A Tamil man who fled to Canada on the MV Sun Sea in 2010 was granted a stay of deportation last week by a Federal Court judge due to risks of torture in Sri Lanka.
Kugatheeswaran Thuraisinkam was one of the 492 passengers who undertook a perilous months-long journey by sea to seek refugee protection in Canada after the Tamil genocide.
He fled persecution due to threats against him by the Sri Lankan authorities, who linked him and his family to the Liberation Tigers of Tamil Eelam (LTTE).
He was detained for months by Canadian officials and has experienced homelessness, family separation and precarious immigration status for over fifteen years.
Passengers on the MV Sun Sea received significant political and media attention, as Canadian authorities associated the refugees with the LTTE and labelled them as ‘terrorists.’
Federal Court judge Sébastien Grammond halted the deportation of Thuraisinkam, which was scheduled for April 16, by stating that ‘there are serious grounds to believe that he would be exposed to a danger of torture if he were returned to Sri Lanka.’
The judge cited recent evidence of the prevalence of torture in Sri Lanka and the risks for those suspected as being associated with the LTTE.
Grammond wrote that ‘Sri Lanka remains an authoritarian regime where torture is widespread’ and that ‘there remains a significant amount of discrimination against Tamils.’
‘Persons who are suspected of being LTTE members or could be perceived as such face surveillance, interrogation and sometimes arbitrary detention,’ Grammond continued.
His conclusion was based on reports by United Nations bodies, the United States Department of State, the United Kingdom Home Office, and the Immigration and Refugee Board of Canada.
Due to the portrayal of the individuals aboard the MV Sun Sea by Canadian officials, Grammond also underscored that ‘it is reasonable to assume that Sri Lankan authorities are likely to detain, question and possibly torture M/V Sun Sea passengers who are returned to Sri Lanka on the basis of their perceived association with the LTTE.’
The Federal Court judge’s decision pointed to reports that the Canadian government shared the information of the passengers with Sri Lankan authorities.
‘It bears emphasizing that the evidence provided to CBSA [Canada Border Services Agency] suggests that the Canadian government has shared information regarding the MV Sun Sea passengers with the Sri Lankan government,’ said Kes Posgate, Thuraisinkam’s current counsel. ‘This is why Kugatheeswaran faces risk of persecution in Sri Lanka.’
The Federal Court decision also noted the treatment of two passengers who were returned to Sri Lanka by underlining that one of them was tortured and died in suspicious circumstances, while the other individual disappeared.
Grammond quoted a previous decision, which stated that ‘the best predictor of the fate of those passengers of the Sun Sea…is the fate of those who were actually returned.’
Thuraisinkam’s refugee claim was denied in 2012, and subsequent appeals and a pre-removal risk assessment in 2020 did not change his outcome. His previous lawyer failed to provide evidence that the passengers of the ship would face persecution if they were deported back to Sri Lanka.
Grammond concluded that Canadian authorities had not properly assessed the risk he would have faced if he were sent back to the island. The Federal Court granted a similar stay of removal after Thuraisinkam was attempted to be removed in 2024.
‘It is curious, to say the least, that CBSA is attempting to remove him again when the issue highlighted by Justine Pentney has not yet been resolved,’ Grammond wrote, referring to the previous stay of removal.
‘This has been a very difficult process,' Thuraisinkam told the Toronto Star in an interview. ‘I am so scared of being deported. I have some relief now. I am very grateful to the courts for saving me,’ he continued.
Reports of torture in Sri Lanka have continued, 17 years after the end of the armed conflict. In 2022, a Tamil man whose refugee claim was denied in Switzerland was tortured and sexually violated after being deported back to the island.
The United Nations Human Rights Commissioner’s report last August detailed the prevalence of arbitrary detention, torture and other forms of ill-treatment, and deaths in custody on the island.
