Federal Court Decisions

Date: 19971121

Docket: IMM-3789-96

BETWEEN:

     BABA JOHAR HAFIS PREENA,

     SITHI BALKIS PREENA,

     SITHI FARZANA PREENA, and

     SHAZLY FARAH PREENA

     Applicants

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JOYAL, J.

[1]      This is an application for judicial review of a decision by the Immigration and Refugee Board, dated October 1, 1996, in which the Board determined the applicants were not Convention refugees under s.2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

The Facts:

[2]      The applicants, father, mother and two minor daughters are citizens of Sri Lanka. They arrived in Vancouver around December 31, 1994, and claimed refugee status on January 9, 1995.

[3]      The applicant father was a police officer in Colombo from 1968 through 1987. He resigned from the police force in 1987 because he did not want to be assigned to the northern part of the country, where he feared working because of the presence there of the Liberation Tigers of Ealam (the "LTTE"), a guerilla group which had established a de facto government in that area.

[4]      Towards the end of 1987, the applicant couple travelled to Singapore, where the wife underwent in-vitro fertilization. In 1988, the wife gave birth to twin daughters, the first test-tube babies to be born in Sri Lanka. As a result of media coverage, the family became well known in the community. The applicants being of the Muslim faith, they were subject to pressure from their local clerics to have the baby daughters circumcised. The couple did not agree and were threatened with excommunication. Those threats never led to any incident.

[5]      In 1991, the applicant started up a company for the export of choice fibre and garments. He established a good working relationship with the Japanese and his business boomed.

[6]      Early in 1994, a friend of the applicant, a Mr. Lokuge, who happened to be the Minister of State for Tourism and a United National Party (the "UNP") member of the legislature, approached the applicant for help with his reelection campaign. The applicant agreed to help as a security consultant and personal body guard. He also contributed a large sum of money to Mr. Lokuge's campaign.

[7]      On March 20, 1994, while accompanying the candidate on the campaign trail, three youths threatened the applicant at gunpoint. He was dragged out of a restaurant, held for two hours and eventually released with a warning not to participate any further in the campaign. The applicant informed Mr. Lokuge about the incident, but no formal complaint was filed. The applicant alleges that in the course of the campaign, he was the target of threats and intimidation from opposition party supporters.

[8]      In August 1994, a few days before the general election, three individuals came to the applicant's house. They threatened him and his family at gunpoint, claiming they would kill them if they continued supporting the UNP. The applicant pleaded with them, and they eventually left, warning him that they would be watching him closely. Because of the incident, the family abandoned their house, moving from one relative's home to another, but the incident was never reported to the police. That month, the UNP lost the general election, although Mr. Lokuge retained his seat.

[9]      The applicant then became involved in the UNP campaign for the November 1994 presidential election. On October 20, 1994, four individuals ransacked his office and threatened him with death. He was spared, but was warned not to report the incident to the police, otherwise he would be killed and his children kidnapped. Following the incident, the applicant closed his office permanently, but continued his presidential campaign activities.

[10]      On November 8, 1994, the day prior to the election, as the applicant was driving his children to school, he was confronted at gunpoint by three individuals who threatened to kidnap his children if he kept on supporting the UNP. The applicant did not bring his children to school and instead went to the police to lodge a formal complaint. That night, his house was stoned.

[11]      Following these incidents, and despite having moved some 100 km away from Colombo, the family soon started receiving anonymous phone calls. The applicant's sister, who had welcomed the family into her home, became frightened and asked them to leave. The applicant and his family were then forced to move around, staying at various friends' houses. After discussing the situation with Mr. Lokuge, the applicant was advised to leave the country with his family.

[12]      Thus, the applicant and his family left Colombo legally on December 31, 1994, using their valid Sri Lankan passports. They arrived in Canada shortly thereafter and applied for refugee status on January 9, 1995.

The Refugee Board Decision:

[13]      The Board decided that based on the evidence before it, the applicant did not have a well founded fear of persecution and could seek state protection in Sri Lanka. The Board scrutinized the applicant's travel documents and expressed concern over the fact that his passport had visas for three countries and that he had obtained them in a short period of time (one month). The Board also dismissed as not credible the applicant's correspondence with his family. And finally, the Board concluded that the applicant and his family could seek police protection and had in fact been helped by them following his complaint of November 8, 1994.

The Issues:

[14]      The applicant raised the following issues:

1.      The Refugee Board drew unreasonable inferences from the applicant's ability to obtain visas to Japan, the United States and Canada during the month of December 1994.

2.      The Refugee Board erred in deciding that no remedial action was taken by the applicant in connection with the incidents of March and August 1994.

3.      The Board misunderstood or ignored a significant amount of the objective evidence in support of the applicant's fear of persecution.

4.      The Board misdirected itself regarding the legal issues of state protection.

5.      The Board erred in setting an unduly high standard of proof for establishing that the applicant's fear of persecution is well-founded.

Analysis:

[15]      It is well established in refugee cases that the question of credibility and that of weight of the evidence are matters within the exclusive competence of the tribunal and should only be disturbed where egregious errors are committed.

[16]      In respect of the visas obtained by the applicant prior to leaving Colombo, it was not necessarily unreasonable for the tribunal to infer the existence of some contradiction between the applicant's intense fear of persecution and the delays occasioned by his banal or routine application for three visas.

[17]      The tribunal stated that no remedial action was taken by the applicant in respect of the March and August 1994 incidents until the reporting to police of the November 8 incident. Counsel for the applicant disputes this, and submits that the applicant had made oral complaints. Nevertheless, a reading of p. 18 of the transcript (see p. 066 of the Record) appears to confirm the Board's observation in this respect.

[18]      On the issue of the Board ignoring a significant amount of objective evidence, it is well established that regard must be had for all of the evidence. It is not sufficient for an applicant to rely on small excerpts from documentary evidence to establish an unreasonable or erroneous finding on the part of the tribunal. I must readily acknowledge that counsel for the applicant has accumulated and collated an impressive amount of documents which might otherwise have led a tribunal to reach a different conclusion. Nevertheless, the finding by the tribunal that the applicant, as a resident of Colombo and a Muslim, does not have a well-founded fear of persecution is, in my respectful view, supported by the evidence.

[19]      As to the accepted doctrine of "state protection", the presumption is that in the absence of a complete breakdown of all public authority, the state can protect its citizens. The comment of the Board in respect of the conduct of the police authorities when a complaint was filed after the November 8, 1994 incident are consonant with that presumption. A lack of further action by the police cannot be considered unreasonable, in view of the fact that the applicant could not identify any of his assailants. Were they the same people throughout? Were they all young? Was the only element in common that of carrying weapons, i.e. machine gun and perhaps a sword? On all of that, the record is fully silent.

[20]      It is also silent as to the experience of the applicant's friend and employer, M. Lokuge, the incumbent Minister of State for Tourism and UNP candidate for reelection in 1994. Did he receive any threats? Was he harassed? Did he require police protection? If not, it might be somewhat anomalous to have ruffians oppressing the applicant for political activities on behalf of a politician who might be untouchable.

[21]      A further comment is invited in respect to the applicant's allegation that the tribunal set an erroneously high standard of proof for establishing that the applicant's fear of persecution was well-founded. That particular provision of the U.N. Convention has been said to mean that the burden of proof rests with the applicant on a balance of probabilities. That in turn led this Court, in Arduengo v. Minister of Employment and Immigration (1982), 40 N.R. 436, to translate the concept into "a serious possibility as opposed to a mere possibility [of risk]". On the basis of the evidence available to it, the tribunal's ruling on this issue cannot, in my respectful view, be deemed improper.

Conclusion:

[22]      I would be remiss if I did not repeat here the compliments I extented to counsel for the parties on the very elaborate and detailed documentaries they submitted, as well as on the learned argument they put forth. It is evident that of all the errors attributed to the tribunal by counsel for the applicant, some of them, in isolation, might have some merit. It is also evident that certain expressions found in the tribunal's decision are confusing or ambiguous. Yet, one must read the decision as a whole and, if necessary, read the whole of the transcript of the proceedings before the tribunal. This I have done, and in so doing, I have failed to find the kind of error which, under judicial review criteria, would justify my intervention.

[23]      I should accordingly dismiss this application.

                                 L-Marcel Joyal

    

                                 J U D G E

O T T A W A (Ontario)

November 21, 1997