Ramanathan v. Canada

Counsel:
Max Berger, for the applicant.
Susan Nucci, for the respondent.

1. HUGESSEN J. (orally):— This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board which determined that the applicant was not a convention refugee. As before the Board, before this Court the only lively issue was whether or not the applicant had an Internal Flight Alternative (IFA) in Columbo. There is no issue as to his having a well-founded fear of persecution in the northern part of Sri Lanka from which he comes.
2. The applicant is now 75 years old. He became separated from his wife and three of their children during civil strife in the part of Sri Lanka where they lived. During the course of flight from there to Columbo, he lost touch with those children as well as with his wife. He has not heard from them since, although there is some indication that they may be alive. The applicant presently lives with his son, his daughter-in-law and their five children here in Canada. Partly as a result of the very traumatic experiences that he has been through, and partly simply as a result of advancing years, the applicant has developed a very high degree of dependance on his son and his grandchildren and he is very close to them.
3. The Board, in its reasons, acknowledged that the applicant, without the aid of his son, daughter-in-law and grandchildren, would probably not be able to attend to his daily living activities. The Board found, however, that the applicant had a viable IFA in Columbo.
4. There is no issue with respect to the fact that Columbo is a place where the applicant could live without fear of persecution. The issue turns, rather, on the second branch of the IFA test namely whether it is reasonable or, as it is sometimes put, whether it would be unduly harsh, to require the applicant to live in Columbo. The Board found that it was reasonable or that it would not be unduly harsh. Based on the evidence before it, it made a finding that there were available to the applicant, in Columbo, a number of government-run homes for the elderly to which elderly Tamils such as himself could be admitted and that those homes provided food and shelter and medical care for persons in the applicant’s position.
5. The Board acknowledged that it might not be the best thing for the applicant to have to live in such a home. It said this:

The situation will not be perfect for the applicant. He would like to be permanently reunited with his son’s family here in Canada. However, as humanitarian and compassionate grounds are an Immigration Canada matter and not within the mandate of the Refugee Division, the panel finds that it cannot view the IFA situation for the claimant to be unduly harsh or unreasonable in all the circumstances.

• I can only interpret that passage as meaning that the panel refused to consider humanitarian and compassionate considerations in applying the second branch of the IFA test.
• There is authority for the proposition that the Refugee Board is not, in normal circumstances, to apply humanitarian and compassionate considerations. Indeed, the Refugee Board’s mandate is to apply the definition of “convention refugee” and to determine whether claimants before it meet that definition.
• In the case of Kanagaratnam [See Note 1 below], Rothstein J. said:

Note 1: Kanagaratnam v. M.E.I. (1994), 28 Imm. L.R. (2d) 22 (F.C.T.D.).

Counsel for the applicant also argues that the panel erred in not considering humanitarian factors in its convention refugee determination. 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 procedure 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 an error.

[at page 48]

• I am in agreement with that statement of the law by Rothstein J. The statement, however, must be read in its context. Kanagaratnam was an IFA case but, in the paragraph which I have just read, Rothstein J. was not referring to the IFA test. Indeed, he specifically dealt with the IFA test two pages earlier. There he refers to, and paraphrases, the decision of the Court of Appeal in the case of Thirunavukkarasu [See Note 2 below] and in particular to the following passage from Linden J.A.’s reasons given for the Court:

Note 2: Thirunavukkarasu v. M.E.I. (1993), 163 N.R. 232 (F.C.A.).

An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say 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. If it is objectively reasonable in these later cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

[at pages 236-237]

• After referring to and paraphrasing that passage of Linden J.A.’s judgment, Rothstein J. goes on to say:

I interpret Linden J.A.’s comments 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.

[at page 46]

• It is therefore quite clear to me that Rothstein J. in the passage in which he referred to humanitarian and compassionate considerations was not excluding them absolutely from the second branch of the IFA test. Indeed, logically it seems to me impossible to do so. A test of whether an IFA is unreasonable or unduly harsh in all the circumstances is bound to involve the consideration of some factors, at least, which will undoubtedly be the same sort of considerations that are taken into account in humanitarian and compassionate relief. I might even go so far as to say that if one were to exclude every consideration which might arguably be called humanitarian or compassionate from the second branch of the IFA test, there would be nothing left. I put the question to respondent’s counsel during argument and she ventured the suggestion that what would remain would be safety considerations. But, of course, safety considerations are largely, if not entirely subsumed under the first branch of the test.
• It is, accordingly, my view that the Board unduly fettered itself in the view which it took of the second branch of the IFA test. I think the passage that I read from the Board’s reasons indicates that, although the Board was perfectly conscious of the strong humanitarian considerations which argued in favour of the applicant’s not being returned to Columbo, it deliberately closed its mind to them. I do not say that the Board would, if it had considered those matters, necessarily have arrived at a different conclusion. However, it seems to me that 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.
• I conclude, accordingly, that the Board erred in law in taking too absolute a view of the limitations on its consideration of humanitarian and compassionate factor and I will accordingly allow the application for judicial review and direct that the matter be returned for a new hearing and reconsideration. Before entering the order, I would ask if counsel have any submissions to make on whether I should certify an important question.

HUGESSEN J.