Date: 20041028
Citation: 2004 FC 1522
Toronto, Ontario, October 28th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
GREGORY THOMAS WICKRAMASINGHE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Gregory Thomas Wickramasinghe is a Sinhalese citizen of Sri Lanka. He alleges that he has been persecuted by the Sri Lankan police because he is married to a Tamil woman.
[2] Mr. Wickramasinghe's refugee claim was rejected by what was then the Convention Refugee Determination Division of the Immigration and Refugee Board. Following an application for judicial review, this decision was set aside, and the matter remitted to what was now the Refugee Protection Division of the Board for a new hearing.
[3] Following a de novo hearing, the Board again rejected Mr. Wickramasinghe's claim. As had been the case in the first hearing, the Board did not express any concerns with respect to Mr. Wickramasinghe's credibility, implicitly accepting that he had been abused by the Wattale police. However, the Board found that Mr. Wickramasinghe had an internal flight alternative (IFA) in Galle, in the southernmost part of Sri Lanka. The Board also found that Mr. Wickramasinghe would not be targeted at the airport on his return under the Sri Lankan Immigrants and Emigrants Act.
[4] Mr. Wickramasinghe now seeks judicial review of this decision, asserting that the Board erred in finding that he had an IFA in Galle. He further argues that the Board erred in its determination that he was not at risk under the Immigrants and Emigrants Act.
The Events Giving Rise to Mr. Wickramasinghe's Claim
[5] Between 1994 and 2000, Mr. Wickramasinghe and his wife experienced several incidents of harassment by the police. According to Mr. Wickramasinghe, the couple was targeted because of the Tamil ethnicity of his wife and suspicions that the couple were supporting the Liberation Tigers of Tamil Eelam (LTTE) organization.
[6] On June 9, 2000, Mr. Wickramasinghe was arrested at his home by the police. His house was searched, and letters and photographs from his wife's family in Jaffna were removed. His wife and her niece, who was visiting from the north, were also arrested. Three days earlier, while Mr. Wickramasinghe and his wife were in Moratuwa visiting friends, there had been a bomb blast which killed a government minister.
[7] Mr. Wickramasinghe's wife and niece were released from detention after three days. Mr. Wickramasinghe was taken to an unknown location near Ja-Ela, where he was detained and tortured. He was accused of harbouring supporters of the Liberation Tigers of Tamil Eelam (LTTE) in his house, allegations that he denied. Mr. Wickramasinghe's detention lasted for six days. He was released after a bribe was paid, and decided to flee the country.
The Board'sDecision
[8] The Board made no negative credibility findings with respect to Mr. Wickramasinghe's evidence, and appears to have accepted that he has been subjected to serious brutality by the Wattale police.
[9] The Board noted, however, that Mr. Wickramasinghe had worked as a tour guide in Galle, in southern Sri Lanka, from 1998 to 2000, and had not experienced any problems there. Further, the Board observed that the tensions between the LTTE and the Sri Lankan authorities that disrupt the north and east of Sri Lanka are not prevalent in the southern part of the country.
[10] The Board also found that Mr. Wickramasinghe and his wife had been detained, interrogated, mistreated and persecuted by police from the Wattale station and not by any other Sri Lankan authorities. As a consequence, the Board was of the view that Mr. Wickramasinghe could live in Galle, in the extreme south of Sri Lanka, with no more than a mere possibility of persecution.
[11] The Board rejected Mr. Wickramasinghe's argument regarding the Immigrants and Emigrants Act, noting that the Act is a law of general application. The Board also observed that Mr. Wickramasinghe's wife had returned to Sri Lanka without encountering any difficulties. Lastly, the Board made reference to country condition information which it said supported its conclusion that Mr. Wickramasinghecould return to Sri Lanka without difficulty.
Analysis
[12] For the reasons set out below, I am of the view that the Board erred in its consideration of whether Mr. Wickramasinghe had a valid internal flight alternative in Galle. As a consequence, it is unnecessary to consider the implications of the Immigrants and Emigrants Act.
[13] As the Court of Appeal noted in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, in determining the existance of an IFA, the question is whether, given the persecution that a claimant experienced in one part of the country in issue, it is objectively reasonable to expect the claimant to seek safety in a different part of the country. (See also Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)).
[14] Mr. Wickramasinghe says that a finding by the Board that a refugee claimant has an IFA in his or her home country is reviewable against a standard of reasonableness simpliciter, whereas the respondent submits that the applicable standard of reviewis patent unreasonableness. I do not need to resolve this question here, as my decision would be the same, whichever standard were applied.
[15] In this case, the Board's analysis as to whether Mr. Wickramasinghe had an IFA was fairly limited, and was based, to a large extent, on the fact that Mr. Wickramasinghe had been able to live in Galle for two years without any apparent difficulty.
[16] The problem with the Board's analysis is that no consideration was given to the fact that Mr. Wickramasinghe lived in Galle before he was suspected of having been involved in the explosion in Moratuwa, and the ensuing death of a government Minister. The Board failed to give any consideration to the impact that Mr. Wickramasinghe's suspected involvement in a terrorist attack would have if he were to return to Galle now.
[17] The Board also premised its IFA analysis on its finding that Mr. Wickramasinghe's problems were localized with the police from the Wattale station, and did not involve any other Sri Lankan authorities. In this regard, the Board failed to consider the fact that Mr. Wickramasinghe was taken into police custody by the Wattale police based upon information received from the police in Moratuwa.
[18] As a result, even applying the most deferential standard of review, I am satisfied that the Board committed reviewable errors in relation to itsIFA finding, and that the Board's decision must therefore be set aside.
Remedy
[19] Mr. Wickramasinghe has now told his story to two different panels of the Immigration and Refugee Board, neither of which expressed any concerns with respect to his credibility. As a consequence, Mr. Waldman asks that I send this matter back to the Board with directions that the Board accept the underlying facts giving rise to Mr. Wickramasinghe's claim, and that its deliberations be confined to issues involving the current situation in Sri Lanka, including the objective well-foundedness of Mr. Wickramasinghe's fear of persecution, the current application of the Immigrants and Emigrants Act by Sri Lankan authorities and whether Mr. Wickramasinghenow has a valid IFA within Sri Lanka.
[20] The respondent objects, submitting that credibility is always in issue before the Board. The respondent says that it should be open to the Board to make its own assessment of Mr. Wickramasinghe's credibility, based upon the evidence before it, which may or may not be the same as the evidence put before the two previous panels.
[21] I am not persuaded that I should attach any conditions to my referral of this case back to the Board, and I decline to do so.
Certification
[22] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9303-03
STYLE OF CAUSE: GREGORY THOMAS WICKRAMASINGHE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 27, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES BY:
Mr. Lorne Waldman
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman & Associates
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041028
Docket: IMM-9303-03
BETWEEN:
GREGORY THOMAS WICKRAMASINGHE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER