Thirunavukkarasu v. MEI (1993), 163 N.R. 232 (FCA)
MLB headnote and full text
Sathiyanathan Thirunavukkarasu (appellant) v. Minister of Employment and Immigration (respondent)
(A-81-92)
Indexed As: Thirunavukkarasu v. Minister of Employment and Immigration
Federal Court of Appeal
Heald and Linden, JJ.A.,
and Holland, D.J.
November 10, 1993.
Summary:
A Tamil claimed Convention refugee status on the basis of a well-founded fear of persecution in northern Sri Lanka. The Tamil’s claim was rejected on the ground that he could live without fear of persecution in the southern part of Sri Lanka (internal flight alternative). The Tamil appealed.
The Federal Court of Appeal allowed the appeal and declared the Tamil to be a Convention refugee.
Aliens – Topic 1322
Admission – Refugees – Grounds – Well-founded fear of persecution – An alien claimed Convention refugee status on the basis of a well-founded fear of persecution in his home country – The Federal Court of Appeal stated that the Minister must warn the alien if an internal flight alternative is raised (i.e., no fear of persecution in all parts of country) – If an internal flight alternative was raised, the alien must show, on a balance of probabilities, that there was a serious possibility of persecution in the area alleged to be an internal flight alternative – If there is a safe haven for aliens in some part of their own country, they are expected to avail themselves of it unless they can show that it was objectively unreasonable for them to do so – The court stated that “an internal flight alternative cannot be speculative only; it must be a realistic, attainable option” – See paragraphs 2 to 15.
Aliens – Topic 1322
Admission – Refugees – Grounds – Well-founded fear of persecution – A Tamil from Sri Lanka applied for Convention refugee status on the ground of a well-founded fear of persecution – It was conceded that he was at risk of death in northern Sri Lanka at the hands of LTTE, which believed him to be a traitor – The panel rejected his application, finding that he would be protected in southern Sri Lanka (internal flight alternative) – The Federal Court of Appeal held that the panel erred – The court stated that given that the Tamil was arbitrarily arrested, detained, beaten and tortured in southern Sri Lanka, at the hands of the Sri Lankan government, and that the LTTE knew he was there, there was a serious possibility of persecution in all parts of Sri Lanka – The court exercised its discretion and declared the Tamil to be a Convention refugee – See paragraphs 16 to 23.
Cases Noticed:
Rasaratnam v. Minister of Employment and Immigration, [1992] 1 F.C. 706; 140 N.R. 138 (F.C.A.), refd to. [para. 2].
Zalzali v. Ministre de l’emploi et de l’immigration, [1991] 3 F.C. 605; 126 N.R. 126 (F.C.A.), refd to. [para. 3].
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 4].
Bindra v. Minister of Employment and Immigration (1992), 151 N.R. 43; 18 Imm. L.R.(2d) 114 (F.C.A.), refd to. [para. 7].
Sharbdeen v. Minister of Employment and Immigration (1993), 66 F.T.R. 10 (T.D.), refd to. [para. 7].
Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 10].
Statutes Noticed:
Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1) [para. 6].
Authors and Works Noticed:
Hatheway, J.C., The Law of Refugee Status (1991), p. 134 [para. 11].
United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1988), pp. 21, 22 [para. 11].
Counsel:
Douglas Johnson, for the applicant;
Leigh Taylor, for the respondent.
Solicitors of Record:
Chapnick & Associates, Toronto, Ontario, for the applicant;
John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This appeal was heard on October 21, 1993, at Toronto, Ontario, before Heald and Linden, JJ.A., and Holland, D.J., of the Federal Court of Appeal.
On November 10, 1993, Linden, J.A., delivered the following judgment for the Federal Court of Appeal.
