Date: 20040624
Docket: IMM-2843-03
Citation: 2004 FC 904
Toronto, Ontario, June 24th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ANTON CHARLES ARUNAGIRINATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Arunagirinathan, a Citizen of Sri Lanka, sought judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated March 17, 2003, that he had an internal flight alternative in the city of Columbo. Although the Board gave very careful consideration to the applicant's claim over a prolonged period and several hearings, I have concluded that it failed, given his history in that city, to deal directly with the question of whether he had reason to believe he was at risk of persecution there. Accordingly, the application must be allowed and returned to a different Board for reconsideration in accordance with these reasons.
BACKGROUND
[2] Mr. Arunagirinathan is a 38-year old Tamil from eastern Sri Lanka. He claimed Convention refugee status in Canada by reason of his fear of persecution at the hands of the Sri Lankan Army ("SLA") and the Liberation Tigers of Tamil Eelam ("LTTE").
[3] The applicant lived in the eastern Sri Lankan area of Muthur, Trincomalee District until some time after the SLA captured the Trincomalee area in 1990. He claims he suffered numerous arrests, beatings and interrogations by the SLA which prompted him to leave the country. In 1992, an agent took him to Malaysia and he remained there for seven years. He was given protection by the United Nations High Commission for Refugees ("UNHCR") until 1993 and in 1996 he married a Malaysian woman and had two Malaysian-born children. After approaching the Malaysian authorities after his marriage to obtain a renewed work visa, he was ordered to leave the country by May 31, 1996.
[4] The applicant claims that he went into hiding but was discovered by authorities in February 1999 and deported back to Sri Lanka in April 1999. Upon his arrival in Sri Lanka, he claims that he was detained for three to four days during which time he was badly treated by the SLA in Colombo. He returned to live in the east where he again had many problems with the SLA.
[5] In September 2000, the LTTE came to his home and ordered him to do electrical work for them. The applicant claims that two days later the SLA came to his area and on suspicion that he was working with the LTTE, he was arrested. He claims that he was then detained for a month and brutally treated. He was released on payment of a large bribe and on condition that he report to the army camp twice per week. Just after his release, he was visited by the LTTE who accused him of giving information about them to the SLA. He was able to partially convince them that he had not informed on them, however, the LTTE warned that they would further investigate his story and that he should not report to the SLA as instructed.
[6] At this point the applicant went into hiding until arrangements were made for him to leave Sri Lanka on October 20, 2000. He arrived in Canada on October 25, 2000 and made his refugee claim. The applicant's hearing was held on March 19, 2002, June 26, 2002, October 10, 2002 and December 10, 2002. At the earlier sittings, the Board dealt with the issue of verifying the applicant's identity and considered whether he may be excluded pursuant to Article 1E for having the rights and obligations of Malaysian nationality, adjourning to request and receive certain information.
The Board's Decision
[7] After some time waiting for verification from overseas sources, the Board accepted the applicant's identity. The issue of exclusion was also not pursued. The Board did not make any conclusive, unfavourable findings with regards to the applicant's credibility as it determined that the central issue in his claim was whether he could return to live anywhere in Sri Lanka safely, i.e. whether he had a viable Internal Flight Alternative ("IFA") within Sri Lanka.
[8] The Board determined that he did have a viable IFA in Sri Lanka, namely to the city of Colombo. It did not accept as reasonable or plausible the applicant's explanations as to why he could not now reside in Colombo. The applicant posited that since he did not have any family or friends in Colombo and he did not speak Sinhala, he could not live there. The Board noted that he had been "resourceful enough to live in a country [Malaysia] he had not been to before he was 26 years old". The Board also reviewed the varied work that the applicant had done in Malaysia- assistant painter, electrician and garment factory helper- and concluded that he was a multi-skilled worker and would be able to find gainful employment to support his family in Colombo. The Board was also presented with no evidence or reason as to why his children would be precluded from attending school in Colombo.
[9] The Board preferred the documentary evidence regarding the return of Sri Lankan citizens and their ability to live in Colombo over the testimony of the applicant which it found to be more speculative as to why he could not reside in Colombo. The Board referred to documentary sources that found that persons who returned to Sri Lanka who had originated in the northern and eastern regions had not been forced to return to those areas. A UNHCR document also found that there were no restrictions for residing in Colombo for anyone coming from abroad. The Board also referred to other areas of "non-conflict" such as the Puttalam district and Matale where large numbers of Indian Tamils live which rebutted the applicant's proposition that Tamils can reside only in the north or the east.
[10] The Board noted that the cessation of hostilities since February 2002 in Sri Lanka meant that the current (that is as of the time of the Board's decision) prevailing country conditions were such that he may be able to reside anywhere in Sri Lanka. Nonetheless, the Board concluded that it would focus its analysis on Colombo as a viable IFA for the applicant.
ISSUES
[11] 1. Did the Board breach the duty of fairness in not giving the applicant proper notice that IFA was an issue in his refugee claim?
2. Did the Board base its decision on an erroneous finding of fact made perversely or without regard to the material before it?
ANALYSIS OF PARTIES' SUBMISSIONS
Procedural Fairness
[12] The applicant submits that the Board "continually soft-pedalled IFA as an issue" throughout the hearing process, and then based its ultimate decision entirely on the issue of IFA. The applicant argues that the Refugee Protection Officer ("RPO") at the hearing observed that the evidence of an IFA was weak. The applicant submits that the Board breached a principle of procedural fairness in leading the applicant to believe that IFA may be moot and then relied solely on this issue in rejecting his claim.
[13] The respondent contends that the comment attributed to the Board, that is "however IFA may be moot" must be read in context and did not amount to a breach of procedural fairness. With regards to the RPO's submission, the respondent argues that the RPO is not the decision-maker and that the Board is entitled to accept or reject the RPO's observations in the same way that it may accept or reject the submissions of a claimant's counsel. The respondent also submits that the Board is not required to mention every piece of evidence in its reasons.
[14] In my opinion, having read through the transcript of the hearings, the applicant's argument on this procedural issue is without merit. First, the RPO did not in fact submit that evidence of an IFA was weak but rather stated that pursuant to the applicant's testimony, she did not believe that he gave strong reasons for not being able to relocate to Colombo (see pp. 1399-1400 of the tribunal record).
[15] Secondly, I agree with the respondent that the Board's comments about IFA must be read in context. The particular comment which the applicant highlights as giving rise to a breach in procedural fairness, in that he was not given adequate notice that IFA continued to be a relevant issue for the Board, is found at page 1381 of the transcript:
PRESIDING MEMBER: All right, there is one issue that I would like to (inaudible) today, and that is the issue of changed circumstances. It is the panel's view that with the development of the situation in Sri Lanka today, that is an issue that should be explored, and in light of that issue, then the internal flight alternative might be a moot issue at his time.
All right, first of all, Counsel, your comments on the addition of change in circumstances, and then Ms. Hart on the deletion of internal flight alternative.
...
RPO: Internal flight alternative?
PRESIDING MEMBER: Mm-hmm.
RPO: Well, maybe, it just depends on what the claimant has to say.
PRESIDING MEMBER: What develops.
RPO: Yes.
PRESIDING MEMBER: Okay, all right.
[16] While the Board raised the possibility of IFA no longer being a relevant issue to the claim, in my view, based on this exchange as well as the remaining portion of the hearing, including the RPO's questioning and submissions and applicant's counsel's submissions, it is clear that IFA remained an important issue in the applicant's refugee claim. Therefore, I do not accept the applicant's argument that he was misled into understanding that IFA had been removed as an issue and that he was then denied notice and a chance to respond to it. A reasonable interpretation of the exchanges at the hearing in relation to IFA does not support the applicant's argument of a procedural breach. For example at page 1383 the presiding member of the Board stated:
So that the only thing I am interested now, we are interested today, is the question of changed circumstances, and there may be, depending on what comes out of that, IFA.
[17] And again at page 1388 the presiding member of the Board indicates to the RPO that if the applicant does not believe that he can go back to where the LTTE is, then "..let's see what happens elsewhere." Next, the following exchange took place at pages 1388-89 of the tribunal record:
RPO: Okay. Sir, if you feel that you cannot go back to where the Tigers are in the north, (inaudible) a place in the south where the Tigers do not have a (inaudible) for you.
CLAIMANT: I do not have any relatives or friends in Colombo.
[18] The RPO's questioning from this point onwards then concentrates on why the applicant feels he could not return to Colombo. Moreover, the applicant's counsel at the end of the hearing presented submissions on IFA. These are clear indicators that IFA remained an issue for the Board and that the applicant's counsel recognized this to be the case.
Board's Findings of Fact
[19] The applicant submits that all the matters he raised before the Board were valid reasons why he could not return to Colombo and were not merely excuses. Relying on Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (T.D.), rev'd [2001] 2 F.C. 164 (C.A.), he submits that the Board erred in adopting an approach where the absence of his relatives in the proposed IFA was not a valid consideration.
[20] The applicant also submits that the Board had no evidentiary basis for believing that the situation for the applicant in Colombo would be safe or materially better for him than in the north and east. Since the Board accepted that the applicant had a well-founded fear of persecution at the hands of a central authority, then it is unreasonable to expect a refugee claimant to seek refuge by relocating to a part of the country controlled by that authority: Sharbdeen v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 300 (F.C.A.) and Balasubramaniam v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1452 (T.D.)(QL).
[21] The respondent submits that factual findings, particularly those which engage analysis of country conditions, are within the Board's expertise and the Board is entitled to weigh the evidence and draw factual conclusions based on all the evidence. The respondent argues that the Board's findings concerning the applicant's explanations as to why he could not reside in Colombo were reasonably open to it. The Board appropriately applied the two-pronged test with respect to IFA and the determination was reasonable.
[22] The respondent submits that the Board did not make a finding that the applicant had a well-founded fear of persecution elsewhere in Sri Lanka and therefore the applicant's situation is not analogous to the one described in Sharbdeen, supra and Balasubramaniam, supra. The respondent also argues that there is no evidence that the Board found the absence of relatives in Colombo to be an invalid consideration, and in fact viewed it as a relevant consideration which in and of itself did not make Colombo an unreasonable IFA for this particular claimant.
[23] In my view, the Board in this case did not err in relation to its consideration of the applicant's lack of relatives in Colombo. The reasons indicate that the Board considered this fact as a relevant consideration, yet it balanced this fact against what the Board viewed as his resourcefulness and employability in various trades. I cannot say that such finding on the reasonableness branch of the IFA test was patently unreasonable.
[24] The applicant has somewhat mischaracterized the decision of Ranganathan, supra, in that the Federal Court of Appeal specifically upheld that the Board must consider the fact that a claimant has no relatives in the proposed IFA, however this factor alone is not determinative in the "very high threshold" that must be demonstrated as part of the reasonableness inquiry for the IFA. Both levels of Ranganathan, supra, affirm the principle that the IFA decision must be made having regard to the particular individual circumstances of a claimant and that when a claimant is ill, elderly, a minor or disabled, the lack of family support in the IFA will be more relevant in determining whether requiring that a claimant relocate within their home country would cause undue hardship.
[25] However, in my opinion, while the findings of fact in relation to the reasonableness of the applicant's relocation to Colombo were open to it, the Board failed to squarely deal with the issue of the applicant having been of interest to the SLA in the past in Colombo in that he alleged that he had been detained and beaten by the SLA in Colombo after being returned from Malaysia in 1999. The applicant testified that he feared for his safety at the hands of the SLA in Colombo (see page 1391 of the tribunal record, transcript of hearing). The reasons indicate that the Board did not consider the first branch of the IFA test set out in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), that is, "whether, on a balance of probabilities, there is no serious possibility of the claimant being persecuted in the proposed IFA", and instead focussed entirely on the second branch of the IFA determination, the reasonableness of the proposed IFA and whether it would cause the applicant undue hardship in moving and settling there. The test is clearly conjunctive, and even if an applicant could reasonably relocate to another area of their country, if there is a serious possibility that they would continue to be at risk from an alleged persecutor, no IFA will exist.
[26] Since the applicant alleged that he had experienced serious problems with the SLA in Colombo in 1999 and also with the SLA in the Trincomalee district in 2000, more probing of whether the SLA or Sri Lankan government authorities would continue to target him in Colombo should have occurred. Such evaluation is required pursuant to the first branch of the Rasaratnam, supra test.
ORDER
THIS COURT ORDERS that this application is allowed, the Board's decision is set aside and the applicant's claim for Convention refugee status is returned to a different Board to be reconsidered in accordance with these reasons. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2843-03
STYLE OF CAUSE: ANTON CHARLES ARUNAGIRINATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 22, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES:
John M. Guoba FOR THE APPLICANT
Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
John M. Guoba
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040624
Docket: IMM-2843-03
BETWEEN:
ANTON CHARLES ARUNAGIRINATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER