Federal Court Decisions

     IMM-1487-96

B E T W E E N:

     SAROJINIDEVI ARULAMPALAM

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

     This is an application for judicial review of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) rendered on April 10, 1996. In the decision, the Board determined the applicant not to be a Convention refugee. The sole issue raised in this application for judicial review is whether the Board misapplied the test for an internal flight alternative (IFA). The applicant seeks an Order setting aside the decision of the Board and to have the matter referred back to a differently constituted Board for redetermination.

     The applicant, Sarojinidevi Arulampalam, is a 64 year old Tamil woman from Jaffna, Sri Lanka. Her eldest daughter was living on the island of Kayts, 12 miles from Jaffna. In 1991, Sri Lankan forces attacked Kayts, killing many people. Others went missing, including the applicant's daughter. Her two other daughters fled Sri Lanka in 1987 and 1989, respectively, due to harassment by militant Tamils. Both came to Canada and were accepted as Convention refugees, along with their husbands.

     Following the withdrawal of Indian forces from Sri Lanka, the Tamil group LTTE (Tigers) took control of Jaffna. The Tigers seized possession of her daughters' homes situated in Jaffna.

     From 1990 to 1992, the applicant states that she and her husband were repeatedly threatened and harassed by the Tigers who extorted money and food from them. In December 1991, her house was bombed by the Sri Lankan forces who were engaged in a battle with the Tigers. Her husband was injured in the attack and was hospitalized. He died in hospital in February 1992 due to injuries sustained in the attack. Following the death of her husband, the applicant continued to be harassed by the Tigers and was forced to make extortion payments to them.

     In April 1995, some members of the Tigers came to her home and told her that they wanted to use her house for meetings. Fearing the Tigers, she could not refuse and the Tigers began to occupy several rooms in her home. She states that she was afraid not to give into their demands because they were known to be ruthless in attacking those they perceived to be against them. She states that she was ordered to cook and clean for the Tigers, and was deprived of sleep since they disturbed her all hours of the night. She decided to leave, but was unable to sell her home. The applicant persuaded the Tigers to give her a travel pass on the condition that she vacate the house and leave Jaffna.

     In May 1995, the applicant left Jaffna and went directly to Colombo where she stayed at a lodge in Pettah. She states that she has no family in Colombo and had not been there since before her marriage. According to the applicant, the atmosphere in Colombo was very tense following the end of the ceasefire between the Tigers and government forces. The applicant remained in Colombo alone, but was very frightened since the police were conducting raids and arresting many Tamils from Jaffna and the East. She states that she learned of the raids from the lodge owner. On one occasion, the applicant saw some Tamil men dragged out from their lodge. She states that she did not feel secure in Colombo, nor anywhere else in Sri Lanka. It was at that time that she phoned her daughters in Canada, asking for their assistance. An agent was contacted to arrange for her departure from Sri Lanka to Canada. The applicant then left the lodge and stayed with the agent until her departure. In June 1995 the applicant left for Canada.

     As mentioned, the sole issue raised in this application is whether the Board misapplied the test for an IFA. Regarding this issue, the law is well settled. In Rasaratnam v. M.E.I., [1992] 1 F.C. 706, the Appeal Division of this Court held that the IFA concept is inherent in the Convention refugee definition, and held in the following words at 711 that two criterion must be established before an IFA can be said to be available, namely, whether an IFA in fact exists, and whether it is reasonable in the particular circumstances of the applicant to avail himself or herself of it:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the Appellant being persecuted in Columbo (sic) and that, in all the particular circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the Appellant to seek refuge there.

     In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 at 598 (C.A.), the Appeal Division also made the following findings:

Thus, IFA must be sought, if it is not unreasonable 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 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.

...

Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

     While the Board did not specifically mention the words internal flight alternative in the decision, the concept is discussed in the decision and was raised to the applicant at the hearing. In this respect, although the Board determined that the applicant has a well-founded fear of persecution in the Tiger-controlled regions in Northern Sri Lanka, the Board stated that "it is less than a minimal possibility that she would be persecuted in Colombo". Thus, while the Board did not state specifically that the applicant has an IFA, the decision implies that such an alternative exists.

     In reaching this conclusion, the Board considered evidence that, although the situation for Tamils in Colombo is difficult, and Tamil women have been the subjects of scrutiny by security forces, "elderly people could re-settle in Colombo and certainly could obtain pensions and other benefits in Colombo". As a result, the Board found that the applicant did not discharge the onus of establishing that she would face a reasonable chance of being persecuted in Colombo.

     Indeed, the applicant does not dispute the finding of the existence of an IFA in Colombo. Rather, the applicant argues that the Board did not determine whether it was reasonable in her personal circumstances to take refuge in Colombo, in particular, the fact that she is an elderly woman.

     Although the claimant may have a subjective fear of returning to Colombo, the standard is an objective one which must take into account her personal circumstances. The decision of the Board implicitly takes these circumstances into account by addressing the situation of individuals with similar backgrounds, being those of elderly women. In its reasons, the Board stated the following:

This report advises that there may be as many as 300,000 Tamils in Colombo and while "[t]he situation for Tamils in Colombo can be a difficult one if the issue of finding lodging and employment is considered," and that "Tamil women, primarily young women, have been increasingly the subject of security forces scrutiny," it goes on to say that "[e]lderly people could re-settle in Colombo and certainly could obtain pensions and other benefits in Colombo". It also mentions that "there are a number of Women's(sic) advocacy organizations (eg. Centre for Women's Research, Women's Education and Research Centre), and that "the government social support services available to newcomers are not specific to men or women (free medical care for example)".

     From this statement, I find that the Board correctly applied the IFA test.

     Accordingly, this application is dismissed.

                         Douglas R. Campbell

                         Judge

VANCOUVER

March 27, 1997