Date: 19990513
Docket: IMM-2090-99
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
KARIYAWASAM WIJETILLEKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. THE FACTS
[1] This motion is for an order of the Court staying the execution of a removal order issued against the applicant until such time as of the applicant's application for leave and judicial review of a decision of post-claimant determination officer (PCDO) dated April 7, 1999 holding that the applicant was not a member of the Post-Determination Refugee Claimants in Canada Class (PDRCC) can be heard and disposed of.
[2] A member of the PDRCC is, pursuant to Section 2(1) of the Immigration Regulations, an immigrant in Canada who has been determined not to be a Convention refugee who, if removed to a country to which the immigrant could be removed, would be subjected to an objectively identifiable risk to life, or to extreme sanctions or inhuman treatment.
[3] In his letter of April 7, 1999, the PCDO advised the applicant that a review of his case had been conducted in order to determine if he was a member of the PDRCC. He said that this class was limited to persons who will be subjected to a personal, objectively identifiable risk to their life, to extreme sanctions or inhuman treatment if required to leave Canada. He advised the applicant that it was determined that he would not be subjected to any of the above risks and therefore, he was not a member of the PDRCC.
[4] In that letter of April 7, 1999, the PCDO told the applicant that he had been issued a conditional departure order and attached a reminder to the applicant which provided the applicant with additional information on departure orders and procedures to be followed when leaving Canada.
[5] The information provided by the PCDO to the applicant is a one page document entitled "Conditional Departure Orders". It said the applicant's conditional order was now effective because the applicant's refugee claim had been denied. The document told him that he must leave Canada within thirty-seven (37) days from April 7, 1999.
[6] The material part of the document reads as follows:
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A certificate of departure, which will confirm your voluntary departure from Canada, can be issued to you up to thirty-seven (37) days from the date of this letter. |
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If your departure from Canada has not been confirmed within the 37 day period, the departure order will be deemed to be a deportation order under section 32.02(1) of the Immigration Act. At that point, you will be unlawfully in Canada and warrant for your arrest and removal from Canada will be issued. As the subject of the deportation order, you would require the consent of the Minister of Citizenship and Immigration to return to Canada and would also be required to pay the cost of your removal. |
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[7] In Sri Lanka, the applicant was employed in the textile industry rising to the position of production manager. In 1994, he became the founding secretary of a Legal Aid Centre. The mandate of the Legal Aid Centre was to assist people in need of legal services and to direct to appropriate legal practitioners. Cases involving human rights would be referred to a government affiliated institution which had been established to deal with criminal matters and with cases involving violations of human rights.
[8] In 1992, the applicant rented a spare room to a Tamil who he registered with the police, as required. The applicant observed, on occasions, his border was absent for 2 or 3 nights at a time. On May 14, 1996, his border did not return to the apartment, and being absent for a period of one week, the applicant reported that absence to the local police on May 21, 1996.
[9] On May 24, 1996, the applicant said the Special Task Force Division of the police (STF) came to his apartment to question him about his border. They informed him his border was involved with the Liberation Tamil Tigers of Eelam (LTTE), a militant separatist group seeking a separate Tamil state. The STF informed him his border had been sent to Colombo to execute terrorist attacks within the city.
[10] The STF suspected the applicant of being an LTTE collaborator. The applicant, in his affidavit in support of this stay motion, said that on May 24, 1996, the STF also searched his apartment and took him into custody. He said he was interrogated and tortured and released two (2) days subsequently to the custody of one of the lawyers whom he had been working with since 1994 at the Legal Aid Centre. He was instructed to report to the STF once a month. In his affidavit, he said on May 27, 1996, he received an anonymous phone call from a man whom he believed to be a Tamil. The man accused him of giving information about his border to the police and threatened that if anything happened to his border, they would come after him. He said then he realized he was in serious jeopardy not only at the hands of the STF, but also at the hands of the LTTE. He decided to flee Sri Lanka.
[11] He arrived in Canada in August 1996, and in September of that year made a refugee claim. His claim was heard by the Convention Refugee Determination Division (CRDD) and on October 21, 1997, was rejected.
[12] In its decision, the CRDD panel identified credibility and availability of protection as the central determinative issues in his claim. In the panel's view, the claimant's testimony was implausible in a number of central aspects with regard to the availability of protection, thus leading the panel to a finding that the claimant had not discharged his onus in this regard. In particular, the panel said at pages 3 and 5 of its decision this:
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1. It is not plausible given the claimant's profile, the situation in which he found himself and the legal contacts to which he had access, that he would not attempt to extricate himself from a situation in which he was falsely accused, and seek regress from the abusive treatment he had received. |
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2. It is further not plausible that the claimant would allegedly be accused of serious crimes, of helping to construct bombs and of association with a LTTE terrorist who intended to bomb Colombo, and be released on three occasions, despite the fact, as he indicated, that the authorities did not believe his denial of the accusations. The panel notes that those suspected harbouring terrorists are subjected to severe penalties, specifically imprisonment between five and ten years. Indeed, there is very little evidence of such Sinhala LTTE collaboration. |
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[13] The applicant sought the leave from this Court to appeal the CRDD's decision, and this was refused.
[14] On December 23, 1997, the solicitor for the applicant made a comprehensive submission to the PCDO to the effect that there is substantial evidence to support the proposition that the applicant faces an objectively identifiable risk of inhuman treatment within the meaning of Section 2 of the Immigration Regulations upon his return to Sri Lanka.
[15] In summary form, the applicant's PDRCC submission provided the background facts to the applicant's leaving Sri Lanka and provided an analysis of the human rights situation in that country to the effect that both government forces and the LTTE have effectively disregarded the fundamental human rights of the citizens of Sri Lanka. Both sides have committed extensive human rights abuses, including repeated acts of torture and extra-judicial execution against enemies, real of perceived. The applicant's submissions attacked the CRDD's decision particularly in respect to the protection which members of the Sinhalese majority may enjoy. In this respect, the submission said this:
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With all due respect to the Board, its conclusion in this regard is counter intuitive and ignores the reality of the situation in Sri Lanka. The Board simply refuses to acknowledge that members of the Sinhalese majority can be suspected of LTTE collaboration, and that, despite the certain improvements in the human rights situation in Sri Lanka, torture and abuse at the hands of the security forces continues unabated throughout the country. |
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B. ANALYSIS
[16] The PDRCC claim was rejected on April 7, 1999. In support of that rejection, the PCDO provided an evaluation in which he said that the risk identified by the applicant was his fear for his life and safety at the hands of the STF and the LTTE in Sri Lanka, having stated he was investigated for harbouring an alleged LTTE operative, and fears the authorities as well as the LTTE who believe that he betrayed his roommate. The PCDO then provided quotes from the CRDD decision. In his evaluation, the PCDO said this:
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A careful analysis of the information before me has identified plausibility issues - I note that these same issues were identified at the CRDD hearing - the PDRCC submission has not adequately addressed these issues, and they remain outstanding. |
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I note that the applicant was questioned, and then released by the authorities - given the state of the civil war in Sri Lanka, it is not plausible that the authorities would have released him if he had been perceived as being an enemy of the state. |
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It is also not plausible that the applicant, a part-time employee at a Legal Aid Centre would have failed to access his legal contacts in an attempt to protect his human rights. |
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It is my finding that there is insufficient credible information to find that either the LTTE or the authorities want the applicant. |
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[17] The PCDO concluded as follows:
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While it is possible that human rights may be abused in Sri Lanka, this applicant has failed to provide a credible link between these possible abuses and his own particular situation - there is insufficient credible information to find that the applicant would be at risk should he be removed to Sri Lanka. |
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[18] The counsel for the applicant urged before me the serious issue in this case was the failure of the PCDO to consider evidence which is directly relevant to the matters in issue. In other words, the PCDO ignored relevant evidence.
[19] The relevant evidence which counsel for the applicant claims was not considered or ignored by the PCDO was a letter sent by the Chairman of the Legal Aid Centre dated August 22, 1997 addressed to the applicant which reads as follows:
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With reference to the telephone conversation I had with you and lawyer and as per your lawyer's request I would like to give the information below related to your departure from Sri Lanka. |
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Danesh was working part-time as the Secretary of the Legal Aid Centre. |
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Danesh had to leave the country due to consistent life treats from the STF and the LTTE. In order to save his life we had to offer our assistance and support for him to leave the country as soon as possible. This was the only option he had to save his life from continuous life treats from the STF and the LTTE. We also believe that he will have these life treats and his life will be danger if he returns to Sri Lanka in the future. |
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[20] Counsel for the applicant urged upon me that this letter contradicts the PCDO's evaluation that there is no credible information to find the applicant would be at risk if removed to Sri Lanka. He says this letter is directly relevant to the applicant's PDRCC application insofar as it corroborates the applicant's account of his experiences in Sri Lanka. It corroborates, he says, the fact that the applicant did access his legal contacts in Sri Lanka for assistance, and corroborates the applicant's assertion that he is at risk of harm if he is returned to Sri Lanka. He submits nowhere in the PCDO's reasons for decision does the officer give any indication the letter was considered prior to the rejection of the applicant's application. Rather, counsel for the applicant argues the PCDO's assertion that it is implausible the applicant would not have accessed his legal contacts leaves the Court and the applicant with the strong impression that the letter was ignored by the PCDO.
[21] The record before me indicates the Chairman of the Legal Aid Centre's August 22, 1997, letter was included in the applicant's PDRCC claim submission and is specifically referred to in the applicant's submissions at page 4. Furthermore, this same letter was submitted in evidence by the applicant during the CRDD hearings on his refugee claim.
[22] The CRDD panel had this to say about the letter in its decision at page 7:
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The claimant subsequently submitted a letter dated August 22, 1997 which purports to substantiate his allegations and his resulting fears of returning to Sris Lanka. In giving the letter low probative value the panel has taken the following into consideration. Under the circumstances indicated above, the panel would have expected such a letter of support to have been obtained by the claimant from his travel companion at the first opportunity, not to have been solicited after the first sitting of his refugee hearing. Nothing in the claimant's testimony or from the letters he received from his family would indicate that the claimant experienced or is experiencing "continuous life treats from ... LTTE" as indicated in the letter. The claimant had received one threatening telephone call in May 1996 which, because of its content, he believed was made by an associate of Raman, his former border. No further contact followed. The only other reference to anyone remotely associated with the LTTE occurred when "dark youths" who did not speak Sinhala came to his parents home proportedly in order to buy a car and asked for the claimant. Such an exaggeration impeaches the credibility of the letter, not only with respect to the LTTE, but also with respect to the STF. |
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[23] Counsel for the applicant cites the case of Mladenov v. M.E.I. 74 F.T.R. 161 where MacKay J. held the failure of the CRDD to make reference to relevant evidence in its decision led to the conclusion either the evidence was not considered or left the Court and the applicant uncertain as to whether it was.
[24] Counsel for the respondent relies upon Mr. Justice Dubé's decision in Moskvitchev v. Canada, Court File IMM-70-95, December 21, 1995. This case involved a judicial review of a PCDO determination.
[25] Mr. Justice Dubé said this about the nature of a PCDO determination:
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The determination of whether a person is entitled to humanitarian and compassionate consideration as being a member of the PDRCC class is within the discretion of the Immigration Officer. This Court has held that discretionary decisions of post-claim determination officers are subject to judicial review if the officers exercised their discretion pursuant to "improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner". |
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[26] Mr. Justice Dubé in the Moskvitchev decision also dealt with the issue raised by the applicant in this case in the following terms:
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The mere fact that a decision-maker fails to recite all of the evidence when rendering his decision does not necessarily imply that he ignored any evidence if a review of the reasons suggests that he did consider the totality of the evidence. |
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[27] Counsel for the respondent also relies upon the Federal Court of Appeal's Decision in Hassan v. M.E.I. 147 N.R. 317 where Heald J.A. held at page 318 this on an issue involving ignoring of the evidence by the CRDD:
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I respectfully disagree. In my view the conclusions were reasonably opened to it based on the totality of the evidence adduced and, consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied upon by the applicant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency. My examination of the record before the Board persuades me that it did, in fact, consider and weigh the total evidence in a proper fashion. Accordingly, I reject this ground of appeal. |
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[28] In my view, the applicant's attack on the PCDO's determination does not raise a fairly arguable issue. The focus of the PCDO's determination in this case was the lack of sufficient credible information put forward by the applicant, the same issue upon which the CRDD made its finding the applicant had not established his refugee claim i.e. a well-founded fear of persecution by reason of any of the enumerated grounds, a decision in respect of which this Court refused leave to appeal.
[29] After carefully reviewing the record, I am satisfied that the PCDO did consider the letter of the Chairman of the Legal Aid Centre as part of the total evidence. That letter was part of the applicant's PDRCC claim submission. It was specifically referred to in the CRDD's decision. The PCDO, in his determination, specifically says he considered the PDRCC submission and the CRDD decision. I am led to the conclusion, as Heald J.A. was in Hassan, that the PCDO did, in fact, consider and weigh the total evidence in a proper fashion.
[30] My finding the applicant has not made out an arguable case necessarily leads to the conclusion the applicant has not satisfied me that he would suffer irreparable harm if the stay motion was not granted.
[31] Counsel for the respondent raised another issue. He said the applicant's request for a stay was premature eventhough the conditional departure order made against him was now effective. Counsel for the respondent said the applicant could voluntarily depart from Canada before May 14, 1999. At this point in time, the respondent was not requiring him to leave. Counsel for the respondent cited Rajan v. Canada, a decision of a Mr. Justice Rothstein, as he then was, IMM-4549-94, October 26, 1994. Mr. Justice Rothstein said this:
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In respect of the application for an order directing the respondent not to require the applicant to leave Canada, I think this application is premature. If the applicant does not leave Canada of her own volition, as I earlier indicated, a stay application may be brought when the applicant is advised by the respondent as to when she must leave. This aspect of the stay application must therefore be dismissed. |
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[32] Given my conclusions, I need not to deal with this issue. Any prematurity argument would have to be assessed against the fundamental fact that if the applicant does not leave voluntarily, he would be subject to possible arrest, detention and forceable removal.
[33] For the reasons provided, this stay application is dismissed.
"François Lemieux"
Judge
Toronto, Ontario
May 13, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KARIYAWASAM WIJETILLEKE |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, MAY 10, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: THURSDAY, MAY 13, 1999
APPEARANCES: Mr. Michael Korman
For the Applicant
Mr. Michael Beggs
For the Respondent
SOLICITORS OF RECORD: Otis & Korman
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990513
Docket: IMM-2090-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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