Date: 20040420
Docket: IMM-1963-04
Citation: 2004 FC 583
Toronto, Ontario, April 20th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
PAKEERATHAN THAMOTHARAMPILLAI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally at the hearing; edited and expanded for clarification)
[1] The applicant has brought a motion for a stay of execution of the removal order now scheduled for April 27, 2004 on the grounds that there is a serious issue to be tried with respect to his underlying application for leave and judicial review of a negative Pre-Removal Risk Assessment ("PRRA"), that he will suffer irreparable harm if returned to his native Sri Lanka and that the balance of convenience favours the applicant. The motion for a stay was denied at the hearing.
[2] The applicant came to Canada as a landed immigrant in 1991, sponsored by his brother who had received Convention refugee status. In 1996 the applicant pleaded guilty to possession of heroin for the purpose of trafficking and was sentenced to eight years imprisonment. In August 1997 he was declared to be a danger to the public by the Minister and was subsequently ordered deported in October 1997. In 1999 he brought an action for a declaration that his removal to Sri Lanka would be in violation of his rights under sections 7 and 12 of theCanadian Charter of Rights and Freedoms. Pending the outcome of that action, he was successful in obtaining a stay of the deportation order: Thamotharampillai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 246 (T.D.)(QL). Such action was discontinued by the applicant on June 1, 2001.
[3] In 2000 he was prosecuted and acquitted of conspiracy to commit murder. In June 2001 a Post Determination Refugee Claimants in Canada ("PDRCC") officer concluded that he faced personalized risk if returned to Sri Lanka at that time. A year later, however, his application for permanent residence on humanitarian and compassionate grounds was denied. That decision was set aside in July 2003, the court directing that a fresh determination along with a fresh risk assessment be performed: Thamotharampillai v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1058 (T.D.)(QL).
[4] On August 1, 2003 the applicant's parole was suspended and a warrant was issued for his arrest due to his having violated the terms of his parole. At the hearing, counsel indicated that they believed he remained in custody but would shortly reach warrant expiry and be released.
[5] On September 3, 2003 the applicant was deemed not to be at risk if returned to Sri Lanka. On November 24, 2003 his application for landing on humanitarian and compassionate grounds was refused.
[6] Two grounds were advanced by the applicant to establish the serious issue arm of the test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A). First that the PRRA officer had erred by applying a balance of probability standard to the interpretation of paragraphs 97 (1)(a) and (b) of the Immigration and Refugee Protection Act ("IRPA"), S.C. 2001, c. 27. Secondly, that the officer failed to take into consideration the prior positive assessment of risk made in June, 2001.
[7] On the first ground, Gauthier J. in Li v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.1934 (T.D.)(QL) has found that the appropriate standard for the application of IRPA section 97 to be the balance of probability. Justice Gauthier certified three questions of general importance for consideration by the Court of Appeal related to this issue. Snider J. in an unreported decision: Kantheepan Thangasivam v. Minister of Citizenship and Immigration (November 25, 2003), IMM-8986-03 (Unreported) similarly concluded that the standard for both paragraphs of subsection 97(1) should be the common law balance of probabilities. I reached a different conclusion, however, in Kanagasabapathy v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.544 (T.D.)(QL) and found that the law in the area was not yet settled and accordingly a serious issue to be tried did exist. I see no reason to depart from that conclusion in this proceeding and accordingly find that the applicant has satisfied the first element of the Toth, supra, test. I do not, therefore, need to address his second argument regarding other serious issue grounds. However, that is not the end of the matter.
[8] Counsel for the respondent has argued, and I agree, that this is not a case where it is appropriate to concede that irreparable harm and balance of convenience follow a favourable ruling for the applicant on the serious issue ground.
[9] In my view, having carefully considered the evidence submitted by the applicant and the PRRA officer's decision, the applicant has not established that he would suffer irreparable harm if deported to Sri Lanka in the current circumstances. The objective evidence considered by the PRRA officer was that the country conditions had changed significantly since the 2001 risk assessment, based on 1999 and 2000 reports, was conducted. He concluded that the applicant could live safely in Columbo among the large Tamil population in that city. The applicant has offered nothing to challenge that conclusion other than vague speculation that he would be labelled a Tamil gang member by the authorities by reason of his criminal conviction and perceived associations with the LTTE. The applicant has been in this country since 1991. There was no evidence offered to support a finding that he would be of interest to the Sri Lankan authorities. Irreparable harm cannot be speculative or based on a series of possibilities: Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.1182 (T.D.)(QL).
[10] On the question of balance of convenience, the applicant relied on two decisions of the Federal Court of Appeal for the proposition that the balance should favour the applicant as he posed no danger to the public in his present circumstances: Fabian v. Canada, [2000] F.C.J. No. 75 (C.A.)(QL) and Said v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 663 (C.A.)(QL). However, in both of these cases the applicant was incarcerated and likely to remain in custody pending the outcome of the proceedings. In this matter, I was advised that the applicant would shortly be released. With regard to his history in this country, it would appear to be in the public interest to see that the deportation order is executed. Any inconvenience that he may suffer as a result would not, in my view, outweigh that public interest.
ORDER
THIS COURT ORDERS that the motion for a stay of execution of the deportation order is hereby dismissed.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1963-04
STYLE OF CAUSE: PAKEERATHAN THAMOTHARAMPILLAI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
DATE OF HEARING: APRIL 19, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: APRIL 20, 2004
APPEARANCES BY:
Ms. Brena Parnes
FOR THE APPLICANT
Mr. Lorne Mc Clenaghan
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Brena Parnes
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040420
Docket: IMM-1963-04
BETWEEN:
PAKEERATHAN THAMOTHARAMPILLAI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER