern part of Sri Lanka was not in issue before the tribunal. Her credibility and the allegations in her personal information form were not challenged. The presence in Canada of her two children, both minors and Convention refugees, is the kind of particular circumstance that the tribunal ought to have considered in assessing whether Colombo was an unduly harsh refuge for her.
The relevance of the children's situation in this case is unrelated to the principle of family unity or to an application for humanitarian and compassionate consideration. The applicant's family situation is simply a human factor that ought not to be excluded in applying the second branch of the internal flight alternative test...
Counsel for the respondent was correct when she forcefully argued that virtually no evidence focussed on the impact of separating the applicant from her children. There was some reference to the plight of the children in the personal information form. However, I have concluded that the tribunal's error nonetheless requires judicial intervention. It was an error in law for the tribunal to close its mind to the natural bond between a parent and her minor children, particularly when all three had established a fear of persecution in northern Sri Lanka. That special relationship speaks for itself and is a circumstance particular to this applicant which the tribunal had to consider before concluding that it would be unduly harsh for her to seek an internal flight alternative in Colombo prior to claiming refugee status in Canada.
[79] Lutfy A.C.J. seems to be saying that, regardless of the dearth of evidence, the panel must consider the practical effects of the separation of parents and children in determining whether an objectively reasonable IFA exists.
[80] In this case, there is no evidence with respect to the effect of separation of mother and son. This is not unexpected, given that the Applicant and her son had their claims heard together and did not know for sure that they would be separated until they received the decision. I note that, while it may be that the son could reside with his father in Canada, the father's status in Canada is unclear. He was, at the time of the hearing, awaiting a decision with respect to an application for humanitarian and compassionate consideration. The son also has an aunt and uncle in Canada. There is no evidence with respect to whether he could live with them or not.
[81] The situation is complicated by the fact that it is the Applicant who bears the burden of proving that an IFA is unreasonable. I take from Lutfy A.C.J.'s decision that the importance of the relationship between children and parents is something that is so fundamental that it can be assumed even though there is little evidence on the point. In not considering the impact of finding that the Applicant has an IFA on her relationship with her son, I am of the opinion that the panel committed a reviewable error.
[82] With respect to the argument that the panel ignored its own Women Refugee Claimants Fearing Gender Related Persecution Guidelines in determining the reasonableness of Colombo as an IFA, I note that the Applicant provided no evidence of what these guidelines are, and no argument on this point. As a result, I do not think this is an arguable issue in the judicial review.
Conclusion
[83] I am of the opinion that this application for judicial review should be allowed, and the matter sent back for rehearing. I base my opinion on the fact that the panel did not consider the impact of the finding of an IFA on the relationship between mother and son.
[84] Neither party wished to submit a serious question of general importance for certification.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the June 14, 2002, decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3606-02
STYLE OF CAUSE: THENMOLI RAMACHANTHRAN v. MCI
DATE OF HEARING: April 24, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Justice James Russell
DATED: May 28, 2003
APPEARANCES BY: Mr. Manuel Jesudasan
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD:
Mr. Manuel Jesudasan
Barrister & Solicitor
80 Corporate Drive
Suite 210
Scarborough, Ontario
M1H 3G5
FOR THE APPLICANT
Rhonda Marquis
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto ON
M5X 1K6
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030528
Docket: IMM-3606-02
BETWEEN:
THENMOLI RAMACHANTHRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER