Date: 19990219
Docket: IMM-638-99
BETWEEN:
PAKEERATHAN THAMOTHARAMPILLAI
Plaintiff
| - and - |
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendants
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] This is a motion by the plaintiff for an interlocutory injunction pursuant to Rule 373 of the Federal Court Rules, 1998, SOR/98-106 to restrain his removal from Canada to Sri Lanka which has been scheduled for February 25, 1999.
[2] The motion arises from an action in which the plaintiff seeks declaratory orders to the effect that it is a violation of his rights under sections 7 and 12 of the Canadian Charter of Rights and Freedom to be removed to Sri Lanka, where he fears that he may be tortured or suffer other severe forms of persecution, without an assessment by the Minister of Citizenship and Immigration (hereinafter "the respondent") of the risks to which he may be exposed if he is returned.
| B. FACTUAL BACKGROUND |
[3] The plaintiff is a citizen of Sri Lanka who came to Canada in 1991. He is a Tamil. In his affidavit he states that one of his brothers was killed by the Sri Lankan army in 1986, as a result of which another brother fled to Canada, and his sisters to Australia and the United Kingdom. He also states that he went to Colombo before leaving for Canada, and while he was there he was arrested and detained, and was released only when he told the police that he was going to Canada. He also states that he was told by the police that they would kill him if he returned to Colombo.
[4] In 1996 the applicant was convicted in Canada of trafficking in narcotics, an offence for which he was sentenced to eight years" imprisonment. While incarcerated he was notified that the respondent was seeking an opinion on whether he posed a danger to the public in Canada. No submissions were made on behalf of the applicant, although, he stated, he had retained a lawyer for this purpose.
[5] After a brief and general summary of the situation in Sri Lanka, the official reviewing the applicant"s file concluded:
"Based on the above, the subject may be at risk upon return to Sri Lanka; however, the risk to Canadian society outweighs any risk that he may face."
[6] A danger to the public opinion was issued by the Minister"s delegate on August 27, 1997, the effect of which was to preclude the applicant from appealing to the Immigration Appeal Division of the Immigration and Refugee Board against the deportation order (subsection 70(5) of the Immigration Act , R.S.C. 1985, c. I-2) and from making an application to the Convention Refugee Determination Division of the Immigration and Refugee Board for recognition as a refugee (paragraph 46.01(1)(e)(iv) of the Act).
[7] It is common ground that, in order to obtain the relief that he is seeking, the plaintiff must satisfy each of the three elements of the test in RJR-Macdonald Ltd. v. Canada, [1994] 1 S.C.R. 312, which for all intent and purposes is identical to that articulated in Toth v. Minister of Employment and Immigration (1988), 80 N.R. 302 (F.C.A.) in the context of motions for a stay of removal pursuant to a deportation order.
[8] Because these tests are so well known, and their precise formulation and meaning are not in dispute, I shall proceed directly to consider whether the plaintiff has satisfied each of the components.
| (i) Serious issue |
[9] It was not contested that the test for determining whether the underlying litigation raises a serious issue is easily satisfied. Interim relief should be refused on this ground only when sought in support of proceedings that are manifestly without merit: Shchelkanov v. Minister of Employment and Immigration (1994), 76 F.T.R. 151 (F.C.T.D.)
[10] Mr. Waldman, counsel for the applicant, relied on Farhadi v. Canada (Minister of Citizenship and Immigration), [1988] 3 F.C. 315 (F.C.T.D.) for the proposition that it is a violation of sections 7 and 12 of the Charter for the respondent to return a person to a country where she or he has good reason to fear torture, without first conducting in accordance with the principles of fundamental justice an assessment of the risks that the person may face if returned.
[11] Mr. Waldman also relied on Farhadi for the further proposition that the constitutional requirement of a risk assessment is not satisfied by the review conducted by the respondent or her delegate when forming an opinion whether the person concerned is a danger to the public in Canada.
[12] Such opinions, as in this case, may involve a weighing of the risks to the individual against those posed to the public by the individual"s continuing presence in Canada. However, Mr. Waldman submitted, this does not meet the constitutionally required standard because it is impossible to determine from the opinion what risks are taken into consideration, and this is important because section 7 of the Charter may impose an absolute prohibition on the return of a person to face the most extreme forms of persecution, such as torture or death: see also Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 832; Suresh v. R. (1998), 38 O.R. (3d) 267 (Ont. Gen. Div.). Moreover, by its very nature the primary focus of the Minister"s opinion must be on the danger to the public, not on the risks that may be faced by the individual if removed from Canada.
