IMM-3326-98
Rohini Ranganathan (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Ranganathanv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Evans J."Toronto, April 29; Ottawa, May 21, 1999.
Citizenship and Immigration — Status in Canada — Convention refugees — Application for judicial review of CRDD decision applicant not Convention refugee — Applicant, Tamil woman of Sri Lanka, seeking refugee status on ground of well-founded fear of persecution by reason of membership of particular social group — Whether fact having relatives in Canada, none in safe place relevant in determining whether unreasonable to expect applicant to live in Colombo — Case law on unreasonableness issue reviewed — Correctness appropriate standard of review of determination by CRDD of whether claimant has IFA — As CRDD erred in failing to take into account applicant has family in Canada, no relatives in Colombo but not in finding applicant having no grounds to fear persecution in Colombo, case remitted to different panel to decide whether, for second limb of Rasaratnam test, unduly harsh to expect applicant live in Colombo.
This was an application for judicial review of a decision by the Convention Refugee Determination Division (CRDD) dismissing the applicant's claim for refugee status. The applicant is a Tamil woman from Sri Lanka who left the north of the country, moved to Colombo where she spent some time with her mother, and lived there for a total of four years. After being involved in an incident in Colombo, she left for Canada where she applied for refugee status on the ground that she had a well-founded fear of persecution by reason of her membership of a particular social group, Tamil women in Sri Lanka. Her closest relatives now live in Canada. The sole issue before the CRDD was whether there was an internal flight alternative in Colombo that was reasonably available to her. On the basis of the facts, which occurred at a police station where the applicant was arrested and warned by the police to leave Colombo immediately, the CRDD held that her arrest and mistreatment at the police station did not support a well-founded fear of future persecution in Colombo. The Refugee Division also concluded that it would not be unreasonable for the claimant to return to live in Colombo, and that she was not a refugee since she had an internal flight alternative there. Finally, the CRDD stated that it was not legally empowered to consider humanitarian and compassionate grounds for permitting the applicant to remain in Canada. The issue herein was whether the CRDD erred in failing to take into account the fact that a refugee claimant has relatives in Canada but none in the safe area of the country of nationality.
Held, the application should be allowed.
Applying the test established by the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), the CRDD considered, first, whether the applicant had good reason to fear persecution in Colombo and, second, if she did not, whether it was nonetheless unreasonable to require her to return to live there. It did not commit an error of law in deciding that the applicant had not established that she had good reason to fear persecution in Colombo. According to the evidence before the CRDD, it has been police practice since November 1996 not to permit Tamils from the North to remain in Colombo for more than three days. It was not clear from that evidence whether such prohibition would apply to the applicant who had left the North in 1993 and had lived in Colombo for four years. If the CRDD had been satisfied that the applicant would not be permitted to remain in Colombo for more than three days, it would surely have found that Colombo was not a reasonably available safe place for her. The evidence was thus relevant to a material issue. The documentary evidence of police practice, and of the warning given by the police officers that the applicant must leave, was sufficiently cogent to require the CRDD to have considered it in its reasons. Its failure even to mention this issue in its reasons rendered its dismissal of the applicant's claim erroneous in law.
Despite its sympathy for the applicant, a person with a physical disability, the CRDD said it did not have jurisdiction to determine its claim based on humanitarian and compassionate grounds. Moreover, it did not mention the fact that the applicant has no relatives in Colombo when deciding that it was not unreasonable to expect her to return to live there. "Unreasonableness" is a flexible standard, and includes not only the general conditions in the region or city in question, but also the circumstances particular to the claimant which might make it unreasonable to require that person to live in that place. Whether the absence of relatives in the place of refuge is a relevant consideration in determining if a person is a refugee must be decided on a standard of correctness. On the other hand, the CRDD's determination of whether the relevant facts satisfy the Rasaratnam test is a question of mixed fact and law, and is reviewable only for unreasonableness. In determining undue hardship or unreasonableness for the purpose of the availability of an internal flight alternative, the CRDD must take into account the fact that the claimant has no relatives in Colombo when there are family members in Canada. The absence of family members available to provide emotional and material support might consign a claimant to a quality of life that falls well below that standard of decency that is widely recognized as a human entitlement. The matter having been remitted to a differently constituted panel of the CRDD, the latter will decide only whether, in all the circumstances of this case, it would be unduly harsh or unreasonable to expect the applicant to live in Colombo for the purpose of the second limb of the Rasaratnam test in determining whether an internal flight alternative was available.
| statutes and regulations judicially considered |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 65(3) (as am. by S.C. 1992, c. 49, s. 55), 83(1) (as am. idem, s. 73), 114(2) (as am. idem, s. 102). |
| cases judicially considered |
| applied: |
| Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706; (1991), 140 N.R. 138 (C.A.); Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.); Kanagaratnam v. Minister of Employment and Immigration (1994), 83 F.T.R. 131; 28 Imm. L.R. (2d) 44 (F.C.T.D.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589; (1993), 109 D.L.R. (4th) 682; 22 Imm. L.R. (2d) 241; 163 N.R. 232 (C.A.); Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; (1994), 29 Admin. L.R. (2d) 211; 87 F.T.R. 46 (T.D.); Gregory v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 606 (T.D.) (QL); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 226 N.R. 201. |
| considered: |
| Badurdeen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 371 (T.D.) (QL); Ramanathan v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 305; 44 Imm. L.R. (2d) 294 (F.C.T.D.); Elmi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 336 (T.D.) (QL); Sooriyakumaran v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1402 (T.D.) (QL). |
| referred to: |
| Singh v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 139 (F.C.T.D.); Jayabalasingham v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1584 (T.D.) (QL). |
APPLICATION for judicial review of a decision by the Convention Refugee Determination Division dismissing the applicant's claim for refugee status on the ground that she had an internal flight alternative in Colombo and that it was not unreasonable for her to return to live there. Application allowed.
| appearances: |
| Kumar S. Sriskanda for applicant. |
| Kevin Lunney for respondent. |
| solicitors of record: |
| Kumar S. Sriskanda, Toronto, for applicant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for order rendered in English by
Evans J.:
| A. INTRODUCTION |
[1]The applicant in this case, Rohini Ranganathan, is a 42 year-old Tamil woman and a citizen of Sri Lanka. She contracted polio as a child and walks with the assistance of crutches. Her family is relatively wealthy; her closest relatives now live in Canada.
[2]In 1993 Ms. Ranganathan and her mother left the north of Sri Lanka and moved to Colombo, where they stayed in a lodge for approximately one year before her mother emigrated to Canada as a permanent resident, sponsored by a daughter who is a Canadian citizen. Despite being refused a visa on the ground that she did not qualify as a member of the family class, the applicant continued to make inquiries about admission to Canada.
[3]After her mother left for Canada, Ms. Ranganathan remained in Colombo, where she rented accommodation in a house until she was asked by the landlord to leave in September 1997 after being involved in an incident which I describe later in these reasons. The applicant then moved back into a lodge for a short time before leaving for Canada, where she applied for refugee status on the ground that she had a well-founded fear of persecution by reason of her membership of a particular social group, Tamil women in Sri Lanka.
| B. THE REFUGEE DIVISION'S DECISION |
[4]The Convention Refugee Determination Division of the Immigration and Refugee Board was prepared to accept that Ms. Ranganathan had a well-founded fear of persecution in the north of Sri Lanka. It cast no doubt on the credibility of any of her evidence. The sole issue before the Refugee Division was whether there was an internal flight alternative in Colombo that was reasonably available to her.
[5]Applying the test established in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), the Refugee Division considered, first, whether the applicant had good reason to fear persecution in Colombo and, second, if she did not, whether it was nonetheless unreasonable to require her to return to live there.
(i) well-founded fear of persecution
[6]The applicant had stated in her personal information form that, while she and her mother were living together in Colombo in the latter part of 1993 and the first half of 1994, their lodge was raided on several occasions by the police who harassed them and extorted money and jewellery. The applicant did not give oral evidence of these incidents at the hearing before the Refugee Division.
[7]At that hearing Ms. Ranganathan relied principally on an incident that occurred in September 1997, when the police came to arrest a young Tamil couple who were renting a room in the same house as the applicant. Ms. Ranganathan was also arrested, and told the police officer who was questioning her that she was afraid to go to the north because the Sri Lankan army was raping Tamil women there. The officer became angry at these comments, and the verbal abuse that he directed at her included a threat to kill her.
[8]The applicant also testified that another officer put his arm around her shoulder and pulled her close to him. She asked him to desist, fearing that he intended to rape her. He took his arm off her when another woman entered the room. Ms. Ranganathan was detained overnight at the police station and released the next morning on the payment of a bribe. She was warned by the police officers to leave Colombo immediately; this precipitated her eviction from the house where she had rented accommodation, and her return to a lodge. She departed for Canada shortly afterwards, even though she had received no positive response from the High Commissioner to her continuing inquiries about her immigration application.
[9]The Refugee Division concluded that her arrest and mistreatment at the police station did not support a well-founded fear of future persecution in Colombo. First, the incident was isolated: the applicant had lived in Colombo on her own since 1994 without any kind of harassment. She seems, as the Refugee Division put it, simply to have had the misfortune to be in the wrong place at the wrong time when the police came to arrest the young Tamil couple. Second, disturbing as the incident no doubt was to the applicant, it did not amount to persecution when all the circumstances were considered.
(ii) reasonable availability
[10]When the Refugee Division came to the second limb of the Rasaratnam test, it noted that the applicant was obviously a resourceful, intelligent and articulate woman who had lived on her own in Colombo for three years, despite her disability, and was adequately supported financially by her family. Moreover, there is a large Tamil community in Colombo, where she had lived for a total of four years.
[11]On the basis of these facts the Refugee Division concluded that it was not unreasonable for the claimant to return to live in Colombo, and that since she had an internal flight alternative there she was not a refugee. The panel concluded by noting the applicant's desire to stay in Canada with close members of her family, and stating that it was not legally empowered to consider humanitarian and compassionate grounds for permitting Ms. Ranganathan to remain.
| C. ISSUES AND ANALYSIS |
(i) well-founded fear of persecution
[12]In my opinion the Refugee Division did not commit an error of law when it decided that the applicant had not established that she had good reason to fear persecution in Colombo, as required by Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at page 683.
[13]Counsel for the applicant submitted that the Refugee Division was legally obliged in its reasons to consider the harassment and extortion to which the applicant said that she had been subjected by the police in Colombo prior to her mother's departure for Canada. I do not agree. The fact that these incidents occurred five years ago, and were not even mentioned by the applicant in her oral testimony, despite the panel's invitation to her to recount her experiences in Colombo, suggests that they were not of such importance to the claim as to require the Refugee Division to refer to them expressly in its reasons.
(ii) reasonable availability
[14]Counsel for the applicant challenged on three grounds the panel's conclusion that it was not unreasonable to expect the applicant to return to live in Colombo. First, in its reasons the Refugee Division did not consider the evidence before it as to whether the applicant would be permitted to remain in Colombo for any length of time. Second, the panel's reasons did not address the impact on her psychological well-being of the distressing incident at the police station in Colombo in 1997. Third, the Refugee Division appears to have regarded the fact that all Ms. Ranganathan's family members are in Canada as a "humanitarian consideration" beyond its jurisdiction to consider in determining whether Ms. Ranganathan had an internal flight alternative in Colombo.
| (a) length of permitted stay |
[15]Counsel for the applicant submitted that the Refugee Division erred in law when it found that it was not unreasonable for Ms. Ranganathan to return to Colombo without referring in its reasons to the evidence before it regarding the brief length of time that she might well be permitted to stay there.
[16]There was documentary evidence before the Refugee Division that it has been police practice since November 1996 not to permit Tamils from the North to remain in Colombo for more than three days. In addition, Ms. Ranganathan had stated in her personal information form that, on her release from detention in September 1997, she was told by the police that she had to leave Colombo immediately.
[17]Whether the Refugee Division is required as a matter of law to deal in its reasons with particular items of evidence before it depends, among other things, on the cogency of the evidence in question and on the importance to the disposition of the issues in dispute of the facts to which the evidence relates
[18]Three considerations are relevant here in considering the probative value of the evidence. First, it is not clear from the evidence before the Refugee Division whether the prohibition on Tamils from the North residing in Colombo for more than three days would apply to a person such as Ms. Ranganathan who had left the North in 1993 and had lived in Colombo for four years. In Badurdeen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 371 (T.D.) (QL), the Court held that the Refugee Division's reasons were defective in law because they did not consider the impact of the three-day residence rule, even though the person concerned had lived in Colombo for a total of 16 months spread over three years.
[19]Second, the applicant continued to live in Colombo after November 1996 for another ten months before she was told by the police to leave the city, following the incident at the police station in September. If the three-day residence rule applied to Tamils from the North who had lived in Colombo for several years, then it is difficult to understand why the applicant had not been told much earlier to move on.
[20]One possible explanation is that the short temporary residence rule is applied more systematically to Tamils in lodges than to those who are living in private houses in Colombo, who may only be required to leave when, as in the case of Ms. Ranganathan, they come to the attention of the police as a result of a particular incident. However, there was no evidence to this effect before the panel.
[21]Third, the fact that counsel for the applicant did not raise at the hearing before the panel the likelihood that she would not be permitted to remain in Colombo for more than a few days may suggest that counsel did not regard the evidence as having the significance that is now ascribed to it. Nonetheless, as counsel for the applicant pointed out, the existence of the three-day rule, and the officer's warning to the applicant that she was to leave Colombo immediately, were in evidence before the Refugee Division in documentary form: evidence is evidence, whether oral or written.
[22]If the Refugee Division had been satisfied that Ms. Ranganathan would not be permitted to remain in Colombo for more than three days, it would surely have found that Colombo was not a reasonably available safe place for her. The evidence was thus relevant to a material issue. In addition, the documentary evidence of police practice, and of the warning given by the police officers that the applicant must leave, is sufficiently cogent to require the Refugee Division to have considered it in its reasons. Accordingly, the Refugee Division's failure even to mention this issue in its reasons rendered its dismissal of the applicant's claim erroneous in law.
| (b) psychological impact of the detention |
[23]In the paragraph of its reasons listing the facts relevant to the issue of whether it was unreasonable to expect the applicant to live in Colombo, the Refugee Division did not mention the impact that the incidents at the police station were likely to have upon her psychological well-being there. However, since there was no evidence before the Refugee Division on this issue from a psychologist or psychiatrist I do not think that its omission from the panel's reasons can be regarded as rendering the decision erroneous in law.
| (c) refusal to consider "humanitarian and compassionate grounds" |
[24]Counsel submitted that the Refugee Division erred in law when it stated that the requirement of the Rasaratnam test that the safe place be reasonably available to a claimant does not permit it to decide claims on humanitarian and compassionate considerations. Thus, after summarizing the factors that it had considered, and concluding that they did not satisfy the Rasaratnam test, the Refugee Division said:
While the panel has sympathy for the claimant, a person with a physical disability, who obviously wishes to reside in Canada with her mother, brother and sister, the panel does not have the jurisdiction to determine refugee claims based on humanitarian and compassionate grounds.
[25]Counsel for the Minister submitted that this passage should not be understood as a statement by the panel that a factor was irrelevant to the determination of whether it would be unreasonable to expect a claimant to avail herself of an internal flight alternative simply because the same factor might also be relevant to, for example, an application for landing from within Canada on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 102)].
[26]Rather, he argued, having taken into account the situation in Colombo for Tamils and the personal circumstances of the applicant, and having concluded that they did not meet the unreasonableness requirement, the Refugee Division was simply acknowledging that it could not take into consideration other factors that might be relevant to a humanitarian and compassionate claim to be landed from within Canada, but were irrelevant to the definition of a Convention refugee.
[27]In effect, counsel's argument was that this is a case like Kanagaratnam v. Minister of Employment and Immigration (1994), 83 F.T.R. 131 (F.C.T.D.), where, in response to a submission similar to that made on behalf of Ms. Ranganathan, Rothstein J. (as he then was) said (at page 133):
While in the broadest sense, Canada's refugee policy may be founded on humanitarian and compassionate considerations, that terminology in the Immigration Act and the procedures followed by officials under it, has taken on a particular connotation. Humanitarian and compassionate considerations normally arise after an applicant has been found not to be a Convention refugee. The panel's failure to consider humanitarian and compassionate factors in its Convention refugee determination in this case was not in error.
[28]While I do not take issue with this statement of the law, I do not think that it is dispositive of the case before me. First, it does not address the question of whether the presence in Canada of a claimant's closest family members is relevant to the determination of the claimant's refugee status, when the issue in dispute is the reasonableness or otherwise of expecting the claimant to go to live in a place where there is no well-founded fear of persecution of the claimant. Moreover, as I note in paragraph 54, infra, Rothstein J. did not regard the absence of family members from the place of refuge as totally irrelevant to the reasonableness requirement.
[29]Second, in its summary of the facts relevant to its refugee determination the Refugee Division did not mention the fact that the applicant has no relatives in Colombo, a consideration that might seem particularly relevant to the reasonableness inquiry in the case of a person with a physical disability, especially as she grows older. I infer from the panel's silence that it did not take into account the absence of relatives when considering the reasonableness issue.
[30]The question that I must decide, therefore, is whether the presence of relatives in Canada, and their absence from the safe place"factors that are regularly considered in the context of subsection 114(2) applications"are also relevant to determining whether it was unreasonable to expect Ms. Ranganathan to live in Colombo.
[31]In the leading case of Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) it was said that the relevant question is whether it is "objectively unreasonable" to expect a claimant who has a well-founded fear of persecution in one part of her country of nationality to move to live elsewhere in that country where she has no such fear. Linden J.A. (at page 598) amplified the standard somewhat by saying that a claimant "cannot be required to encounter great physical danger or to undergo undue hardship in travelling to or in staying there." (Emphasis added.)
[32]This basic test has been further elaborated. Thus, it has been said that "unreasonableness" is a flexible standard, and includes not only the general conditions in the region or city in question, but also the circumstances particular to the claimant which might make it unreasonable to require that person to live in that place (for example, Jayabalasingham v. Canada (Minister of Citizenship and Immigration) , [1998] F.C.J. No. 1584 (T.D.) (QL), including the claimant's psychological well-being there (Singh v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 139 (F.C.T.D.)).
[33]However, of more immediate relevance to this case is Linden J.A.'s statement in Thirunavukkarasu, supra, (at page 598) that it was not enough to bring claimants within the definition of a refugee
. . . that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. [Emphasis added.]
[34]The relevance of the absence of relatives in a safe place has been considered in at least three recent cases in this Court. First, in Ramanathan v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 305 (F.C.T.D.), where the claimant was 75 years old and, while in Canada had become very dependent, both emotionally and for his daily needs, on his family members here, Hugessen J. said [at page 308]:
. . . the factor of requiring an elderly, dependant and unwell person to live alone in a governmental or publicly supported home with governmental or publicly supported health and other social services provided to him when there is an alternative where he is presently living where he has the emotional and family support gained from close members of his family is something which should be considered when inquiring as to whether it would be unduly harsh to send that person from the latter situation to the former.
[35]Second, in Elmi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 336 (T.D.) (QL), McKeown J. held that the absence of family in Somalia was relevant to determining the unreasonableness of requiring a child to live there. He reasoned that, while, as Linden J.A. had indicated in Thirunavukkarasu, supra, it may normally be no more than inconvenient for a person to live without his or her relatives, in the case of a child the absence of relatives could amount to undue hardship, and thus make it objectively unreasonable to expect the claimant to live in the safe place.
[36]Ramanathan had earlier been followed in Sooriyakumaran v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1402 (T.D.) (QL), where Lutfy J. held that it was a relevant consideration under the second limb of the Rasaratnam test that the claimant's only surviving relatives, her minor children, were in Canada after being recognized as refugees.
[37]Indeed, by indicating that the presence of the applicant's children in Canada was in itself a relevant consideration, regardless of whether there were relatives in Colombo, which, on the facts there were not, Lutfy J. may have gone further than the Court in either Ramanathan or, subsequently, Elmi. Thus, he said [at paragraph 7]:
The presence in Canada of her two children, both minors and Convention refugees, is the kind of particular circumstance that the tribunal ought to have considered in assessing whether Colombo was an unduly harsh refuge for her.
And later he stated [at paragraph 9]:
It was an error in law for the tribunal to close its mind to the natural bond between a parent and her minor children . . . .
[38]Before proceeding further with my analysis of the question of relevance, I should address the standard of review applicable to a determination by the Refugee Division of whether a claimant has an internal flight alternative.
[39]In Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) it was held that significant deference should be extended by a reviewing court to determinations by the Refugee Division of whether a reasonable internal flight alternative was available to an applicant. Richard J. (as he then was) applied a deferential standard to both the findings of primary fact made by the Refugee Division, and the application to those facts of the legal standard of unreasonableness or undue hardship.
[40]Similarly, in Gregory v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 606 (T.D.) (QL), the Court upheld a finding by the Refugee Division that it was not unreasonable to expect the applicant to avail himself of an internal flight alternative in Colombo on the ground that [at paragraph 7] "this conclusion was reasonably open to the Board on this record". (Emphasis added.)
[41]However, whether the absence of family members from the safe area is relevant to determining whether it would be "objectively unreasonable" or impose an "undue hardship" to require a refugee claimant to avail herself of an internal flight alternative is an issue that clearly transcends the particular facts of this case. In Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748, at pages 767-768, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at pages 1015-1018, the Supreme Court of Canada stated that the generality of the issue in dispute is one of the factors that indicates that correctness is the appropriate standard of review.
[42]Whether the absence of relatives in the place of refuge is relevant for the purpose of determining if the internal flight alternative is reasonably available to a refugee claimant involves setting boundaries to the definition of a refugee. As the post-Thirunavukkarasu case law to which I have referred indicates, this is a question that has already arisen in several recent cases, and is likely to recur.
[43]Accordingly, on the basis of the reasoning in Pushpanathan I conclude that whether the absence of relatives in the place of refuge is a relevant consideration in determining if a person is a refugee is to be decided by this Court on a standard of correctness.
[44]The application of the correctness standard to this question will help to reduce inconsistency among the multiple panels in which the Refugee Division sits across the country. It would be highly detrimental to the legitimacy of the Refugee Division if different panels were permitted to take different views of whether it was relevant to consider the fact that a person had no family members in the place of refuge. And, since the Chairperson of the Immigration and Refugee Board has issued no interpretative guidelines on this question pursuant to subsection 65(3) [as am. by S.C. 1992, c. 49, s. 55] of the Immigration Act, which might assist in enhancing consistency among panels, it is appropriate for the Court to decide the question for itself.
[45]On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness. Sivasamboo, supra, and Gregory, supra, remain good law after Pushpanatham, supra, to the extent that they establish that rationality is the standard of review for the Refugee Division's application of the Rasaratnam test to the facts of a particular case.
