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N.C.M (Re) Immigration and Refugee Board

N.C.M. (Re)

[1996] C.R.D.D. No. 147
Nos. U94-04870, U94-04871, U94-04872 and U94-04873

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario

Panel: J.C. Simeon and N. Daya
In camera

Heard: June 14, October 10 and December 18, 1995
and July 19, 1996
Decision: July 19, 1996

Sri Lanka (LKA) — France (FRA) — Positive — Males — Females — Arbitrary arrest and detention — Country of first asylum — Ethnic persecution — Exclusion clauses — Persecution for political opinion — Sexual abuse — Social group persecution — Stateless persons — (Indexed).


M. Berger, for the claimant(s).
R. West, Refugee Claim Officer.
xxxxxxxx xxxxxxxxxxxxxxxxxxx, designated representative.

  1. These are the positive reasons of the Refugee Division, as requested by the Minister of Citizenship and Immigration, [See note 1 below] for the claims of xxxxxxxx xxxxxxxxxxxxxxxxx, the 33-year-old principal claimant, his 29-year-old wife, xxxxxxx xxxxxxxxxxxxxxxxxx, and his two children, four-year-old xxxxx xxxxxxxxxxxxxxxxxx and two-year-old xxxxxxxxx xxxxxxxxxxxxxxxxxx (the minor claimants), to be Convention refugees on the grounds of their race, perceived political opinion and membership in a particular social group, the family. These written reasons expand upon the reasons given orally at the conclusion of the hearing on July 19, 1996.

Note 1: E-Mail Memo from W.A. MacIntyre, Appeals Officer, to Joyce Budnark, Registrar, July 30, 1996. The Minister has made an application for leave and judicial review to set aside the Board’s decision, Minister of Citizenship and Immigration v. xxxxxxxx xxxxxxxxxxxxxxxxxx, xxxxxxx xxxxxxxxxxxxxxxxxxx, xxxxx xxxxxxxxxxxxxxxxxxx, xxxxxxxxx xxxxxxxxxxxxxxxxxx (F.C.T.D., IMM-2634-96), August 1, 1996.

  1. The principal claimant and his Spouse are citizens of Sri Lanka. They were found to be Convention refugees in France and were granted permanent residence status there. [See note 2 below] However, they immediately lost their refugee status and permanent residence status when they returned to Sri Lanka. Both of the minor claimants were born in France. [See note 3 below] However, only xxxxx xxxxxxxxxxxxxxxxxx is a French national. xxxxxxxxx xxxxxxxxxxxxxxxxxx does not have citizenship in either France or Sri Lanka. The adult claimants base their claims to Convention refugee status against Sri Lanka and the minor claimants base their claims against France.

Note 2: Exhibit M-1, Canadian Embassy, “Facsimile/Telecopie,” To: Canada Immigration Centre, L.B.P.I.A. Terminal One, October 31, 1994.

Note 3: Exhibit M-1, Case – Claim Highlights, 20/10/94, CIC, LBPIA Terminal One.

  1. The hearing into the claims was held pursuant to section 69.1 of the Immigration Act [See note 4 below] on June 14, October 10, December 18, 1995, and March 26 and July 19, 1996, at Toronto, Ontario. The claimants were represented by Max Berger, Barrister and Solicitor. The Principal claimant served as the designated representative of the minor claimants. The panel was assisted by Roger West and Richard Henderson, Refugee Claim Officers (RCOs). The Minister of Citizenship and Immigration chose to intervene in the hearing and was represented by W.A. MacIntyre. [See note 5 below] An interpreter proficient in the Tamil and English languages was present throughout the hearing.

Note 4: As enacted by S.C. 1992, c. 49, s. 60.

Note 5: “Notice of Intent to Participate,” respecting matters involving Article 1E. Charles Dombrady, Appeals Officer, March 9, 1995.

  1. The evidence presented at the hearing included the claimants’ Personal Information Forms [See note 6 below] (PIFs), the Principal claimants oral testimony, and documentary evidence submitted by the minister’s representative, counsel for the Claimants and the RCOs. Counsel was advised that the Refugee Division would rely on the contents of the following packages: Refugee Hearing Officer Documentary Evidence Sri Lanka, October 1994, the Contextual Information Package, Sri Lanka, August 1994, and the Human Rights Information Package Sri Lanka, September 1994; [See note 7 below] the Refugee Hearing Officer – Documentary Evidence Sri Lanka Supplement, January 1995. [See note 8 below] These Packages were mailed to counsel under covering letter dated February 8, 1995. [See note 9 below]

Note 6: Exhibit C-1, xxxxxxxx xxxxxxxxxxxxxxxxxx, Personal Information Form; Exhibit C-2, xxxxxxx xxxxxxxxxxxxxxxxxxx, Personal Information Form; Exhibit C-3, xxxxx xxxxxxxxxxxxxxxxxx, Personal Information Form; xxxxxxxxxx xxxxxxxxxxxxxxxxxx, Personal Information Form. All PIFS date stamped received by the Immigration and Refugee Board on February 1, 1995.

