Date: 20040120
Docket: IMM-534-03
Citation: 2004 FC 79
BETWEEN:
BELIX SUGUNA JUSTIN KULENDRARAJAH
SHERIN DAYANI MARIYANAYAGAM JUSTIN
STEPHAN MARIYANAYAGAM JUSTIN
SHARON DILANI MARIYANAYAGAM JUSTIN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined that the Applicants are neither Convention refugees within the meaning given to that expression in section 96 of the Immigration and Refugee Protection Act[1], nor persons in need of protection within the meaning given to that expression in subsection 97(1) of the same Act. The decision under review is dated the 6th of January, 2003.
[2] In their application for judicial review, the Applicants seek the following relief:
That this Court set aside the decision of the Refugee Protection Division, determining that the applicants are not Convention refugees and order that this matter be referred back for reconsideration by a differently constituted tribunal in a manner consistent with the reasons of this Court.
BACKGROUND
[3] Belix Suguna Justin Kulendrarajah (the "principal Applicant") is a Tamil citizen of Sri Lanka and mother of the other three (3) Applicants, all of whom were minors at the time of the hearing before the RPD. The Applicants claim to have a well-founded fear of persecution at the hands of the Liberation Tigers of Tamil Eelem (the "LTTE") and the Sri Lankan security authorities by reason of their nationality and membership in a particular social group, that group being their family. Except for the youngest of the three (3) children, the Applicants also claimed before the RPD to be persons in need of protection as persons in danger of being tortured or at risk of losing their lives or being subjected to cruel and unusual treatment or punishment in Sri Lanka.
[4] The principal Applicant alleged before the RPD that, until 1991, her husband operated a garage in Jaffna where she and her husband and the two (2) older children lived. The principal Applicant and her husband were, she alleges, subjected to extortion by the LTTE. In the result, the principal Applicant and the two (2) older children moved to Colombo in 1991. They reunited with their husband and father in Colombo some time later. The youngest of the three (3) children was born in Colombo in 1993.
[5] The principal Applicant alleged before the RPD that: between October, 1995 and December 1999, the police harassed she and her husband; in the same period, her husband was arrested three (3) times; in December, 1999, her husband fled to Canada; and finally that, in September of 2001, the police raided her home, arrested her, during detention, slapped her, and only released her after two (2) days. In the result, on the 21st of September, 2001, the principal Applicant and her children left Sri Lanka to seek protection in Canada.
[6] Without questioning the Applicants' Tamil ethnicity or the family's early experiences in Jaffna, the RPD found the principal Applicant's allegations of her experiences and those of her husband in Colombo not to be credible. It wrote:
The Refugee Protection Division does not believe that the claimant [the principal Applicant] has given credible evidence as to incidents, which would place the claimants at risk. It finds that Belix Suguna Justin Kulendraja (Kulendrarajah), [and] her children... are not "Convention refugees" and that there are no substantial grounds to believe that their return to Sri Lanka will subject them personally to torture or to a risk to their life [sic] or to a risk of cruel and unusual treatment or punishment.
[7] The RPD concluded its reasons, under the heading "CONCLUSION" in the following terms:
Based on the foregoing analysis, the tribunal concludes that the claimant [the principal Applicant] is not credible and it finds the claimants to be neither "Convention refugees" nor "persons in need of protection".
[8] It was not in dispute before me that the RPD engaged in no separate analysis, except regarding "changed country conditions", to support its conclusion that the Applicants are not "persons in need of protection".
THE ISSUES
[9] In the Applicants' further Memorandum of Fact and Law, counsel described the issues on this application for judicial review in the following terms:
- Did the tribunal err in law because it failed to properly assess the claim under section 97 and failed to give proper reasons for its determination?
- Did the tribunal err in law with respect to assessment of the children's claim?
- Did the tribunal err in law with respect to its credibility finding?
Before the Court, counsel for the Applicants did not pursue at length the issue regarding the RPD's credibility finding, nor did counsel for the Respondent. Rather, both counsel relied on their written submissions in that regard and focussed their oral submissions on the first two issue questions. Much of those submissions centered around the following two paragraphs quoted from the reasons for decision of the RPD:
Counsel argued that the UNHCR report appears to minimise the treatment of detainees in Colombo. He argued further that Exhibit C-9 ... states that a leading Asian human rights group accused the police of torture, "...saying it has become so widespread it threatens the rule of law". The tribunal agrees that there is much documentation that confirms that Sri Lanka police applies [sic] torture as do many other countries in Asia. However, the UNHCR document looked at political harassment. Torture appears to be used by police in an indiscriminate manner for any number of reasons. ..., the UNHCR document states that "particularly in Colombo the treatment of detainees remained correct and the torture and other forms of mistreatment were not practised by the police and security authorities in Colombo. Some isolated incidents in other locations are being investigated by the authorities. » The tribunal agrees with counsel that the UNHCR document appears to be lenient with their description of the situation in Colombo; however, they corroborate the statements made in the letter from the lawyers with counsel for Human Rights and Development. ... the letter states "We have received no cases of torture in relation to political detainees. No known instances of persons being kept incommunicado. Visits from relatives are allowed. » We find, therefore, that probative value must be given to those documents. Moreover, in the Danish 1998 report ..., we find that "checks were directed primarily at young men and women of 16 to 30 years of age". The Danish report 2002 ... states ... that, according to the UNHCR "Factors which may lead to arrest or detention of Tamils include improper documentation, i.e. no valid NIC and police registration. In addition, young Tamils around 16 years of age may receive particular attention from the security forces...". The tribunal finds, therefore, that the documentation generally describes people likely to be arrested as not matching the claimant or her husband's profile. They lived in a house since 1991; they had a store in Colombo; they had documentation that confirmed their identity. In addition, the tribunal had found the claimant's credibility wanting. Therefore, the tribunal concludes that neither the claimant nor her husband suffered the persecution the claimant alleges.
Counsel argues that the claimant's children are coming to an age where, should the peace talks fail, the authorities would suspect them as the LTTE is known to recruit children. Indeed, the documentation shows that children are checked more extensively by the security forces; however, the peace talks so far appear promising in that both sides are making concessions and displaying good will. While it is too early to take a peace agreement for granted, we note that, even when times were more difficult, in Colombo, youths who were arrested were generally let go once they had established their identity and their valid reasons for being there. The tribunal finds, therefore, that the children would not be persecuted in Colombo if they were to return there. [emphasis added, citations omitted]
ANALYSIS
[10] I am satisfied that the RPD's findings regarding the credibility of the principal Applicant in relation to her experiences and those of her husband in Colombo were reasonably open to it.
[11] In the result, I am satisfied that the response to the third issue question posed by counsel for the Applicants and quoted earlier in these reasons, that is to say: "Did the tribunal err in law with respect to its credibility finding?" is "no".
[12] Further, the same credibility finding is, I am satisfied, essentially dispositive of the question of whether the RPD's assessment of the principal Applicant's claim to be a person in need of protection is sustainable. I am satisfied that it is. While the RPD provides no explicit linkage between its credibility finding and its finding that the principal Applicant is not a person in need of protection, I am satisfied that the linkage is implicit in the RPD's reasoning.
[13] The sole bases for the principal Applicant's claims are Convention grounds, that is to say, ethnicity and membership in a particular group. Since I am satisfied that the RPD's credibility analysis and analysis of risk to the principal Applicant in Colombo is sufficient to support its conclusion that the principal Applicant is not at risk of persecution based on a Convention ground if she were required to return to Sri Lanka, it follows that she is equally not a person in need of protection because no other ground to support a need of protection other than a Convention ground was advanced on her behalf and the alleged Convention grounds are not sustainable by reason of the credibility finding. While a more extensive explanation for the RPD's conclusion regarding "person in need of protection" in relation to the principal Applicant might well have been desirable, I am satisfied that its absence does not constitute reviewable error.
[14] I turn then to the issue of the adequacy of the RPD's assessment regarding the claims of the minor Applicants. That assessment is reflected in the two (2) extensive paragraphs from the RPD's reasons quoted earlier.
[15] The RPD's conclusion that the principal Applicant's evidence, regarding the treatment that she and her husband experienced after they moved to Colombo, was not credible is simply not central to the claims of the minor Applicants. Those claims could only be founded on the evidence that the minor Applicants are of Tamil ethnicity, are of an age that is particularly vulnerable to recruitment by the LTTE and therefore to suspicion by the Sri Lankan security forces and that the older two (2) of the minor Applicants were born and lived the first number of years of their lives in Jaffna. No doubt as to the credibility of those elements of the minor Applicants' backgrounds was cast by the RPD. The RPD acknowledged that the LTTE is known to recruit children and that "...the documentation shows that children are checked more extensively by the security forces...". The RPD earlier further acknowledged that documentation before it confirms that Sri Lankan police are not above reliance on torture but cites documentary authority, in relation to which it expresses some skepticism, to the effect that torture is not practised by the police and security authorities in Colombo. In the result, since the minor Applicants spent most, and in one case all, of their lives in Colombo, and given what it viewed as the "promising" state of the peace talks in Sri Lanka at the time of the hearing before it, the RPD concluded that the minor Applicants were not Convention refugees or persons in need of protection.
