Date: 20040318
Docket: IMM-3069-03
BETWEEN:
EOMAL FERNANDOPULLE
TERENCIA KUMARI FERNANDOPULLE
Applicants,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent,
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated April 10, 2003, wherein the Board found that the Applicants, although credible, are not Convention refugees or persons in need of protection. The Board determined that there is insufficient evidence to establish the Applicants' fear is well-founded, most notably due to the existence of a cease-fire between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam ("LTTE").
[2] The Applicants' main argument is essentially that the Board erred in failing to consider whether the change in country conditions, namely the cease fire in Sri Lanka, was effective and durable.
[3] The Applicants are citizens of Sri Lanka who lived in Dankotuwa, approximately 40 kilometres north of Colombo. The principal Applicant, Eomal Fernandopulle, is the son of the second Applicant, Terencia Kumari Fernandopulle ("Terencia Fernandopulle"). Eomal Fernandopulle arrived in Canada on August 13, 2001, and Terencia Fernandopulle arrived in Canada on September 12, 2002. Their refugee claims were heard together.
[4] Their claims were based on a well-founded fear of persecution based on their race or ethnic group, namely Tamils. In addition, Eomal Fernandopulle claimed he is a person in need of protection because he is in danger of being tortured and at risk of his life or being subjected to cruel and unusual treatment or punishment in Sri Lanka.
[5] Eomal Fernandopulle claimed to have been detained, questioned and beaten by the police, who accused him of collaborating with Tamil rebels. Terencia Fernandopulle claimed that her home has been looted by a Sinhalese mob, and that she and her family have been harassed by police, who repeatedly searched her home, and arrested, detained and physically assaulted her husband and sons.
[6] The Board accepted that the Applicants are of Tamil race or ethnicity. It found that the Applicants were credible in describing the incidents that occurred to them in Sri Lanka when they were living there, and accepted their allegations within their narratives. The Board accepted that the Applicants may face some harassment in Dankotuwa because of their ethnicity. However, the Board found that, given the documentary evidence and Applicants' testimony revealing changes that had taken place in Sri Lanka since 2001, the Applicants' fear of persecution was not well-founded. For the same reasons, the Board determined that the Applicants are not in need of protection (Applicants' Application Record ("A.R."), p. 124). The Board stated as follows:
The question raised by a claim to refugee status is not whether the claimants had reasons to fear persecution in the past, but rather whether he or she now, at the time the claim is being decide, has good grounds to fear persecution in the future. The panel noted that there is a cease-fire agreement in place in Sri Lanka, and the panel further acknowledges that there is no formal or final peace agreement, however, the cease-fire agreement had some duration to date, from December 2001 until present, March 2003. The claimants did not lead any evidence that the remaining family member, a son/brother, has experienced any serious problems in Sri Lanka since July 24, 2001. In fact the second claimant testified she did not have any problems, things were "normal", however they fear the war could start up again and then the abuse would continue as before.
(A.R., p. 127)
[7] The Board rejected the Applicants' alternative argument that even if there is insufficient evidence to support an objective fear of persecution because conditions in Sri Lanka are stable enough, there are compelling reasons, arising out of previous persecution, why Eomal Fernandopulle should not be returned. The Board determined that there was no evidence Eomal Fernandopulle suffered psychological effects of past persecution and, therefore, his treatment in Sri Lanka, although abhorrent, was not so exceptional or atrocious that it would be wrong to return him. The Board also found that an internal flight alternative existed for the Applicants in Colombo.
[8] The Applicants' first argument is a precise legal argument that the Board erred in placing the onus on the Applicants to show that country conditions in Sri Lanka had not changed sufficiently to negate their objective fear of persecution. With respect to establishing a well-founded fear of persecution, the Applicants argue that once they have shown past persecution, this creates a presumption of future persecution, which can be rebutted by a change in circumstances. The Applicants argue that, in order to find that they are not refugees due to changes in country conditions in Sri Lanka, the Board must find that there has been a change of circumstances that is durable, effective, and substantial. The Applicants submit therefore that once the Board found their evidence of past persecution to be credible, the presumption of future persecution applied and the Applicants did not have to show that there was no change of circumstances in Sri Lanka. In support of their position that past persecution creates a presumption of future persecution, the Applicants cite the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status at p. 45 as follows (A.R., p. 133):
It may be assumed that a person has well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention.
[9] The Respondent argues that past persecution does not create a presumption of a well-founded fear of persecution, rather the Board must consider a change in circumstances as part of the overall assessment of whether or not an Applicant will be at risk upon return. The Respondent cites Sman v. Canada (M.C.I.), 2002 FCT 891 at paras. 19-20, in which Pelletier J., as he then was, stated the following:
To the extent that La Forest J. speaks of the persecution being real, he must be speaking of past events. His reasoning is that if persecution has occurred in the past, and if lack of state protection is shown, it can be presumed that persecution will occur in the future. As a result, the fear of that persecution is well founded. But La Forest J. is making the critical assumption that the future will unfold as did the past. This claim is an example of a situation where one can accept that past persecution occurred without accepting that it will continue in the future. Consequently, the presumption of well foundedness of persecution depends upon more than proof of past persecution and lack of state protection. It requires one to assume that there is no valid reason why past conduct will not be repeated in the future. That element is absent in this applicant's case.
In addition, the Respondent makes the following argument:
15. While the jurisprudence could be described as contradicting or simply differing from the Handbook on this point (the Respondent notes the use of the word "may" in the provision cited by the Applicants), it is clear from the jurisprudence that the presumption relied on by the Applicants does not exist in Canadian Law:
. . . I would observe that a Convention refugee claimant must demonstrate a well-founded fear of persecution in the future to support a Convention refugee claim. In making a claim for Convention refugee status, an individual will often advance evidence of past persecution. This evidence may demonstrate that he/she has been subjected to a pattern of persecution in his/her country of origin in the past. But this is insufficient of itself. The test for Convention refugee status is prospective, not retrospective: for example, see Minister of Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), at page 215. The relevance of evidence of past persecution is that it may support a well-founded fear of persecution in the future. However, it is a finding that there is a well-founded fear of persecution in the future that is critical.
Pour-Shariati v. Canada (M.E.I.)[1995] 1 F.C. 767 (T.D.), at paragraph 17; aff'd on other grounds (1997), 215 N.R. 174 (F.C.A.) See also: Penate v. Canada (M.E.I.) [1994] F.C. 79, at paragraph 26-27; Saka v. Canada (M.C.I.) (July 23, 1996), A-1638-92 (F.C.T.D.) In Thevagasayam v. Canada (M.C.I.), [1997] F.C.J. No. 1406 (Q.L.), IMM-252-97) T.D.), at paragraph 9; Ahmed v. Canada (M.C.I.), 2003 FCT 470, at paragraph 6
[10] I agree with the Respondent that past persecution is insufficient of itself to establish a fear of future persecution, although such persecution is capable of forming the foundation for present fear. With respect to the impact of changed country conditions, the Federal Court of Appeal has indicated that there is no separate legal test to be applied when considering a Convention refugee claim where there has been a change in country conditions in an applicant's country of origin, and that the only issue to be determined is the factual question of whether, at the time of the hearing of the claim, there is a well-founded fear of persecution in the event of return (Yusuf v. Canada (M.E.I.) (1995), 179 N.R. 111 at p. 12 (F.C.A.). The standard of review for determining whether the Applicants have a well-founded fear of persecution in Sri Lanka is patent unreasonableness (Chorny v. Canada (M.C.I.), 2003 FC 999).
[11] Apart from the legal argument just addressed, the Applicants' principal argument is that the Board erred in concluding that country conditions in Sri Lanka had changed sufficiently to negate the Applicants' objective fear of persecution, in particular the Board erred in finding that the cease fire in Sri Lanka was effective and durable. The Applicants draw attention to documentary evidence indicating that the cease fire would not hold, in particular, evidence that past cease fires have broken down, and that the Sri Lankan government and the LTTE typically use cease fires to rearm.
[12] The Respondent submits that the Board did not arrive at any general conclusion about a change in circumstances in Sri Lanka, but rather, based on the documentary evidence and the evidence of the Applicants, determined that there was insufficient evidence to establish the Applicants' fear of persecution today in Sri Lanka. The Respondent argues that the Board's finding in this respect was substantiated by the evidence.
[13] I find no error in the Board's finding that the Applicants did not have a well-founded fear of persecution, nor were they in need of protection due to the existence of the cease fire agreement. The documentary evidence indicated a temporary cease-fire between the government of Sri Lanka and Liberation Tigers of Tamil Eelam (LTTE) had begun on December 24, 2001, a cease-fire agreement was subsequently signed on February 22, 2002, and Nordic Observers had begun monitoring the cease-fire on April 2, 2002. The Board also noted that the UNHCR maintained the position that although peace talks between the Sri Lankan government and the LTTE were taking place, it was premature to promote large scale voluntary repatriation, however, the UNHCR had not called for a moratorium on the return of unsuccessful asylum seekers. The Board referred to documentary evidence which demonstrated that the cease fire had some duration, and was more than merely temporary. The evidence indicated that the cease fire agreement had a significant impact in reducing human rights abuses in Sri Lanka, that the Sri Lankan government generally respects the human rights of citizens, and that the government had taken steps to control human rights abuses (A.R., pp. 124-126).
[14] In addition to the documentary evidence, the Board pointed to the testimony of the second Applicant which indicated that conditions Sri-Lanka had become "normal" as a result of the cease-fire agreement. The Board noted that the Applicants did not lead any evidence that the family members remaining in Sri Lanka had experienced any problems since July 2001. Moreover, the second Applicant gave evidence that her 22 year-old son was currently in Sri Lanka searching for a job.
[15] The Applicants' argue, in the alternative, that even if there was insufficient evidence to establish an objective fear of persecution because conditions in Sri Lanka were stable enough, the Board erred in finding that there were no compelling reasons arising out of past persecution to not return Eomal Fernandopulle to Sri Lanka. The Applicants argue that the Board failed to consider the following compelling reasons: the previous persecution, the ongoing subjective fear of the Applicant, and the reasonable possibility that the cease fire would collapse.
[16] The Respondent argues that the onus was on the Applicant to establish that there are compelling reasons why he should not be returned to Sri Lanka, that the threshold is high, and that the Applicant failed to establish that this is one of the extraordinary cases where compelling reasons apply.
[17] With respect to this final argument, I agree with the Respondent.
ORDER
As I find no reviewable error in the Board's decision, the application is dismissed.
With respect to the Applicants precise legal argument addressed, the Applicant proposes the following certified question:
In a case where a claimant has suffered persecution, is the Refugee Protection Division of the Immigration and Refugee Board required to apply the rebuttable presumption found in paragraph 45 of the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status:
"that a person has well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention"
or is this presumption not part of Canadian law?
The Respondent argues that the question is not one of general importance. Nevertheless, in my opinion, the issue of presumption raised by the Applicant requires a final answer. Accordingly, I certify the question proposed by the Applicant.
"Douglas Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3069-03
STYLE OF CAUSE: Eomal Fernandopulle, Terencia Kumari Fernandopulle v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 17, 2004
REASONS FOR ORDER
AND ORDER : The Honourable Mr. Justice Campbell
DATED: March 18, 2004
APPEARANCES:
David Matas FOR APPLICANTS
Nalini Reddy FOR RESPONDENT
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
David Matas FOR APPLICANTS
Barrister & Solicitor
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada