Date: 20050504
Docket: IMM-1664-04
Citation: 2005 FC 618
Ottawa, Ontario, this 4th day of May, 2005
Present: The Honourable Justice James Russell
BETWEEN:
SHARMILA SUNDARALINGAM
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF THE APPLICATION
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Panel") dated January 23, 2004 ("Decision"), wherein the Panel determined that Sharmila Sundaralingam ("Sharmila") and her brother, Gobinath Sundaralingam ("Gobinath") (together, the "Applicants") were not Convention refugees or persons in need of protection.
[2] The Applicants request that the decision of the Panel be set aside and that the matter be reconsidered by a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
BACKGROUND
[3] Sharmila is a 20-year-old female citizen of Sri Lanka and her brother, Gobinath, is a 17-year-old minor. The Applicants lived in Colombo from the late 1980s until the time of their flight from Sri Lanka.
[4] The Applicants were arrested twice by the Sri Lankan police during mass roundups of Tamils. The first occasion was in July, 2001, following the Colombo airport bombing. The second incident occurred in June, 2003, after the killing of a police officer. In both cases, the Applicants were released when their father came for them. No mistreatment occurred and no bribes were paid to secure their release. Sharmila testified at the hearing before the Panel that these were the only incidents relating to the Sri Lankan authorities and that she did not fear them, unless hostilities broke out.
[5] In May, 2003, two people came to the Applicants' family home, identified themselves as members of the LTTE, and asked to speak to the Applicants privately. The Applicants were asked to join the LTTE and to distribute propaganda. The Applicants refused to join and the LTTE recruiters left with the threat that they would return again.
[6] On July 15, 2003, the Applicants traveled through England to Toronto and claimed refugee status in Canada on August 11, 2003.
[7] In October and December 2003, the LTTE recruiters returned to the Applicants' home in Colombo. They were informed that the Applicants had traveled abroad and, on both occasions, the Applicants' father paid money to the recruiters and they left.
DECISION OF THE PANEL
[8] The Panel concluded that the Applicants had failed to establish a well-founded fear of persecution if they return to Colombo.
[9] The Panel stated that while a durable peace has not been reached in Sri Lanka, it could not conclude that there was more than a mere possibility that the Applicants would be seriously and persistently harmed in a manner amounting to persecution if they returned to Colombo. With respect to the Applicants' fear of the Sri Lankan authorities, the Panel noted that "documentary evidence indicates that since 2002, abuses of Tamils in Colombo by Sri Lankan authorities have dropped off significantly and that the Applicants testified that they have no fear of the authorities while LTTE recruitment has escalated."
[10] In its conclusion, and with respect to the Applicants' fear of the LTTE, the Panel stated:
The claimants testified that they have a well-founded fear of the LTTE because of one recruitment attempt in May 2003, when the recruiters walked away and did not return for five months when they were told that the claimants were abroad and they then extorted money from the claimants' father. I am not persuaded that one easily rebuffed recruitment attempt is indicative of impending persecution or (sic) is it sufficient to generate a well-founded fear after years of disinterest from the LTTE.
ISSUES
[11] The Applicants raise the following issues:
1. Did the Panel err in finding that there was no well-founded fear of persecution?
2. Did the Panel make selective use of the documentary evidence?
POSITION OF THE PARTIES
Issue 1: Did the Panel err in finding that there was no well-founded fear of persecution?
Position of the Applicants
[12] The Applicants say that the Panel's statement "I am not persuaded that one easily rebuffed recruitment attempt is indicative of impending persecution or (sic) is it sufficient to generate a well-founded fear after years of disinterest from the LTTE" is a critical finding, and one that lacks an evidentiary base. It is, in fact, "sheer speculation." They say this finding is in clear disregard of both the objective documentary evidence regarding the LTTE and the Applicants' own evidence regarding the actions of the LTTE after their departure. Sharmila says that she presented clear evidence that the recruitment attempt referred to by the Panel was not in fact "easily rebuffed" and that she and her brother were told that the LTTE would return for them.
[13] The Applicants further note that, even after they fled Sri Lanka out of fear, the LTTE only left the family home after they extorted money from the Applicants' father. The Applicants cite case law to support the proposition that extortion alone can constitute persecution: Sinnathamby v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1160 (T.D.) (QL). The Applicants submit that these actions by the LTTE clearly indicate continued persecution of Sharmila and her family and should have been expressly considered by the Panel when it made its determination regarding the well-foundedness of the Applicants' fear.
[14] The Applicants note that the test for Convention refugee status is forward-looking and that the Panel should have considered the possibility of future attempts to forcibly recruit the Applicants in light of past experience.
Position of the Respondent
[15] The Respondent argues that the Applicants' fear of the Sri Lankan authorities is purely speculative and has no foundation in fact.
[16] The Respondent says that the Panel's conclusion that the Applicants had no objectively well-founded fear of the LTTE was entirely reasonable, given the testimony and other evidence before the Panel.
[17] With respect to the issue of extortion, the Respondent says that the Applicants never alleged, either in oral testimony or in their written documentation, that they feared returning to Sri Lanka because they feared extortion or any threat relating to the extortion faced by their father. The Respondent notes that the record indicates that Sharmila testified that she had no knowledge of why the money was requested. In any event, the Respondent states that this Court has held that extortion, in itself, does not necessarily constitute persecution and that one must consider the circumstances, the amounts involved, the demands and the consequences of not paying. The Respondent further notes that the Applicants did not claim extortion as a ground and that the cases cited by the Applicants are distinguishable because they involved instances where extortion formed part of the past persecution and was identified as a ground upon which they feared returning to the country of origin.
Analysis
[18] The Decision is regrettably short and lacking in reasons for a situation where two young people claim to have fled their home country because they fear persecution at the hands of the LTTE in particular.
[19] In effect the reasons make up some 12 lines of a 4 page Decision and amount to no more than the following:
1. I am not persuaded by the claimants' testimony that there is more than a mere possibility of persecution if they return to Colombo;
2. The documentary evidence indicates that abuses of Tamils in Colombo by the Sri Lankan authorities have dropped off;
3. As regards the LTTE, one easily rebuffed recruitment attempt is not indicative of impending persecution.
[20] It is clear that the Applicants fear the LTTE.
[21] In my view, the reasons given by the Panel on the central issue of LTTE persecution are clearly inadequate. They are dismissive rather than explanatory. The shortness of the reasons is not the issue. The issue is that the Panel fails to explain adequately the basis for its conclusions and appears to disregard crucial aspects of the evidentiary record. As this Court has said on many occasions, reasons are required to be sufficiently clear, precise and intelligible so that a claimant may know why his or her claim has failed and be able to decide whether to seek leave for judicial review. See, for example, Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.). In addition, the Panel must disclose the evidentiary basis for its conclusions in clear and unmistakable terms. See Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 at 305.
[22] Counsel for the Respondent argues that there is a sufficient evidentiary base in the record to support the conclusions reached by the Panel. But, in my view, this is not the issue. The Decision does not reveal the basis of the Panel's conclusions and it fails to deal with the Applicants' unquestioned testimony on crucial points.
[23] In assessing the Panel's determination regarding well-founded fear, the question is whether its characterization of the LTTE recruitment incident as an "easily rebuffed" attempt was patently unreasonable or not. In my opinion, the Panel's determination on this issue is patently unreasonable.
[24] The Panel did not note any credibility concerns with respect to the Applicants and seems to have accepted that the incidents occurred as reported by the Applicants. My reading of the transcript indicates that the LTTE recruitment attempts were not easily rebuffed. At the hearing before the Panel the Applicant stated:
They tried to persuade me, and they spoke to me in a threatening manner saying they can do anything if you refuse us, and they left saying they'll be back (inaudible) who they are.
[25] I would suggest that it is relevant to consider that the Applicants were fearful enough that they went into hiding and then fled to Canada. Moreover, there was evidence presented of a continuing interest by the LTTE in the Applicants after their departure. Whether or not this amounted to extortion and, in turn, persecution in and of itself, does not have to be determined here. The real issue, in my opinion, is whether the fact that the Applicants' father had to pay money to the LTTE recruiters is evidence of a continuing interest in the Applicants by the LTTE. It is also important to note that, contrary to the Respondent's allegation, the Applicant did not at any point state that she had no knowledge of why the money was requested. She simply stated that she did not know the specifics of what happened (which is reasonable as the event transpired after her departure):
RPO: Do you know what they said to your parents in December? What kind of a conversation took place?
APPLICANT: They just asked for money and they left. I don't exactly know they spoke.
RPO: Do you think it's possible the Tigers are satisfied with the money that they wouldn't bother to recruit you and your brother now? Like, take the money instead, kind of thing?
APPLICANT: It's the money. I think what they want from my dad is money, but they actually, like approach individuals. They want us to work for them.
[26] It seems to me that what the Panel truly took issue with in this case was that the Applicants had not suffered any real harm. They were detained by Sri Lankan authorities but released without a bribe and without mistreatment, and they were able to avoid recruitment by the LTTE. However, it must be kept in mind that the test for refugee determination is a forward-looking one. In Panayotov v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 56, Mister Justice MacKay, while ultimately concluding that the tribunal had not misconstrued the definition of Convention refugee, stated:
Indeed, as Mr. Justice MacGuigan, for the Court of Appeal, made clear in Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680, 7 Imm. L.R.(2d) 169, 57 D.L.R. (4th) 153, 132 N.R. 24 (C.A.), the definition is forward looking, and the applicant must show on a balance of probabilities that he or she has good grounds for fearing persecution for one of the reasons specified in the definition in the Act, if he or she were to return to their country. It is not required that the applicant establish that he or she has actually suffered, or will suffer, persecution.
[27] In the present case, I would suggest that the Panel failed to consider whether the Applicants had good grounds to believe that they would be persecuted by the LTTE if they were returned to Sri Lanka. Also, the Panel erred in finding that there were no grounds for future persecution.
Issue 2: Did the Panel make selective use of the documentary evidence?
Position of the Applicant
[28] The Applicants say that the Panel failed to address the volumes of objective documentary evidence before it which spoke directly to the question of risk to those similarly situated to the Applicants. That documentary evidence clearly confirms that the LTTE continue to engage in violations of the cease-fire and of human rights in general. The Applicants state that, despite the cease-fire, the LTTE continue to forcibly recruit Tamils in Sri Lanka. While it is trite law that the Panel need not refer to all of the material before it, its key findings must be supported by the evidence and it must indicate how it arrived at its Decision. In the present case, the Applicants argue that the Panel did not provide a clear evidentiary base for its finding that the Applicants would not be of interest to the LTTE. Its conclusion, they say, was in blatant disregard of the evidence before it.
Position of the Respondent
[29] With respect to documentary evidence, the Respondent states that most of the evidence cited by the Applicants refers to the situation in the Northern and Eastern Provinces of Sri Lanka and not the situation in Colombo. Moreover, the Respondent submits that the Panel is entitled to attach little weight to an applicant's testimony concerning country conditions when the country condition documents do not support such testimony.
[30] The Respondent states that the documentary evidence cited by the Panel clearly supports the finding that the Applicants would not be at risk if returned to Sri Lanka.
[31] Documentary evidence is a matter for the Panel to determine and it is open to the Panel to prefer some evidence to other evidence if there is an inconsistency.
Analysis
[32] In my view, this judicial review can be decided on the first issue. However, I believe the second issue should also be resolved in favour of the Applicants.
[33] The parties draw contrasting conclusions from the documentary evidence. The Applicants argue that the evidence indicates that recruitment of child soldiers continues and that human rights are still being violated despite the cease-fire; the Respondent argues that measures have been taken to reduce hostilities.
[34] The United States Department of State Report for Sri Lanka for 2002 indicates:
The LTTE uses child soldiers and recruits children, sometimes forcibly, for use in battlefield support functions and in combat. LTTE recruits, some as young as 13, have surrendered to the military, and credible reports indicate the LTTE has stepped up recruiting efforts (see Section 1.g.). In May 1998, the LTTE gave assurances to the Special Representative of the U.N. Secretary General for Children in Armed Combat that it would not recruit children under the age of 17. The LTTE has not honored this pledge, and even after the cease-fire agreement there were multiple credible reports of the LTTE forcibly recruiting children (see Section 6.d.).
* * * * *
The LTTE continued to use high school-age children for work as cooks, messengers, and clerks. In some cases, the children reportedly help build fortifications. In the past, children as young as age 10 were said to be recruited and placed for 2 to 4 years in special schools that provided them with a mixture of LTTE ideology and formal education. The LTTE uses children as young as 13 years of age in battle, and children sometimes are recruited forcibly into the LTTE (see Section 5). A program of compulsory physical training, including mock military drills, for most of the population of the areas that it controls, including for schoolchildren and the aged reportedly still functions. According to LTTE spokesmen, this work is meant to keep the population fit; however, it is believed widely that the training was established to gain tighter control over the population and to provide a base for recruiting fighters. Despite repeated claims to the contrary by the LTTE, there were credible reports that the LTTE continued to recruit forcibly children throughout the year. Individuals or small groups of children intermittently turned themselves over to security forces or religious leaders saying they had escaped LTTE training camps throughout the year. During August and September, the LTTE handed over 85 children to UNICEF, stating that the children had volunteered to serve, but that the LTTE does not accept children.
[35] There seems to have been at least some evidence in country reports of forced recruitment of child soldiers by the LTTE. At the time of the events in question, the Applicants would have fallen within this risk group. As noted by the Applicants, it is trite law that the Panel need not mention every piece of evidence it considered. However, it is clear that there is a difference between referring to "all items" as opposed to "some items" (see Ali v. Canada (Minister of Citizenship and Immigration, [2003] F.C.J. No. 1288, 2003 FC 982). In the present case, the Panel made little reference to the documentary evidence relating to recruitment measures and failed to assess the risk this posed to the Applicants. This, in my view, constitutes a reviewable error.
CONCLUSION
[36] In my opinion, this application for judicial review should be allowed. The Panel erred by drawing conclusions without a sound evidentiary basis and without explaining adequately the reasons for its Decision.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The Application is allowed and the matter is returned for reconsideration by a differently constituted Panel.
2. There is no question for certification.
|
JFC
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SHARMILA SUNDARALINGAM ET AL
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 9, 2005
APPEARANCES: Mr. Karina A. K. Thompson
Mr. Gordon Lee
SOLICITORS OF RECORD: Robert Blanshay Law Office
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada