Date: 19991216
Docket: IMM-5835-99
Ottawa, Ontario, December 16, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
SIVANESAN VIGNESWARAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Mr. Sivanesan Vigneswaran applies for a stay of a deportation order under which he will be sent back to Sri Lanka, the country he left in 1984. The applicant came to Canada in 1995 and immediately claimed refugee status. He said he had left Sri Lanka in 1994 and passed through several other countries, staying several months in each one before arriving in Canada. The Convention Refugee Determination Division was suspicious of some irregularities on the part of the applicant during the hearing of his claim and adjourned the hearing to a later date to allow the Refugee Claim Officer to undertake some investigations with the countries in which the applicant had stayed, including England and Russia. When the hearing resumed, the applicant acknowledged that he had left Sri Lanka in 1984 and not 1994, and that he had obtained refugee status in France, where he lived until 1993.
[2] The Refugee Division dismissed the applicant's claim on the ground of lack of credibility, which was certainly the case. But, even if the applicant's testimony had been considered reliable, it is obvious that his claim would not have been eligible under section 46.01 of the Immigration Act. The applicant sought leave to file an application for judicial review of the Refugee Division's decision. This was denied him. The applicant was then subjected to a review for the purpose of gauging the objective risk of harm to his personal integrity should he return to Sri Lanka. The post-claim determination officer weighed the applicant's case and concluded there was no risk of loss of life or inhuman treatment if the applicant were returned to Sri Lanka. This finding was also the subject of an application for leave and for judicial review, but without success.
[3] On April 26, the Department of Citizenship and Immigration notified the applicant that the departure order issued against him had become enforceable, and that he should therefore leave Canada by June 2, 1999. If he did not do so voluntarily, an arrest warrant would be issued against him. The applicant did not leave Canada, but cooperated with the immigration officers, who asked that he obtain a Sri Lankan passport. On November 23, the applicant filed an exemption application under subsection 114(2) of the Act. On November 25, the applicant was summoned to a meeting to be held at the Department's office on December 3, 1999. When the applicant reported on December 3, he was told that the assessment of the risk of return, which is the initial stage in processing an exemption application, was completed, that there was a lack of risk and that he would be repatriated the next day, December 4. Apparently, the applicant indicated his intention not to report for repatriation, which resulted in his detention. His lawyer did what was needed to bring an application for stay of the deportation order before the Court. The Court considered the case on December 4 and, owing to the extremely short periods between the notice of return and the date of return, adjourned the case to December 9 to allow the parties to complete the record.
[4] The applicant's principal submission is that subsection 53(1) of the Act does not allow the return of a person who is considered a refugee, either by the Refugee Division or by another country, to a country where his life or liberty would be endangered. The applicant alleges that he was considered a refugee by the French state and, on the basis of the evidence submitted in his regard, he faces a threat to his life or liberty if he is sent back to Sri Lanka. The respondent, for its part, argues that the applicant is not a refugee because he was the subject of a determination by the Refugee Division to the effect that he is not a refugee. Thus he is unable to rely on section 53 to block his return to Sri Lanka.
[5] Subsection 53(1) reads as follows:
| 53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_:
|
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
|
[6] The reference to paragraph 46.01(1)(a) that appears at the beginning of the provision is a reference to the following:
| 46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes _:
|
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
|
[7] In support of his claim that he was recognized as a refugee by France, the applicant has submitted a photocopy of the travel document supplied to him by the French authorities. The document states it was issued to the holder upon presentation of refugee certificate no. 484 919 11. The document also refers to the Convention of 26 July 1951, on the status of refugees. However, there is no affidavit of a consular officer of the French Republic confirming that this type of document is issued only to refugees. Notwithstanding this deficiency in the evidence, I accept that there is prima facie evidence that the applicant was recognized as a refugee by the French Republic.
[8] The record appears to demonstrate, on the one hand, that there is no risk to the applicant if he is returned to Sri Lanka, and, on the other hand, that there is a risk to the applicant if he is sent back. Although the danger the applicant might confront is questionable to me, given his absence from Sri Lanka for 14 years, it is unnecessary to address this issue in greater detail other than to say that the contradiction in the evidence indicates that there is a justiciable issue.
[9] The respondent's submissions that the applicant cannot rely on subsection 53(1) because he has been the subject of a determination by the Refugee Division raises front and centre a serious issue as to the meaning of subsection 53(1) when an individual who was granted refugee status elsewhere claims refugee status again in Canada. Does this individual lose the status of a refugee if his claim is not granted or is it instead the case that he has abandoned the refugee status granted elsewhere by leaving the territory of that other state and claiming refugee status anew in Canada?
[10] In order to obtain a stay of execution of an order, the applicant must demonstrate, first, that there is a serious question raised by the application, and second, that he will suffer irreparable harm if the order is not stayed and that the balance of convenience weighs in his favour (Toth v. Canada, [1998] F.C.J. No. 587). In this case there is a serious issue to be decided. As to irreparable harm, I note the conflict in the evidence concerning the risk of injury to the applicant's personal integrity. In Suresh v. Canada, [1999] F.C.J. 1180, Robertson J., ruling on an application for stay, considered the issue of irreparable harm. He noted that irreparable harm did not have the same meaning in the context of humanitarian rights as it did in commercial litigation. He concluded that there could be irreparable harm in the fact that the applicant would be deprived of the subject matter of the dispute if the order in question was not stayed. In the case at bar, the applicant is challenging the Department's jurisdiction to force his return to Sri Lanka. If he is sent back before the question is decided, the Court's judgment will only be of academic interest to him. This is indeed a case in which the absence of a stay of execution pending the Court's decision will effectively deprive the decision of any value. The balance of convenience hinges on the other two factors.
[11] The applicant is therefore entitled to a stay, but in view of the basis on which his application is developed, the stay is limited to the forced return to Sri Lanka. In the course of his submissions, the applicant's counsel explained that it was the return to Sri Lanka to which the applicant objected. In this context, the stay of execution of the execution order [sic -- deportation order?] will be limited to the applicant's return to Sri Lanka.
[12] The applicant asked in his motion for the costs of this proceeding given the short period of time between the notification that the risk assessment was completed and the date selected for the execution of the deportation order. The applicant argues that this procedure, which did not allow him to put his affairs in order prior to his departure, was inhuman. There is some merit in this, but the judge who considers the matter on the substantive issues will be in a better position to render justice on this issue. The question of the costs is therefore postponed to the judge who will try the case.
ORDER
For these reasons, the Court orders a stay of execution of the applicant's forced return to Sri Lanka pending a definitive ruling on his application for leave and for judicial review.
| "J.D. Denis Pelletier" |
| J. |
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-5835-99 |
| STYLE: SIVANESAN VIGENSWARAN v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: DECEMBER 9, 1999 |
REASONS FOR ORDER OF PELLETIER J.
DATED: DECEMBER 16, 1999
APPEARANCES:
PIA ZAMBELLI FOR THE APPLICANT
ANNIE VAN DER MEERSCHEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
PIA ZAMBELLI FOR THE APPLICANT
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA