Canada ( Minister of Employment and Immigration ) v. Sharbdeen
A-488-93
Mahoney J.A.
21/3/94
3 pp.
Appeal on certificate by Trial Judge under Immigration Act, s. 83(1)-Respondent, citizen of Sri Lanka, married to Tamil-Well-founded fear of persecution by Sri Lankan army as attempted to get respondent to identify Tamil Tiger activists-Refugee Board found respondent had internal flight alternative (IFA) in Colombo where army only bothered young Tamil males-Trial Judge found Minister failed to discharge onus of proving IFA and that Board erred in concluding IFA available-Trial Judge certified two questions: (1) where does onus of establishing existence of IFA lie?; (2) what is meaning of words "unreasonable in all the circumstances for the claimant to seek refuge there" as used in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)-Trial Judge erred in assigning burden on Minister to prove existence of IFA once well-founded fear of persecution established-Circumstances will vary from case to case and must be relevant to IFA question-Trial Judge correct in concluding Refugee Division erred in finding IFA-Once well-founded fear of persecution at hands of national army in part of country it controlled established, not reasonable to expect respondent to seek refuge in another part of Sri Lanka controlled by same army-In circumstances, no need to specify whether new panel or same panel to consider decision on basis not inconsistent with reason of Trial Judge as modified herein-Federal Court of Appeal cannot declare respondent Convention refugee as Trial Judge could not, on judicial review, have made proposed declaration-Appeal allowed-Immigration Act, R.S.C., 1985, c. I-2, s. 83(1) (as am. by S.C. 1992, c. 49, s. 73).