Docket: IMM-3115-04
Toronto, Ontario, April 5th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
NAVARATNAM NIMALESWARAN
(A.K.A. NAVARATHNAM NIMALESWARAN)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Navaratnam Nimaleswaran is a 33-year-old Tamil male from Jaffna, in the north of Sri Lanka, who claims to have a well-founded fear of persecution at the hands of the Sri Lankan authorities. While accepting that the applicant had twice been detained and beaten by the Sri Lankan police, the Board found that this did not amount to persecution. The Board further found that, as a result of recent changes in conditions within Sri Lanka, it was now even less likely that the applicant would face a serious possibility of persecution in that country.
[2] Although the applicant raises a number of issues on this application, it is not necessary to address all of them, as I am satisfied that the Board erred in relation to its finding that the applicant had not suffered persecution.
Background
[3] The applicant lived in Jaffna until 1996, when he decided to move to Colombo in order to escape the turmoil in the northern part of Sri Lanka. For five years, the applicant lived in Colombo with a man from his village, and earned his living as a carpenter.
[4] During that time the applicant lived in Colombo, he was detained twice by the Sri Lankan authorities. In 1999, following the attempted assassination of Sri Lankan President Chandrika by the Liberation Tigers of Tamil Eelam (LTTE), many Tamils were rounded up by the police. The applicant was taken to the police station, where he was held for a day. During this time, he was beaten by the police. He was released upon payment of a bribe.
[5] In December of 2000, following a routine identity check, the applicant was again taken to a police station. This time, he was held for three days. Once again, he was beaten by the police while he was in detention.
[6] At this point, the applicant was told by the police that the pass that he held which allowed him to live and work in Colombo had not been renewed. Afraid to return to Jaffna because of his fear of the LTTE, the applicant decided to flee Sri Lanka.
[7] The applicant hired an agent and left Colombo in January of 2001. After spending time in Russia and Malaysia, the applicant arrived in Canada on September 24th, 2002.
The Board's Decision
[8] The Board accepted the applicant's story, and found that he had indeed been detained by the police on two occasions, and that on each occasion he was beaten by police officers. While stating that it did not want to minimize the beatings or the fear that was induced in the applicant by these detentions, the Board went on to find that this did not amount to persecution. According to the Board:
The claimant was not targeted. In the first instance he was rounded up because of a major event in Colombo. As he himself ... testified thousands of Tamils were rounded up at the time of the assassination attempt. The second arrest had to do with an identity document. Again, a question of a routine identity check.
[9] The Board went on to examine the current conditions in Sri Lanka, finding them to be much improved. As a result, the Board found that as of the date of the hearing, the applicant faced less of a risk of persecution in Sri Lanka than he had in the past.
Standard of Review
[10] The question of whether a particular course of conduct constitutes persecution is a question of mixed fact and law. As such it is subject to review against a standard of reasonableness simpliciter.
Analysis
[11] The Board appears to have accepted that on two separate occasions the applicant was detained by the police, once for one day and once for three days, and that on at least one of these occasions, the only reason for the applicant's detention was his ethnicity. Further, the Board appears to have accepted that the applicant was beaten by the Sri Lankan authorities each time that he was in detention.
[12] Further, the Board appears to have accepted that the applicant was a vulnerable individual, and that this treatment by the Sri Lankan authorities caused the applicant to have developed a genuine fear of similar treatment in the future.
[13] It is true that not every detention will constitute persecution, even when that detention is accompanied by mistreatment. The determination of whether, in a given set of circumstances, detention amounts to persecution is a question of mixed fact and law. That is, it involves the application of a legal standard to a specific set of facts.
[14] In this case, in coming to the conclusion that the conduct experienced by the applicant did not amount to persecution, the Board provided little in the way of analysis. The Board provided no definition for the term "persecution", nor did it explain why the treatment encountered by the applicant did not amount to persecution, as the term was understood by the Board.
[15] Further, it does not appear that any consideration was given to the cumulative effect of the treatment experienced by the applicant, taking into account his vulnerability, even though this issue was specifically argued before the Board.
[16] As a result, I find that the Board's analysis in this regard was deficient, and the Board's finding that the applicant was not subjected to persecution cannot stand.
[17] The refugee analysis is forward-looking. In considering the risk facing the applicant if he were returned to Sri Lanka, the Board found that conditions in that country had improved to the point that the applicant now faced less of a risk of persecution than he had in the past.
[18] Thus the Board made a relative finding, one based upon its characterization of the treatment that the applicant had experienced in the past. Having found that the Board erred in relation to the question of past treatment, the finding in relation to future risk also cannot stand.
Conclusion
[19] For these reasons, the application for judicial review is allowed.
Certification
[20] 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 question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3115-04
STYLE OF CAUSE: NAVARATNAM NIMALESWARAN
(A.K.A. NAVARATHNAM NIMALESWARAN)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 22, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: APRIL 5, 2005
APPEARANCES BY:
Mr. Micheal Crane
FOR THE APPLICANT
Mr. Gordon Lee
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT