Date: 20060412
Docket: IMM-421-06
Citation: 2006 FC 486
Ottawa, Ontario, April 12, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
KAILESHAN THANABALASINGHAM
Applicant(s)
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent(s)
REASONS FOR JUDGMENT
[1] These are the reasons for my decision not to grant a stay of the Applicant's deportation to Sri Lanka. That Order was issued on March 24, 2006 and indicated that I would subsequently issue reasons for the decision.
[2] I am obliged to apply the tri-partite test in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587, (1988) 86 NR 302 (F.C.A.) which requires that the Applicant establish a serious issue in the underlying application, the existence of irreparable harm in the period leading up to the adjudication of his underlying application for judicial review, and that the balance of convenience favours the granting of a stay.
[3] The Applicant has an extensive judicial history beginning with a series of criminal convictions involving violence and weapons offences. That history, in turn, led to protracted immigration litigation.
[4] I do not intend to belabour the background facts because that history is well documented in earlier decisions of this Court and in the Federal Court of Appeal in the following matters: Canada v. Thanabalasingham, [2002] F.C.J. No. 1619, 2002 FCT 1196 (where Justice John O'Keefe stayed an Order releasing the Applicant from immigration detention); in Canada v. Thanabalasingham, [2003] 4 F.C. 491, [2003] F.C.J. No. 503, 2003 FCT 354 (where Justice James Russell stayed an Order releasing the Applicant from immigration detention); in Canada v. Thanabalasingham, [2004] 3 F.C.R. 523, [2003] F.C.J. No. 1548, 2003 FC 1225 (where Justice Johanne Gauthier dismissed the Crown's judicial review application concerning his release from immigration detention); Canada v. Thanabalasingham, [2004] 3 F.C.R. 572, [2004] F.C.J. No. 15, 2004 FCA 4 (F.C.A.) (where the Federal Court of Appeal upheld the decision of Justice Gauthier); Thanabalasingham v. Canada, [2005] F.C.J. No. 185, 2005 FC 172 (where Justice J. François Lemieux set aside the Minister's danger assessment); and, finally, in Canada v. Thanabalasingham, [2006] F.C.J. No. 20, 2006 FCA 14 (F.C.A.) (where the Federal Court of Appeal set aside Justice Lemieux's decision on the grounds that the Applicant had an alternate remedy in the form of an appeal to the Immigration Appeal Division (IAD)).
[5] The Applicant's underlying application is from the unfavourable decision of the IAD which was rendered on January 6, 2006. That decision contains a detailed review of the Applicant's history of criminal and gang involvement including many matters for which the Applicant was never charged. Among other findings, the Board found:
· The Applicant's proven criminal offences are serious because they involve weapons and because of the manner in which those weapons were intended to be used.
· The Applicant acknowledged an attack with a machete and he routinely kept a machete in his car.
· The Applicant sought a handgun to be used by others in a confrontation with a rival gang. He knew that this could lead to a homicide but he was willing to see such an outcome because one of the targets was not a friend.
· Notwithstanding the Applicant's evidence that he stopped associating with gang members in 1997, he continued to visit gang leaders in jail as late as 2001 (the Applicant was, himself, in detention between October, 2001 to January, 2004). He asserted that his visits to gang leaders were purely humanitarian in nature.
· The Applicant acknowledged numerous instances of perjury in his efforts to gain release from detention. When he was ultimately successful in that regard, he did nothing to correct the record as his case proceeded through the various Court reviews which are noted above.
· The Applicant continued to minimize his gang ties in testimony before the Board and, in that respect, he lacked credibility.
· The Applicant's testimony was often evasive and, as an example, he professed an inability to remember if he had ever pulled his machete on anyone beyond the time he had used it for an assault.
· The testimony of Constable Furlong about the Applicant's ongoing gang and criminal involvement was credible.
· The Applicant was a senior member of a criminal gang in Toronto filling a void left by other leaders who had gone to jail.
· The Applicant sent a violent gang member to meet with others who had implicated him albeit, he said, with the innocent motive of getting them to recant their "false" incriminating testimony.
· Members of the Applicant's family had lied on his behalf in earlier immigration proceedings.
· In light of the Applicant's criminal history, his perjury and his continuing unwillingness to own up to responsibility, the prospects for his rehabilitation were poor.
· The degree of hardship faced by the Applicant's family was outweighed by the seriousness of his offences and his continuing risk to public safety.
· The Applicant had failed to establish that he faced a substantial risk of harm were he to be returned to Sri Lanka.
· The Applicant had spent more than one half of his life in Sri Lanka and had lived in Colombo. He is also well educated and employable. He speaks Tamil. He could readily adjust to circumstances in Sri Lanka.
[6] The Board summed up its findings with the following conclusions:
[85] In conclusion, the appellant has not established that in all the circumstances of the case he should not be removed from Canada. The panel gave considerable weight to the seriousness of the offences, the context in which they occurred, the likelihood that the appellant would re-offend, and the need to protect Canadian society. While the panel weighed the length of the appellant's residence in Canada and his ties to his family in Canada, as well as the best interests of his child in the appellant's favour, these positive factors are clearly outweighed by the negative factors in this case. In light of the negative considerations, particularly the need to protect Canadian society and the appellant's circumvention of a firearm prohibition in the past, this is not an appropriate case for a stay of the execution of the removal order.
[86] Accordingly, the appeal is dismissed in law and on all the circumstances of the case.
[7] The Applicant's counsel argues that the requirements of Toth, above, are met here and that a stay should be granted. She has capably advanced a number of arguments to establish that a serious issue has been raised by the underlying application for judicial review. Although most of those arguments are fact-based and, therefore, would be difficult to establish, I am satisfied that the Applicant has met the relatively low threshold on this issue. It is with respect to the issues of irreparable harm and balance of convenience that I have found against the Applicant.
Irreparable Harm
[8] The Applicant claims that he will suffer irreparable harm if he is deported. Specifically, he says that he faces a serious risk of physical harm, that there are compelling and harmful consequences for his Canadian family and that his right to an ultimate remedy will be rendered nugatory if he is returned to Sri Lanka.
[9] The Applicant relies upon documentary and affidavit evidence which indicate that the conflict in Sri Lanka has recently escalated with an increase in hostile acts in the north and a tightening of the security response in the south. He says that the ceasefire has been jeopardized by these events and that young Tamil males are once again the targets of both the LTTE and of government forces. He also claims that he is particularly vulnerable because of his notoriety as an alleged Tamil gang member in Canada - albeit, he says, that in reality he was not so engaged.
[10] The Respondent takes the position that the Applicant failed to demonstrate any serious likelihood of harm upon a return to Sri Lanka and that the risk factors facing him were not materially different from what the IAD had considered earlier this year. The Respondent relies upon a significant body of affidavit evidence by knowledgeable witnesses on the ground in Sri Lanka to establish that several young Tamils similarly positioned to the Applicant have not been persecuted upon their deportation to Sri Lanka.
[11] In this case, I accept unreservedly the affidavit evidence submitted by the Respondent to the effect that the experience to date of young Tamil males deported to Sri Lanka from Canada has not been unduly negative or harmful. While such individuals are sometimes briefly detained and questioned, they have not been abused. Furthermore, the ceasefire in Sri Lanka continues to hold up and the planned peace talks are evidence of a continuing political will to find a solution to the conflict.
[12] In contrast, the affidavits relied upon by the Applicant are unreliable and conjectural and based, in large measure, on unnamed sources and rumour. Two affidavits submitted on the day of the hearing by the Applicant are particularly suspect. They both came from friends of the Applicant and their late production gave insufficient time to the Respondent to verify the information provided. I place no weight on those affidavits given the past propensity of the Applicant and some of his supporters for misrepresentation,.
[13] The suggestion by the Applicant that he might subject himself to the risk of harm in the north from the LTTE simply because he has no family or support network in Colombo is disingenuous. The Applicant has a good education and is readily employable. He has previously lived in Colombo and could easily adjust to circumstances there. If he is as fearful as he suggests about going to the north, his supposed rationale for doing so is entirely implausible.