Note 7: Exhibit R-1, Refugee Hearing Officer Documentary Evidence, Sri Lanka, 27 items, October 1994; Contextual Information Package/ Sri Lanka, Documentation, Information and Research Branch, August 1994; Human Rights Information Package/ Sri Lanka, Documentation, Information and Research Branch, September 1994.

Note 8: Exhibit R-2, Refugee Hearing Officer – Documentary Evidence, Sri Lanka Supplement, January 1995.

Note 9: Letter to Max Berger, Barrister & Solicitor, from Harold Jacobson, Senior Refugee Hearing 0fficer, February 8, 1995.

  1. Prior to the hearing counsel sent a letter to the Appeals Office arguing that the exclusion clause is inapplicable because the adult claimants were found to be Convention refugees in France, although they do not have rights attached to nationality. Counsel further argued that the adult claimants were ineligible to have their claims to refugee status heard due to their erroneous determinations for eligibility to claim refugee status, Pursuant to Section 46.01(1)a and, therefore, the Board should, on consent, vacate its jurisdiction to hear the claim. [See note 10 below]

Note 10: Letter to Charles Dombrady, Appeals Officer, from Max Berger, March 10, 1995.

  1. At the June 14, 1995, sitting, counsel presented the same arguments orally. He argued that there was a clear error made in finding the adult claimants eligible to have their claims to refugee status heard by virtue of being declared Convention refugees in France. Counsel argued that if the Board were to hear the claims, it would be a clear subversion of the Immigration Act. Counsel also argued that since the Board does not have the jurisdiction to reverse a referral from the Department of Citizenship and Immigration, as per Section 69.2, he would like to request that the hearing be adjourned in order to make an application to the Federal Court of Canada. In addition, counsel argued that, given the claimant’s particular situation, the Federal Court of Canada could apply a remedy under Section 53 of the Immigration Act.
  2. The minister’s representative argued that counsel had had six months to request such an adjournment but failed to do so. Further, he noted that the Board is obligated to deal with claims in an expeditious manner.
  3. After deliberating the panel indicated that it would defer its ruling on the issue of jurisdiction and hear the claims.
  4. Upon due consideration of the arguments presented on the issue of jurisdiction, the panel finds that since the Board must hear all claims which have been referred to it by the Minister of Citizenship and Immigration, it cannot consent to counsel’s motion to vacate its jurisdiction in these claims. The panel accepts it has jurisdiction to hear the claims. The panel further notes that counsel need not be granted an adjournment to seek a remedy under Section 53 of the Immigration Act in the Federal Court.
  5. At the October 10, 1995, sitting, counsel indicated that he wanted to amend the Principal claimant’s PIF narrative. The minister’s representative objected arguing that since the principal claimant swore to the accuracy of his PIF at the first sitting it could only be amended by way of direct examination during the hearing. Counsel countered by arguing that the claimant has a right to amend his PIF anytime prior to his examination. Counsel further argued that the claimant could in fact amend his PIF at any time during the hearing and that it is up to the panel to assign the appropriate weight to be given to these changes, keeping in mind when and why the PIF was amended. In this instance, counsel stated, the Principal claimant swore to the accuracy of his PIF narrative to the best of his recollection; however, he subsequently managed to obtain newspaper articles which corroborate when certain incidents described in his PIF narrative took place. The incidents described in his PIF narrative happened to other Tamils in France and not to the claimants. Counsel noted that the Tamil woman described as being shot in Paris was actually “hacked” to death. This information was obtained by the principal claimant from newspaper accounts of the incident. Counsel stated that it was not unreasonable for the principal claimant to now amend his PIF narrative to take into account the specific dates reported in newspaper accounts of this incident.
  6. The panel ruled that the claimant can amend his PIF at any time. The minister’s representative and RCO, of course, have the right to examine the claimant to determine why the amendments were made at that particular time. In the end, the panel will determine the appropriate weight that it intends to give to the amendments made to the PIF.
  7. After hearing all of the evidence as well as the explanation for the amendments to the principal claimant’s PIF narrative, the panel accepts the amended PIF as credible and trustworthy evidence.
  8. The claimants’ response to Question 37 of their PIFs is attached as Appendix “A” to these reasons.
  9. The principal claimant presented the following relevant viva voce evidence during the hearing.
  10. The principal claimant testified that he never registered his children’s birth at the Sri Lankan embassy in France or in Sri Lanka, during his three-week stay there in 1994.
  11. He said that his refugee status in France expired xxxxxxx xx, 1995. [See note 11 below] He further stated that he never renewed his refugee status in France after it expired. He also said that he is not a citizen of France, nor has he ever applied for French citizenship. The principal claimant said that his wife was declared a Convention refugee in France and that she has a refugee card, as does his son xxxxxxxxx. [See note 12 below]

Note 11: Le directeur de l’Office Francaise de Protection des Réfugiés et Apartides certique, M. xxxxxxxxxxxxxxxxxx, xxxxxxxx, Ce certificat expire le: 20/02/2995.

Note 12: Ibid., xxxxxxx xxxxxxxxxxxxxxxxxx, Ce certificat expire le: 22/04/1998.

  1. The principal claimant testified that his son, xxxxx, is a French citizen and has a French passport. [See note 13 below]

Note 13: Exhibit C-9, République Francaise, Carte Nationale D’identité, xxxxxxxx,xxxxxx xxxxxxxxxxxxxxxxxx, Nationalité Francaise, Fait le: xx xxxx 1994.

  1. He told the panel that he was issued a travel document by the French authorities on xxxxxx x, 1994. He said that he first obtained a travel document in 1988 and that it was renewed every two years. He said that his wife received a travel document in xxxxxxxxxx 1992. He stated that their travel documents must be renewed every two years and that his wife’s travel document expires in 1996.
  2. The principal claimant said that he had obtained permanent residence in France. He said that he worked in a factory and a restaurant in Paris but he stopped going to work. He said that he quit work and had to stay with his older brother because he was wanted by the Liberation Tigers of Tamil Eelam (LTTE or Tigers).
  3. He said that he never sought state protection in France because he was told by the Tigers that if he ever reported anything to the French authorities, they would destroy his family.
  4. Counsel asked the principal claimant what would happen if he told the French authorities they had returned to Sri Lanka. He answered, “They will refuse to accept us.”
  5. The principal male claimant also stated that if he were to return to France the French authorities could not guarantee his security and he fears that the LTTE would kill him and his whole family. When counsel asked the Principal claimant whether he felt safe in France, he answered “no.” The principal claimant said that when he left France, he did not want to return.
  6. He said that his mother and older brother are residents of France. The principal claimant also said that he owns a residence in France. He said that his property is currently rented out. He said that he still has a mortgage on the property which he purchased in 1991. He stated that he told his older brother to sell his house.
  7. The principal claimant testified that he went back to Sri Lanka in 1994 because he had problems in France and because his wife’s younger sister, xxxxxxx, was arrested in Colombo. He said that xxxxxxx contacted them from Colombo asking for 50,000 rupees to pay the Tigers for the release of her husband. He said that he told her that they could send the money in one week. The lodge manager where she was staying then called to say that she had been arrested by the police.
  8. The principal claimant said that they went to Colombo to consult a lawyer to take steps to try and get his wife’s sister released. He said that they searched for his wife’s sister at the police stations, but they were told that no such person had been arrested or detained. He said that his wife was arrested when she went out shopping on xxxxxxxxx xxx at 10:00-10:30 a.m. He said that he was arrested by the police at 3:00 p.m. the same day. The minor claimants were left with people who were in the adjoining room in the xxxxxx xxxxx, where they were staying, when he was taken by the police.
  9. The principal claimant said that his wife was in police detention for two days and that she was treated in a degrading manner by the police. He said that he was released after paying a 30,000 rupees bribe. After the principal male claimant was released, the family went to stay in the xxxxxxxx xxxxx where they remained until they left the country. [See note 14 below] He testified that they have been unable to get any information regarding his wife’s younger sister or her husband.

Note 14: Exhibit C-6, xxxxxxxx xxxx (Pyt) Ltd., October 12, 1994, To Whom it May Concern, x. xxxxxxxxxxxx, General Manager. This letter states that the claimants stayed in this lodge from September 5-15, 1994.

  1. The principal claimant stated that if he were to return to Sri Lanka there would be no guarantee for his life.
  1. The issue before the Refugee Division is whether the claimants are Convention refugees as defined by section 2(1) of the Immigration Act. [See note 15 below] The definition reads, in part, as follows:

“Convention refugee” means any person who

  1. by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
  1. is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country … [See note 16 below]

Note: As enacted by R.S.C. 1985 (4th Supp.), c. 28, s.1.

Note 16: Section 2(1) of the Immigration Act, as enacted by R.S.C. 1985 (4th Supp.), c. 28, s.1.

  1. The claimants testified that they do not wish to return to France, where the adult claimants were determined to be Convention refugees, because they fear the LTTE who allegedly severely beat and threatened the principal claimant and his family. In an effort to try and assist his sister-in-law and her husband, the principal claimant, along with the rest of his family, went to Sri Lanka to try and have her released from police detention. However, during their stay in Colombo, both adult claimants were arrested by the police. The principal claimant contends that during their detention his wife was sexually assaulted and he was severely beaten because he was suspected of being a LTTE supporter. After paying a bribe to the police they were released and ordered to leave Colombo. The claimants allege they can neither return to France nor to Sri Lanka.
  2. Two issues are deemed relevant for these claims: the first deals with exclusion from the Convention refugee definition under Article IE, [See note 17 below] given that the adult claimants were determined to be Convention refugees in France and one of the minor claimants is a French national, and the second deals with the merits of the claims against Sri Lanka and France.

Note 17: “Notice of Intent to Participate,” Charles Dombrady, Appeals Officer, to The Registrar, Immigration and Refugee Board, copied to Berger & Associates, March 9, 1995. Article IE reads as follows: “This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

  1. The nationality of the claimants are not at issue. Both counsel and the minister’s representative accept that the adult claimants are Sri Lankan nationals who obtained Convention refugee status in France. Although both minor claimants were born in France, only xxxxx xxxxxxxxxxxxxxxxxx has French citizenship. [See note 18 below] Even though the citizenship of citizenship of xxxxxxxxx xxxxxxxxxxxxxxxxxx is unclear, [See note 19 below] the citizenship laws in Sri Lanka entitle this minor claimant to apply to be a citizen of Sri Lanka. The 1948 Citizenship Act of Sri Lanka states,

a person born outside of Sri Lanka on or after the appointed date shall have the status of a citizen of Sri Lanka by descent if at the time of his birth his father is a citizen of Ceylon or Sri Lanka and if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner

  1. at the office of a consular officer of Sri Lanka in the country of birth, or
  2. at the office of the Minister in Sri Lanka. [See note 20 below]

Note 18: Exhibit C-3, Question 7, p.1; Exhibit C-9, Carte Nationale D’identité, xxxxxxx, xxxxx xxxxxxxxxxxxxxxxxx, Nationalité Francasie.

Note 19: Exhibit C-4, Question 7, p. 1.

Note 20: Exhibit R-6, Response to Information Request, Number: LKA20930.E, 8 August 1995, Sri Lanka: Information on whether dual citizenship is permitted by the government of Sri Lanka, on whether a spouse of Sri Lankan citizen is entitled to Sri Lankan citizenship, and if so, what are the conditions that must be met,” Attachments, Sri Lanka. Citizenship Act, 1948, s. 5(2). Sent to the DIRB by the High Commission of the Democratic Socialist Republic of Sri Lanka in Ottawa on 18 March 1993, Chapter 248, Part II, Citizenship By Descent, Section 5(2), pp 3-4 (p. X/269-x/270).

  1. The evidence of the Principal claimant was that he never registered the births of the minor claimants with the Sri Lankan authorities even though the Democratic Socialist Republic of Sri Lanka allows dual citizenship. [See note 21 below] No evidence was presented to the contrary. It follows, then, that xxxxxxxxx xxxxxxxxxxxxxxxxxx is a stateless persons whose former habitual residence was France. Accordingly, the claims of the minor claimants cannot be made out against Sri Lanka, given that they are not citizens of Sri Lanka, but against France.

Note 21: Ibid., p. 1.

  1. The panel accepts the claimants’ evidence as credible and trustworthy. At the October 10, 1995, sitting, the principal claimant was examined thoroughly by Counsel, the minister’s representative, the RCO, and the panel. At the July 19, 1996, sitting the principal claimant was examined by counsel. During both of these sittings, the panel found the principal claimant’s testimony straightforward, unembellished and consistent. Throughout the hearing, the principal claimant’s demeanour, as well as that of his spouse, genuinely reflected the traumatic personal experienced that they suffered when they were living in France and Sri Lanka. [See note 22 below] The claimants’ evidence was also consistent with the documentary evidence presented on Country conditions in France and Sri Lanka.

Note 22: The panel acknowledges that demeanour is of minor importance in considering the credibility of a claimant. Plumb v. W.C MacDonald Regd; Latimer v. Foster Tobacco Co., [1926] 1 D.L.R. 899 (Ont. C.A.).

  1. The principal claimant testified that he was severely beaten and threatened by members of the LTTE in France. Exhibit C-12 is a newspaper article translated from Puthiya Jananayagam (NEW DEMOCRACY – a Tamil News Magazine) which describes how the Tigers severely attacked Mr. S. Balachandran, Manager of EELANADU.” [See note 23 below] Another news report, from the same edition of Puthiya Jananayagam, states that Tiger thugs attacked a youth in Le Chappel who ended up in hospital in critical condition. [See note 24 below] Exhibit C-13 is an article from Paris EELANADU which describes how a young Tamil Sri Lankan pregnant woman was “hacked to death” by Sri Lankan suspects. [See note 25 below] It is also important to note that the LTTE have offices in France and that there are some 80,000 people of Tamil origin in France. [See note 26 below] The documentary evidence before the panel clearly supports the claimant’s evidence that he was severely beaten and threatened by the LTTE.

Note 23: Exhibit C-12, “Ban on Tamil Newspapers in France,” Puthiya Jananayagam (NEW DEMOCRACY – Tamil News Magazine), September 15, 1995.

Note 24: Exhibit C-12, “Tigers’ Thuggery in Paris,” Puthiya Jananayagam (NEW DEMOCRACY – Tamil News Magazine), September 15, 1995.

Note 25: Exhibit C-13, “Pregnant Woman Hacked to Death,” Paris EELANDU (Tamil Newspaper), 22-28 July 1994.

Note 26: Exhibit R-8, Response to Information Request, Number: FRA22078.E, 5 December 1995, “France: Information for 1995 on whether the LTTE pursues, particularly in Paris, Sri Lankans who refuse to meet their extortion demands or who speak out against them, and examples of such incidents; and on the protection offered by the authorities to those threatened by the LTTE,” Attachments, Sri Lanka Broadcasting Corporation [external service, in English). 10 May 1992. LTTE Leaders on Differences with Muslims.” (BBC Summary 14 May 1992/NEXIS) p. 5; Xinhua News Agency, 17 October 1995. “Tamil Rebels Try to Block Arms Sales to Sri Lanka.” (NEXIS), p. 6.

  1. Likewise, the documentary evidence on Sri Lanka supports the principal claimant’s evidence that both he and his wife were detained by the police when they were in Colombo. For instance, the Social Affairs Reporting Unit of the Canadian High Commission in Sri Lanka reports that “Tamil individuals are also more susceptible to being detained by Police to establish their identity than are Sinhalese individuals. However this detention is often brief: approximately 90% of those detained for such purposes are released within 48 hours; 9% are released within one week; and the remaining 1% are placed under an initial three month detention order.” [See note 27 below] The United States Department of State report, Country Reports on Human Rights Practices for 1994, states that “torture remains a serious abuse and is practiced by both government and LTTE forces.” [See note 28 below] Another United States Department of State report, from the Office of Asylum Affairs, states that the LTTE continues to engage in extrajudicial killing and that “it resumed attacks on civilians. Both sides mistreat prisoners and arrest suspected opponents on an arbitrary basis.” [See note 29 below] Exhibit C-15 includes a number of newspaper articles which highlight the ongoing conflict in Sri Lanka between the LTTE and the Sri Lankan security forces and the ongoing problems faced by civilians as a consequence of the ongoing conflict. Some of these headlines reflect the intensity and brutality of the conflict, for instance: “Tamil suicide bomber kills 21;” [See note 30 below] “64 killed as Tamils, Sri Lankan, army clash;” [See note 31 below] “More explosives found at bomber’s safe house;” [See note 32 below] “Three more Tiger accomplices arrested.” [See note 33 below]

Note 27: Exhibit R-10, Sri Lanka National Issue Package, February 1996, item 1.4, Social Affairs Reporting Unit, Canadian High Commission, Colombo, Issues Relating to the Treatment of (Tamils) in Colombo since April 19, 1995, January 1996, item 1.4.2, “Situation of newly arrived Tamils (detention, release rates, discrimination, registration), p. 1.4.3 (p. 3).

Note 28: Exhibit R-10, item 1.7, U.S. Department of State, Country Reports on Human Rights Practices for 1994, February 1995, p 1.7.2 (p. 1259).

Note 29: Exhibit R-10, item 1.8, U.S Department of State, Profiles on Asylum Claims and Country Conditions, January 1995, p. 1.8.3 (p. 2).

Note 30: Exhibit C-15, “Tamil bomber kills 21,” The Toronto Star, Friday, July, 5, 1996.

Note 31: Exhibit C-15, “64 killed as Tamils, Sri Lankan, army clash,” The Toronto Star, Tuesday, July 2, 1996, (p. A12).

Note 32: Exhibit C-15, “More explosives found at bomber’s safe house,” Daily News, Wednesday, July 17, 1996.

Note 33: Exhibit C-15, “Three more Tiger accomplices arrested,” Sunday Observer, Sunday, July 14, 1996.

  1. The documentary evidence before the Panel clearly supports the claimant’s evidence that they were arrested and detained after they returned to Colombo in September 1994. Accordingly, given the lack of inconsistencies in the principal claimant’s testimony and that the documentation before the Panel Supports his evidence, the panel concludes that the claimants presented credible and trustworthy evidence in support of their refugee claims.

Exclusion, Article 1E

  1. Counsel sent a letter to the French Embassy in Ottawa inquiring whether the government of France would recognize the claimants’ status as Convention refugees given that they had returned to Sri Lanka. [See note 34 below] Counsel received the following reply from Bernadette Grezes, Vice-Consul, Chef de Chancellerie, Consulat General de France a Toronto,

I wish to inform you that your clients, having returned to Sri Lanka, have lost their refugee status in France. Should they wish to return to France, they would have to apply for a long-term visa at this office. [See note 35 below]

The panel finds this evidence to be conclusive on the issue of exclusion under Article 1E. The case law on the application of Article 1E has established that, at a minimum, the claimants must have a right to be able to return to, [See note 36 below] and remain in, [See note 37 below] France. Mr. Justice Teitelbaum confirmed in Shamlou [See note 38 below] that one of the four basic rights that one must enjoy in order not to be excluded under Article 1E is the right to return to the country of residence. It is evident that the adult claimants lost this right when they returned to Sri Lanka. The same cannot be said, however, for the two minor claimants. Since one is a citizen of France and the other is a stateless person.

Note 34: Exhibit C-10, Max Berger, B.F.A., LL.B, Barrister & Solicitor, letter to sassy of France, October 13, 1995.

Note 35: Exhibit C-11, Bernadette Grezes, Vice-Counsul, Chef de Chancellerie, Consulat General de France a Toronto, to Max Berger, B.F.A., LL.B., November 13, 1995.

Note 36: Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993.

Note 37: Mahdi v. M.C.I. (1994), 26 Imm.L.R. (2d) 311 (F.C.T.D.).

Note 38: Shamlou v. M.C.I. (1995), 32 Imm.L.R. (2d) 135 (F.C.T.D.) at 152.

  1. Therefore, the panel concludes that the claimants cannot be excluded from the Convention refugee definition under Article 1E. The adult claimants forfeited their refugee status when they returned to Sri Lanka. Further, Response to Information Request Number: FRA23834.E, dated May 16, 1996, states that, “Foreigners who lose their refugee status would lose their residence card within three years from the date it was acquired.” [See note 39 below] Since the two minor claimants can only claim against France, Article 1E cannot apply to their claims.

Note 39: Exhibit R-9, Response to Information Request, Number: FRA2384.E, 16 May 1996, France: Information on the rights and obligations attached to permanent residence status for someone who have been granted refugee status in France, on whether permanent residence status would still confer those rights and obligations in the absence of any change in personal circumstances; on whether a trip to his/her country of origin would cause the loss of either refugee status or permanent residence status; and on whether permanent residence status would entitle the bearer to a French passport and assistance at French embassies abroad, p.1.

The Merits of the Claims
  1. Consequently, the adult claimants’ claims for refugee status must be made out against Sri Lanka, given that they would no longer have refugee status or permanent residence status if they were to return to France. Thus, keeping in mind the principal claimant’s evidence with respect to his family’s circumstances and situation in Sri Lanka during their return there in 1994, and given the current country conditions extant there today, the panel concludes that the adult claimants would have more that a mere possibility of being persecuted if they were to return there today. [See note 40 below]

Note 40: Adjei v. M.E.I. [1989] 2 F.C. 680 (C.A.).

  1. The situation in Colombo today can only be considered to be highly tense. The documentation before the panel is replete with examples of LTTE terrorist activities throughout Sri Lanka, but more specifically within Colombo. For instance, INFORM Sri Lanka Information Monitor, Situation Report, August 1995, reports that a bomb hidden in a cart of king-coconuts exploded outside the office of Susil Premjayanth, the Chief Minister of the Western Provincial Council on August 7, killing 23 people and wounding nearly 50 others. [See note 41 below] An Amnesty International Urgent Action bulletin issued on July 20, 1995, states that since the resumption of hostilities in mid-April 1995 between the LTTE and the security forces, “there have been continuing reports of arbitrary arrests of hundreds of Tamil people, particularly in the east of the country and in the capital, Colombo.” [See note 42 below]

Note 41: Exhibit C-8, INFORM, Sri Lanka Information Monitor, Situation Report, August 1995, “Bomb blast in Colombo,” p. 7.

Note 42: Exhibit C-8, Amnesty International, Urgent Action, 20 July 1995, “Disappearances”/ Fear of Extrajudicial Execution, p.1.

  1. The panel, therefore, determines that the adult claimants have met the burden of proof in establishing that they are Convention refugees as defined under Section 2(1) of the Immigration Act.
  2. The minor claimants, as previously indicated, must make out their claims for Convention refugee status against France.
  3. In Casetellanos [See note 43 below] Mr. Justice Nadon points out that the “principle of family unity currently occupies a very ambiguous position in Canadian law. It is not explicitly stated in the Act, nor have any cases taken a definite position on the issue.” Mr. Justice Nadon goes on to note that “in order to apply the principle of family unity in the case at bar, would have to extend the definition of Convention refugee. There is no justification for doing so.” [See note 44 below] Mr. Justice Rothstein, in Pour-Shariati, [See note 45 below] points to Subsection 46.04(1) and (3) of the Immigration Act as dealing with the landing of persons who have been determined to be Convention refugees and their dependents. He specifically notes,

dependants who might otherwise be obliged to return to their country of origin because they could not establish an independent claim to refugee status, will (unless disqualified for specified reasons) be allowed to remain in Canada. Section 46.04 reflects the principle of family unity. It is true that it is limited to dependants and does not include members of an extended family such as parents of adult children. However, such a limitation in the legislation does not justify the development of a common law notion of indirect persecution to account for family unity situations not covered by the section. Parliament has determined which family members qualify for admission and landing, i.e. dependants, and it is not the role of the Court to expand the scope of the family for immigration purposes beyond that which Parliament has determined to be appropriate. [See note 46 below]

Note 43: Casetellanos, Amador Franciso Pena v. S.G.C. (F.C.T.D., no. IMM-6067-93) , Nadon, January 20, 1995, p. 199.

Note 44: Casetellanos at 201.

Note 45: Pour-Shariati, Dolat v. M.E.I. (F.C.T.D., December 15, 1994.

  1. It is evident from the foregoing case law that the two minor claimants cannot be found to be Convention refugees by virtue of being the children of the Claimants who were found to be Convention refugees on the principle of family unity. Nonetheless, even though the panel acknowledges that Subsection 46.04(1) and (3) of the Act cannot be applied by the Refugee Division in the case of the two minor claimants, it finds that the two minor claimants have their own foundation for claims for Convention refugee status.

Pour-Shariati is the authority for the proposition that,

The family as a “social group” basis for seeking Convention refugee status is not based on the principle of family unity but rather on the evidence of persecution of the family as a social group. When membership in a particular social group is applicable to a family, it may allow members of an extended family to claim Convention refugee status even if they have not been personally subjected to persecution. [See note 47 below]

The two minor claimants are clearly members of a particular social group, the family, whose parents sought to leave France because of a fear of the LTTE. The principal claimant testified that he feared the LTTE in France because they had severely beaten him and threatened to kill his family if he sought the protection of the French authorities. When the principal claimant arrived in Canada to claim asylum, he told the immigration officer at the port of entry interview that the LTTR “threatened that they would kill me even if I relocated anywhere in Europe.” [See note 48 below] The principal claimant also stated, “There was an incoming call to my wife that very soon that she would be ‘wearing the white coloured sari.'” [See note 49 below] The female claimant testified at the port of entry interview that, The Tiger movement telephones in the night and threaten when my husband is not at home.” [See note 50 below] When she was asked what they threatened, she said, “They talk all sorts of bad things, and they ask me how children are going to grow, how children are going to go to school, and we’ll see how they go to school.” [See note 51 below] The panel finds that the LTTE not only threatened the adult claimants but also made veiled threats against the minor claimants.

Note 46: Pour-Shariati, pp. 5-6.

Note 47: Pour-Shariati, p. 6.

Note 48 : Exhibit M-1, P.O.E. Notes, 20 October 1994, xxxxxxx xxxxxxxxxxxxxxxxxx.

Note 49: Ibid.

Note 50: Ibid.

Note 51: Ibid.

  1. It is evident that the adult claimants took the threats against themselves and their children seriously. The principal claimant was warned by the LTTE, an organization renowned for its terrorist activity, against seeking the protection of the state authorities on penalty of reprisals against his family. Although it is evident that the principal claimant was the LTTE’s prime target in France, the family unit as a whole was targeted, including the children. When the adult claimants took their children with them when they travelled to Sri Lanka, they were doing so in order to protect them from the serious possibility of harm at the hands of the LTTE. The panel finds it reasonable to accept that the minor claimants were removed from France by their parents because they feared the LTTE and did not want to risk seeking the protection of the French authorities because they were warned against doing so. The family was trapped in a serious situation where they faced ongoing harassment from the LTTE but could not seek state protection because they feared that the LTTE would retaliate if they did so.
  2. Given the particular circumstances of this family in France, and more specifically the two minor claimants as members of this family, it is reasonable to conclude that they would have a well-founded fear of persecution should they return to France. The panel has considered whether it is in “the best interests” [See note 52 below] of the two minor claimants to return to France to live with other relatives there and the panel has determined that it would not be in the minor claimants’ best interests due to a number of factors including their young age, the trauma of separation from their parents, and the attendant risk to their security given the LTTE’s threats against them and their family. Accordingly, the panel determines that the two minor claimants satisfy the definition of Convention refugee, as defined in Section 2(1) of the Immigration Act, in their own right.

Note 52: According to the Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Guideline 3, CHILD REFUGEE CLAIMANTS: Procedural and Evidentiary Issues, Immigration and Refugee Board, Ottawa, September 30, 1996, “The phrase ‘best interests of the child’ is a broad term and the interpretation to be given to it will depend on the circumstances of each case. There are many factors which may affect the best interests of the child, such as the age, gender, cultural background and past experiences of the child, and this multitude of factors makes a precise definition of the ‘best interests’ principle difficult.” (footnotes excluded], p. 3. These guidelines took effect after the hearing was concluded.

  1. Having considered the evidence in its totality and for the reasons presented above, the Refugee Division determines xxxxxxxx xxxxxxxxxxxxxxxxxx, xxxxxxx xxxxxxxxxxxxxxxxxx, xxxxx xxxxxxxxxxxxxxxxxxx, and xxxxxxxxx xxxxxxxxxxxxxxxxxx to be Convention refugees.

“James C. Simeon”

Concurred in by: “Nazlin Daya”

Dated at Toronto this 25th day of September 1996.

Appendix “A”

I am a 32 year old male and a citizen of Sri Lanka. I am an ethnic Tamil and I seek to claim Convention Refugee Status on the grounds of my facing extreme persecution at the hands of the Sri Lankan Security Services and the Tamil Tigers terrorist group (the LTTE). The Persecution I fear is based on my membership in a particular ethnic group (Tamil), my political opinions and my religious beliefs. I am also making a claim against the country of France.

I was born in the village of xxxxxxxxxx in the Jaffna region of Sri Lanka. In December of 1973, I moved with my family to Colombo. Unfortunately, the social environment was very tense and the Tamil Community was frequently the victim of communal riots instigated by the Sinhalese community. Whenever these riots flared up, many people were injured and much Tamil property was destroyed. To ensure the safety of my family, whenever the riots flared up, we would flee to Jaffna to stay with my mother. When the environment had cooled and tensions had eased we would return to Colombo.

In 1977, I was personally victimized by the riots when my business was looted and destroyed. Later, during the development Council elections of 1981, the U.N.P. candidate, Mr. Thingavalah, was killed by suspected LTTE militants. Following this incident I was arrested by the K.K.S. police. I was taken to the police station where I was assaulted and repeatedly questions about LTTE activities. I was detained for three days. I was also arrested again in 1982 and subjected to a similar beating and interrogation about LTTE activity. I was released after two days on that occasion.

In 1983, the anti-Tamil riots flared up once again and my business in Colombo was burned and looted. Fearing for my life I was compelled to seek shelter in a refugee camp for nearly one month. I then returned to Jaffna. Unfortunately, the Sri Lankan Army was arresting many people in Jaffna as part of its effort to eradicate the LTTE and other militant groups. I was arrested in Jaffna and again detained without charge simply because I was a suspected member of the LTTE. Upon my release, I applied for and received a passport from the Sri Lankan government in 1984. I consider myself very lucky because 1984 was the last year that passports were issued in Jaffna. I then emigrated to France in 1984, where I made a claim for refugee status. I was accepted and I attempted to live there free from the persecution of my homeland. Unfortunately, the strife and divisions of the Sri Lankan people has extended into many of the expatriate communities of Tamils in other countries. I made a refugee in France in February of 1984, and I was accepted there as a refugee in 1987.

In 1994, I was informed by one of my relatives (who had travelled from Jaffna to Colombo to use an over-seas phone to call me) that my brother, xxxxxxxxx, was killed on xxxxx xx, xxxx, by the LTTE in Jaffna. I was very saddened and I could not understand why since he was only a

We stayed at the same Lodge as the one my wife’s sister had stayed at, the xxxxxx xxxxx. We hoped to meet someone who had some information to assist us. On xxxxxxxxx x, 1994, my wife was arrested by the Pettah police while she was returning from a nearby milk store. I was also taken by the police later that day. As the police were preparing to take me away, I made sure that our children would be cared for by an old couple who were staying in the next room. At the police station I was kept separately from my wife. I was severely beaten and I was accused of being an LTTE member. I also later learned that my wife had been sexually assaulted and threatened since I was suspected of being an LTTE member. The Lodge owner contacted our lawyer and he attended at the police station and paid a bribe of 30,000 Rs to the police and the EPDP to obtain our release. The police agreed to the bribe and we were ordered out of Colombo. Unfortunately, we could not return to Jaffna given the history of tension between my family and the Tigers who control the area. Therefore we moved to a xxxxxxx xxxxx in xxxxxxxx and with the help of the Lodge owner, we approached another agent in order to assist us in our departure from Sri Lanka. We have still heard nothing from my wife’s sister and we are fearful of what has happened to her.

I am making this claim against both Sri Lanka and France since the violence which has cut into the Tamil community has spread to France as well. I fear that I cannot return to Sri Lanka since the police have ordered me out of Colombo and I am equally at risk in Jaffna given the fact that my brother was killed by the Tigers and I am known to criticize their tactics and organization. The Tigers also control the border in and out of Jaffna and I would be intercepted immediately. For these reasons, my family and I are seeking refugee status in Canada.


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