A-232-91
Sivaganthan Rasaratnam (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: R9SARATNAM V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Mahoney, Stone and Linden
JJ.A.—Toronto, November 26; Ottawa, December 5,
1991.
Immigration — Refugee status — Internal flight alternative
(IFA) — Appeal from Immigration and Refugee Board's deci
sion applicant not Convention refugee — Applicant Sri Lankan
Tamil — Board finding although objective fear of persecution
in particular area, applicant could safely seek refuge in
another part of country — Application dismissed — IFA con
cept inherent in Convention refugee definition requiring claim
ant to be outside country of nationality and unable to return by
reason of well-founded fear of persecution — Prerequisites to
finding claimant not Convention refugee for IFA: (1) Board
must be satisfied on balance of probabilities no serious possi
bility of persecution in part of country where IFA exists; (2)
Conditions in that part of country must be such that not unrea
sonable, in all circumstances, for claimant to seek refuge there;
(3) Since by definition Convention refugee must be refugee
from a country, not from some subdivision or region thereof
claimant cannot be Convention refugee if IFA — Determina
tion of whether existing IFA integral to determination whether
Convention refugee — Question of IFA must be expressly
raised at hearing by refugee hearing officer or Board and
claimant afforded opportunity to address it — Ample evidence
supporting Board's finding Colombo an IFA for Tamil refugees
and reasonable for applicant to seek refuge there.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, s. 2 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Zalzali v. Canada (Minister of Employment and Immigra
tion), [1991] 3 F.C. 605 (C.A.).
AUTHORS CITED
Office of the United Nations High Commissioner for Ref
ugees, Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refu
gees, Geneva, 1979.
COUNSEL:
Lorne Waldman for applicant.
Bonnie J. Boucher for respondent.
SOLICITORS:
Lorne Waldman, Toronto, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MAHONEY J.A.: This is an appeal from the decision
of the Convention Refugee Determination Division
of the Immigration and Refugee Board that the appli
cant, a Sri Lankan Tamil, is not a Convention refu
gee. The issue concerns what is termed internal ref
uge, the internal flight alternative, or "IFA". The
Board expressly resolved any doubts as to the appli
cant's (hereinafter referred to as appellant) credibility
in his favour and went on to find:
... that the claimant fears persecution in the Jaffna area at the
hands of the LTTE. That fear has an objective basis....
If Sri Lanka were a country controlled by the LTTE, I would
have no difficulty in finding that the claimant had a well-
founded fear of persecution. But it is not. The Sri Lanka gov
ernment effectively controls the majority of the country, partic
ularly the south. Colombo is situated in this area. The claimant
lived in Colombo from June 1989 until December 1989 with
out incident.
The claimant stated that he fears he would be arrested and
possibly shot as soon as he arrived at Colombo airport. He pro
vided no details as to why he believes this. The claimant
departed from Colombo airport with his own passport without
encountering any problems. There is no mention in the numer
ous articles submitted by the claimant to support this conten
tion of immediate arrest upon arrival. There is evidence that a
large population of Tamil people live in Colombo. There is no
evidence that this group is being persecuted by the government
of Sri Lanka.
... I am unable to conclude that the claimant's subjective fear
of persecution has an objective basis.
The LTTE are the so-called Tamil Tigers.
The Immigration Act' defines "Convention refu
gee":
2....
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for rea
sons of race, religion, nationality, membership in a particu
lar social group or political opinion,
(i) is outside the country of the person's nationality and is
unable or, by reason of that fear, is unwilling to avail him
self of the protection of that country, or
(ii) not having a country of nationality, is outside the
country of the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
but does not include any person to whom the Convention does
not apply pursuant to section E or F of Article 1 thereof, which
sections are set out in the schedule to this Act;
The appellant argues that the Board misapplied the
test for IFA in finding that he did not have a well-
founded fear of persecution because he could have
sought internal refuge in Colombo. He also argues
that it misconstrued the evidence regarding the possi
bility of IFA in Colombo.
The appellant submits the following propositions
as prerequisites to a finding that a claimant is not a
Convention refugee because of an IFA.
1 R.S.C., 1985, c. I-2, s. 2 (as am. by R.S.C., 1985 (4th
Supp.), c. 28, s. 1).
First, the Board must be satisfied on the evidence
before it that the circumstances in the part of the
country to which the claimant could have fled are
sufficiently secure to ensure that the appellant
would be able "to enjoy the basic and fundamental
human rights".
Second, conditions in that part of the country must be
such that it would not be unreasonable, in all the
circumstances, for the claimant to seek refuge
there.
Third, once a claimant has established a well-founded
fear of persecution in one part of a country, the
onus is no longer on the claimant to prove, on a
balance of probabilities, that he or she is a Conven
tion refugee but rather, the onus is on the Minister
to satisfy the Board, on a balance of probabilities,
that there is an IFA since finding an IFA is essen
tially the equivalent of finding a cessation of or
exclusion from Convention refugee status.
It is said that the only reference to the IFA concept
in this Court's jurisprudence is to be found in Zalzali
v. Canada (Minister of Employment and Immigra
tion) 2 where Décary J.A., said [at pages 614-615]:
I do not have to decide here what is meant by "government".
