BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
ROULEAU, D.J.
[1] This matter came before the Court at Toronto on Monday, January 23, 2006. The applicant was seeking the stay of a removal order which was to be executed late on January 23, 2006. The underlying basis for this application to stay arises out of a challenge by the applicant of a pre-removal risk assessment dated December 8, 2005 in which the officer found that the applicant would not be placed at personal risk if returned to Sri Lanka, his country of origin. An application for judicial review has already been perfected and filed with the Court.
[2] I entertained submissions with respect to staying the removal on Monday, January 23, 2006. I denied the application and advised that reasons would follow.
[3] The applicant is a citizen of Sri Lanka. He came to Canada in 1989, and was granted Convention refugee status shortly after his arrival. He was landed as a permanent resident in 1990.
[4] He has been publicly identified as a leader of a Tamil gang in Toronto called "Sellapu", which is allegedly related to the gang known as "VVT". The gangs are linked to the terrorist organization known as the Liberation Tigers of Tamil Eelam (the "LTTE").
[5] On May 14, 1997, the applicant was convicted of uttering a death threat, of assault, and of attempt to obstruct justice. The convictions resulted from the applicant assaulting and threatening a witness in a legal proceeding; he received sentences of two and a half years, and two years, to be served concurrently.
[6] In 1997, the applicant was also convicted of possession of a narcotic for the purposes of trafficking, for which he received a sentence of eight years and six months. Following the narcotics-related conviction, a deportation order was issued against the applicant.
[7] The narcotic-related conviction was set aside on appeal, on the grounds that the trial had been unreasonably delayed. The applicant also had convictions for driving while impaired, and failing to attend court.
[8] In May 2003, a delegate of the respondent Minister found that the applicant was involved in serious criminality, and that he was a danger to the Canadian public. The delegate also found that the applicant would not be at risk of torture if returned to Sri Lanka. A removal date was set. The applicant appealed the delegate's decision.
[9] In April 2004, the Federal Court, per McTavish J., set aside the decision of the delegate, in part. She noted that, while the applicant was a danger to the public, the matter of whether the applicant would be at risk in retuning to Sri Lanka needed to be more fully considered. She set aside the risk evaluation, but not the finding that he was a danger to the public. The matter was remitted for the purpose of reassessing the risk.
[10] On December 8, 2005, a Per-Removal Risk Assessment ("PRRA") Officer found that the applicant would not be placed at personal risk if he were returned to Sri Lanka. The judicial review of the PRRA Officer's decision is currently pending.
[11] In dismissing the applicant's PRRA, the PRRA Officer's found, in part, as follows:
Mr. Thuraisingam has clearly alleged that fears [sic] persecution as a result of the actions of "agents of the state", such as police officials. Information before me with respect to conditions in Sri Lankaindicates that significant steps have been and are being made to reduce the number of instances where police officials are able to undertake actions with impunity. I refer to the comments in the two U.S. Department of State publications above concerning the investigations and charges against members of the police or security apparatus who have committed human rights abuses. He does not appear to be wanted by authorities for any offences criminal or otherwise that occurred prior to his departure from Sri Lanka and there is insufficient evidence to indicate that he is at risk as a result of any convictions in Canada.
[...]
I clearly acknowledge that there have been press reports in Canadian and Sri Lankan newspapers about Mr. Thuraisingam which have raised his profile. However, there is no indication of sustained reporting or interest by the press or other groups in Sri Lanka or Canada to such a level that would jeopardize his return in security to Sri Lanka. Moreover, any profile could decrease personal risk to him as the international and human rights community would be monitoring his status in Sri Lanka upon his return. I also acknowledge that the document from the IRB mentioned above indicates that persons who are returned to Sri Lanka are questioned upon arrival. There is no indication that this "questioning" would equate to a risk to Mr. Thuraisingam's life or to torture or to cruel and unusual treatment or punishment. In fact, the questioning of returnees to their home country is a usual practice - including Canada. The question concerning the appropriate documentation upon arrival may be raised - this is also covered in the aforementioned IRB paper wherein the UNHCR has indicated that some persons are questioned for a short while and allowed to leave the airport and others not questioned at all.
[12] The applicant is once again challenging the decision on the grounds that his situation, being a high profile Tamil, was not particularly assessed vis-à-vis his circumstances considering the media coverage in Toronto as well as in Sri Lanka. I am satisfied that the PRRA Officer clearly considered the applicant's circumstances, and the personal risk to a person in the applicant's situation upon return to Sri Lanka. The PRRA Officer concluded that the applicant would not be at risk if he were returned to Sri Lanka. The matter that is before this Court today is whether the applicant has satisfied the test for a stay of removal, with respect to the challenge raised concerning the personal risk he would face if he was returned to Sri Lanka.
[13] In this matter, I am guided by a decision in an analogous situation dealing with a high profile Tamil Tiger.. The decision, written by Madam Justice Dawson of this Court, is Nagalingam v. Canada (Minister of Citizenship and Immigration) Docket IMM-6447-05 (December 2, 2005). In Nagalingam, Dawson J. noted as follows:
With respect to the requirement of the existence of a serious issue, the jurisprudence simply requires that the applicant show that the application is not frivolous or vexatious. This is a low threshold. I am persuaded that a serious issue exists as to whether the Minister's Delegate properly interpreted that phrase "the nature and severity of acts committed as found in paragraph 115(2)(b) of the Act.
As for the existence of irreparable harm, irreparable harm is harm which will occur in the interim between now and the time the application for leave and judicial review is adjudicated upon. Irreparable harm is harm which can not be cured, and the applicant must establish on a balance of probabilities that harm is likely to occur. The existence of irreparable harm is fact specific. The evidence must be credible and the harm non-speculative.
Mr Nagalingam submits that if removed he will suffer irreparable harm because:
(a) His application for judicial review would be rendered nugatory. He relies upon Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (C.A.) at paras 12-14.
(b) His removal would place him at substantial risk of persecution or torture or subject to cruel, inhuman, or degrading treatment.
(c) His rights under section 7 and section 12 of the Charter would be rendered nugatory.
However, I have not been persuaded that the evidence establishes, on a balance of probability a non-speculative risk of irreparable harm for the following reasons:
(a) The Federal Court of Appeal's decision in Suresh is distinguishable because here, the evidence fails to establish that if successful Mr. Nagalingam would not be able to return to Canada to enjoy the fruits of his victory.
(b) I find the evidence of James Schultz to be the most cogent evidence with respect to the risk Mr. Nagalingam would face if returned to Sri Lanka. [...]
· It is improbable that the LTTE would target senior returning gang members because there is no indication that theyhave done so to returnees in the last three years
· Persons from Canada are less likely to be killed by the LTTE because of its concern over its image in Canada.
· The Canadian High Commission in Sri Lanka has monitored the return of serious gang an LTTE members. He was not aware of evidence of returnees being killed or disappearing.
· All indicators are that the Sri Lankan Criminal Investigation Department operated professionally and in a manner consistent with principles and practices of international law enforcement.
[...]
It follows from my conclusion concerning irreparable harm that the motion for a stay should be dismissed. It is not necessary form me to consider the balance of convenience.
[14] Mr. Schultz also provided evidence in the present matter. He testified that, to his knowledge, nothing has ever happened to senior gang members or gang leaders returned to Sri Lanka (Transcript p. 90). He testified that the returnees continue to be monitored, and no reporting of any harm or disappearing of any returnees has come to his attention. He considers that any such occurrence would be noteworthy, and he would be made aware of the situation. Mr. Schultz challenged the applicant to provide any contrary evidence (Transcript p. 91). Mr Schultz further noted that senior gang members, when returning to Sri Lanka, are generally interviewed, but, if there are no outstanding charges against the removed person in Sri Lanka, the person will be released (Transcript p. 94). As did my colleague Madam Justice Dawson, I accept the evidence of Mr. Schultz, and conclude that, while there may be a serious issue, given the low threshold for the serious issue component of a stay, the applicant has failed to meet the burden of proving irreparable harm on the balance of probabilities.
[15] In addition to Mr. Schultz's evidence, I have the PRRA Officer's decision, supra, which sets out the lack of risk the applicant would face if returned to Sri Lanka. The Officer noted that there is no evidence that the applicant would be at risk if he were returned to Sri Lanka. The Officer noted that the applicant might be questioned, but questioning is standard practices in many countries, including Canada.
[16] The onus is on the applicant to show irreparable harm on the balance of probabilities. However, he has provided no evidence, documentary or otherwise, to support the allegation. Given that the applicant has provided no objective or subjective evidence that he would suffer irreparable harm, he has not satisfied his onus of proving irreparable harm on the balance of probabilities.
[17] The applicant is clearly a danger to the public, and his only recourse is to show, on a balance of probabilities, that he would be irreparably harmed if he was returned to Sri Lanka. Given the clear and cogent evidence of Mr. Schultz and the PRRA Officer that the applicant would not be targeted or harmed in Sri Lanka, I am of the opinion that the applicant has failed to meet the burden of showing irreparable harm.
[18] The balance of convenience need not be considered; the applicant has failed to show irreparable harm. The motion for a stay of removal was dismissed.
JUDGE
OTTAWA, Ontario
January 25, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-19-06
STYLE OF CAUSE: JEYASEELAN THURAISINGAM v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: January 23, 2006
REASONS FOR ORDER: ROULEAU D.J.
APPEARANCES:
| Mr. Mario Bellissimo
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| Mr. David Tyndale
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SOLICITORS OF RECORD:
| Ormston, Bellissimo, Rotenberg Barristers & Solicitors
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| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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