Date: 19990212
Docket: A-749-98
CORAM: LINDEN J.A.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
NISHAN GAGEETAN JEYARAJAH
Appellant
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
Heard at Toronto, Ontario, Friday, February 12, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Friday, February 12, 1999
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 19990212
Docket: A-749-98
CORAM: LINDEN J.A.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
NISHAN GAGEETAN JEYARAJAH
Appellant
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Friday, February 12, 1999)
SEXTON J.A.
FACTS
[1] This is an appeal from the decision of Mr. Justice Deneault in which he dismissed the Appellant's application for an interim injunction restraining the deportation of the Appellant back to Sri Lanka.
[2] The Appellant left Sri Lanka at the age of 12 and was subsequently granted refugee status. In 1995, he was charged with importing narcotics with a street value approaching one million dollars, pleaded guilty and was sentenced to four years and five months in a federal penitentiary. On April 10, 1996 he was sent a letter by Citizenship and Immigration Canada informing him that they possessed evidence suggesting that he was a person in Canada who was a danger to the public, and that the Department intended to request an opinion to that effect from the Minister of Citizenship and Immigration. He was further informed that if the Minister was of the opinion that he was a danger to the public in Canada that he would then not have a right to appeal his deportation order to the Immigration Appeal Division, and that he might be removed from Canada to a country from which he had been determined to be a Convention refugee. He was further informed in the letter that in addition to the Minister considering whether he was a danger to the public, the Minister would consider as well
| any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat you pose to the public in Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came. |
[3] He was further informed in the letter that before the Minister formed his opinion, the appellant could make such representation or arguments as he deemed necessary and submit any documentary evidence which he believed to be relevant. He was also advised that
| your evidence, argument or other representations should address, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedoms are threatened by your removal from Canada. |
[4] The appellant responded to the April 10, 1996 letter through his solicitor by letter dated July 24, 1996. This letter contained lengthy submissions stretching over five pages but no reference whatsoever was made to any possibility of risk to which the appellant might be subjected if he was returned to his native country. A Ministerial Opinion Report was duly prepared upon the appellant and it noted as follows:
| The submission received from Mr. Jeyarajah does not indicate any fear of return to Sri Lanka. |
[5] On the 23rd of August, 1996 a delegate of the Minister of Citizenship and Immigration issued an opinion pursuant to section 70(5) and paragraph 53(1)(d) of the Immigration Act that the Appellant was a danger to the public, which decision was communicated to the appellant on August 29, 1996. Again, the Appellant took no steps to communicate his apprehension of risks with respect to deportation. In May 1997, the Appellant sought leave for judicial review of the Minister's opinion through proceedings commenced by his solicitor. The proceeding listed the grounds for alleged error on the part of the Minister, but no mention whatsoever was made of any risk to which the appellant might be subjected if he was returned to his native country. The Appellant's application was denied on September 23, 1997.
[6] On April 17, 1998 an adjudicator issued a deportation order against the appellant which order was to be executed on December 17, 1998.
[7] The Appellant waited for seven months until November 25, 1998 to take a declaratory action against the Minister of Citizenship and Immigration to enjoin the Minister from removing him to Sri Lanka. In this action, the appellant seeks to demonstrate that the removal of someone to a country such as Sri Lanka, where people like him are the targets of violence, in the absence of undertaking a proper risk assessment prior to removal violates sections 7 and 12 of the Charter of Rights and Freedoms.
[8] Before Mr. Justice Deneault the appellant sought an interim injunction enjoining the Minister against executing the removal order against him until such time as his actions were dealt with. No specific allegations are made by the appellant with respect to actual threats to him. Rather he relies on the history of dealing with people such as himself by the authorities in Sri Lanka.
[9] Mr. Justice Deneault dismissed the application for an interim injunction, having concluded that there was no serious issue to be argued. The appellant before us argued that the Motions' Judge had erred in concluding that there was no serious issue to be argued because the Trial Judge had applied the wrong test when he determined there was no serious issue, and secondly because the Trial Judge erred when he determined that the record before him did not disclose a serious issue to be argued. It is not necessary in this case for us to decide on the correct legal test. In this connection, we refer to the different opinions expressed by the Trial Division in the cases of Barre v. M.C.I. and Farhadi v. M.C.I. which latter case is under appeal. In order for the appellant to be successful on his application, he had to show on the facts that there was a serious issue to be tried. The learned Motions' Judge in exercising his discretion concluded:
| I also find that in the circumstances of this case, the plaintiff was in fact invited, on April 10, 1996, when advised by Citizenship and Immigration Canada that it was seeking an opinion by the minister that the plaintiff was a danger to the public, to make representations as to whether or not he is a danger to the public and whether compelling and compassionate or humanitarian considerations are present. He was further advised that the Minister would consider "... the possibility of a risk to you which could be precipitated by returning you to the country... of your nationality...". |
[10] The learned Motions' Judge noted that the Plaintiff had failed to provide any information whatsoever in his written submissions which indicated any fear to return to Sri Lanka.
[11] The jurisprudence is clear, that in order to get a stay of removal or an injunction an applicant must demonstrate that there is evidence before the Court that there is a serious issue to be tried. The proposition was stated clearly by the Federal Court of Appeal in the case of Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451; [1989] F.C.J. No. 14, Court File No. A-163-88, January 18, 1989 (at page 33 of the Quicklaw version):
| As I understand it, this flexibility (by the Court)is to be achieved in the end under the full American Cyanamid formulation by having regard for the balance of the trial judge's discretion. Satisfying the threshold test of "a serious question to be tried" does no more, so to speak, than unlatch the door to a plaintiff; if neither opens it nor, less still, permits him to pass on through. That he may do only if the balance of convenience is found to lie in his favour. This I think is made clear by Lord Diplock in American Cyanamid and is reiterated by him in Woods. It is restated one more time by the same learned Law Lord sitting as a member of the Privy Council in Eng Mee Yong and Others v. Letchomonon s/o Valcyothan, [1980] A.C. 331, where he points out, at page 337: |
| The guiding principle in granting an interlocutory injunction is the balance of convenience; there is no requirement that before an interlocutory injunction is granted the plaintiff should satisfy the court that there is a "probability", a "prima facie case" or a "strong prima facie case" that if the action goes to trial he will succeed; but before any question of balance of convenience can arise the party seeking the injunction must satisfy the court that his claim is neither frivolous nor vexatious; in other words that the evidence before the court discloses that there is a serious question to be tried: American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. |
[12] We agree with the conclusion reached by the learned Motions' Judge. It is simply not credible that if indeed the Plaintiff felt that he was at risk that he would fail when invited to do so to make known this risk to Citizenship and Immigration Canada. Indeed, he waited at least two and half years after being invited to make such submissions before raising this issue. During that interval, he was being advised by a solicitor and had commenced an action against the Minister without mentioning any circumstances which might constitute a risk to his person. In these circumstances, we feel the learned Motions' Judge was quite correct in his conclusion that there was no serious issue to be tried. The mere existence of a refugee status, especially when such status was granted many years ago, is not, in the absence of evidence of actual risk sufficient to give rise to a serious factual issue. We decline to interfere with the discretion exercised by the learned Motions Judge.
[13] We therefore dismiss this appeal.
"J. Edgar Sexton"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-749-98
| STYLE OF CAUSE: NISHAN GAGEETAN JEYARAJAH |
| Appellant |
| - and - |
| HER MAJESTY THE QUEEN and |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondents |
DATE OF HEARING: FRIDAY, FEBRUARY 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: SEXTON J.A. |
Delivered at Toronto, Ontario
on Friday, February 12, 1999
| APPEARANCES: Mr. Lorne Ealdman |
| For the Appellant |
| Mr. David Tyndale |
For the Respondents
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
| For the Appellant |
Morris Rosenberg
| Deputy Attorney General of Canada |
For the Respondents
| FEDERAL COURT OF APPEAL |
| Date: 19990212 |
| Docket: A-749-98 |
| BETWEEN: |
| NISHAN GAGEETAN JEYARAJAH |
| Appellant |
| - and - |
| HER MAJESTY THE QUEEN and |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondents |
| REASONS FOR JUDGMENT |
| OF THE COURT |