Patabanthi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1292 (CanLII)

ISSUE

[2]                Is there an arguable issue of law upon which the proposed application might succeed? In particular, did the CRDD err in not considering the reasonable possibility that the applicants may be fined and jailed under the Sri Lanka Immigrants and Emigrants Act No. 42 of 1998 ("Immigrants and Emigrants Act") and whether this would constitute persecution given the circumstances?

[3]                For the following reasons, this application for judicial review shall be dismissed.

BACKGROUND

[4]                The applicant and her sister are citizens of Sri Lanka and of Sinhalese descent. The three primary ethnic groups in Sri Lanka are Sinhalese, Tamil and Muslim. They fear persecution at the hands of a Tamil group, the Liberation Tigers of Tamil Eelam ("LTTE).

[5]                The applicant claimed in her Personal Information Form ("PIF") that on one night in 1993, five armed, masked men, who she suspects were from the LTTE, came to their home. Three of them forcibly entered the home, removed valuable items and took the applicant's husband away. She reported this incident to the police, who then came to her home in Anuradhapura to investigate. The police informed her that they could not find her husband, despite their best efforts.

[6]                In March 1994, the applicant met another man, Sunil Senarth ("Senarth"). According to the applicant, the LTTE was responsible for many human rights abuses and acts of violence in Anuradhapura between 1994 and 2000, as tensions between the government and the LTTE began to escalate. Persons of Sinhalese origin were particularly targeted by the LTTE.

[7]                Meanwhile, the applicant's sister states that in August 1994, she and her husband and three children were accosted in their home in Anuradhapura by three masked men. She presumed that they were from the LTTE. Her husband was forcibly removed from the home. She reported his abduction to the police but did not see him again.

[8]                Between 1994 and 2000, the applicant's sister lived in various places in Anuradhapura. Immediately following the disappearance of her husband, she and her children sought refuge in a temple in the area. She then went to live with a relative until that relative was abducted, allegedly by the LTTE, in 1997. She then lived elsewhere in Anuradhapura before moving to Colombo in 2000.

[9]                In March 2000, the applicant moved to Colombo with her five children and moved in with Senarth. Senarth's mother discovered this living arrangement and denounced it. Senarth's mother threatened to report the applicant and her children to the police as LTTE supporters from Anuradhapura unless she stopped living with Senarth.

[10]            As for the sister of the applicant, she and her children were targets of harassment in the Colombo apartment where they lived in 2000. Neighbours complained to their landlord about these "outsiders" living there. Eventually, the applicant's sister and her children had to leave.

[11]            In September 2000, the applicant and her sister left Sri Lanka. The children of the applicant remained in Sri Lanka, where they had been left under the care of a friend of Senarth. The applicant and her sister arrived in the United States, where they spent approximately two weeks. On October 7, 2000, they reached the Canadian border by bus.

[12]            The applicant states in her PIF (Application Record, page 29) that an "agent" took her passport and "told me to claim refugee status". She was referring to the agent who handled their arrangements to leave Sri Lanka for North America. According to the applicant's sister, they stayed with a woman known only as "Mrs. Violet" (Application Record, page 44) in the U.S. before coming to Canada. Upon reaching the border they claimed refugee protection.

CONTESTED DECISION

[13]            A panel of two members, Milan Then and Tony Knevel, heard the claims of the applicants together on August 30, 2001 and November 6, 2001. They rendered a decision in chambers, accompanied by written reasons, on November 13, 2001.

[14]            They decided that the applicants were not credible. The panel did not believe that the abduction of the applicant's husband, assuming that he indeed was abducted, was because he was Sinhalese; otherwise, the applicant and her children, who are also Sinhalese, would have been abducted as well. In fact, the panel expressed doubt that the applicant's husband was abducted.

[15]            Overall, the CRDD had trouble believing that the LTTE would go to a predominantly Sinhalese city to abduct Sinhalese persons, let alone the husbands of the claimants. It was also noted that there was no documentary evidence of persecution of Sinhalese in Anuradhapura by the LTTE.

[16]            The CRDD also called the threat against the applicant by Senarth's mother an "idle threat", since he would be implicated in any denunciation of the applicant and her children as LTTE sympathizers. It determined that the harassment of the applicant's sister by her neighbours in Colombo would not lead to problems with the authorities. The panel concluded that the applicants would not be at risk of persecution in Colombo or in any part of Sri Lanka where Sinhalese formed the majority of the population. It also stated that the inability of the principal applicant to raise a family as a single mother was not a Convention ground.

[17]            The primary complaint of the applicants in the judicial review before us is that the panel overlooked the possibility that both applicants face imprisonment in deplorable conditions for having used false documents to exit Sri Lanka. The Immigrants and Emigrants Act was raised by counsel for the applicants. It was obtained under IRB response to information request number LKA32205.E (Applicant's Record, page 82).

SUBMISSIONS

Applicant

[18]            Under the Immigrants and Emigrants Act, if the applicants return to Sri Lanka, they face a minimum fine of 50,000 Sri Lankan rupees and a minimum one-year term in prison. A report from the U.S. Department of State notes that prison conditions in that country are substandard and that women face rampant violence and discrimination.

[19]            In its written reasons for decision, the panel did not indicate whether it considered the applicants' fears of penal sanctions under the Immigrants and Emigrants Act and the extent, if any, to which such fears could ground a claim to Convention refugee status. This omission was in spite of the submissions of counsel in this regard at the conclusion of the hearing. To the extent that the CRDD failed to determine this important aspect of the applicants' claims, it has committed an error of jurisdiction.

Respondent

[20]            A copy of the Immigrants and Emigrants Act was not before the panel; they only had before them the opinion of a Sri Lankan Member of Parliament ("MP"). The opinion states that Tamils are targeted by the legislation; however, the applicants are Sinhalese. Furthermore, the documentary evidence to which the applicants refer in this regard states that the person who compiled it could not obtain corroborating information on alleged arrests under this legislation.

[21]            There is no evidence before the Court that the applicants claimed a fear of persecution by virtue of being jailed upon returning to Sri Lanka for the purportedly illegal manner in which they left the country. No mention of this appears in the PIFs of the applicants. The panel also found that the applicants lacked a subjective fear of persecution in general given their failure to claim refugee status during their stay in the United States.

ANALYSIS

[22]            The possibility of prosecution for illegal departure from Sri Lanka was never raised by either of the applicants on their own. As the respondent has correctly indicated, neither applicant mentions in their PIF that they face prosecution upon returning to Sri Lanka for having departed without proper documents.

[23]            The applicants also made no mention of this possibility in their testimony before the panel. At pages 314 - 317 of the Tribunal record, the transcript shows that counsel for the applicants asked the sister of the principal applicant a series of questions regarding the circumstances under which she obtained her passport. She was then asked whether she was aware of the consequences faced by Sri Lankan nationals who return to their country of origin having left with false documents.

[24]            Despite the line of questioning in which counsel engaged, the sister of the principal applicant was unable to identify any consequences that the two of them might face. At page 317, counsel for the applicant tried, also unsuccessfully, to ask the main applicant whether she was aware of sanctions for having left Sri Lanka illegally. The panel cannot be expected to address a fear of consequences that claimants do not state during a hearing.

[25]            Overall, the evidence given by the applicants themselves regarding the manner in which they departed Sri Lanka, such as mention of the agent who assisted them in leaving and the fact that he kept their passports on his person at all times, was minimal. That testimony had little effect on the overall effectiveness of the statements of the applicants before the panel. Given the lack of materiality of this line of discussion compared to other elements of the evidence, the panel was justified in not mentioning it in its reasons.

[26]            This Court has rendered several judgments in which decisions of the CRDD have been set aside for failure to consider relevant evidence that could have had a bearing on the decision. In Gourenko v. Canada (Solicitor General) reflex, (1995), 93 F.T.R. 264 (F.C.T.D.), the Court stated three criteria that should be applied to determine, in the case of a document, whether it is sufficiently important that its mention in the reasons for a decision is required. The document must be timely and prepared by a reputable, independent author who is in a position to be the most reliable source of information. The topic addressed in the document must also be directly relevant to the claim of the applicant.

[27]            In the case at bar, the only document available to the panel on this issue was a document retrieved by the Research Directorate of the IRB pursuant to a Request for Information, serial number LKA32205.E (Applicant's Record, page 82). It is a report from the 1999 issue of a publication known as the Sri Lanka Monitor.

[28]            In the report, a Tamil MP denounces the 1998 amendments to the Immigrants and Emigrants Act as unfairly targeting persons of Tamil origin. The MP describes incidents of arrests of Tamils awaiting departure at airports or returning to Sri Lanka after being denied refugee protection elsewhere. The Research Directorate notes at the end of the document that it was unable to obtain a copy of the Immigrants and Emigrants (Amendment) Act No. 42 of 1998. It was also unable to obtain additional or corroborating information of an article on this subject reproduced in the Tamil Guardian.

[29]            The document does not meet the test outlined in Gourenko, supra. Although it is timely, it only reflects the commentary of a single member of the Sri Lankan Parliament. This person may or may not be in a position to be the most reliable source of this information.

[30]            I do not need to consider for the purposes of these reasons that the MP who denounced this law may have a political interest in doing so. I need only note that this article does not include the wording of the statute itself, which could be taken as a statement by the Sri Lankan Parliament as a whole. In addition, the report is not very extensive; it is a brief statement of one Member's position on a law, with selected anecdotes of the effects of that law.

[31]            It also cannot be said that this document is directly relevant to the claims of the applicants, who never invoked the Immigrants and Emigrants Act or its consequences as a basis for their fear of returning to Sri Lanka. It was only mentioned briefly in the closing submissions of counsel.

[32]            In any event, the credibility findings of the panel were reasonable given the evidence on the record and I do not see fit to disturb them. It is highly unlikely that this factor could have had a material impact on the decision of the panel.

[33]            Furthermore, it must be remembered that there is a fundamental difference between persecution of the sort which gives rise to a valid claim for refugee protection, and legal prosecution, which does not give rise to any such claim. This difference was discussed by this Court in Antonio v. Canada (Minister of Employment and Immigration) reflex, (1994), 85 F.T.R. 241 (F.C.T.D.). In that case, Nadon J. (as he then was) held that a panel of the CRDD was justified in finding that the applicant did not fear persecution for his political opinions; rather, he feared prosecution for deliberate acts.

[34]            The CRDD panel in Antonio, supra, made reference to the United Nations Handbook on the Procedures and Criteria for Determining Refugee Status (Geneva: January, 1988) (the "Handbook"). Paragraph 56 of the Handbook states that persons fleeing from punishment for an offence are not normally refugees; they are fugitives from justice rather than actual or potential victims of injustice. Paragraphs 84 and 86 outline exceptions where prosecution of political offenders may amount to persecution.

[35]            Paragraphs 84 and 86 are inapplicable to the present case as there is no evidence that the applicants were being prosecuted based on political or other beliefs. Nor was any evidence brought before the panel to suggest that the applicants would be treated more adversely than others charged with the same offence. These considerations lead us to the next point of discussion.

[36]            The applicant noted that this particular law was considered in a decision by this Court in Balasubramaniyam v. Canada (Minister of Citizenship and Immigration) 2001 FCT 952 (CanLII), (2001), 16 Imm. L.R. (3d) 292 (F.C.T.D.), 2001 FCT 952. In that decision, Hansen J. held that the decision of a Post Claim Determination Officer ("PCDO") that the applicants were not members of the Post-Determination Refugee Claimants in Canada ("PDRCC") class should be set aside.

[37]            Hansen J. held that the PCDO failed to consider that while the Immigrants and Emigrants Act, whose amendments came into force after the hearing of the refugee claims of the applicants, is an ordinary law of general application, it is not racially neutral in its enforcement. The documentary evidence suggested that Tamils are particularly targeted for enforcement under this law, and that they face deplorable conditions in Sri Lankan prisons.

[38]            The respondent in the present case has noted that while Balasubramaniyam, supra, involved applicants of Tamil origin, the applicants in the instant case are of Sinhalese ethnicity. I do not believe that it is necessary to address this distinction for the purpose of disposing of this matter. Other observations based on Balasubramaniyam are at least equally useful.

[39]            In her judgment in Balasubramaniyam, Hansen J. noted that article 61 of the Handbook contemplates the possibility that severe sanctions for illegal departure may justify recognition of a person as a refugee. Whether such sanctions will have this effect will depend on whether it can be shown that the reasons for leaving are related to one of the Convention grounds. According to Hansen J., that is a matter for the panel to decide, rather than a finding to be left to a Court on judicial review.

[40]            The panel in the present case has made a factual finding that the applicants' reasons for leaving Sri Lanka were not related to Convention grounds. That is a factual conclusion which the panel was entitled to make, and which this Court will not disturb. It is also noted that had the claimants not left the country, they would not be subject to prosecution for an illegal exit.

[41]            Consequently, the mere possibility that the applicants may face criminal charges for an improper departure from Sri Lanka, motivated by reasons not related to Convention grounds, will not be sufficient to merit a finding that they should be granted refugee protection. Accordingly, based on its factual findings, the panel was not required to consider this.

[42]            For the above reasons, this application for judicial review shall be dismissed.

[43]            The parties have had the opportunity to raise a serious question of general importance and have not done so. Therefore, I do not propose to certify a serious question of general importance.

                                                                       ORDER THIS COURT ORDERS that:

1.                   The application for judicial review is dismissed.

2.                   No question of serious general importance is certified.

___________________________ Judge

                                                FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD   DOCKET:                                          IMM-5843-01

STYLE OF CAUSE :                         NALINI WARNAKULA PATABANTHI and

KANTHIDALIKA MEGAMU DELIGA

                                                                                                                                          Applicants

                                                                           and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                       Respondent

PLACE OF HEARING :                   Toronto, Ontario   DATE OF HEARING :                     December 10, 2002   REASONS FOR ORDER :             THE HONOURABLE MR. JUSTICE BEAUDRY   DATED :                                           December 13, 2002     APPEARANCES:   Mr. Michael Korman                                                                FOR THE APPLICANTS   Mr. Jeremiah Eastman                                                             FOR THE RESPONDENT     SOLICITORS OF RECORD:   Otis & Korman                                                                         FOR THE APPLICANTS Toronto, Ontario  

Morris Rosenberg                                                                      FOR THE RESPONDENT Deputy Attorney General of Canada Toronto, Ontario