I know that in principle persecution in a given region will not
be persecution within the meaning of the Convention if the
government of the country is capable of providing the neces
sary protection elsewhere in its territory, and if it may be rea
sonably expected that, taking into account all the circum
stances, victims will move to that part of the territory where
they will be protected.
In a footnote referenced to that passage, Décary J.A.
referred to a number of decisions of the Immigration
Appeal Board and to paragraph 91 of the U.N. Hand
book, 3 which reads:
91. The fear of being persecuted need not always extend to
the whole territory of the refugee's country of nationality. Thus
2 [1991] 3 F.C. 605 (C.A.).
3 Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Proto
col relating to the Status of Refugees, Office of the United
Nations High Commissioner for Refugees, Geneva, 1979.
in ethnic clashes or in cases of grave disturbances involving
civil war conditions, persecution of a specific ethnic or
national group may occur in only one part of the country. [The
emphasis is in the original.]
In my opinion, the IFA concept is inherent in the
Convention refugee definition. That definition
requires the claimant to be outside the country of
nationality or former habitual residence and unable,
or unwilling, to return to it by reason of a well-
founded fear of persecution for one of the stated rea
sons: race, religion, nationality, membership in a par
ticular social group or political opinion. I see no need
to reach a concluded opinion that fear of persecution
so circumscribed is necessarily co-extensive with
deprivation of the enjoyment of "the basic and funda
mental human rights". I would, accordingly, restate
the first proposition: the Board must be satisfied on a
balance of probabilities that there is no serious possi
bility of the claimant being persecuted in the part of
the country to which it finds an IFA exists.
I find no fault with the second proposition.
As to the third proposition, since by definition a
Convention refugee must be a refugee from a coun
try, not from some subdivision or region of a country,
a claimant cannot be a Convention refugee if there is
an IFA. It follows that the determination of whether
or not there is an IFA is integral to the determination
whether or not a claimant is a Convention refugee. I
see no justification for departing from the norms
established by the legislation and jurisprudence and
treating an IFA question as though it were a cessation
of or exclusion from Convention refugee status. For
that reason, I would reject the appellant's third pro
position.
That said, however, a claimant is not to be
expected to raise the question of an IFA nor is an
allegation that none exists simply to be inferred from
the claim itself. The question must be expressly
raised at the hearing by the refugee hearing officer or
the Board and the claimant afforded the opportunity
to address it with evidence and argument.
In my opinion, in finding the IFA, the Board was
required to be satisfied, on a balance of probabilities,
that there was no serious possibility of the appellant
being persecuted in Colombo and that, in all the cir
cumstances including circumstances particular to
him, conditions in Colombo were such that it would
not be unreasonable for the appellant to seek refuge
there.
The appellant takes exception to the finding that
[t]he claimant lived in Colombo from June 1989 until Decem-
ber 1989 without incident.
and to the finding that
There is evidence that a large population of Tamil people live
in Colombo. There is no evidence to suggest that this group
has been persecuted by the government of Sri Lanka.
He says that the first ignores his evidence, found
credible, that he did not leave his apartment at all
during most of his six months in Colombo because of
the presence of the L FIE there and that the latter
ignores documentary evidence of persecution of
Tamils by the Sri Lankan government. He further
says that even if he could seek refuge in Colombo, it
is not reasonable to expect him to do so because
Tamils are in a minority there and the Sinhalese
majority have, on occasion and with possible govern
ment complicity, oppressed them.
The evidence discloses three very different sets of
conditions in different parts of Sri Lanka during the
periods before, during and after the presence of the
Indian Peace Keeping Force, the "IPKF". While the
appellant was in Colombo, the IPKF was in Sri
Lanka; it has since left. The appellant testified to hav
ing had problems with the IPKF, not Sri Lankan
authorities. After he had been in Colombo two
months, he became aware of the presence there of the
L FIE which was cooperating with the government to
secure withdrawal of the IPKF. It was fear of the
L FIE that kept him in his apartment. After with
drawal of the IPKF, the L Fib also withdrew from
Colombo and is again operating against the govern-
ment in the north and east of Sri Lanka, well away
from Colombo. The evidence is that the last large-
scale difficulties between Tamils and Sinhalese in
Colombo was in 1983. It coincided with the outbreak
of the Tamil violence in the north and east and the
murder of Sinhalese soldiers by Tamil youths in
Jaffna. The evidence is that, since withdrawal of the
IPKF, violence in Sri Lanka has been concentrated in
the north and east and not anywhere near Colombo.
It may have been somewhat misleading to say that
the appellant had lived in Colombo without incident
inasmuch as his life style there was scarcely normal.
That said, there was ample evidence upon which the
Board could conclude that, at the time of its hearing,
Colombo provided an IFA for Tamil refugees from
Jaffna generally and that, in all the circumstances of
the appellant's case, it would not be unreasonable for
him to seek refuge there. I am unable to deduce from
the record that it adopted any wrong principle or oth
erwise erred in reaching that conclusion.
In my opinion, the Board did not err in concluding
that the appellant is not a Convention refugee. I
would dismiss the appeal.
STONE J.A.: I agree.
LINDEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.