[14] With respect to the issue of family hardship, I accept that this separation will cause considerable difficulty for the Applicant's family. In some measure, the Applicant's criminal behaviour and, in particular, his lengthy periods of past detention and incarceration have almost certainly caused grief to his wife and family. Indeed, it is difficult to comprehend how an individual with such intelligence and potential as the Applicant could have chosen to visit such hardship upon his loved ones. The Applicant has made many poor choices in his life and, for him, the difficulties of separation are all self-imposed. While the emotional and financial difficulties faced by the innocent members of the Applicant's family are real and profound, they do not rise above the kinds of stressors that are inherent in any situation involving the deportation of a family member. I cannot
make this point any clearer than by relying upon the decision by Justice Denis Pelletier in Melo v. Canada(Minister of Citizenship and Immigration ), [2000] F.C.J. No. 403 where he stated at paragraph 21:
21 These are all unpleasant and distasteful consequences of deportation. But if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak. There is nothing in Mr. Melo's circumstances which takes it out of the usual consequences of deportation. This is not a case of deporting a 73-year-old woman who cared for and in turn was cared for by her elderly husband, as was the case in Belkin supra. Nor is it a case of deporting someone who is the sole caregiver for a blind and sick grandparent as was the case in Richards v. Canada [See Note 2 below]. Mr. Melo is not being sent to a place as inhospitable as Albania with his young child as was Mr. Abazi [See Note 3 below]. As unhappy as these circumstances are, they do not engage any interests beyond those which are inherent in the nature of a deportation.
Note 2 [1999] F.C.J. No. 890
Note 3 Abazi v. Canada, [2000] F.C.J. No. 429, IMM-6259-99
[15] With respect to the question of whether a deportation will render the Applicant's claim for judicial review nugatory, I would adopt the views of Justice Eleanor Dawson in the similar case of Ariyarathnam v. Canada(IMM-8121-04) where she held:
Dealing with each asserted ground in turn, I am satisfied that in the context of deportation, simple absence from the country while an application for judicial review proceeds does not constitute irreparable harm. See: Suresh v. Canada (Minister of Citizenship and Immigration), [1999] F.C. 206 (C.A.) at paragraph 14 for a discussion of what would make "victory" hollow; and Selliah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1200 at paragraph 20.
[16] In conclusion, I find that the Applicant has failed to establish irreparable harm on a balance of probabilities.
Balance of Convenience
[17] I am also satisfied that the balance of convenience in this case clearly favours the Respondent. Like the IAD, I am of the view that the Applicant continues to represent a risk to the Canadian public and, therefore, should not be permitted to remain here.
[18] The Applicant's criminal history is also a strong factor favouring the Respondent in this case. The comments by Justice John Evans in Tesoro v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 698, 2005 FCA 148 (F.C.A.) at paragraph 47 have equal application here:
47 However, if I had determined that Mr. Tesoro's removal would cause irreparable harm, on the ground that the effects of family separation were more than mere inconveniences, I would have located the harm at the less serious end of the range, and concluded that, on the balance of convenience, it was outweighed by the public interest in the prompt removal from Canada of those found to be inadmissible for serious criminality. If the administration of immigration law is to be credible, the prompt removal of those ordered deported must be the rule, and the grant of a stay pending the disposition of legal proceedings, the exception.
[19] In conclusion, I would adopt the position advanced by counsel for the Respondent on this motion where he stated:
101 Every year this Honourable Court hears hundreds of stay applications. Although illegal, many applicants are hard working, law-abiding people who are simply here in order to improve their lives and the lives of their families. Nonetheless, in order to uphold the immigration scheme and the law, this Court is required to dismiss the motions of most of these would be immigrants. In the instant case, we have an immigrant who has had the opportunity to make a better life for himself in Canada and contribute to Canadian society. He chose not to do so, and instead engaged in serious and violent criminal activity, violating and putting at risk the peace and safety of the Canadian public. To grant a stay in these circumstances, in the Respondent's respectful submission, would be contrary to the spirit, principles, and objectives of the IRPA, not to mention the principles underlying this Court's discretion to grant the requested relief.
[20] It is for these reasons that I previously dismissed the Applicant's motion for a stay of deportation.
" R. L. Barnes "
Judge
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