Date: 19980814
Docket: IMM-4226-97
BETWEEN:
RAMASETHU ALVAPILLAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench in Toronto
August 13, 1998 as edited)
ROTHSTEIN J.
[1] The IRB panel found that it lacked persuasive evidence that persons like the applicant were forbidden to settle in Colombo and found that Colombo was a viable IFA. However, there appears to be evidence in the material before the panel that indicates, that as of late November 1996, the police introduced a new rule allowing only a three-day stay in Colombo for Tamils arriving from the north. In this case, the applicant is a young Tamil male from the north. There is other evidence about conditions in Colombo, but no evidence was pointed out pertaining to the period after November 1996 that contradicts this particular evidence. In the circumstances, I think the panel ignored this evidence when it determined that Colombo constituted a viable IFA for the applicant.
[2] The panel's reasons also contain the following observations:
| The claimant was in Colombo for a little over two weeks, not long enough to truly test the viability of resettlement there. The onus is on him to do (sic) before seeking the surrogate protection of Canada. |
[3] The viability of an IFA is to be objectively determined and it is not open to an applicant, simply for his own reasons, to reject the possibility of resettlement in his own country, if he can do so without fear of persecution; see Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at 597-599. However, the way in which the panel has characterized the IFA test here is not correct. The panel seems to be saying that it is up to an individual, before he seeks the surrogate protection of Canada, to test the viability of an IFA in his own country. The logical conclusion of this proposition is that an applicant is obliged to test the IFA and suffer persecution before making a refugee claim in Canada. This cannot be correct. There is no onus on an applicant to personally test the viability of an IFA before seeking surrogate protection in Canada.
[4] The judicial review is allowed and the matter is remitted to a different panel of the Immigration and Refugee Board for redetermination.
Marshall Rothstein
Judge
Ottawa, Ontario
August 14, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4226-97
| STYLE OF CAUSE: RAMASETHU ALVAPILLAI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: THURSDAY, AUGUST 13, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FRIDAY, AUGUST 14, 1998
APPEARANCES:
Mr. Michael T. Crane
For the Applicant
Mr. Brian Frimeth
For the Respondent
| SOLICITORS OF RECORD: Michael T. Crane |
| Barrister & Solicitor |
| 200-166 Pearl Street |
| Toronto, Ontario |
| M5H 1L3 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980814
Docket: IMM-4226-97
Between:
| RAMASETHU ALVAPILLAI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER