Date: 19990318
Docket: IMM-1208-99
BETWEEN:
RAJA RAJENDRAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SHARLOW J.:
[1] A removal order in respect of the applicant is due to be executed on Sunday, March 21, 1999. The applicant seeks a stay of execution of that order pending determination of a "humanitarian and compassionate" request under subsection 114(2) of the Immigration Act.
[2] The applicant, a Tamil from Sri Lanka, came to Canada with his wife in 1985. They claimed to be Convention refugees. That claim was denied on the basis of an alternative flight alternative in Colombo. Leave to appeal was denied on August 7, 1992. A PDRCC assessment was refused in July of 1994 and shortly thereafter the applicant was ordered to leave Canada. He entered the United States where he lived and worked, apparently lawfully, in Seattle. His wife and daughters live in Vancouver, which is not far away from Seattle.
Sometime in 1994, apparently after the conclusion of the PDRCC proceedings, the applicant requested and obtained information from Amnesty International with a view to obtaining evidence of conditions in Sri Lanka for use in an appeal on humanitarian and compassionate grounds. In a letter dated August 14, 1994, Amnesty International refers to the fact that the applicant is a Tamil without a national identity card and makes some comments about the conditions in Colombo. The letter concludes:
| In summary, Amnesty International believes that if Mr. Raja is forcibly returned to Sri Lanka he is at particular risk of ill-treatment. |
[3] Other documents submitted by the applicant suggest that because of new regulations imposed in 1996, Colombo is not as safe a place for Tamils as it once was. This evidence did not exist in 1992 when the applicant's refugee claim was considered.
[4] The record discloses a pattern of failing to respect the immigration laws on the part of the applicant. Three expulsion orders were made against him in 1995, and he was arrested twice in 1996 for returning to Canada without the consent of the Minister, contrary to s. 55 of the Immigration Act. He was ordered deported in August of 1994, and again in April of 1996, and again in October of 1996.
[5] The applicant says that his unauthorized returns to Canada were motivated by a desire to see his family, in particular his daughters. His most recent return to Canada was in May of 1998, when he attended a ceremonial washing of his eldest daughter in accordance with the custom of his culture.
[6] He then took his family for a holiday to Toronto, where he was arrested following a complaint his wife made to the police. That complaint apparently did not lead to any criminal charges, but it brought the applicant to the attention of the immigration authorities, who apprehended him in September of 1998.
[7] The applicant has a criminal record, though it is impossible to determine from the material before me how serious it is. There are apparently three convictions for impaired driving and two for assault. The record does not disclose the circumstances of the offences or the sentences. In 1966 he pled guilty to three acounts of "smuggling aliens" for which he was sentenced to three days in jail. He admits to having a problem with alcohol.
[8] In November of 1998 the applicant was told informally that the Minister would seek a removal order. The applicant retained counsel in Toronto in January of 1999 to represent him in making a section 114(2) request. The delay in retaining counsel was said to be explained by the difficulties the applicant faced while in detention, and by the fact that his brother, who had first contacted counsel on the applicant's behalf in December of 1998, was out of the country for a time after that. There followed some further delay in obtaining the applicant's files from his former counsel in Vancouver. The file was finally received on February 25, 1999, but the Amnesty International letter referred to above was not in the file. Counsel finally received a copy of that letter on March 3, 1999.
[9] On March 5, 1999 a request was submitted on behalf of the applicant for consideration under s. 114(2). At that time, the applicant was aware of the Minister's intention to seek a removal order. However, he was not formally notified of that until March 10, 1999.
[10] On March 11, 1999, the applicant filed an application for leave and for judicial review in which the relief sought was an order requiring the Minister to consider the applicant's request under s. 114(2), and to conduct a risk assessment, before executing the removal order.
