Date: 20100521
Docket: IMM-2484-10
Citation: 2010 FC 562
Ottawa, Ontario, May 21, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JOTHIRAVI
SITTAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIPAND
IMMIGRATION AND THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
[9] The IRPA
enacted a series of provisions intended to facilitate the removal of permanent
residents who have engaged in serious criminality. This intent is reflected
in the objectives of the IRPA, the provisions of the IRPA
governing permanent residents and the legislative hearings preceding the
enactment of the IRPA.
[10] The objectives
as expressed in the IRPA indicate an intent to prioritize security. This
objective is given effect by preventing the entry of applicants with criminal
records, by removing applicants with such records from Canada, and by
emphasizing the obligation of permanent residents to behave lawfully while in Canada.
This marks a change from the focus in the predecessor statute, which emphasized
the successful integration of applicants more than security: e.g., see s. 3(1)(i)
of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e)
of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h)
of the IRPA versus s. 3(i) of the former Act. Viewed
collectively, the objectives of the IRPA and its provisions concerning
permanent residents, communicate a strong desire to treat criminals and
security threats less leniently than under the former Act.
…
[12] In introducing the IRPA,
the Minister emphasized that the purpose of provisions such as s. 64 was to
remove the right to appeal by serious criminals. She voiced the concern that
“those who pose a security risk to Canada be removed from our country as quickly
as possible” … (Emphasis
added).
(As was sated by the Rt. Honourable Chief
Justice of Canada, Beverley McLachlin, in a unanimous judgment in Medovarski
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2
S.C.R. 539).
[2]
101 Every
year this Honourable Court hears hundreds of stay applications. Although
illegal, many applicants are hard working, law-abiding people who are simply
here in order to improve their lives and the lives of their families. Nonetheless,
in order to uphold the immigration scheme and the law, this Court is required
to dismiss the motions of most of these would be immigrants. In the instant
case, we have an immigrant who has had the opportunity to make a better life
for himself in Canada and contribute to
Canadian society. He chose not to do so, and instead engaged in serious and
violent criminal activity, violating and putting at risk the peace and safety
of the Canadian public. To grant a stay in these circumstances, in the Respondent's
respectful submission, would be contrary to the spirit, principles, and
objectives of the IRPA, not to mention the principles underlying this
Court's discretion to grant the requested relief.
(As pronounced by Justice Robert Barnes of
the Federal Court of Canada in Thanabalasingham v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 486, 148 A.C.W.S. (3d) 103).
[3]
[45] Finally
both appellants raise Charter arguments. Medovarski claims that s. 196
violates her s. 7 rights to liberty and security of the person. She
claims that deportation removes her liberty to make fundamental decisions that
affect her personal life, including her choice to remain with her partner.
Medovarski argues her security of the person is infringed by the state-imposed
psychological stress of being deported. Medovarski further alleges that the
process by which her appeal was extinguished was unfair, contrary to the
principles of fundamental justice.
[46] The most
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733.
Thus the deportation of a non-citizen in itself cannot implicate the liberty and
security interests protected by s. 7 of the Canadian Charter of Rights and
Freedoms.
[47] Even if liberty and
security of the person were engaged, the unfairness is inadequate to constitute
a breach of the principles of fundamental justice. The humanitarian and
compassionate grounds raised by Medovarski are considered under s. 25(1) of the
IRPA in determining whether a non-citizen should be admitted to Canada. The Charter ensures that this decision is fair:
e.g., Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817. Moreover, Chiarelli held that the s. 7
principles of fundamental justice do not mandate the provision of a
compassionate appeal from a decision to deport a permanent resident for serious
criminality…
(Medovarski,
above).
II. Introduction
[4]
The
Applicant, Mr. Jothiravi Sittampalam, is before this Court seeking a stay
against the execution of a removal order. His within application for leave
concerns the decision, for the third time, of the Minister’s Delegate to refoule
him to Sri
Lanka.
He received notice of the last decision of the Minister’s Delegate on April 19,
2010. He seeks a stay of the execution of removal pending the determination of
his application. Subsequent to an extension of time further to the April 19,
2010 decision, requested by his counsel for preparation of a motion for a stay
of the execution of removal on behalf of the Applicant, the Applicant has been
advised of a new deadline by counsel of the Respondents of May 18, 2010 which
has been extended to May 21, 2010 (in an understanding in open Court between
the Applicant and the Respondents. The counsel of the Applicant was told on May 17,
2010, in open Court, in recognition of the delays which had already been
granted in this file, to ensure that all arguments she presented in Court on
that day would be final in respect of the deadline to which the decision had
again been rescheduled, May 21, 2010. The counsel of the Applicant having
heard that May 21st had been set as the next date on which a decision
would be rendered, immediately, requested a further delay until after the
weekend. She stated, if a negative decision ensued from the Federal Court in
regard to her client, she would go to a different jurisdiction, an Ontario Court, to
again renew a request for a stay. A discussion ensued, explaining the history
of the file and the need to make a decision, based on the legal necessities and
integrity of the Immigration Act and the Court system in Canada. The lawyer
of the Applicant, then stated, if not granted a stay in the Federal Court on
behalf of the Applicant, she did not want to look for a judge in another
jurisdiction on the weekend; and, for that reason, again, requested a delay in the
issuance of a decision. The same explanations were given to counsel of the Applicant,
stressing the need for this Court to issue a decision, in recognition of the
time that had elapsed in granting delays, stating that a full consideration of
the matter had to be finally concluded with an issuance of a decision to uphold
the principles on which the integrity of the Immigration Act and the Canadian
legal system is based).
III. Background
[5]
At
the outset, it must be specified that every case must be considered on its own
merits (cas d’espèce). Its subsequent decision must be seen in light of all the
evidence: its own specific encyclopaedia of references, dictionary of terms and
galleries of portraits, singularly, cognizant of the subjective and objective
evidence of each case. It is only in that vein, on its own particular merits,
that the case and its judgment can be read, recognizing that the evidence
determines the decision.
[6]
Mr.
Sittampalam was born on May 24, 1970 in Sri Lanka. He is Tamil
from the north of the country. He came to Canada in February,
1990, was recognized as a refugee and was landed in Canada on July 17,
1992. He is not a Canadian citizen.
[7]
Mr.
Sittampalam was married in 1998. His wife, Pushpalatha Rajaratnam, nicknamed
Mala, is a Canadian citizen, in Canada since 1988. They have
two children, a son, Sahan, born September 5, 1999, and a daughter,
Sahaania, born November 10, 2001. He maintained a relationship with his
children by phone when he was detained from October 2001, and since his release
in April 2007, he is living with his family. He lived under very strict
conditions – virtual house arrest, always in the presence of a supervisor and
subject to GPS monitoring; however, these have been relaxed on the consent of
the Canada Border Services Agency (CBSA). He is no longer subject to
supervision or house arrest.
[8]
Mr.
Sittampalam is under removal order issued on October 4, 2004, based on a
conviction on July 8, 1996 for trafficking in narcotics (9 mg. of cocaine) in
February 1993 and as per the immigration legislation that there were “reasonable
grounds to believe” he was a member of organized criminality, the leader of the
A.K. Kannan, a Tamil street gang.
[9]
Mr.
Sittampalam was the leader of a Tamil street gang, the A.K. Kannan,
and was arrested as part of Project 1050, a joint operation of the Toronto Police Services
and Canada Immigration. The Applicant has admitted to the police his
involvement in the gang and admitted that his nickname is “A.K. Kannan”. Since
1992, shortly after arriving in Canada, Mr. Sittampalam has been convicted of
various offences, including trafficking in a narcotic. He had been investigated
for gang related occurrences dating back to 1993, which included murder,
assault with a weapon, attempted murder, aggravated assault, extortion and
trafficking. The gang of which he was a member was known to have terrorized
members of the local Tamil community and to have been considered as a danger to
the safety of the Canadian public.
[10]
Mr.
Sittampalam was held in detention from 2001 to 2007, before being released on
electronic monitoring. He was ordered deported on the basis of serious
criminality and organized criminality. Challenges to the Federal Court and the
Federal Court of Appeal of that decision were dismissed. A Delegate of the
Minister found the Applicant to be a danger to the Canadian public and to not
be at risk upon return to Sri Lanka. A challenge to that
decision upheld the danger finding but required solely the
re-determination of the risk assessment. A different Minister’s Delegate
concluded once again that Mr. Sittampalam is not at risk upon return to Sri Lanka. The Federal
Court ordered a re-determination of the second risk assessment. Mr. Sittampalam
once again challenges that decision.
[11]
Mr.
Sittampalam has been identified by the Toronto Police as the leader of A.K.
Kannan, one of the two rival Tamil gangs operating in Toronto. Mr.
Sittampalam did admit to his involvement in the gang to police. He also
admitted that his nickname is “A.K. Kannan” (2006 Danger Opinion, Applicant’s
Motion Record at pp. 53-54). Mr. Sittampalam gave two sworn statements to
the police, one on April 9, 2001 and the other on September 10, 2001. His
statements took place subsequent to two public assassination attempts on his
life on the streets in Toronto by rival V.V.T. gang
members. (2006 Danger Opinion, Applicant’s Motion Record at p. 50).
[12]
Mr.
Sittampalam has the following convictions:
1992
Failure
to Comply with Recognizance; sentence: time served;
1996
Trafficking
in a Narcotic; sentence: 2 years less a day;
1998 Obstruct
Peace Officer; sentence: 1 day + time served (5 months and 26 days) (2006
Danger Opinion, Applicant’s Motion Record at p. 47).
[13]
In
respect of the Danger Opinion in regard to Mr. Sittampalam, the following
information is on record:
a.
In
December 1993, Mr. Sittampalam was charged with Attempted Murder, Aggravated
Assault, Dangerous Weapons and Use of a Firearm during the Commission of an
Indictable Offence. These charges stemmed from his participation in an attack
on two persons in Toronto, on December 27, 1993, when two victims’ cars
were surrounded by three cars and a number of males exited. The first victim
was cut on the forearm with a machete, the second victim was also cut with a
machete and ran away and was shot at 5 or 6 times. The first victim was shot in
the shoulder. At the time, Mr. Sittampalam was under investigation for a
shooting incident that had taken place a few days earlier;
b.
Again
in 1993, Mr. Sittampalam was charged with Attempted Murder and other offences.
Mr. Sittampalam is described in police reports as leaving a coffee shop, approaching
a victim, identifying himself as A.K. Kannan, and threatening to kill him. When
leaving the shop, two victims were caught in a chase by a mob carrying guns,
knives and machetes. The incident report indicated that Mr. Sittampalam “had a
gun, was shooting, and was the leader, telling the others to shoot and vest the
victim”;
c.
In
1998, Mr. Sittampalam and fellow gang members were identified as being involved
in extorting a business owner in Scarborough. The victim reported to police that
he had entered his place of business with two other men and stated: “You know
who I am, I am A.K. Kannan” and that “you have to pay it back or you will lose
your head”. Mr. Sittampalam then produced a ten to twelve-inch handgun and
pointed it at the victim in front of another witness. Mr. Sittampalam told the
victim he had to pay $3000 although he owed only $1200. A few days later the
victim was again approached by Mr. Sittampalam and the two other males and
confronted with firearms and threats. The victim initially reported the
incident to police and identified Mr. Sittampalam through a photographic
line-up; however, when police attempted to further investigate the occurrence,
they were unable to locate the victim or the witness, but found that the
victim’s business had been closed down;
d.
Mr.
Sittampalam was also identified to have been a participant in the 1998
kidnapping and assault of the V.V.T. interim leader, Suresh Kanagalingam. Mr. Sittampalam
was clearly identified to police officials by an informant as being a participant
in the kidnapping and beating; and
e.
When
the immigration warrant was executed on Mr. Sittampalam on October 18, 2001, a
search warrant of his residence was conducted. Located in his house, police
found a large quantity of credit card blanks, a roll of coloured foil and a
computer system, which contained templates for Ontario driver’s
licenses and Ontario health
cards, and for which he was charged with Possession of the Instruments of
Forgery”.
(2006 Danger Opinion, Applicant’s Motion
Record at pp. 48-50).
[14]
Targeted
in two reported attempts to either kill or injure Mr. Sittampalam on September
9, 2001 and April 4, 2001, Police Occurrence Reports indicate that the
assailants were members of the rival V.V.T. gang (2006 Danger Opinion,
Applicant’s Motion Record at p. 50).
[15]
It
is recalled and duly noted in the Danger Opinion that witnesses were often
afraid to testify against gang members out of fear of reprisals. Police have
been made aware that threats have been issued against potential witnesses. Witnesses
or victims have then recanted their statements or subsequently stated that they
do not remember what occurred.
[16]
The
Federal Court had previously specified that Mr. Sittampalam was arrested and
detained in October 2004 as part of Project 1050 (as explained in Canada
(Minister of Citizenship and Immigration) v. Sittampalam, 2004 FC 1756, 266
F.T.R. 113 at para. 9).
[17]
Reported
inadmissible to Canada under the former Immigration Act, R.S.C.
1985, c. I-2 (ss. 27(1) and 19(1)(c.2)) because of his conviction for
drug trafficking and due to grounds to believe that Mr. Sittampalam is a member
of a criminal organization. An inquiry was commenced under the former Immigration
Act in June 2002 and continued under the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) in August 2004 (Sittampalam v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1211, 279 F.T.R.
211).
[18]
At
this proceeding, Mr. Sittampalam conceded that he was inadmissible for serious
criminality, but denied knowledge of or involvement in the A.K. Kannan
gang. Extensive evidence regarding gang involvement was presented to the
Immigration Division over the course of 25 hearing dates. The Reasons for
Decision issued by the Immigration Division concluded that Mr. Sittampalam
is inadmissible for both serious criminality and organized criminality
(paragraphs 36(1)(a) and 37(1)(a) of the IRPA; Sittampalam,
2005 FC 1211, above).
[19]
Mr.
Sittampalam’s challenge of Justice Roger Hughes’ decision on inadmissibility to
Canada for
organized criminality was dismissed. Justice Hughes’ decision was upheld by the
Federal Court of Appeal on October 12, 2006 (Sittampalam, 2005 FC 1211,
above; Sittampalam v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 326, [2007] 3
F.C.R. 198).
[20]
Held
in detention from 2001 to 2007, as Mr. Sittampalam was found to be both a
danger to the public and unlikely to appear for removal, twice ordered to be
released in 2004, but both of those release decisions were overturned by this
Court and on two other occasions, decisions to continue his detention were also
overturned by this Court (Sittampalam, 2004 FC 1756 above; Sittampalam
v. Canada (Solicitor General), 2005 FC 1352, 143 A.C.W.S. (3d) 332; Sittampalam
v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC
1118, 300 F.T.R. 48).
[21]
A
Member of the Immigration Division ordered Mr. Sittampalam’s release on terms
and conditions on April 19, 2007. The decision to release was challenged in
this Court. Mr. Sittampalam has remained out of detention on terms and
conditions since that time. The Minister has twice brought applications to
challenge changes to Mr. Sittampalam’s condition of release which have been
granted (Canada (Minister of Public Safety and Emergency Preparedness) v.
Sittampalam, 2008 FC 1394, [2008] F.C.J. No. 1805 (QL); Canada (Minister
of Public Safety and Emergency Preparedness) v. Sittampalam, 2009 FC 863,
350 F.T.R. 101).
[22]
Mr.
Sittampalam’s appearances before this Court are as follows:
i.
Sittampalam, 2004 FC
1756, above, Justice Pierre Blais: the Minister of Citizenship and Immigration
challenged a decision to release Mr. Sittampalam from detention which was
granted;
ii.
Sittampalam, 2005 FC
1211, above, Justice Hughes: Mr. Sittampalam challenged the decision to issue a
deportation order against him which was dismissed;
iii.
Sittampalam, 2005 FC
1352, above, Justice Eleanor Dawson: Mr. Sittampalam challenged a decision to
keep him in detention which was granted;
iv.
Sittampalam, 2006 FC
1118, above, Justice James O’Reilly: Mr. Sittampalam challenged a decision to
keep him in detention which was granted;
v.
Sittampalam, 2006 FCA
326, above, Justice Allen Linden, Justice Marc Nadon and Justice Edgar Sexton:
Mr. Sittampalam appealed the Court’s decision upholding the decision to issue a
deportation order against him which was dismissed.
vi.
Sittampalam
v. Canada (Minister of
Citizenship and Immigration), Doc. No. IMM-4064-06, August 22, 2006,
Justice Anne Mactavish: Mr. Sittampalam sought a stay of removal pending his
challenge of a Danger Opinion decision against him which was granted;
vii.
Canada (Minister of
Public Safety and Emergency Preparedness) v. Sittampalam, Doc. No.
IMM-1667-07, April 30, 2007, Justice Michel Beaudry; the Minister of Public
Safety and Emergency Preparedness challenged a decision to release Mr.
Sittampalam from detention which was dismissed;
viii.
Sittampalam
v. Canada (Minister of Citizenship and Immigration), 2007 FC 687, 316
F.T.R. 142, Justice Judith Snider: Mr. Sittampalam challenged a Danger Opinion
decision finding he was a danger to Canada and was not at risk if
returned which was partially granted;
ix.
Sittampalam
v. Canada (Minister of Citizenship and Immigration), 2008 FC 310, 165
A.C.W.S. (3d) 885, Justice Douglas Campbell: Mr. Sittampalam sought a stay of
removal pending his challenge of the re-assessment of his risk in a Danger
Opinion decision against him which also was partially granted;
x.
Sittampalam, 2008 FC
1394, above, Justice Russel Zinn: the Minister of Public Safety and Emergency
Preparedness challenged a decision to alter the terms and conditions of Mr.
Sittampalam’s release from detention which was granted;
xi.
Sittampalam
v. Canada (Minister of Citizenship and Immigration), 2009 FC 65, 340 F.T.R.
53, Justice Leonard Mandamin: Mr. Sittampalam challenged the risk assessment
portion of his Danger Opinion decision finding he was not at risk if returned
which was granted;
xii.
Sittampalam, 2009 FC 863, above,
Justice Louis Tannenbaum: the Minister of Public Safety and Emergency
Preparedness challenged a decision to change the terms and conditions of Mr.
Sittampalam’s release from custody which was granted.
[23]
Mr.
Sittampalam,
as a Convention refugee, cannot be removed from Canada unless the Minister is
of the opinion, pursuant to paragraph 115(2)(a) of the IRPA, that he is
a danger to the public in Canada, or, pursuant to paragraph 115(2)(b),
that he should not be allowed to remain in Canada on the basis of the nature
and severity of the acts committed.
[24]
A
Minister’s Delegate issued an opinion on July 6, 2006 under paragraphs 115(2)(a)
and 115(2)(b) of the IRPA, concluding that Mr.
Sittampalam poses a danger to the public in Canada and that the nature and
severity of acts he committed are such that he should not be allowed to remain
in Canada (Danger Opinion). The Minister’s Delegate further determined that Mr.
Sittampalam does not face a substantial risk of torture, a risk to life, or a
risk of cruel and unusual treatment or punishment in Sri Lanka, and that his
humanitarian considerations do not warrant favourable consideration to prevent
his removal from Canada. Mr. Sittampalam challenged that decision.
