Federal Court Decisions

     IMM-1571-96

B E T W E E N:

     SHASHIKALA NITHIYAKANTHAN

     RAKKESH NITHIYAKANTHAN

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined the applicants not to be Convention refugees within the meaning of subsection 2(1) of the Immigration Act¹. The decision of the Tribunal is dated the 15th of April, 1996.

     The applicants are mother and son. The adult applicant was born in February, 1965. Her son was born in June, 1990. The applicants are Tamils from the north of Sri Lanka. They base their claim on an alleged well-founded fear of persecution if required to return to Sri Lanka, on their race, the perceived political opinion of the adult applicant, and their membership in a particular social group, described by the Tribunal as "family members of a Tamil man recruited by the Liberation Tamil Tigers Ealam LTTE ..." (the "LTTE"). The reasons of the Tribunal indicate that, at the time the applicants left Sri Lanka, the adult applicant's husband had been arrested and was likely in detention at the hands of the LTTE.

     After reciting the litany of experiences suffered by the applicants and other members of their family, sometimes in common with all or many residents of their village in the north of Sri Lanka, the Tribunal concluded that it found no persuasive evidence that there is more than a mere possibility that the claimants would be persecuted if they were returned to the north of Sri Lanka.

     In a second finding, the Tribunal concluded: "Even if the panel were to find otherwise [that is, that the applicants had a well-founded fear of persecution in the north of Sri Lanka,] it still finds that an Internal Flight Alternative (IFA) exists for the claimants in Colombo."

     In reaching its first finding, the Tribunal accepted that the LTTE threatened to arrest the applicants when the adult applicant's husband went into hiding and failed to respond to a demand for a substantial amount of money. The Tribunal described the threat to arrest the applicants as "an isolated incident" which it acknowledged must have been terrifying and intimidating given the "ruthlessness and violence" of those delivering the threat. The Tribunal then stated: "... the panel accepts the claimant's evidence that her husband has, since her arrival in Colombo, been arrested by the LTTE. In other words, the very reason for the LTTE threatening the claimant has been eliminated."

The Tribunal does not consider that the threat against the applicants, followed by the arrest of their husband and father, when taken together with other incidents that befell them in the North at the hands of the LTTE, might amount to "indirect persecution". Counsel for the applicants argued that, in failing to address "indirect persecution" the Tribunal committed a reviewable error.

     In Bhatti v. Canada (Secretary of State)², Associate Chief Justice Jerome wrote:

The concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted. This harm may manifest itself in many ways ranging from the loss of the victim's economic and social support to the psychological trauma associated with witnessing the suffering of loved ones.

Associate Chief Justice Jerome went on to conclude:

... the theory of indirect persecution has been recognized in Canadian refugee law. The theory is based on a recognition of the broader harm caused by persecutory acts. By recognizing that family members of persecuted persons may themselves be victims of persecution, the theory allows the granting of status to those who might otherwise be unable to individually prove a well-founded fear of persecution.

     In Casetellanos v. Canada (Minister of Employment and Immigration)³, Pour-Shariati v. Canada (Minister of Employment and Immigration)⁴ and Rafizade v. Canada (Minister of Employment and Immigration)⁵, three members of the Trial Division of this Court have declined to adopt the "theory of indirect persecution" stated by the Associate Chief Justice in Bhatti to have been recognized in Canadian refugee law.

     Given the division of opinion in this Court, I conclude that it was reasonably open to the Tribunal to proceed as it did without considering whether the applicant's husband and father had himself been persecuted for a Convention reason in circumstances sufficient to give rise to indirect persecution of the applicants.

     Given my foregoing conclusion, it is unnecessary that I turn to an examination of whether the Tribunal made a reviewable error in its finding regarding an Internal Flight Alternative to Colombo for the applicants. Given my conclusion that the applicants have failed to identify a reviewable error in the conclusion of the Tribunal regarding a return to the north of Sir Lanka, the soundness of the Tribunal's finding regarding an Internal Flight Alternative is of no consequence to a conclusion that the decision of the Tribunal that the applicants are not Convention refugee must stand.

     In the result, and with some regret because the prospect of a return of a young woman with a young son to Sri Lanka where their likelihood of receiving family support is at best uncertain, is a daunting one, this application for judicial review will be dismissed.

     Neither counsel recommended certification of a question as this matter turns on its particular facts. No question will be certified.

    

     Judge

Ottawa, Ontario

February 5, 1997

__________________

¹      R.S.C. 1985, c. I-2

²      (1994), 25 Imm. L.R. (2d) 275, at 278 (F.C.T.D.)

³      [1995] 2 F.C. 190 (F.C.T.D.)

⁴      [1995] 1 F.C. 767 (F.C.T.D.)

⁵      (1995), 30 Imm. L.R. (2d) 261 (F.C.T.D.)