Jeyarajah v. Canada (Minister of Citizenship and Immigration), docket IMM-6057-98

Date: 19981215

Docket: IMM-6057-98

     Plaintiff

     Defendant

     REASONS FOR ORDER AND ORDER

DENAULT J:

[1]      In this case, the plaintiff arrived in Canada in 1989 at the age of 12 and was granted permanent residence as a Convention refugee (Immigration category CR4). In 1995, he was charged with importing narcotics, pleaded guilty and was sentenced to 4 years and 5 months in a federal penitentiary.

[2]      On August 23, 1996, a delegate of the Minister of Citizenship and Immigration issued an opinion, pursuant to subsection 70(5) and paragraph 53(1)(d) that the plaintiff was a danger to the public, which decision was communicated to him on August 29, 1996. Close to a year later, in May 1997, the plaintiff sought leave and judicial review of the minister's opinion but leave was denied on September 23, 1997.

[3]      On April 17, 1998, an adjudicator issued a deportation order against the plaintiff, which order is to be executed on December 17, 1998.

[4]      On November 25, 1998, the plaintiff took a declaratory action against the defendant to enjoin the Minister of Citizenship and Immigration from removing him to Sri Lanka. In his action, the plaintiff seeks to demonstrate that the removal of someone to a country where he faces the risk of torture, in the absence of undertaking a proper risk assessment prior to removal, violates sections 7 and 12 of the Charter of rights and freedoms.

[5]      The plaintiff now seeks an interim injunction enjoining against executing the removal order issued against him until such time as his action is dealt with. He argues that nowhere in subsections 70(5) and 53(1) of the Immigration Act is there a requirement that the minister not remove a person to a country where there is a risk of torture being inflicted.

[6]      In the instant case, this Court, having carefully considered all of the circumstances, is not satisfied that the plaintiff has met the first requirement of the tripartite test for the granting of an interim injunction, namely the existence of a serious issue to be tried.

[7]      In Barre v. MCI (FCTD, July 29, 1998, IMM-3467-98), my colleague Teitelbaum refused to follow the opinion expressed in Farhadi v. MCI (FCTD, March 9, 1998, IMM-3846-96) now under appeal, that in the danger opinion process provided in subsection 53(1) of the Immigration Act, an applicant is entitled to a risk assessment and determination apart from the danger certification. While I agree with the opinion of my colleague in Barre, I also find that in the circumstances of this case, the plaintiff was in fact invited, on April 10, 1996, when advised by Citizenship and Immigration Canada that it was seeking an opinion by the minister that the plaintiff was a danger to the public, to make representations as to whether or not he is a danger to the public and whether compelling and compassionate or humanitarian considerations are present. He was further advised that the minister would consider "... the possibility of a risk to you which could be precipitated by returning you to the country... of your nationality...".

[8]      The plaintiff did provide written submissions to the minister but did not indicate any fear of returning to Sri Lanka. Yet the decision-maker proceeded to the appropriate consideration of risk and the balancing of that risk against the danger posed by the plaintiff and a negative opinion was issued.

[9]      In the circumstances of this case, I am not convinced that there is a serious issue to be tried.

[10]      Consequently, the application is dismissed.

     O R D E R

     The application is dismissed.

     J.F.C.C.