Thamotharampillai v. Canada (Minister of Citizenship and Immigration), 2001 FCT 370

                                                                                                           Date: 20010420

                                                                                                Docket: IMM-1549-96

                                                                                   Neutral Citation: 2001 FCT 370

Between:

                        SHANMUGAVADIVEL THAMOTHARAMPILLAI,

                                                                                                                     Applicant,

                                                             - and -

                  THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                  Respondent

                                              REASONS FOR ORDER

Muldoon, J.:

1. Introduction

[1]         This is an application for judicial review of a decision dated May 8, 1996, to execute the removal of the applicant to Sri Lanka.

2. Statement of Facts

[2]         The applicant was born on March 4, 1974 and is a citizen of Sri Lanka. He entered Canada on September 22, 1991 as a landed immigrant. He was convicted on August 12, 1993 of failure to appear in Court, failure to attend, setting a false alarm of fire, and carrying a concealed weapon. He was sentenced to three months imprisonment for each conviction to be served concurrently. On December 16, 1993, he was convicted of aggravated assault and sentenced to 18 months of imprisonment and to two years of probation. On February 18, 1994, a report under section 27 of the Immigration Act was issued based on the December 1993 conviction and on June 13, 1994 a direction of inquiry was ordered under subsection 27(3) of the Act. The inquiry was held at the Toronto Adjudication Centre over four sessions from August 14, 1994 to December 19, 1994. The inquiry started on October 14, 1994 and was adjourned for want of an interpreter. The inquiry resumed on November 15, 1994 but was adjourned to afford the applicant an opportunity to retain counsel. The inquiry was again adjourned on December 2, 1994 to afford the applicant a further opportunity to retain counsel. On December 19, 1994, the inquiry resumed because the applicant stated that he was ready to proceed without counsel. At the conclusion of the inquiry, a deportation order was issued against the applicant because he was a person described under subsection 27(1)(d) of the Immigration Act. He was advised of his right to appeal to the Immigration Appeal Division.

[3]         On February 23, 1995, a direction to report was issued requiring the applicant to attend an interview on March 6, 1995. He did not appear, nor did he contact immigration officials. On March 10, 1995, his parole was suspended and a warrant for his arrest was issued. On May 8 1995, an immigration warrant was issued.

[4]         On August 22, 1995, shots were fired at a Hindu temple in Scarborough. After falsely identifying himself to police, the applicant was arrested and charged for the illegal possession of three firearms. On August 23, 1995, he was arrested and detained for deportation under section 103 of the Immigration Act.

[5]         On September 18, 1995, his parole was cancelled and he was recommitted to serve his sentence for aggravated assault. On November 15, 1995, he completed his sentence and was held on the criminal charges stemming from the weapons offence until he posted bail on December 29, 1995. He was then held in custody by an order under section 105 of the Immigration Act. On January 3, 1996, the weapons charges were withdrawn.

[6]         During detention, the applicant was provided with regular detention reviews. During the first review, he admitted that he had not complied with the terms of release to avoid removal from Canada. He also admitted to using an alias when apprehended by the police. The adjudicator held that the applicant was a danger to the public because of his convictions for aggravated assault and for possession of a concealed weapon.

[7]         By May 1996, immigration officials finalized his travel documents for removal. On May 7, 1996, the applicant filed an application for leave and for judicial review to challenge his removal. On May 9, 1996, he successfully brought a motion for a stay. The applicant did not appeal to the Appeal Division to challenge the validity of the deportation order. He did not make a refugee claim, nor did he file a H & C application before his scheduled removal on May 8, 1996.

[8]         In February 1997, after having been released from immigration hold, he was involved in another serious criminal incident and was charged with the possession of a loaded 357 magnum. Following this incident, the police advised Immigration officials that they believed him to be a member of a the VVT, a Tamil gang which operates in Toronto.

[9]         Canadian Officials informed the Sri Lankan government by letter dated November 29, 1995 of the applicant's criminal record, the charges which were then outstanding and the circumstances giving rise to those charges.

[10]       Because of these allegations, the applicant is fearful of returning to Sri Lanka because he fears detention, torture or extrajudicial killing by the Sri Lankan authorities. Considerable documentary evidence exists that the government of Sri Lanka engages in torture of people suspected of being Tamil Tigers.

[11]       In June 2000, the applicant applied for a risk assessment and for consideration on humanitarian and compassionate grounds because he is a young Tamil male who is at risk upon return to Sri Lanka. No risk assessment has yet been performed because of the allegations that he is a member of the VVT Gang.

3. Issues

1.         Does the decision to remove the applicant engage section 7 rights; and

2.         If section 7 is engaged, does the procedure undertaken by the Minister comply with the principles of fundamental justice.

4. Applicant's Submissions

Preliminary Issues

[12]       The applicant's appeal to the Immigration Appeal Division was not perfected because his former counsel did not file the appeal within the time period. Therefore, there was no review of the circumstances of the case.

[13]       The applicant's case was considered with a series of cases in the Sinnappu^[1] test case. The Sinnapu case went first and, after a hearing by the Court, the application for judicial review was dismissed. An appeal was filed in the Federal Court of Appeal but the Court dismissed the appeal for mootness because Mr. Sinnapu was landed^[2]. Because the Court failed to dispose of this application, Mr. Justice Rouleau granted leave for judicial review in this application.

[14]       The applicant submits that the documentary evidence shows that the Sri Lankan government is aware of the use of criminality in Canada and in Toronto to raise funds for the Tamil Tigers. Although the Sri Lankan government may not be aware of the allegations against the applicant, he will nonetheless be suspected of being an LTTE member or collaborator. That the applicant was involved in criminal activity in Toronto is sufficient for the Sri Lankan authorities to suspect him of having ties with the tigers. He is also at risk because of his identity as a young Tamil male from the North of Sri Lanka.

The Law

[15]       The Court must first consider whether section 7 of the Charter is engaged. The immigration authorities have alleged that the applicant is connected to the VVT to detain him. The authorities also allege that the VVT gang is associated with the Tamil Tigers. Therefore, the applicant submits that a credible basis exists to suggest that he is at risk of detention and of torture upon returning to Sri Lanka. His security of the person interests are engaged in the process which leads to his deportation.

[16]       Madam Justice Wilson stated in Singh et al. v. M.E.I^[3]. that section 7 of the Charter is engaged when a person faces a well founded fear of persecution:

It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, "security of the person" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself.

[17]       In Ngyuen v. M.E.I.^[4], the Federal Court of Appeal recognized that section 7 interests are engaged when a person might be removed from Canada to a country where risk exists. This approach is consistent with the Supreme Court of Canada's recognition that removal to a country where torture might occur offends the Charter. In Kindler v. The Queen^[5], in discussing extradition, Mr. Justice Laforest stated:

There are, of course, situations where the punishment imposed following surrender - torture, for example - would be so outrageous to the values of the Canadian community that the surrender would be unacceptable.

[18]       In Suresh v. M.C.I.^[6], the Federal Court of Appeal recognized that removal to face torture or other forms of cruel, inhuman or degrading treatment engages section 7 of the Charter, and violates the principles for fundamental justice. However, the Court concluded that such removal was saved under section 1 of the Charter.

Principles of Fundamental Justice     

[19]       Section 7 of the Charter is engaged because the Immigration Act is inconsistent with international human rights norms allowing the refoulement of a person who was denied access to the refugee determination process to a country

of persecution. International human rights norms have superceded Article 33.2 of the Convention Relating to the Status of Refugees. Removal of a person who faces deplorable treatment in another state's jurisdiction is prohibited regardless of the risk that the person presents to the community which has granted refuge. The procedure under the Immigration Act which allows the Minister to remove the applicant to face torture without a risk assessment is flawed. The applicant submits that his removal does not comply with the principles of fundamental justice because the right to be free from torture is non-derogable and is recognized under international and domestic law. No competing state interest can ever sanction the removal to torture.

[20]       Mr. Justice Lamer stated in Reference re Section 94(2) of the Motor Vehicle Act^[7] that the principles of fundamental justice which can justify the infringement of the rights to life, liberty and security of the person exist in the basic tenets of the legal system:

...the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judicial as guardian of the justice system.

[21]       The basic tenets include principles developed over time as presumptions of the common law or expressed in international conventions on human rights. The principles are "essential elements of a system for the administration of justice which is founded upon a belief in the inherent dignity and worth of the human person and on the rule of law."

Section 7 and Torture

[22]       The applicant submits that torture is a violation of the most fundamental human rights such that no competing state interest can justify its imposition. In Kindler, (supra), Laforest J. stated:

This Court has held that extradition must be refused if surrender would place the fugitive in a position that is so unacceptable as to "shock the conscience"

There are, of course, situations where the punishment imposed following surrender - torture, for example - would be so outrageous to the values of the Canadian community that the surrender would be unacceptable.

In Schmidt^[8], Laforest J., quoting Wilson, J. in Operation Dismantle [1985] 1 S.C.R. at p. 464, recited:

I have no doubt either that in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances. To make the point, I need only refer to a case that arose before the European Commission on Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611, where it was established that prosecution in the requesting country might involve the infliction of torture. Situations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7. I might say, however, that in most cases, at least, judicial intervention should await the exercise of executive discretion. For the decision to surrender is that of the executive authorities, not the courts, and it should not be lightly assumed that they will overlook their duty to obey constitutional norms by surrendering an individual to a foreign country under circumstances where doing so would be fundamentally unjust.

In Kindler, (supra), Madam Justice McLaughlin noted:

The test for whether an extradition law or action offends s. 7 of the Charter on account of the penalty which may be imposed in the requesting state, is whether the imposition of the penalty by the foreign state "sufficiently shocks" the Canadian conscience: Schmidt, per La Forest J., at p. 522. The fugitive must establish that he or she faces "a situation that is simply unacceptable": Allard, supra, at p. 572. Thus the reviewing court must consider the offence for which the penalty may be prescribed, as well as the nature of the justice system in the requesting jurisdiction and the safeguards and guarantees it affords the fugitive. Other considerations such as comity and security within Canada may also be relevant to the decision to extradite and if so, on what conditions. At the end of the day, the question is whether the provision or action in question offends the Canadian sense of what is fair, right and just, bearing in mind the nature of the offence and the penalty, the foreign justice system and considerations of comity and security, and according due latitude to the Minister to balance the conflicting considerations.

In determining whether, bearing all these factors in mind, the extradition in question is "simply unacceptable", the judge must avoid imposing his or her own subjective views on the matter, and seek rather to objectively assess the attitudes of Canadians on the issue of whether the fugitive is facing a situation which is shocking and fundamentally unacceptable to our society.

[23]       The applicant submits that his removal to Sri Lanka shocks the conscience and is a violation os section 7 of the Charter.

International Norms

[24]       Mr. Justice Dickson held in Slaight Communication Inc. v. Davidson^[9] that Courts could use international human rights conventions to inform Charter interpretation:

Given the dual function of s. 1 identified in Oakes, Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights. Furthermore, for purposes of this stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective. This is consistent with the importance that this Court has placed on the protection of employees as a vulnerable group in society.

[25]       Canada has ratified the International Covenant on Civil and Political Rights (the ICCPR) and the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (the Torture Convention").

[26]       The rights protected under the ICCPR are divided into those which can be limited, and those which are absolute. The right not to be subjected to torture is absolute.

[27]       The United Nations Human Rights Committee (the UNHRC) monitors compliance with the ICCPR and hears individual complaints. It has stated that removal back to torture is prohibited in its publication General Comments (GC No. 20).

[28]       In Chahal v. U.K.^[10], the European Court of Human Rights affirmed that the prohibition against placing a person at risk or torture is absolute. Article 3 of the European Human Rights Convention prohibits torture or other inhuman or degrading treatment or punishment. The British government argued that Article 3 contained implied limitations that entitled a state to expel a person for its national security, notwithstanding the risk of torture in the receiving state. The Court disagreed and held that there was no exception to the prohibition against removal to torture.