[46]Thus, it will be for the Refugee Division to weigh such matters as the seriousness of the claimant's disability, its likely progress as she gets older, the existence in Colombo of any other social network of support available to her, and the fact that she lived in Colombo in the years 1994-1997 without relatives to assist her.
[47]Moreover, even if I am wrong to conclude that correctness is the applicable standard of review on the question of relevance raised by this case, I would not be prepared to extend judicial deference to the panel that dismissed Ms. Ranganathan's claim because it is not clear from its reasons whether it considered the question of relevance at all. Thus, it simply omitted the fact that she had no relatives in Colombo from the facts that it stated that it had taken into consideration in determining whether it would be unreasonable to expect the applicant to reside there.
[48]To turn to the substantive issue, on the basis of the recent decisions to which I have referred (Ramanathan, Elmi and Sooriyakumaran) it would now seem settled law in this Court that in determining undue hardship or unreasonableness for the purpose of the availability of an internal flight alternative, the Refugee Division must take into account the fact that the claimant has no relatives in Colombo when there are family members in Canada.
[49]I see no reason to take a view that is different from my colleagues on this issue. Depending on the circumstances of the particular case, it would seem clear to me that the absence of family members available to provide emotional and material support might well consign a claimant to a quality of life that falls well below that standard of decency that is widely recognized as a human entitlement.
[50]I think that Rothstein J. got it right when he said in Kanagaratnam, supra (at page 132):
I interpret Linden, J.A.'s, comments [in Thirunavukkarasu, supra] not to exclude the absence of friends or relatives or inability to find work as factors in the reasonableness consideration, but only that these factors alone would not make an IFA unreasonable.
[51]It cannot be that there are two mutually exclusive lists of factors to be considered in the two contexts of refugee determination and subsection 114(2) applications. Indeed, as Hugessen J. pointed out in Ramanathan, supra, (at page 308) if factors relevant to a humanitarian and compassionate application were for that reason excluded from the reasonableness consideration, there would be virtually nothing to consider under the second limb of the Rasaratnam test.
| D. CONCLUSION |
[52]For these reasons the application for judicial review is granted and the decision of the Refugee Division finding Ms. Ranganathan not to be a Convention refugee is set aside.
[53]However, since I have found that the Refugee Division committed no reviewable error in concluding that the applicant did not have good grounds to fear persecution in Colombo, the matter is remitted to a differently constituted panel of the Refugee Division to decide. I am remitting with the direction that the panel decide only whether in all the circumstances of this case it would be unduly harsh or unreasonable to expect the applicant to live in Colombo for the purpose of the second limb of the Rasaratnam test for determining whether an internal flight alternative was available.
[54]And, in conducting this inquiry, the Refugee Division must consider whether Ms. Ranganathan has relatives in Colombo and, in accordance with the reasons that I have given, take its finding on this question into account when determining whether in all the circumstances the Rasaratnam test is satisfied.
[55]I invited submissions from counsel on the certification of a question or questions. Counsel for the Minister requested that, since I have found that the Refugee Division erred in law by failing to consider evidence, even though that evidence did not contradict a finding of fact that it had made, I should certify a question on this point. I have decided not to do so because I found that the "three-day residence rule" was highly material to the Refugee Division's conclusion that it was not unreasonable for the applicant to live in Colombo.
[56]Counsel for the applicant opposed the certification of a question on the standard of review applicable to the Refugee Division's determination of the relevance of facts to be considered in deciding the question of unreasonableness. He submitted that the standard of review is not relevant to the disposition of this case because I had stated that even if unreasonableness were the standard applicable I would not have deferred to the panel in this case since it is not clear that it considered the fact at all. I agree.
[57]I certify under subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act the following question:
| Is it an error of law for the Refugee Division to fail to take into account for the purpose of the unreasonableness inquiry under the second branch of the Rasaratnam test the fact that a refugee claimant who has relatives in Canada has no relatives in the safe area of the country of nationality? |