CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Kularatnam v. Canada (Minister of Citizenship and Immigration)
IMM-3530-03
2004 FC 1122, Phelan J.
12/8/04
5 pp.
Judicial review of dismissal by Immigration and Refugee Board of application for refugee status and for protection-- Applicant, 24-year-old Tamil female from Sri Lanka, claimed family harassed by Liberation Tigers of Tamil Eelam (LTTE) for several years--As result, moved to Colombo--In July 2001, following attacks by the Tigers, applicant detained for three days and physically mistreated--Released upon payment of bribe to police officials--Board concluded, that this Court has held, short periods of detention for purposes of preventing disruption or dealing with terrorism not constituting persecution--On matter of bribery, Board commenting this Court has upheld internal flight alternative (IFA) determination even where bribe paid to facilitate release-- Board further held, under Immigration and Refugee Protection Act (Act), s. 97, since not refugee, applicant had higher burden of proof in respect of claim to be "person in need of protection"--Application allowed--Board erred as to burden of proof under Act, s. 97--Finding short detentions not constituting persecution only partially correct--While short detentions for legitimate enforcement purposes not generally constituting persecution, Board required to consider particular circumstances of each applicant, including such factors as age, prior experiences--No such consideration in this case-- Manner of release from detention could also be relevant-- Board erred in dismissing bribery issue by linking it exclusively to IFA determination--Pervasiveness of demands for bribes relevant to issue of state protection--Board should consider whether bribery persecution--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97.