IMM-3659-95
BETWEEN:
SENAR SINNAPPU
THILAGAWATHY SINNAPPU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS, J.
INTRODUCTION
The applicants, who are unsuccessful refugee claimants, have challenged by way of judicial review the constitutional validity of removal orders requiring their deportation to Sri Lanka. They have also alleged that their deportation to Sri Lanka would violate Canada's obligations under the Geneva Conventions Act, R.S.C. 1985, c. G-3. Counsel for the parties in eleven other files raising the same issues have agreed that the decision in this case will be binding on them.
FACTS
The married applicants are Tamils and citizens of Sri Lanka. They arrived in Canada separately in late 1991 and early 1992, and claimed status as Convention refugees. In accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act"), conditional deportation orders were issued against the applicants.1
The Immigration and Refugee Board ("Board") conducted a joint hearing into the applicants' claims, and determined on May 7, 1993 that they were not Convention refugees. In its reasons, the Board specifically disbelieved the evidence of the male applicant that he was approached in his home town of Jaffna by the LTTE to join its ranks. Despite its adverse finding of credibility on that important aspect of the male applicant's evidence, the Board nevertheless decided to give him the "benefit of the doubt" concerning his "...cumulative experience with the LTTE in the north of Sri Lanka...". As a result, the Board concluded that the male applicant had good grounds for fearing persecution in the north of Sri Lanka. However, the Board further concluded, on the basis of the documentary and oral evidence, that he had an internal flight alternative in Colombo.
In assessing the question of the internal flight alternative, the Board noted that the male applicant lived in Colombo from July 1990 until his departure from Sri Lanka on January 5, 1992. In February 1990, the applicants obtained valid Sri Lankan passports. On October 2, 1990, the male applicant was arrested on suspicion of being a terrorist leader with the LTTE. Three days later, he was released from custody after his wife paid a bribe. Upon his release, the police provided him with a "clearance certificate", indicating that he had no links with the LTTE. In October 1991, the applicants made arrangements, with the help of a smuggler, to leave Sri Lanka. On their way to the airport, they were stopped by the police at a checkpoint. The female applicant and the smuggler were permitted to proceed to the airport, but the male applicant was arrested. He was released from custody the next day, after showing the police his "clearance certificate". The male applicant continued to live in Colombo until his departure for Canada in January 1992, without experiencing any further difficulties with the police.
In determining whether the male applicant had an internal flight alternative in Colombo, the Board considered certain documentary evidence, including a letter dated July 9, 1992 from the United Nations High Commission for Refugees and a Board paper prepared in December 1992 entitled "Sri Lanka: Internal Flight Alternatives." In reviewing the documentary evidence, the Board noted that the government remains in control of the majority of the country, including the South where the capital city Colombo is located. It further noted that over 250,000 Tamils live in Colombo, and that rejected asylum seekers "...can generally be expected to return to safety and dignity" in areas such as Colombo. The Board also considered the evidence of the male applicant concerning his experiences in Colombo, and determined that there was nothing to lead "...the authorities in Sri Lanka to conclude that he had any link or sympathy with the LTTE that would make him a target for government sanctioned reprisals." Given its findings based on all of the evidence before it, the Board concluded that the male applicant had a viable internal flight alternative in Colombo.
With respect to the female applicant, the Board questioned whether her cumulative experiences with the LTTE and EPRLF in the North of Sri Lanka were sufficient to constitute a well-founded fear of persecution, but nevertheless decided to give her the benefit of the doubt on that point. However, the Board concluded that the female applicant had an internal flight alternative available to her in Colombo, given that she had encountered no difficulties during her fifteen month sojourn in that city.
By Notice of Decision dated May 17, 1993, the Board notified the applicants of its decision. The conditional deportation orders made against the applicants became effective on that date.2
The applicants challenged the decision of the Board in an application for leave and judicial review filed in this Court. On September 10, 1993, Cullen, J. dismissed the application for leave.
On April 13, 1995, a letter addressed to "Ms. Thilagawathy Sinnapu & family" was sent to the proper address of the applicants, advising that a review had been conducted and that the applicants were not members of the Post Determination Refugee Class in Canada ("PDRCC").3 A copy of the "Risk Analysis/Decision" was included with the letter. In that decision, the officer noted, among other things, that the applicants had not made submissions within the time allotted. As a result, she concluded that "they have failed to identify an objective risk to which they may be subjected." She further noted that the applicants would not likely "... face an objectively identifiable risk to their life upon their return to Sri Lanka ... it is not likely that they would suffer extreme sanctions or inhumane treatment that would not be faced generally by other individuals in Sri Lanka." As a result, she determined that the applicants had not satisfactorily discharged their burden of proving that an internal flight alternative was not available for them in other parts of Sri Lanka. Accordingly, she concluded that the applicants were not members of the PDRCC class.
Despite the statement in the decision that the PDRCC kit was mailed to the applicants in January 1995, the applicants did not receive it and had no knowledge that the review was being conducted. The applicants also did not receive the letter dated April 13, 1995, advising them that they were not members of the PDRCC.
By letter dated December 5, 1995, an immigration officer directed the applicants to report for removal to Colombo, Sri Lanka on January 4, 1996. The applicants became aware of the existence of the PDRCC decision during a pre-removal interview. There is no evidence in the record concerning the date on which the applicants actually received the decision. The applicants did not seek an extension of time to bring an application for leave and for judicial review to challenge that decision.
On December 29, 1995, the applicants filed an application for leave and for judicial review challenging the decision of the Minister of Citizenship and Immigration ("Minister") to remove them to Sri Lanka. The applicants sought, among other things, the following relief in that application:
| An order quashing the decision of the Minister of Citizenship and Immigration wherein he ordered that the Applicants be removed directly to Sri Lanka at a time when Sri Lanka is in a state of civil war and where the Applicants are at risk of torture and death. |
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On January 4, 1996, Pinard, J. stayed the execution of the removal order pending a decision by the Court on the application for leave and for judicial review.
In October 1996, the applicants made an application for humanitarian or compassionate consideration under subsection 114(2) of the Immigration Act, R.S.C. 1985, c.I-2, as amended ("Act"). On November 1, 1996, that application was referred from the central processing office in Vegreville, Alberta to the local office in Mississauga, Ontario for a decision. To date, the applicants have not received any notification or communication from the respondent concerning that application.
On November 15, 1996, Rothstein, J. granted the application for leave and ordered that the application for judicial review in this matter was deemed to have been commenced.
In his affidavit filed in support of the judicial review application, the applicant deposed, among other things, as follows:
| The tribunal at my hearing determined I had good grounds for fearing persecution in the north of Sri Lanka but that I had an internal flight alternative in Colombo. This was based upon the fact that, although I had been detained by the police on two occasions while I resided in Colombo and was beaten on both of these occasions, after the last incident I would probably not have any difficulties given the current country conditions in Sri Lanka. |
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During his cross-examination on his affidavit, the male applicant stated that he was mistreated on the occasion of his second detention. However, in the re-examination conducted by his counsel, the male applicant described his alleged injuries, and indicated that he was mistreated on both occasions when he was in custody. A review of the reasons of the Board indicates that the male applicant made no mention in his personal information form of any alleged mistreatment at the hands of the authorities during either period of detention. When confronted with that fact during cross-examination, the male applicant stated that the interpreter "...must have left it out." The male applicant further testified in his cross-examination that he told the Board of the mistreatment suffered during his second detention. However, the Board specifically noted in its reasons that the police did not mistreat the male applicant. In my opinion, the evidence of the male applicant that he was mistreated during either period of detention is simply not credible, and I specifically reject it. I also note that, in his affidavit, the applicant inaccurately stated that the Board considered his beatings in arriving at its decision. To the contrary, the Board specifically observed that the applicant had not suffered any mistreatment.
The parties adduced extensive affidavit and documentary evidence in these judicial review proceedings concerning the country conditions in Sri Lanka. It is unnecessary for me to outline any of this evidence, except to indicate that an armed conflict arising from a civil war has been ongoing in Sri Lanka, except for a few occasions, since approximately 1983.
The parties also adduced affidavit evidence concerning Canada's international obligations under the Geneva Conventions, 1949. I do not intend to summarize the evidence adduced in the affidavits of the parties' witnesses. I have carefully reviewed all of that evidence, including the transcripts of the cross-examinations on the affidavits. In the circumstances where the analysis and conclusions of the witnesses differ, I found the opinion expressed by Christopher Greenwood, the respondent's witness, to be of greater assistance to me. In my view, his evidence was analytically sound, logical and based on accepted principles of international law.
ISSUES
The following issues are raised in these judicial review proceedings:
i) whether the removal orders issued against the applicants requiring their deportation to Sri Lanka, a country engaged in an armed conflict, infringe or deny the rights guaranteed by sections 7 or 12 of the Canadian Charter of Rights and Freedoms ("Charter"); and,
ii) whether the removal of the applicants to Sri Lanka violates Canada's statutory obligations under the Geneva Conventions Act, R.S.C. 1985, c. G-3.
LEGISLATIVE PROVISIONS
The legislative provisions referred to in these reasons are reproduced in Schedule "A".
ANALYSIS
In order to determine the constitutional validity of the removal orders in the case at bar, the legislative scheme applicable to a person who is unsuccessful in making a claim to Convention refugee status must be examined in detail.
Under the provisions of the Act, the right to enter Canada is granted to Canadian citizens and, in a qualified manner, to permanent residents.4 Furthermore, Canadian citizens have a statutory right to remain in Canada, while permanent residents and Convention refugees enjoy only a qualified right to remain in the country.5 No other persons have a right to enter or remain in Canada.6
A person who is in Canada may make a claim for refugee status, and may seek a determination of the claim by notifying an immigration officer.7 Upon receiving such notification, an immigration officer must refer the claim to a senior immigration officer forthwith.8 Where a person who is the subject of an inquiry under the Act claims to be a Convention refugee, an adjudicator conducting the inquiry must determine whether the person making the claim may be permitted to enter or remain in Canada.9 In the event that an adjudicator concludes that the person should be permitted to enter or remain in Canada, he must take the appropriate action to enable this to occur, usually by issuing a conditional removal order.10 For example, as in the case at bar, an adjudicator could issue a conditional deportation order to permit the person to enter and remain in Canada pending the determination of the refugee claim. Where a senior immigration officer concludes that the person is eligible to have a refugee claim determined, he must, among other things, refer the claim to the Board forthwith.11
Following the filing of the personal information form, the Board will notify the refugee claimant and the Minister of the date and place of the hearing, and will commence the hearing into the claim as soon as is practicable.12 After completing the hearing and considering the evidence adduced, the Board must render its decision as soon as possible, and send a written notice of the decision to the refugee claimant and the Minister.13 In the event that the Board decides to reject the claim, it must provide written reasons.14 Any conditional removal order, which may have been issued to permit the refugee claimant to remain in Canada pending the determination of his claim, will become effective when he "... is determined by the Refugee Division not to be a Convention refugee and has been so notified."15 In other words, upon receiving notification that the Board has rejected his claim, an unsuccessful refugee claimant has no right to remain in Canada, and is subject to deportation under the terms of the removal order.
A refugee claimant whose claim has been rejected by the Board may challenge the decision by instituting proceedings in this Court.16 In the event that he does not challenge the decision of the Board, or fails in any such proceedings, other avenues of recourse are nevertheless available to him.
Prior to February 1, 1993, an immigration officer automatically reviewed any case involving a rejected refugee claim in order to determine whether the unsuccessful refugee claimant would be subjected "...to unduly harsh or inhumane treatment in the country to which he was to be removed."17 In the event that the review resulted in a favourable determination, the unsuccessful refugee claimant was granted landing in Canada on humanitarian or compassionate grounds under the predecessor to subsection 114(2) of the Act.
On February 1, 1993, the government enacted regulations under the authority of subsection 6(5) and paragraph 114(1)(e) of the Act, in order to permit an unsuccessful refugee claimant to seek landing in Canada as a member of the PDRCC class.18 In specifying precise criteria for admission as a member of that class, the government hoped to clarify the review process, to codify existing practices, and to achieve greater consistency in decision-making.19 It also intended "...to provide a 3safety net3 for persons who have failed to meet the criteria of the Convention refugee definition, but would nevertheless face risk if returned to their home country."20 However, the criteria were to "...be narrowly drawn to avoid creating an admissions system on top of the refugee determination system."21
In order to qualify as a member of the PDRCC class, an unsuccessful refugee claimant must meet the eligibility criteria outlined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). All unsuccessful refugee claimants are automatically deemed to apply for landing in Canada as members of the PDRCC class.22 However, the criteria in subsection 2(1) of the Regulations specifically exclude from that class a claimant who has withdrawn or abandoned his claim, a claimant who has been determined not to have a credible basis for his claim under subsection 69.1(9.1) of the Act, or a claimant who left Canada after the Board's decision. A claimant who has previously been refused landing by an immigration officer under section 11.4 of the Regulations is also excluded from the class. In the event that a person is not excluded from the PDRCC class on the basis of non-compliance with any of the previously described threshold requirements, he must satisfy the risk based criteria in subsection 2(1) of the Regulations. In particular, he must establish that his removal to the country in question would subject him "...to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country." Furthermore, it must be a risk to life, or a risk of extreme sanctions or inhumane treatment.
As indicated earlier, an unsuccessful refugee claimant is automatically deemed to apply for landing in Canada as a member of the PDRCC class. Following the enactment of the Regulations, the information package concerning the deemed application was sent to an unsuccessful refugee claimant after the negative decision of the Board. However, since May or July 1994, the envelope containing the Notice of Decision sent by the Board to an unsuccessful refugee claimant also includes materials advising him that he is deemed to have applied for landing as a member of the PDRRC class, and that he may make written submissions in support of that application. He also receives an explanation of the criteria to be met in order to qualify as a member of that class.23
Under the Regulations, an unsuccessful refugee claimant seeking landing in Canada as a member of the PDRCC class has 15 days from the date of his notification of the Board's decision to make written submissions to a post claim determination officer ("officer") to establish that he meets the criteria outlined in subsection 2(1) of the Regulations.24 However, under the current practice, a person is permitted thirty days, plus seven days for mailing, in order to file his submissions. In the event that a person challenges the Board's decision, he may make one further written submission within fifteen days following the end of his available avenues of recourse before the courts.25 In the period between November 1994 and October 1996, submissions were made in 53% of the applications. An officer is not required to make a decision on the application for landing as a member of the PDRCC class until a person has exhausted his legal challenges of the Board's decision.
At some point in time following the expiry of the relevant time periods, an officer will conduct a full review of the material submitted. In order to assess the crucial question of risk, he may rely on public documentation concerning country conditions, but he will not notify the applicant of the specific evidence being considered. However, in the event that the documentation to be considered is not in the public domain, an officer will disclose it to the applicant, and will request submissions on such material. A person may submit information at any time up to the date the decision is made. As a result, in the event that the conditions in the
country change in a manner that would affect the level of risk to the person making the application, he may provide further evidence and submissions at any time prior to the making of the decision. Once an officer has made a decision on an application for landing as a member of the PDRRC class, it is final, and cannot be reviewed or altered, even if a substantial change occurs in the conditions in the country in question. Although the Minister, as a matter of policy, does not execute removal orders pending a determination of an application for landing as a member of the PDRCC class, nothing in the Act or the Regulations prevents him from doing so.
The officers who review the applications for landing as a member of the PDRCC class are experienced immigration officers who complete a specialized two week training programme. Part of the training involves instruction on international treaties and covenants. They also attend regularly seminars conducted by experts from organizations such as Amnesty International, the United Nations High Commission for Refugees, the Canadian Centre for Victims of Torture and the Canadian Council for Refugees, on a range of topics including post-traumatic stress disorder, torture, gender specific risk, and cross-cultural sensitivity.
In 1994, the Minister instituted a review of the PDRCC class procedures, due at least in part to complaints received concerning the low 0.5% acceptance rate. Following the review, a recommendation was made to broaden the definition in subsection 2(1) of the Regulations by including factors of generalized risk facing the person upon removal to the country in question. Although that recommendation was not accepted, a decision was made to develop guidelines in order to assist officers in interpreting the regulatory criteria. In July 1994, the Department of Citizenship and Immigration ("Department") issued guidelines entitled "Who is a member of PDRCC?" ("PDRCC class guidelines") to assist officers reviewing applications for landing under the PDRRC class in interpreting the criteria in the Regulations. For the
purposes of the present case, the following are the relevant portions of the PDRCC class guidelines:
| "... would be subjected Risk, by definition is forward looking, to the |
| to an objectively possibility of loss, injury or peril. In assessing |
| identifiable risk..." risk, the likely consequences should removal occur |
| are looked at. Where persecution or serious injury |
| has occurred in the past but is unlikely to re-occur, there |
| may be the allegation of possible re-traumatisation -- |
| acute or ongoing psychological suffering related to the |
| original event -- should the individual have to return |
| to where the original event occurred. A reasonable |
| possibility of risk means less than that of "clear |
| probability" or even "balance of probabilities;" it also |
| means greater than a mere possibility. There must |
| be credible evidence to establish the claim of risk. |
| The French text implies personal risk, requiring some |
| "particularity"; however, it is not restricted to risk |
| personalized to the individual. |
| "...would apply in Where the possible adverse consequences, |
| every part of that caused by return to the country of removal |
| country..." are limited to an area, an argument may be |
| made that the option of residing elsewhere is |
| unreasonable. In this event, the internal |
| flight alternative (IFA) is interpreted in a |
| sensitive, culturally aware, flexible and |
| The burden of demonstrating that an IFA does not |
| exist, or that it would be unreasonable to require |
| the individual to return to an IFA, rests with the |
| "...would not be faced The threat is not restricted to a risk |
| generally by other personalized to an individual; it includes |
| individuals..." risks faced by individuals that may be shared |
| by others who are similarly situated. |
| Neither are risks restricted by ethnic, |
| political, religious or social factors as the |
| concept of persecution is in the Convention |
| refugee definition. Whether or not the risk |
| is associated with a "Convention" ground, a |
| person may fall within the scope of this |
| definition. Notwithstanding this, the |
| limitation imposed by the PDRCC definition |
| in the phrase "which risk... would not be |
| faced generally by other individuals in or |
| from that country applies. Any risk that |
| would apply to all residents or citizens of |
| the country of origin cannot result in a |
| positive decision under this Regulation. |
| ...to the immigrant's These risks include actions that would constitute |
| life, ...of extreme violations of fundamental human rights, such as |
| sanctions... ...of (but not limited to) affronts to the physical and |
| inhumane treatment..." psychological integrity of the individual. One |
| specific example would be the prohibition against |
| returning "a person to a State where there are |
| substantial grounds for believing that he would be in |
| danger of being subjected to torture". (Article 3 of |
| the Convention against Torture)... |
In particular, the PDRCC class guidelines emphasize that the criteria in subsection 2(1) of the Regulations are not only restricted to "a risk personalized to an individual", but also include a risk faced by others similarly situated. Furthermore, the guidelines interpret the exclusionary phrase in the Regulations that the risk must not be "...generally faced by other individuals...", as meaning a risk faced by all residents or citizens of that country. Indeed, during his cross-examination, Gilbert Troutet, a specialist in PDRCC class applications, stated that the exclusion would apply only "... in extreme situations such as a generalized disaster of some sort that would involve all of the inhabitants of a given country. And if such a situation does occur, the [respondent] has specific programs to cover such situations."26
The Department also made other changes following the ministerial review. In early 1995, it instituted a process for monitoring the performance of the officers who make decisions under the PDRCC class Regulations. As part of their functions, the monitors review decisions made at the local immigration offices, highlight any analytical or procedural errors, and notify the officer and his supervisors of their findings. However, the monitors are not permitted to disagree with a decision.
During the cross-examination of Gilbert Troutet, counsel for the applicants reviewed with him approximately four unrelated PDRCC class decisions which were filed in evidence in these proceedings. Mr. Troutet candidly and fairly admitted that officers had erred in those decisions in applying the Regulations and guidelines to armed conflict situations. Counsel for the applicants also reviewed with Mr. Troutet the decision dated April 13, 1995 in which an officer concluded that the applicants were not members of the PDRCC class. Mr. Troutet stated that the officer had conducted the applicants' risk assessment "... in a rather hasty manner." Indeed, a review of Mr. Troutet's evidence leads to the clear inference that the element of risk was not properly evaluated in the applicants' application for membership in the PDRCC class.
Following the adoption of the PDRCC class guidelines, the acceptance rate of applications for membership in the PDRCC class increased, and a total of 5.8% of the decisions rendered in the twenty-four month period between November 1994 and October 1996 were positive. For seventeen of those months, Sri Lanka ranked among the top ten countries in relation to which positive decisions were made. For nine of those seventeen months, Sri Lanka was the top country, with the acceptance rate ranging between 14% and 38%, or averaging approximately 25%.
Since its inception, the system for reviewing PDRRC class applications for landing has been fraught with delays. For example, in 1995, there was a backlog nationally of approximately 16,000 to 17,000 cases waiting to be decided. During 1995 and 1996, approximately 5,200 new applications for landing as a member of the PDRRC class were received for review in each of those years. Near the end of 1996, there were approximately 10,000 cases in the backlog. At present, 600 to 700 decisions are made each month. In 1995, a policy for the "last in - first out" review of PDRRC class applications was adopted. However, the policy is not "applied officially", and is not followed in all areas of the country.
A conflict arose in the evidence concerning the length of time required to obtain a decision in Ontario on an application for landing as a member of the PDRRC class. Harold Taylor, the manager of the Post-Claim Review section of the respondent's Ontario region, testified that, presently, a decision under the PDRRC class Regulations is made within three months of the date of the finding by the Board that the person is not a Convention refugee. However, he acknowledged that, in Ontario, there is a backlog of 4,000 cases, which would cause a delay of fourteen to eighteen months to reach the oldest application. Given the backlog, the officers "generally" concentrate their efforts on new cases on a "last in - first out" basis. Mr. Taylor admitted during the course of his cross-examination that he "believed" that three months was "roughly" the time required for an officer in Ontario to make a decision, but he could provide no statistics to support his claims. Conversely, the applicants adduced evidence from a lawyer experienced in immigration law and practice in Ontario, Toni Schweitzer, who swore in her affidavit that "there can be lengthy delays" in the making of decisions on applications for landing as a member of the PDRRC class. During her cross-examination, Ms. Schweitzer testified that although she had only handled two files involving PDRCC class applications, she had personal knowledge of approximately twenty files, and had spoken to other lawyers, who had knowledge of approximately eighty files, concerning their experience. Ms. Schweitzer testified that, on the basis of her knowledge and information, delays of six months to one year were "not uncommon."
The position expressed by Ms. Schweitzer is supported by eleven 1995 and 1996 PDRRC class decisions from Ontario which were introduced in evidence in these proceedings. A review of that material reveals that one decision was made within a four month period, two were made in five months, and one was made in six months; the remaining seven decisions were made in periods of time ranging from ten to twenty-one months. However, given the volume of PDRCC class decisions made on a monthly basis, eleven decisions are not necessarily representative of the actual state of affairs. In my opinion, the inference to be drawn from all of the evidence tendered by the parties on the question of delay is that some decisions on PDRRC class applications in Ontario are made within a three month period, but longer periods of delay are not uncommon.
In addition to a deemed application for landing as a member of the PDRRC class, an unsuccessful refugee claimant may also make an application to facilitate his admission in Canada under the humanitarian or compassionate grounds in subsection 114(2) of the Act. Indeed, the review process enabling an unsuccessful refugee claimant to be landed in Canada upon satisfying the defined criteria for the PDRRC class was intended by Parliament to act as a complement to the humanitarian or compassionate provisions in subsection 114(2) of the Act.27 Immigration officers make decisions on applications for humanitarian or compassionate relief on a discretionary basis, exercising the delegated authority of the Minister under section 2.1 of the Regulations. An application for humanitarian or compassionate relief may be made at any time, and may be supported by any documentation or written submissions; additional material may be submitted for consideration at any time prior to the making of the decision. Guidelines issued by the Department to immigration officers indicate that humanitarian or compassionate grounds exist "...when unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration..." upon departure from Canada. The guidelines provide examples of situations which may justify a humanitarian or compassionate response, including the existence of severe sanctions or inhumane treatment in a person's country of origin. In that regard, the guidelines state as follows:
| 4) Severe Sanctions or Inhumane Treatment in Country of Origin |
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| a) Positive consideration may be warranted where there exists a special situation in the person's home country, and undue hardship would likely result from removal. Such persons might face severe government sanctions on returning home because of things they have said or done while in Canada, e.g. while in Canada, a visitor has made public condemnatory comments on the policies of his/her government or has publicly embarrassed a repressive government. Examples include members of official delegations, athletic teams or cultural groups who may have spoken out against their government or whose attempt to remain in Canada could in itself result in official sanctions upon return home. |
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| b) Others may warrant consideration because of their personal circumstances in relation to current laws and practices in their country of origin. Such persons could reasonably expect unduly harsh or inhumane treatment in their country should they be removed. In these cases there should be strong reasons to believe that the person will face a life threatening situation in his or her homeland as a direct result of the political or social situation in that country. Such situations are more likely to occur in countries with repressive governments or those experiencing civil strife or at war. |
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| c) Persons described above will, in most cases, have indicated an intention to claim refugee status and a review of their situation will occur in the context of the refugee claim procedures... |
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| d) Officers will consider the facts of the case and recommend what they believe is reasonable in the particular situation. The onus is on applicants to satisfy the officer that a) a particular situation exists in their country and that, b) their personal circumstances in relation to that situation make them worthy of positive discretion. |
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In the event that a person makes an application for humanitarian or compassionate relief based on a risk of severe sanctions or inhumane treatment, the immigration officer reviewing the file may consider, as a factor to be assessed, a negative decision in a refugee claim or in a PDRRC class application. Furthermore, that officer will consult with an officer who reviews PDRRC class applications in order to obtain an opinion on the risk based submissions; that opinion will be made on the basis of the defined criteria for risk in subsection 2(1) of the Regulations. Following the receipt of that opinion, the immigration officer will consider it, together with all of the other evidence and submissions, in exercising his discretion on an application for humanitarian or compassionate relief.
A person making an application for admission on humanitarian or compassionate grounds must send it to Vegreville, Alberta. Approximately 35 to 40% of all such applications, including those in which interviews must be conducted, are referred by the Vegreville centre to local immigration offices for review. It takes approximately two to three months for the file to be opened in Vegreville, and to be returned to a local office. Following the receipt of an application in a local office, there is a delay of approximately six months before further steps are taken, and another delay before a decision is made. The filing of an application for humanitarian or compassionate relief does not delay the removal process.
A person may challenge a negative decision under the PDRCC class Regulations or under subsection 114(2) of the Act by filing an application for leave and for judicial review in this Court.
In Ontario, there is one central removal office charged with the responsibility of arranging for the removal of persons who cannot be sent to the United States under the reciprocal agreement, and who must be removed from Canada by air. There are frequently lengthy delays between the date a person is subject to removal at law and the date an officer notifies a person of pending removal arrangements. Removals officers merely make the necessary arrangements for the removal of the person; they do not assess country conditions to determine whether the person may be at risk in the country to which he is to be removed. However, as a matter of policy, a removals officer must confirm that a negative decision has been made on the deemed application for landing as a member of the PDRRC class prior to effecting the removal of the person.
ii) section 7 of the Charter
Section 7 of the Charter provides as follows:
| 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. |
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In Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519, Sopinka, J. outlined, at page 584, the following approach to be taken in assessing an alleged violation of the section 7 Charter rights of an individual to life, liberty and security of person:
| Section 7 involves two stages of analysis. The first is as to the values at stake with respect to the individual. The second is concerned with possible limitations of those values when considered in conformity with fundamental justice. |
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In conducting the first stage of the two part analysis, the rights accorded under the provisions of the Act and the Regulations to the applicants as unsuccessful refugee claimants must be examined in order to determine the scope of protection available to them under section 7 of the Charter.28 Such rights represent the legislative embodiment of "...the values at stake with respect to the individual."
Section 3 of the Immigration Act declares that immigration law and policy will be designed and administered to promote Canadian domestic and international interests, recognizing, among others, the need:
| to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.29 |
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In Ahani v. Her Majesty the Queen, [1995] 3 F.C. 669 (F.C.T.D.); aff'd [1996] 201 N.R. 233 (F.C.A.), I noted at page 687 that, in recognition of Canada's obligations in respect of refugees, Parliament had provided in the Act certain limited rights to Convention refugees, including a qualified right to remain in Canada and a qualified prohibition against removal to a country where life or freedom would be threatened.30 Neither of those statutory rights apply to an unsuccessful refugee claimant. Indeed, an analysis of the rights accorded to an unsuccessful refugee claimant must start from the fundamental premise that such a person has no right to remain in Canada, and has no right not to be deported from Canada. However, consistent with our humanitarian tradition towards the displaced and persecuted, Parliament has acknowledged, in enacting the PDRRC class regulatory scheme under the authority of subsection 6(5) and paragraph 114(1)(e) of the Act, that an unsuccessful refugee claimant may face serious risk upon return to his country of origin. Under that scheme, an unsuccessful refugee claimant who satisfies the criteria and the landing requirements, specified respectively in subsection 2(1) and section 11.4 of the Regulations, may be granted landing in Canada as a permanent resident. An unsuccessful refugee claimant may also make an application, under subsection 114(2) of the Act, to facilitate his admission into Canada on the basis of humanitarian or compassionate grounds; such an application may be based, among other things, on the risk of severe sanctions or inhumane treatment in the country of origin. Those two applications constitute the only legislative rights applicable to an unsuccessful refugee claimant. Nothing in the Act or the Regulations prohibits the deportation of an unsuccessful refugee claimant prior to the making of a decision on either of those types of applications. However, as a matter of policy, the Minister does not effect the removal of an unsuccessful refugee claimant unless a negative decision has been rendered on the deemed application for landing as a member of the PDRRC class.
The threshold question to be determined in the first stage of the section 7 analysis is whether the deportation of the applicants to a country engaged in an armed conflict constitutes a deprivation of their right to life, liberty or security of the person. However, it is unnecessary for me to answer that question, as I am of the opinion that the legislative scheme prescribed in the Act and Regulations for risk assessment following an unsuccessful refugee claim does not violate the principles of fundamental justice.31
Prior to embarking on the second stage of the analysis concerning section 7 of the Charter, I must address a submission made by counsel for the respondent. During the course of his argument, counsel for the respondent submitted, among other things, that the Court had to determine the state of country conditions in Sri Lanka in order to decide the question of the engagement of section 7 of the Charter. In particular, he argued that section 7 of the Charter could only be engaged in the present case following an examination of the documentary evidence concerning the country conditions in Sri Lanka and the making of a factual determination by the Court that the applicants would suffer torture or death on their return. He based his submissions on the following comments made by Marceau, J.A. in Ngyuen v. Canada, [1993] 1 F.C. 696 (F.C.A.) at pages 708 to 709:
| We have been dealing here: first, with the issuance of a deportation order, not its actual execution to a precise country, and second, with a refusal to inquire into a claim of fear of persecution, not a refusal to take into consideration proof, on a balance of probabilities, that the deportee, if sent back to a particular country, will be subject to persecution including torture and possibly execution. I may have had no difficulty in finding that the rules of fundamental justice did not require, in the case of a criminal who is certified to be a public danger, thorough investigation of a claim of fear of persecution prior to the issuance of a deportation order against the person. It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. |
|
In my opinion, the submissions of counsel for the respondent are based on a misreading of that paragraph. In particular, Marceau, J.A. did not indicate that such a standard of proof would be required in order to determine the threshold question of the engagement of section 7. Furthermore, I see nothing whatsoever in the reasons of Marceau, J.A. to indicate that the Court must determine the state of the country conditions at any point in its analysis of the issues pertaining to the application of section 7 of the Charter. Indeed, I am of the opinion that it is simply not the function of a judge, in judicial review proceedings of this nature, to determine the state of country conditions. I am further of the opinion that it would be highly undesirable for a judge to engage in such an exercise, particularly given that the legislative scheme requires immigration officers, who have specialized training and expertise in relation to country conditions, to make such decisions.
With respect to the approach to be adopted on the second stage of the section 7 analysis, I stated in Ahani v. Her Majesty the Queen, supra, at page 690, as follows:
| With respect to the second stage of the section 7 Charter analysis, the principles to be applied in determining whether a statutory scheme violates the principles of fundamental justice were enunciated by Sopinka, J. in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. In considering the constitutionality of previous legislation governing the deportation of permanent residents convicted of certain criminal offenses, Sopinka, J. confirmed the importance of adopting a contextual approach to the interpretation of section 7 of the Charter. In this regard, he stated as follows at page 733: |
|
| Thus in determining the scope of the principles of fundamental justice as they apply to this case, the court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country. |
|
...
| The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1). |
|
| Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. |
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The analysis of the constitutional validity of the legislative scheme in question must therefore be conducted in the context of the "principles and policies underlying immigration law." Furthermore, as Marceau, J.A. indicated in Nguyen v. Canada, supra, at page 706, both the substantive content and the procedural aspects of the legislation must be examined.
With respect to the substantive content of the legislation, counsel for the applicants submitted that the "narrow" definition of risk in the criteria contained in subsection 2(1) of the Regulations violates the principles of fundamental justice. I cannot accept that submission. As Sopinka, J. stated in Chiarelli v. Canada (Minister of Employment and Immigration), supra, at page 733, "... Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-residents will be permitted to enter and remain in Canada." In my opinion, it was entirely open to Parliament to define the criteria for risk in the manner in which it did. Indeed, the Regulatory Impact Analysis Statement accompanying the Regulations specifically acknowledges the legislative intent to draw the criteria narrowly "...to avoid creating an admissions system on top of the refugee determination system."32 Furthermore, following complaints that the acceptance rate for membership in the PDRCC class was too low, a ministerial review was conducted shortly after the implementation of the system in 1993. As a result of that review, the Department issued guidelines, consistent with the criteria in the Regulations, to assist the officers in interpreting and applying the regulatory scheme. The Department also instituted an internal system for monitoring decisions in an attempt to ensure greater accuracy and consistency in the decision making process. Since the implementation of those changes, the acceptance rate for membership in the PDRCC class has risen, particularly in relation to countries such as Sri Lanka where an armed conflict exists. Indeed, in a recent nine month period, applications in relation to Sri Lanka had the highest acceptance rate, averaging 25%. In any event, as Nadon, J. indicated in Chaudhry v. Canada (Minister of Employment and Immigration), [1994], 25 Imm. L.R. (2d) 139 (F.C.T.D.), at page 155, a low acceptance rate does not mean that a process fails to meet the requirements of fundamental justice. In the circumstances, I cannot accept the submission that the definition of risk in the criteria in subsection 2(1) of the Regulations violates the principles of fundamental justice. I have therefore concluded that the substantive content of the PDRCC regulatory scheme accords with the requirements of fundamental justice.
With respect to the procedural aspects of the legislation, counsel for the applicant submitted that the scheme "...fails to provide adequate safeguards against violations of section 7 and 12 of the Charter." In particular, he submitted that the delays inherent in the system for assessing risk under the PDRCC class Regulations violate the requirements of fundamental justice, in that the assessment does not take into account the actual country conditions at the time of deportation.
The Federal Court of Appeal has considered on two occasions whether delay in the conduct of immigration proceedings results in the breach of any rights under the Charter. In Akthar et al v. Minister of Employment and Immigration (1991), 129 N.R. 71 (F.C.A.), Hugessen, J.A. considered whether a delay between the making of a refugee claim and the first stage of the hearing into the claim could give rise to a breach of any Charter rights. For the purpose of his analysis, Hugessen, J.A. assumed that the refugee determination process engaged the rights under section 7 of the Charter, and that a right to a hearing within a reasonable time was an aspect of fundamental justice. In his analysis, Hugessen, J.A. stated that there were "...two insuperable obstacles to an acceptance of the applicants' assertion that delay in the determination of their claims has resulted in a breach of Charter rights." With respect to the first obstacle, he noted that a refugee claimant is not in the same legal position as an individual accused of a crime. As a result, he concluded, at page 75 of the decision, that "...any claims to Charter breach based on delay must depend on a showing of prejudice by the claimant: that the delay was for a person in his situation unreasonable." The second obstacle is whether the evidence in the case demonstrates prejudice to the claimant. In that regard, he cautioned as follows at page 76 of the decision:
| In my view any claim in a non criminal case to Charter breach based on delay requires to be supported either by evidence or at the very least by some inference from the surrounding circumstances that the claimant has in fact suffered prejudice or unfairness because of the delay. |
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Although Hugessen, J.A. did not "...exclude the possibility of delay in the conduct of a refugee hearing giving rise to a Charter remedy...", he concluded that the applicants had not established a breach of any Charter right.
In Hernandez v. Minister of Employment and Immigration (1993), 154 N.R. 231 (F.C.A.), the Court rejected an argument that the delay in processing a refugee claim violated section 7 of the Charter. In commenting on the analysis in Akthar et al v. Minister of Employment and Immigration, supra, Robertson, J.A. cautioned, at pages 232 to 233, that "...it is abundantly clear that the 3unreasonable delay3 argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked."
The decisions in Akthar et al v. Minister of Employment and Immigration, supra, and Hernandez v. Minister of Employment and Immigration, supra, establish that, where a person adduces evidence of prejudice or unfairness, delay in processing a refugee claim may result in a breach of Charter rights. However, in the present case, counsel for the applicant seeks to extend the application of that principle in order to invalidate the entire legislative scheme on the basis of systemic delay. In particular, his argument is premised on the assertion that, due to delays inherent in the system, the assessment of risk does not take into account the country conditions at the actual time of removal. In my opinion, the approach suggested by counsel for the applicants represents a radical and unwarranted extension of the principles enunciated by the Federal Court of Appeal in Akthar et al v. Minister of Employment and Immigration, supra, and Hernandez v. Minister of Employment and Immigration, supra. I am unaware of any case in which a court in Canada has declared a legislative scheme to be constitutionally invalid due to delays in its administration or operation. Indeed, in Regina v. Askov, [1990] 2 S.C.R. 1199, in which the Supreme Court of Canada considered the consequences of systemic delay in the context of the right of an accused person to a trial within a reasonable time as prescribed by section 11(b) of the Charter, the Court concluded that such delay was only one factor to be assessed in determining the question of the reasonableness of
the length of delay. In that regard, Cory, J., writing for the majority, stated as follows at page 1226:
| The response to the question of "how long is too long" as it applies to institutional delay will always be difficult to fashion in our country. The question must be answered in light of the particular facts of each case. |
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The jurisprudence from the Supreme Court of Canada and the Federal Court of Appeal indicates that the question of delay must be analysed in the context of the facts of a particular case. On that basis alone, the argument of counsel for the applicants must be rejected. Furthermore, although systemic delay may impede the effective and efficient functioning of a legislative scheme, it cannot properly be characterized as a procedural aspect of the legislation for the purposes of analysing the requirements of fundamental justice. Finally, I am of the opinion that the fundamental premise underlying the argument advanced by counsel for the applicants is flawed, in that changes of country conditions could occur prior to removal, even if the delay in the system were minimal or virtually non-existent. As a result, delay may not even be a relevant consideration in many cases where changes of country conditions arise prior to deportation. For these reasons, I have therefore concluded that systemic delays in the implementation and execution of the post-claim legislative scheme cannot vitiate its constitutional validity. However, within the stringent confines indicated in Akthar et al v. Minister of Employment and Immigration, supra, and Hernandez v. Minister of Employment and Immigration, supra, delay in the operation of the post-claim legislative scheme may result in the breach of a person's Charter rights, assuming a proper evidentiary framework establishing prejudice or unfairness. In other words, to be considered as a basis for a Charter remedy, systemic delay must be tied to the circumstances of a particular case, in which the applicant adduces evidence demonstrating prejudice or unfairness.
Having determined that systemic delay cannot vitiate the constitutional validity of the legislative scheme as a whole, the subsidiary question to be addressed is whether the applicants have adduced evidence to establish that the delay in processing their deemed
application for membership in the PDRCC class or their application for humanitarian or compassionate consideration breached their rights under section 7 of the Charter.
In the present case, the Board notified the applicants of the rejection of their refugee claims by Notice of Decision dated May 17, 1993. On that date, the conditional deportation orders previously issued against the applicants became effective. Approximately four months later, on September 10, 1993, this Court dismissed the applicants' application for leave and for judicial review of the Board's decision. Despite the fact that the applicants had no right to remain in Canada, they took no steps to determine the status of their deemed application under the PDRCC class Regulations, and they did not make an application to facilitate their admission in Canada on humanitarian or compassionate grounds. Indeed, the inaction on the part of the applicants continued for over two years, until they were summoned to a removal interview on December 5, 1995. Although the applicants only learned during that interview that they had been rejected as members of the PDRCC class, they did not seek an extension of time to challenge that decision by way of an application for leave and for judicial review. More importantly, the applicants did not file an application for humanitarian or compassionate relief under subsection 114(2) of the Act until October 1996, almost one year after their scheduled removal to Sri Lanka, and over three years after their deportation orders became effective. As indicated earlier in these reasons, Parliament intended the PDRCC class Regulations only to complement the existing humanitarian or compassionate relief available under subsection 114(2) of the Act33; nothing required the applicants, as unsuccessful refugee claimants, to await the results of their deemed PDRRC class application before making an application under subsection 114(2) of the Act for relief on humanitarian or compassionate grounds on the basis of risk. 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.
Despite my conclusion that the applicants have failed to establish a breach of their section 7 Charter rights, it must be recalled that the evidence of the respondent's witness Mr. Troutet indicated that the element of risk was not properly evaluated in their application for membership in the PDRCC class. Since the applicants instituted the present proceedings rather than taking steps to challenge the PDRCC class decision, and did not make an application for admission on humanitarian or compassionate grounds until a much later point in time, the question of risk has not yet been properly assessed. In the interests of justice, the Minister should therefore not remove the applicants to Sri Lanka until her officials have made a decision on the outstanding application for humanitarian or compassionate relief, which is based at least in part on the risks allegedly facing the applicants on their return to their Sri Lanka.
In the context of the procedural aspects of the legislation, counsel for the applicants further submitted that the inability of an officer to review a PDRCC class decision in order to consider any changes in the country conditions arising prior to the execution of the deportation order constitutes a breach of the requirements of fundamental justice.
In at least two previous cases, the Court has addressed the requirements of fundamental justice in the context of changes in country conditions.
In Grewal v. Minister of Employment and Immigration, [1992] 1 F.C. 581 (F.C.A.), Linden, J.A., writing for the Court, considered a situation in which a person had attempted to reopen an inquiry to rely, for the fourth time, on allegedly new facts concerning risks facing him on his removal to his country of origin. In dealing with the requirements of
fundamental justice, Linden, J.A. stated as follows:
| 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. |
|
Similarly, in considering whether the procedures available to unsuccessful refugee claimants under the humanitarian or compassionate review provisions in subsection 114(2) of the Act conform to the requirements of fundamental justice, Nadon, J. concluded as follows in
Chaudry v. Minister of Employment and Immigration, supra, at page 156:
| In my opinion, s. 114(2) and the Minister's practice in connection with that provision ensures that claimants have a "meaningful opportunity" to have new evidence of changed country conditions heard by an "authoritative body," in the spirit of the Federal Court of Appeal's decisions in Chiarelli and Grewal, and |
|
| therefore does not violate s. 7. |
In applying those principles to the present case, it must be recalled that the legislative scheme provides extensive safeguards and various avenues of recourse to a refugee claimant. At the outset, such a claimant has a right to a hearing before a quasi-judicial body and a right to apply to this Court for leave and for judicial review of a negative Board decision. Furthermore, under the post-claim review scheme, an unsuccessful refugee claimant is automatically deemed to apply for landing in Canada as a member of the PDRCC class. He is entitled to make submissions in writing in support of that application in order to establish that he meets the criteria for risk outlined in the Regulations. In the event that the conditions in his country of origin change, he may make additional submissions in writing at any time prior to the making of the decision. He may institute legal proceedings to challenge a negative decision. Furthermore, as a matter of stated ministerial policy, he will not be deported from the country until a negative decision has been made on the application for membership in the PDRCC class. The unsuccessful refugee claimant may also, at any time, make an application under subsection 114(2) of the Act, on the basis of risk or any other factors, to facilitate his landing in Canada on humanitarian or compassionate grounds. Indeed, he may make more than one application for admission on humanitarian or compassionate grounds. In the event that he receives a negative decision on any such application, he may institute legal proceedings to challenge it. An application for membership in the PDRCC class and an application for admission on humanitarian or compassionate grounds are separate, complementary processes. As a result, the legislative scheme provides two separate mechanisms for reviewing evidence of changes in country conditions and for assessing any attendant risks to the unsuccessful refugee claimant.
Despite the two available avenues of post-claim recourse, counsel for the applicants submitted that situations may arise in which changed country conditions cannot be considered prior to deportation. In particular, he submitted that the humanitarian or compassionate relief review mechanism is deficient in that it does not delay the removal process. I cannot accept that argument, on the basis that the Minister always has a discretion concerning the timing of the removal of an individual. In an appropriate circumstance involving a demonstrably significant change of circumstances in a country, the Minister may choose to delay removal pending an examination of risk alleged in a further application for humanitarian or compassionate relief. However, it must be recognized that, at some point in the system, there has to be finality. In my opinion, the two separate avenues of post-claim review available to an unsuccessful refugee claimant conform to the requirements of fundamental justice.
Following my review of the substantive content and the procedural aspects of the legislation, I have concluded that the applicants have failed to establish any breach of their section 7 Charter rights.
iii) section 12 of the Charter
Counsel for the applicants submitted that the removal of the applicants to their homeland of Sri Lanka, a country engaged in an ongoing civil war, constitutes cruel and unusual treatment or punishment contrary to the provisions of section 12 of the Charter.
In considering whether the removal of a permanent resident for the commission of serious criminal offences breached section 12 of the Charter, Sopinka, J. indicated unequivocally in Chiarelli v. Canada (Minister of Employment and Immigration), supra, at pages 735 to 736 of the decision, that deportation does not constitute punishment. He further observed that the deportation of a permanent resident, who has violated an essential condition of his permission to remain in Canada, "...cannot be said to outrage standards of decency." In Barrera v. Canada (Minister of Employment and Immigration) [1993] 2 F.C. 3 (F.C.A.), MacGuigan, J.A., writing for the Court, reviewed the principles enunciated by Sopinka, J. in Chiarelli v. Canada (Minister of Employment and Immigration), and concluded "...that the issue as to both 3treatment3 and 3cruel and unusual3 is still open...". Although MacGuigan, J.A. did not decide the question of the constitutional standard applicable to "cruel and unusual treatment", he nevertheless observed that it may be "a balancing requirement", measuring the effect of the deportation for gross disproportionality. However, given the factual background of the case, he further concluded that it was unnecessary to decide whether the return of a Convention refugee to his country of origin violated section 12 of the Charter .
In my opinion, the deportation of an unsuccessful refugee claimant to a country engaged in an ongoing civil war does not constitute a violation of section 12 of the Charter in circumstances where a risk assessment conducted under the provisions of the Act or Regulations reveals that he is unlikely to suffer a risk to his life, or a risk of extreme sanctions or inhumane treatment. Given the legislative safeguards and protections afforded to an unsuccessful refugee claimant, deportation would not offend either the "standards of decency" test in Chiarelli v. Canada (Minister of Employment and Immigration), supra, or the "gross disproportionality" test suggested in Barrera v. Canada (Minister of Employment and Immigration), supra.
