Date: 20040216
Docket: A-384-03
Citation: 2004 FCA 70
Present: PELLETIER J.A.
BETWEEN:
SIVAKUMAR SIVAGNANANSUNTHARAM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Respondents
"Heard by teleconference between Ottawa and Toronto, Ontario, on February 16, 2004."
Order delivered at Ottawa, Ontario, on February 16, 2004.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20040216
Docket: A-384-03
Citation: 2004 FCA 70
Present: PELLETIER J.A.
BETWEEN:
SIVAKUMAR SIVAGNANANSUNTHARAM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER
[1] This is an application for a stay of a deportation order made against the appellant pending the hearing of his appeal.
[2] The appellant is a former permanent resident who was ordered deported as a result of his conviction on a charge of kidnapping.
[3] His appeal against the deportation order was dismissed by the Immigration Appeal Division. His application for judicial review of the decision of the Immigration Appeal Division was dismissed by Mr. Justice O'Keefe who certified a question thereby permitting the appellant to appeal to this Court. That appeal has been launched, but those with the responsibility for enforcing deportation orders seek to remove him from Canada before his appeal can be heard.
[4] Since his appeal for judicial review was dismissed he does not benefit from a statutory stay. Hence the application to this court for a stay of the deportation order.
[5] As a preliminary matter, the parties are agreed that the Solicitor General should be added as a party respondent as the Minister of the Crown who is now responsible for enforcement of removal orders.
[6] The respondents raised two other preliminary issues namely that under the terms of the Immigration and Refugee Protection Act and the Regulations made under that Act, the appellant's appeal is moot and secondly that the disposition of the certified question by the applications judge will not be dispositive of the appeal and therefore the appeal is academic.
[7] As for the first issue, namely whether the combined effect of section 64 of the Act and subsection 350(5) of the Regulations is that the appellant's right of appeal to the Immigration Appeal Division will be extinguished by section 64 even if he is successful on his appeal, I would simply say that in order to give effect to the respondents' submission I would have to decide that question, something which I am not prepared to do in the time which is available to me. That question can be decided on the appeal where it can be fully argued.
[8] The respondents' second issue, to the effect that the disposition of the certified question will not dispose of the appeal, is simply a collateral attack upon the certified question. I am not prepared to look behind the certified question.
[9] I turn now to the tripartite test as set out in Toth v. Canada (Minister of Citizenship and Immigration) (1988), 86 N.R. 302 (F.C.A.) . The first issue is whether there is a serious question to be decided in the appeal. Given that the applications judge certified a question of general importance, I feel bound to conclude that there is a serious question to be decided.
[10] As is usually the case, the real issue is whether the appellant will suffer irreparable harm if the stay is not granted.
[11] The appellant says he will be relying upon a psychological report filed on his behalf before the Immigration Appeal Division as well as on his own fears of inhumane treatment should he be returned to Sri Lanka.
[12] In my view, the psychological report provides no factual basis upon which one could conclude that the appellant will suffer any disproportionate psychological distress in being returned to Sri Lanka. I have no doubt that he is distressed and that the prospect of returning to Sri Lanka is anxiety producing. However, I have nothing before me to suggest that it will incapacitate the appellant to such a degree that this Court's intervention is warranted.
[13] As for the risk of physical harm to the appellant, I find that evidence upon which he relies is dated in that it does not reflect conditions since the cease fire. While the appellant may have unpleasant memories of his detention in 1992, an incident to which the Immigration Appeal Division gave no credence, I am unable to see how it might be a predictor as to how the authorities will treat him 12 years later.
[14] As for his fear that his criminal conviction will make him the object of particular attention, it could hardly be otherwise. The appellant involved himself in a crime which ended very badly. Such conduct has consequences. However, given that it is not the revenue generating type of crime associated with the overseas funding of the LTTE, I agree with the assessment of the Pre-Removal Risk Assessment Officer that he would not likely be at risk of torture or mistreatment as a suspected LTTE sympathiser.
[15] In short, the appellant has not satisfied me that he will suffer irreparable harm if the stay is not granted.
[16] In the circumstances, I do not have to consider the issue of balance of convenience.
[17] The motion for a stay is dismissed.
J.D. DENIS PELLETIER
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-384-03
MOTION FOR A STAY OF A DEPORTATION ORDER
STYLE OF CAUSE: SIVAKUMAR SIVAGNANANSUNTHARAM v. MCI
PLACE OF HEARING: HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: FEBRUARY 16, 2004
REASONS FOR ORDER OF THE COURT: THE HONOURABLE MR. JUSTICE PELLETIER
DELIVERED FROM THE BENCH BY: THE HONOURABLE MR. JUSTICE PELLETIER
APPEARANCES:
|
Mr. Clifford Luyt |
FOR THE APPELLANT
|
|
Mr. Jamie Todd |
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
Mr. Clifford Luyt |
FOR THE APPELLANT |
|
Morris Rosenberg, Deputy Attorney General of Canada |
FOR THE RESPONDENTS |