[29]       In Khan v. Canada^[11], the United Nations Committee Against Torture held that a determination of the applicability of Article 3 depends upon two factors: whether a consistent pattern of gross, flagrant or mass violations of human rights exists, and whether the individual is personally at risk if returned to the country of origin. The determination of personal risk may flow from the class or character of the person. When a person falls within a class by virtue of personal characteristics or activities, and the evidence indicates a consistent pattern of gross, flagrant or mass violations of the human rights of the class to which the person belongs, removal cannot be sanctioned.

[30]       Here, the applicant has not been assessed for risk. As a result of the allegations, the applicant has reasonable grounds to fear torture upon return to Sri Lanka.

Content of Fundamental Justice

[31]       The content of fundamental justice varies with context. If an applicant has not been assessed for risk and if evidence exists of a change in circumstances which puts the applicant at risk for torture, the principles of fundamental justice require that a risk assessment be undertaken before removal.

[32]       In Suresh, (supra), this Court holds that removal to a risk of torture is permitted. However, the applicant submits that Suresh indicates that removal to a risk of torture is allowed only when the applicant is given an opportunity to make submissions about risk in humanitarian and compassionate circumstances and where the Minister assesses the risk and balances it with the risk to the public. The applicant submits that no balancing has occurred here. The principles of fundamental justice require a fair assessment of risk and doubts going to credibility entitle the applicant to an oral hearing.

5. Respondent's Submissions

Factual Vacuum

[33]       The applicant alleges here for the first time that he was told by an unnamed immigration officer that Sri Lankan officials were advised that he is a member of the VVT gang. He says that the gang is clearly associated with the Tamil Tigers. The applicant bases his arguments upon these facts. However, the record does not support his "facts". All immigration officials who had contact with Sri Lankan officials deny this allegation, and the applicant does not identify the official who presumably made this remark.

[34]       The applicant claims that he would be at risk of torture because of the association of the VVT gang. However, his affidavit in support of the motion for

a stay of proceedings does not mention the VVT gang. He feared returning because he was a Tamil living in Canada, a country known for its support in the Tamil community for the Tiger movement. His previous statement does not support his current allegation. Moreover, it is only the applicant who alleges that this gang is clearly linked to the Tigers.

[35]       The applicant has not made a refugee claim, although he had four opportunities during his immigration hearing to do so. Nor did the applicant appeal his deportation order to the Immigration Appeal Division which has the power to stay his removal on humanitarian and compassionate grounds.

[36]       In Jeyarajah v. Canada^[12], the Federal Court of Appeal held that the failure to assert a risk of torture on removal when opportunities to assert that risk have been offered undermines the credibility of the allegation. The respondent submits that the applicant's allegation that an immigration officer told him that Sri Lankan officials were advised of his gang membership is not credible. Even if this Court accepts that such a statement was made, its truth has not been proven. No evidence exists that Sri Lankan officials are aware of his status as a gang member. Therefore, the evidence does not support the applicant's Charter arguments.

[37]       The record before the Court is inadequate to determine if the applicant faces a risk of torture upon return to Sri Lanka. Charter decisions should not be made in a factual vacuum. No factual foundation exists here to substantiate the allegations of a violation of the applicant's Charter rights.

Court not the Trier of Fact

[38]       The respondent submits that the applicant is asking the Court to act as a trier of fact of first instance, a role that is inappropriate for a Court sitting in judicial review. In Sinnapu, Madam Justice McGillis noted that this Court was not the forum for making findings of fact about country conditions as a matter of first instance. In Suresh, the Federal Court of Appeal held that the Court, sitting in judicial review, should refrain from making findings of fact as a matter of first instance. Therefore, the respondent submits that the applicant should have availed himself of the mechanisms under the Act whereby this alleged risk might have been assessed.

Principles of Fundamental Justice

[39]       The respondent submits that the protections in the Immigration Act which were available to the applicant accord with fundamental justice.

General Principles

[40]       The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or to remain in Canada. In Lyons^[13], the Supreme Court of Canada held that section 7 entitles a person to a fair hearing, not to the most favourable procedures that could be imagined.

Legislative Protections

[41]       As a permanent resident of Canada, the applicant had the following opportunities under the Immigration Act to challenge the validity of his removal:

a.         Under section 70, he could have appealed his deportation order to the Immigration Appeal Division;

b.         At any time during the section 27 inquiry, but before the order was issued, the applicant could have claimed refugee status and sought a hearing before the Convention Refugee Determination Division; and he had the right to seek leave and judicial review of that decision

c.         If he was unsuccessful in a Convention refugee claim, he could have applied under the PDRCC program; and he had the right to seek leave and judicial review of that decision; and

d.         He could have applied to remain in Canada under H & C grounds under subsection 114(2); and he had the right to seek leave and judicial review of that decision.

Fundamental Justice

[42]       In Grewal v. Canada (M.E.I.)^[14], the Federal Court of Appeal considered a case where an applicant attempted to rely on new facts about risks in his country of origin:

In my view, the Canadian justice system has not unfairly closed its doors on this applicant. Rather, he has already had the opportunity to present his new facts, in one form or another, to several authoritative bodies, without success. These new facts may not have been examined in the particular way he would have liked them to be, but fundamental justice does not mandate a particular method of dealing with legal or factual issues. Although a particular method of dealing with legal or factual issues is not demanded, what is required by the terms of Section 7, in cases such as the instant case, is that the refugee claimant be given an ample opportunity to have new evidence of potential persecution in his home country heard and fully considered by an authoritative body.

[43]       The applicant has had ample opportunity to have his claims evaluated by authoritative bodies. In Sinnapu, McGillis J. held that the protections available to failed refugee claimants accorded with the principles of fundamental justice. The applicant here could also have appealed the deportation order to the Appeal Division on H & C grounds. Therefore, the respondent submits that the legislative scheme which authorizes the applicant's removal to Sri Lanka accords with the principles of fundamental justice.

Causal Connection Between Legislation and Breach   

[44]       The respondent submits that if the applicant is exposed to a risk of torture, it is not because of a flaw in the legislative scheme but because of his own inaction. In Sinnapu, McGillis J. held that the applicants failed to establish a causal link between the systemic delay in administering the legislative scheme and a claim of being prejudiced by the legislative scheme:

Indeed, the applicants, who have no right to remain in Canada, had an obligation to pursue actively and aggressively all legislative avenues available to them in an attempt to obtain status in this country. The applicants' failure to avail themselves, in a timely manner, of a legislative option cannot constitute the foundation for a subsequent argument that they have suffered prejudice or unfairness by virtue of delay. In the circumstances, given that the applicants had not exhausted their legislative avenues of recourse by making an application for humanitarian or compassionate relief prior to the scheduled date of removal, they have failed to establish that their rights under section 7 of the Charter were breached.

[45]       The respondent submits that the applicant has failed to establish a causal link between the legislative scheme and the risk of torture which he alleges. The risk arises only because of his failure to seek the protection of the legislation.

6. Remedies

[46]       The applicant requests the following remedies:

1.          Allow the application for judicial review;

2.          Quash the decision to execute the removal order.

3.          Refer the matter back to an immigration officer, directed to delay removal until the completion of a risk assessment.

[47]       The respondent requests that this application be dismissed. Upon profound consideration of the respective parties' submissions and the documentation and jurisprudence, this Court concludes that this application for judicial review ought to be dismissed. So be it.

[48]       At the hearing of this case, there was no dispute between counsel about the certification of a question for appeal, despite some reluctance evinced by the respondent's counsel. The question which is here certified is the first one mentioned by Madam Justice McGillis, on page 34 of the Sinnappu decision (1997) 126 F.T.R., p. 34:

Whether the removal order issued against the applicant requiring his deportation to Sri Lanka, a country engaged in an armed conflict, infringe or deny the rights guaranteed by ss. 7 or 12 of the Canadian Charter of Rights and Freedoms.

[49]       In posing the question the applicant's counsel assumed that if deported, the applicant would be tortured or killed, that which remains to be proved.

Ottawa, Ontario

April 20, 2001

                                                                                                                           Judge