[16] In reaching its conclusion with respect to the minor Applicants, the RPD conducted no separate analysis as to the risk to them of arrest and detention but rather would appear to have impliedly adopted the analysis conducted in that regard in relation to the principal Applicant that is set out in the first of the two paragraphs earlier quoted from the RPD's reasons. In that paragraph, the RPD initiates its conclusion with the following sentence:
The tribunal finds, therefore, that the documentation generally describes people likely to be arrested as not matching the claimant [the principal Applicant] or her husband's profile.
It reaches no equivalent conclusion with respect to the minor Applicants and, indeed, such a conclusion would not be open to it. One of the documents cited by the RPD to the effect in the paragraph of its reasons just cited, contains the following passage:
...young Tamils around 16 years of age may receive particular attention from the security forces [in Colombo], especially if they come from the North [Jaffna] and East, and may be subjected to interrogation at police stations. UNHCR indicated that the majority of people who are taken in are released within 24 hours, but some may be required to remain in custody for further investigation. UNHCR pointed out that Tamils who have family members in Colombo and/or who can confirm their identity and reason to be in Colombo are likely to be released sooner.[2]
Further, the documentation that was before the tribunal is not, when read as a whole, as sanguine as those elements of the documentation cited by the RPD to the effect that young Tamils arrested and detained in Colombo would not be subjected to torture.
[17] Further, the RPD's analysis regarding the impact of the peace talks on the claims of the minor Applicants is at a level of generality that is, of itself, insufficient to support the RPD's conclusion with respect to the minor Applicants. In Cuadra v. Canada (Solicitor General )[3], the Court, after noting that the tribunal there found that: "...the documentary evidence points to positive steps taken and progress made towards that objective [of diminishing the influence of the Sandinistas]" wrote:
Again, a more detailed analysis of the conflicting evidence in respect of a change in circumstances was necessary to meet the requirement that the change be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation.
[18] I reach the same conclusion regarding the RPD's analysis, if it can be called that, regarding the impact of changed country conditions in Sri Lanka on the claims of the minor Applicants.
[19] Based upon the foregoing brief analysis, I conclude that the RPD erred in a reviewable manner in its disposition of the claims of the minor Applicants.
[20] I am satisfied that the earlier comments herein with regard to the principal Applicant's claim as a person in need of protection apply equally to the equivalent claims of the minor Applicants.
CONCLUSION
[21] In the result, this application will be dismissed as it relates to the principal Applicant. It will be allowed as it relates to the claims of the minor Applicants. The RPD's decision as it relates to the minor Applicants will be set aside and their claims will be referred back to the Immigration and Refugee Board for rehearing and redetermination before a differently constituted panel.
CERTIFICATION OF A QUESTION
[22] At the close of the hearing of this application for judicial review, the Court indicated to counsel that reasons would be circulated and an opportunity would be provided to counsel to make written submissions on certification of a question. These reasons will be distributed to counsel. Counsel for the Respondent will have seven (7) days from the date of the reasons to serve and file any submissions on certification which she may choose to make. Thereafter, counsel for the Applicant will have seven (7) days to serve and file responding submissions, if any. Once again, thereafter, counsel for the Respondent will have three (3) days to serve and file any reply submissions. Following consideration of any submissions received, an order will issue.
_________________________________
J. F.C.
Ottawa, Ontario
January 20, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-534-03
STYLE OF CAUSE: BELIX SUGUNA JUSTIN KULENDRARAJAH ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, DECEMBER 11, 2003
REASONS FOR ORDER BY: GIBSON J.
DATED: TUESDAY, JANUARY 20, 2004
APPEARANCES BY: Ms. Lorne Waldman
For the Applicants
Ms. Bridget A. O'Leary
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Barrister & Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27.
[2] Tribunal Record, page 95; Issue Paper, Security and Human Rights Situation, Entry and Exit Procedures and Personal Documentation; Report on joint fact-finding mission to Sri Lanka, 1-12 October 2001; Research Directorate, Immigration and Refugee Board, Ottawa, Canada, May, 2002.
[3] [1993] F.C.J. No. 736 (QL), (F.C.A.).