In the context of the present case, the applicants have been determined, following a hearing before a quasi-judicial body, not to be Convention refugees. This Court rejected their application for leave and judicial review of that decision. Despite the fact that the applicants have no right to remain in Canada, they have nevertheless had the right to pursue two post-claim avenues of review concerning the level of risk in their country of origin. Although their PDRCC class applications were admittedly rejected in a perfunctory manner, the applicants took no steps, after learning of the negative decision, to seek an extension of time to challenge it. Furthermore, after learning that their refugee claim had been rejected, the applicants failed to make a timely application for admission in Canada on humanitarian or compassionate grounds. However, as indicated earlier in these reasons, due to the evidence of an officer of the respondent that the question of risk was not properly evaluated in the assessment conducted in the applicants' PDRCC application, the Minister should not remove the applicants before a decision is made on their pending application under subsection 114(2) of the Act for admission on humanitarian or compassionate grounds. In the event that a negative decision is made on the application for humanitarian or compassionate relief, the deportation of the applicants would not violate section 12 of the Charter. I wish to stress that the facts in the present case are unusual, given the failure of the applicants to challenge the PDRCC class decision, and the evidence of an officer of the respondent indicating that the risk assessment was flawed. My admonition to the Minister not to remove the applicants until a decision is made on the humanitarian or compassionate application must therefore be viewed in light of the particular facts of this case.
Counsel for the applicants further submitted that section 12 of the Charter must be interpreted in a manner consistent with our international human rights obligations. In particular, he submitted that the deportation of the applicants to Sri Lanka would violate the Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment ("Convention"). I cannot accept that submission, as I am of the opinion that the legislative criteria for assessing risk outlined in subsection 2(1) of the Regulations are consistent with our international obligations in the Convention. Furthermore, in the PDRCC class guidelines, officers conducting risk assessments are specifically instructed to consider the relevant portions
of the Convention. In that regard, the PDRCC class guidelines advise an officer to consider the following:
| These risks include actions that would constitute violations of fundamental human rights, such as (but not limited to) affronts to the physical and psychological integrity of the individual. One specific example would be the prohibition against returning "a person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture." (Article 3 of the Convention against Torture) |
|
In my opinion, the legislative scheme for post-claim review respects and complies with Canada's international human rights obligations.
iv) Geneva Conventions Act
Counsel for the applicants submitted that the return of the applicants to Sri Lanka violates Canada's statutory obligations under the Geneva Conventions Act, R.S.C. 1985, c. G-3. Despite the detailed and thorough argument of counsel for the applicants, I cannot agree that common Article 1 of the Geneva Conventions, 1949 imposes upon Canada an obligation not to return unsuccessful refugee claimants to Sri Lanka. In my opinion, Sri Lanka is engaged in an internal armed conflict to which common Article 3 of the Geneva Conventions, 1949 and the customary law on armed conflicts apply. Since Canada has no involvement whatsoever in that dispute, common Article 1 of the Geneva Conventions, 1949 does not impose upon our country an obligation to ensure that the parties to that conflict respect common Article 3. Furthermore, even if Canada does have such an obligation under common Article 1, I cannot accept that it would affect the application of our laws pertaining to immigration. Alternatively, even if I am wrong in determining that the armed conflict in Sri Lanka is internal in nature, I have nevertheless concluded that nothing in common Article 1 of the Geneva Conventions, 1949 would prevent Canada from removing a person, who had exhausted all of his avenues of recourse under the Act and Regulations, to the territory of a state engaged in an international armed conflict.
DECISION
The application for judicial review is dismissed.
At the conclusion of the hearing, I agreed that, following the release of these reasons, counsel for the parties would be provided with an opportunity in a teleconference to make a request for certification of a serious question of general importance under Rule 18(1) of the Federal Court Immigration Rules, 1993. The teleconference will be held today at 1:00 p.m. Any question to be certified in this matter will be specified in the Order which I will sign later today.
__________________
1 A conditional deportation order was issued in relation to the male applicant on April 14, 1992, under paragraph 32.1(3)(b) of the Immigration Act . On November 19, 1992, a conditional deportation order was issued against the female applicant under subsection 32.1(4) of the Immigration Act.
2 Paragraph 32.1(6)(c) of the Act .
3 Since July 1994, an unsuccessful refugee claimant receives the PDRCC kit in the same envelope as the decision of the Board. That procedure was not in place at the time the applicants received their decision from the Board.
4 See subsection 4(1) of the Immigration Act .
5 Subsections 4(2) and (2.1) of the Immigration Act .
6 Subsection 5(1) of the Immigration Act .
7 Subsection 44(1) of the Immigration Act .
8 Subsection 44(2) of the Immigration Act .
9 Subsection 44(3) of the Immigration Act .
10 Ibid.
11 Section 46.02 of the Immigration Act .
12 Subsections 69.1(2) and (3) of the Immigration Act . The procedures governing the conduct of a hearing and the rights afforded to a refugee claimant at such a hearing are outlined in sections 68, 68.1, 69 and 69.1 of the Immigration Act. For the purposes of the present application, it is unnecessary to describe or refer to those procedures or rights.
13 Subsection 69.1(9) of the Immigration Act .
14 Paragraph 69.1(11)(a) of the Immigration Act .
15 Paragraph 32.1(6)(c) of the Act . Subsection 32.1(6) also provides other instances in which a conditional removal order becomes effective.
16 See subsection 82.1(1), section 82.2 and subsection 83(1) of the Immigration Act .
17 Regulatory Impact Analysis Statement, SOR/93-44, Canada Gazette, Part II, Vol. 127, No. 3, page 655.
18 Subsection 6(5) of the Act provides that an immigrant, who is a member of a class prescribed by regulations made under paragraph 114(1)(e), may be granted landing in Canada "...for reasons of public policy or compassionate or humanitarian considerations..." if he meets the landing requirements specified in paragraph 114(1)(e) of the Act. Paragraph 114(1)(e) of the Act provides:
114(1)(e) The Governor in Council may make regulations prescribing, for the purposes of subsection 6(5), classes of immigrants and landing requirements in respect of immigrants and their dependants and specifying, with respect to any such class, at what stage of assessing applications for landing all or part of the landing requirements shall be applied."
19 Ibid., at pages 653, 655 and 656.
20 The Quality of Mercy (A study of the processes available to persons who are determined not to be refugees and who seek humanitarian and compassionate treatment), Susan Davis and Lorne Waldman, March 1994.
21 Regulatory Impact Analysis Statement, supra, page 655.
22 Subsection 11.4(2) of the Regulations provides that an unsuccessful refugee claimant is deemed to have submitted an application for landing in Canada as a member of the PDRCC on the date that his claim to Convention refugee status is dismissed by the Board.
23 This procedure was not in effect at the time the applicants received their negative decision from the Board.
24 Subsection 11.4(3) of the Regulations .
25 Subsection 11.4(5) of the Regulations .
26 Cross-examination of Gilbert Troutet, vol. 1, page 30.
27 Regulatory Impact Analysis Statement, supra, page 653.
28 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, per Wilson, J. at page 204.
29 Paragraph 3(g) of the Immigration Act .
30 For a more complete description of the rights accorded to Convention refugees, see pages 687-688 of that judgment.
31 See the approach taken by Sopinka, J. in Chiarelli v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 711, pages 731-732.
32 See footnote 21, supra.
33 Regulatory Impact Analysis Statement, supra, page 653.
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