PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
HACINTHA DHANUSHI TENNEKOON
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is the judicial review of the decision of the Immigration and Refugee Board (Board) wherein the Applicants were denied their refugee claim because they had not established that there was a serious possibility of harm and because they had not rebutted the presumption of the existence of state protection.
I. Facts
[2] The Applicant, Majula Tennekoon (MT) and her daughter, Hacintha Dhanushi Tennekoon (HT), are citizens of Sri Lanka. They claimed that they feared return to Sri Lanka due to threats made by Ganesh Sundaralingum, a failed suitor of the daughter.
[3] The Applicants claimed that Ganesh had threatened HT for rejecting him and had threatened the family as well. Ganesh allegedly claimed that his threats had substance because he had connections to the Tamil Tigers (LTTE).
[4] The Applicants recounted that they then fled to the United States because they had been advised to do so by a retired civil servant. Once in the U.S. they were advised not to claim refugee status there. As a result, they came to Canada.
[5] The Board rejected the claim of a well-founded fear for four reasons:
(a) that the subjective fear claimed lacked an objective basis;
(b) that only two members of the family left Sri Lanka when it was the whole family who was threatened;
(c) that the daughter stayed in school and in Sri Lanka from March 2004 when the alleged threats were made until June 2004 when she and her mother left for the U.S.; and
(d) that the Applicants failed to make a refugee claim when in the U.S.
[6] On the issue of state protection, the Board found that the failure to notify any Sri Lankan authorities concerning the threats amounted to insufficient effort to avail themselves of state protection. The Board preferred the documentary evidence over the Applicants' opinion of state protection.
II. Analysis
[7] On the issue of well-foundedness, that matter is decided principally on credibility. Therefore, the standard of review is patent unreasonableness.
[8] On the question of state protection, while there may be an issue generally as to the standard of review, in this case the Applicant relies on the exception in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689, that it is not necessary to seek state protection because it would be futile to do so. The burden on the applicant is to show "clear and convincing" evidence of the futility of seeking state protection. Therefore, the standard is reasonableness.
[9] While the Applicants argue that the decision on well-foundedness was unreasonable or patently so, I fail to see anything unreasonable about the Board's conclusion. The Applicants, in essence, want the Court to reweigh the evidence and reach a different conclusion - something that this Court should not do.
[10] The Applicants attempted to attack the decision on the basis that the Board dismissed the fear because there was no confrontation or assault or physical harm. Had that been the reason, the Applicants might have had a point as there is much precedent for the principle that one need not suffer physical violence to have a valid fear of persecution (Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129, [1984] F.C.J. No. 601 (QL) and Serwaa v. Canada (Minister of Citzenship and Immigration), [2005] F.C.J. No. 2106 (QL), 2005 FC 1653).
[11] However, reading the case as a whole, the Board's reasoning is that there was no objective basis for the fear as there was no evidence that the threat was real. There was no evidence that Ganesh was capable of carrying out the threat. In particular, the Board did not believe Ganesh had LTTE connections.
[12] As to the other reasons for finding against the Applicants on well-foundedness, there is no basis for attacking the findings. Delay was merely one factor in the analysis and it was reasonable to question the Applicants' actions, both by staying in Sri Lanka and in failing to claim in the U.S., even where it might be difficult to succeed (the evidence on what the Applicants were told precisely is not clear). It was also reasonable to question why only two members of a family, which itself was said to be threatened, fled Sri Lanka.
[13] As to state protection, the Applicants raised an interesting point concerning whether the test of "serious efforts" in Canada (Minister of Employment and Immigration) v. Villafranca (F.C.A.), [1992] F.C.J. No. 1189 (QL) has been replaced by the "effectiveness" test in Ward as to the existence of state protection. The difficulty for the Applicants is that the issue does not really arise on these facts.
[14] On these facts the Applicants made no effort to seek state protection so the issue of serious effort versus effective state protection is largely irrelevant. The burden of rebutting the presumption in favour of state protection was seriously compromised by failing to even attempt to invoke the help of Sri Lankan authorities.
[15] The Applicants could not establish, even on the documentary evidence, that it would have been futile to seek state protection because it did not exist. The Applicants did not establish that they fell within the exception stipulated in Ward.
[16] Further, the Board made a factual finding, which is not shown to be patently unreasonable, that if the Applicants had approached police with an allegation that a supporter of the LTTE was threatening to use the LTTE against them, the police would have been interested.
[17] The only evidence put forward for not going to the police is that a retired civil servant told them not to and advised them to flee. That is not sufficient evidence in this case upon which to attack the presumption of state protection.
[18] For these reasons, this application for judicial review will be dismissed.
JUDGMENT
IT IS ORDERED THAT the application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4792-05
STYLE OF CAUSE: MANJULA TENNEKOON
HACINTHA DHANUSHI TENNEKOON
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Ms. Maureen Silcoff
|
|
| Ms. Marianne Zoric
|
SOLICITORS OF RECORD:
| MS. MAUREEN SILCOFF Barrister & Solicitor Toronto, Ontario
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|