Federal Court Decisions

     IMM-2020-96

B E T W E E N:

     CHANDRAPALA JAYAWARDANA

     DOREEN FRANCISCA JAYAWARDANA

     CHARITH DHARSHANA JAYAWARDANA (by his litigation guardian)

     and

     CHATURIKA JAYAWARDANA (by his litigation guardian)

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

    

     REASONS FOR ORDER

LUTFY, J.:

     This application for judicial review of the negative determination by the Convention Refugee Determination Division ("Tribunal") must fail. In my view, the applicants have not established any reviewable error in the Tribunal's decision.

     The applicants, a Sinhalese family who are citizens of Sri Lanka, claimed refugee status upon their arrival in Canada in February 1995 on the grounds of political opinion and membership in a social group. The principal applicant ("the applicant") is the husband and father of the family.

     The applicant was self-employed as an itinerant distributor of consumer goods and food items to retail outlets in the remote areas of Sri Lanka. In December 1994, comforted by ongoing peace talks, the applicant ventured for the first time to establish new customers in the north-eastern region of the country, some 500 kilometres from his hometown of Ambalangoda (directly south of the capital city of Colombo) and generally under the control of the Liberation Tigers of Tamil Eelam ("LTTE").

     Upon returning to his motel in Trincomalee, his van was stopped at gunpoint by the LTTE. After several hours of interrogation, beatings, accusations of being an army spy and death threats, the applicant managed to escape. He did not seek relief from the government authorities in Trincomalee because he feared they would require him to identify the LTTE hideout. He returned to Ambalangoda by train. A few days later, he learned through police contacts that the army had captured the LTTE camp and recovered his van and identity papers. The applicant had a two-fold fear: that the government would believe he was collaborating with the LTTE and that the latter would suspect him of being a government informant. Two months later, the applicant and his family sought refuge in Canada.

     In Canada, the applicant received a letter from a friend in Sri Lanka which stated in part:

After you had left, police has visited your home several times. We are kept informed of all these things by Amitha Akka, your neighbour. My father, through a friend of his known to the police, gets all the police side of whatever information. When the army raided the LTTE camp in which you were held, two LTTE members who were taken captive had confessed, among other things, that the driver of the private van was doing business with the LTTE. Your van is now in the custody of the army and the army authorities have requested the police to arrest you and hand you over to them for questioning.

It is indeed your good fortune that you left the country. LTTE members are obviously suspecting that you had given the army all the information which led to the subsequent raids on the LTTE camp. Because you managed to escape, they might have given false evidence to put you in trouble.

     The applicants submit that the Tribunal's reasons fail to disclose its proper consideration of: (a) the applicant's oral evidence that two LTTE members who were arrested by the government disclosed he was doing business with the LTTE; (b) the above-mentioned letter which stated that "... two LTTE members who were taken captive had confessed, among other things, that the driver of the private van was doing business with the LTTE"; and (c) the incident of arrest and detention by government authorities of a Sinhalese sub-inspector alleged to have been a LTTE collaborator which is referred to in the documentary evidence, the Sunday Times article of July 16, 1995 entitled "Tainted Hands".

     The Tribunal clearly stated the applicant's fear of the government authorities, in its words, " ... because his van was at the LTTE camp and, therefore the [Sri Lankan Army] and the police would suspect him of supporting the LTTE". Immediately after making this statement, the Tribunal referred to the letter containing the allegation from the two LTTE members that the applicant was doing business with their organization. It is not a reviewable error, in my view, for the Tribunal not to have made specific reference in its reasons to the sentence relied upon by the applicants. The Tribunal understood and considered the applicant's fear of the government authorities as the result of their recovery of his van in the LTTE camp. The applicant fled Sri Lanka on the basis of this fear and without knowing of the information apparently handed over by the LTTE. The failure to mention this disclosure by two arrested LTTE members is not material in the context of the totality of the evidence, the Tribunal's reasons, its understanding of the applicant's fear and its review of the letter.

     Similarly, the Tribunal did review the documentary evidence. Its reference to the "Tainted Hands" article in one of the footnotes to its reasons is incorrect. Again, however, the failure to refer specifically in its reasons to the reported arrest and detention of another Sinhalese is not material in the context of this case and does not constitute a reviewable error. (See Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.) at 318.)

     The Tribunal did not fail to consider evidence which was material to the applicants' case. In the circumstances, there is also no error in its conclusions concerning the state protection available to the applicants.

     The application for judicial review will be dismissed. Neither party requested the certification of a question.

                         "Allan Lutfy"

                         Judge

Ottawa, Ontario

April 18, 1997