Pathmakanthan v. Canada ( Minister of Employment and Immigration )
IMM-2367-93
Denault J.
2/11/93
5 pp.
Application for judicial review of Convention Refugee Determination Division (CRDD) decision applicants not Convention refugees -- Applicants Hindu Tamils from northern Sri Lanka where suffering various forms of persecution from 1989 to 1992 -- Fleeing to Colombo where staying with uncle -- Principal applicant arrested in Colombo for providing food, money to Tamil militant organization -- Released three days later upon bribing police -- CRDD finding good grounds to fear persecution in north, but internal flight alternative (IFA) in Colombo -- Application allowed -- Tribunal erred in finding Colombo reasonable and available IFA for applicants -- Quoting from UNHCR document referring to possible risks to Tamils arrested and detained in Colombo, reciting testimony concerning principal applicant's arrest, but failing to consider such evidence in reasons -- Constituting failure to consider circumstances particular to principal applicant in relation to possibility of persecution in Colombo -- Tribunal also erred as reached conclusion regarding reasonableness of Colombo as IFA on basis of finding of fact in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) -- Tribunal reasoning because Court in Rasaratnam finding Colombo reasonable IFA for applicant, Colombo must be reasonable IFA for applicants herein -- All of applicants' circumstances must be considered in determination IFA reasonable -- Finding of fact based on findings in another case insufficient -- Tribunal also failed to consider applicants hiding in home of friend of uncle following arrest and detention -- Unreasonable, even perverse, if person forced to live in hiding in proposed IFA -- Following questions certified as serious questions of general importance pursuant to Immigration Act, s. 83(1): (1) onus of proof on internal flight alternative; (2) meaning of words "unreasonable in all the circumstances for the claimant to seek refuge there" -- Immigration Act, R.S.C., 1985, c. I-2, s. 83(1) (as am. by S.C., 1992, c. 49, s. 73).