[11] Counsel suggested that the reason no section 114(2) request was made between 1994, when his refugee claim was finally determined against him, and 1998 when he was most recently detained, was that the applicant had been living lawfully in the United States. It is not clear whether he is entitled to return to the United States. Counsel for the Minister was unable to tell me whether the Minister would have considered a section 114(2) request from a person living lawfully in the United States.
[12] The issue before me is whether the execution of the removal order should be stayed pending the determination of the leave application and, if leave is granted, the section 114(2) request. Counsel agreed that the issue should be determined on the basis of the tri-partite test.
Serious issue
[13] Counsel for the applicant notes that there are cases from this Court to the effect that the Minister is under no obligation to consider section 114(2) prior to removal. However, he says that the serious issue to be tried is whether those cases can stand in the light of more recent decisions. He cites, among other things, these comments from the dissenting judgment in Pushpanathan v. Canada (MEI), [1998] 1 S.C.R. 982 at 1072 (per Cory J.):
| ... it would be unthinkable if there were not a fair hearing before an impartial arbiter to determine whether there are "substantial grounds for believing" that the individual to be deported would face a risk of torture, arbitrary execution, disappearance or other such serious violation of human rights." |
[14] He also refers to Huor Chieu v. Minister of Citizenship and Immigration (3 December 1998), A-1038-98 (F.C.A.), which suggests that a person who is at risk of deportation to a country, and who has concerns about the risks faced there, has the right to make a request for consideration under section 114(2). Counsel for the applicant says that this describes the applicant's situation.
[15] He points out that there is some evidence, not previously considered by any decision maker under the Immigration Act, that Colombo has become an unsafe place for the applicant. He also refers to a number of very recent decisions in which this Court has set aside decisions of the Refugee Division that disregarded the new situation in Colombo: Kandiah v. Minister of Citizenship and Immigration (31 August 1998), IMM-4310-97 (F.C.T.D.); Alvapillai v. Minister of Citizenship and Immigration (14 August 1998), IMM-4226-97 (F.C.T.D.); Kanthavanam v. Minister of Citizenship and Immigration (27 October 1998), IMM-3678-97 (F.C.T.D.); Mylvaganam v. Minister of Citizenship and Immigration (21 December 1998), IMM-3378-97 (F.C.T.D.).
[16] Counsel for the Minister pointed out that an applicant should not be entitled to use a last minute section 114(2) request as a means of delaying a valid removal order: Francis v. Minister of Citizenship and Immigration (14 January 1997), IMM-156-97 (F.C.T.D.); Younge v. Minister of Citizenship and Immigration (13 January 1997), IMM-2566-96 (F.C.T.D.), Sinnappu v. Minister of Citizenship and Immigration (1997), 126 F.T.R. 29. In this case, the delay has been reasonably explained.
[17] I find that in this case there is a serious issue to be tried.
Irreparable harm
[18] If the applicant's new evidence is believed, he risks serious harm if he is removed to the area of Sri Lanka that was formerly thought to be an internal flight alternative. There was no evidence before me that suggests that any other area of Sri Lanka might be a safe alternative. I find that the applicant has shown a risk of irreparable harm.
Balance of convenience
[19] Counsel for the Minister argues that under this test I should consider the public interest. He suggests that the applicant's criminal record, combined with an established pattern of disregard for the laws of Canada, justifies a conclusion that the balance of convenience favours the Minister. I agree that these are valid considerations in a stay application. However, the evidence of the applicant's criminal record is so incomplete that I can reach no conclusion as to how serious his offences have been. And I cannot find that his disregard of the immigration laws to date is so serious as to override the risk of harm he faces if removed to Sri Lanka.
Conclusion
[20] The stay is granted pending determination of the leave application. If leave is granted, the stay will remain in force until the section 114(2) request is determined.
[21] If the Minister considers the section 114(2) application with no hearing of the leave application, the stay will remain in force until the section 114(2) request is determined.
Karen R. Sharlow
Judge
Ottawa, Ontario
March 18, 1999