[13] Counsel for the respondent, Ms. Nucci, relied on Barre v. Minister of Citizenship and Immigration (1998), 150 F.T.R. 257 (F.C.T.D.), in which Teitelbaum J. refused to issue a stay on facts similar to those in Farhadi, and in the case before me. Teitelbaum J. held that the process culminating in the Minister"s opinion that the applicant in that case was a danger to the public in Canada was "a detailed risk assessment", and that "a separate or stand-alone risk assessment" is not mandated by the law.
[14] He concluded, therefore, that the application for judicial review challenging the legality of the applicant"s removal, not the validity of the deportation order on which it was based, did not raise a serious issue. I should add that the reviewing officer"s comments submitted to the Minister or her delegate in Barre included the following sentence that is very similar to the one found in the present case:
Based on the above, the subject may be at risk upon return to Somalia; however, the danger to Canadian society outweighs any danger he may face upon return to Somalia.
[15] Farhadi has been appealed to the Federal Court of Appeal following a certification by Gibson J. of a question under subsection 83(1) of the Immigration Act. In view of the conflicting opinions on the point rendered by this Court, and the appeal that is pending in the Federal Court of Appeal, it would seem to me clear that the plaintiff"s action raises a serious issue.
[16] In the alternative, Ms. Nucci argued that, even if as a matter of principle it was a serious issue whether the Charter required a risk assessment that is separate from the danger opinion, there was nothing in the facts of this case to indicate that the plaintiff would be at risk of torture if returned to Sri Lanka.
[17] I do not find this argument persuasive. The plaintiff has stated in his affidavit that his brother was killed by the Sri Lankan army; that he himself had been detained and treated badly in Colombo, and was only released when the authorities were satisfied that he was leaving for Canada; and that he had been told by the police that he would be killed if he returned to Colombo. This evidence was not contradicted, nor was the documentary material submitted by Mr. Waldman describing current human rights abuses in Sri Lanka.
[18] In my view, a serious issue is raised in this case.
| (ii) Irreparable harm |
[19] Mr. Waldman maintained that it would inflict irreparable harm on the plaintiff that could not be compensated monetarily if he were removed to a country where there was evidence that persons with the plaintiff"s profile, young male Tamils with no established residence in Colombo, were subject to a risk of persecution, including torture. He also noted the very high percentage of refugee claims from such persons that are being accepted by the Refugee Division. Moreover, removing the plaintiff from Canada in such circumstances would deprive him of the opportunity to seek a judicial remedy for what he claims to be a violation of his constitutional rights.
[20] Ms. Nucci responded that, in the absence of any evidence that the plaintiff had been targeted by Sri Lankan police or the army, he had not established that he would suffer irreparable harm. In such circumstances, irreparable harm was no more than speculation, and not sufficient to satisfy the second element of the test, as Blais J. had held in Zolfiqar v. Minister of Citizenship and Immigration, (F.C.T.D.; IMM-5694-98, November 12, 1998).
[21] I am not persuaded by this submission. Again, the plaintiff"s affidavit does contain evidence that he and his brother had been targeted by the Sri Lankan military and police. In Zolfiqar , on the other hand, there seems to have been no such evidence linking the plaintiff to possible persecution.
[22] For the reasons advanced by Mr. Waldman, I am satisfied that the plaintiff will suffer irreparable harm if removed to Sri Lanka prior to the conduct of a risk assessment, or the disposition of his action challenging the constitutionality of his removal.
| (iii) The balance of convenience |
[23] Whether the balance of convenience favours the removal of the plaintiff, even though he has raised a serious issue and has established that he would suffer irreparable harm, would seem to depend on the nature of the offence for which he was convicted and his subsequent conduct.
[24] There is no doubt that the plaintiff was convicted of a very serious offence, namely, trafficking in drugs, which, as Teitelbaum J. pointed out in Barre, "affects the lives of young and older Canadians at a considerable cost to the Canadian tax payer". The sentence imposed upon him reflected the serious view that the court took of the plaintiff"s offence.
[25] On the other hand, it is also clear that the plaintiff has been an exemplary inmate, and has accordingly been granted an accelerated parole. In addition, despite the extant "danger opinion", an adjudicator ordered the release of the plaintiff from custody pending his removal, on the ground that he did not pose a threat to the public and was likely to report for removal, if and when that occurs.
[26] Considering the evidence as a whole, and mindful of the public interest in the prompt removal of those against whom valid deportation orders have been made, I am nonetheless satisfied that the balance of convenience favours staying the removal of the plaintiff.
[27] For these reasons, the plaintiff"s motion is granted.
OTTAWA, ONTARIO
February 19, 1999. J.F.C.C.