[25]
The
judicial review was allowed in part by an Order of Justice Snider. The Court
found error with the risk assessment portion of the Danger Opinion. The
Court found no error in the danger assessment portion or any other part of the
decision and, as such, only the risk assessment required re-determination (Sittampalam, 2007 FC 687, above).
[26]
The
Minister’s Delgate issued a new risk assessment on January 11, 2008. Mr.
Sittampalam
challenged the risk assessment and by Order of Justice Mandamin, dated January
22, 2009, the judicial review was granted. Due to this matter’s long history, Justice
Mandamin directed the same Delegate to solely re-determine the risk assessment
portion of the Danger Opinion (Sittampalam, 2009 FC 65, above).
IV. Issue
[27]
Has
the Applicant satisfied the test for a stay of removal as per the three pronged
conjunctive test as specified in Toth v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.)?
[28]
To
obtain a stay of removal, an applicant must establish all three prongs at set
out in Toth, above:
1.
A
serious question to be tried;
2.
irreparable
harm; and
3.
the
balance of convenience in his favour.
V. Analysis
A. Serious Issue
[29]
No
serious issue exists in respect of the leave application.
[30]
The
determination of risk on return to a particular country is, in large part, a
fact-driven inquiry. As the Supreme Court held in Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, such issues
require much deference since they are largely outside the realm of expertise of
the reviewing court (Suresh at paras. 29, 39 and 41).
[31]
The
Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v.
Ragupathy,
2006 FCA 151, [2007] 1 F.C.R. 490 pronounced itself on the adequacy of reasons
of a Danger Opinion in the following terms:
[15] … a reviewing court should be
realistic in determining if a tribunal's reasons meet the legal standard of
adequacy. Reasons should be read in their entirety, not parsed closely, clause
by clause, for possible errors or omissions; they should be read with a view to
understanding, not to puzzling over every possible inconsistency, ambiguity or
infelicity of expression.
[32]
The
Supreme Court of Canada held that a Delegate’s
Danger Opinion is owed significant deference, and “… the weighing of relevant
factors is not the function of a court reviewing the exercise of ministerial
discretion.”
(Suresh, above, at para. 34).
[33]
The
focus on judicial review is whether evidence exists to support the Delegate’s
decision (Suresh, above, at paras. 39, 41, and 85). Mr.
Sittampalam
does not argue that no evidence exists upon which the Delegate could have
concluded as she did. Rather, Mr. Sittampalam’s argument is that the Delegate should
have preferred evidence that he would have her prefer.
[34]
Evidence
was not ignored nor has the Delegate failed to state why certain evidence was
preferred over other evidence. The Delegate did demonstrate a consideration of
the evidence that was before her. She examined all of Mr. Sittampalam’s evidence recognizing
the situation in Sri Lanka for what it is, based
on the evidence as a whole. She also specified other evidence demonstrating
that the situation is improving. The Delegate also provided key examples in
respect of reconstruction and resettlement efforts (reference is also made to Florea
v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 598 (F.C.A.) (QL); Woolaston v. Canada (Minister of Manpower
and Immigration),
[1973] S.C.R. 102; Reasons, Applicant’s Motion Record at pp. 17-24).
[35]
The
Delegate concluded that the situation is one where generalized risk does exist,
with illegal detentions continuing and restrictions on travel in the north and
east; however, on the basis of the interpretation of the immigration
legislation and its application in regard to individuals adjudicated thereby,
the evidence demonstrates that for other parts of the country, including that
of the capital, Colombo, the situation is different and citizens go about their
daily lives in a functional environment.
[36]
The
Delegate found that the evidence did not establish that Mr.
Sittampalam would personally be at risk. In conclusion, the Delegate provided a
balanced review of the documentary evidence. The Delegate has demonstrated a
consideration of all the evidence (Florea, above; Woolaston,
above).
[37]
Mr.
Sittampalam
has failed to establish on a balance of probabilities that he would be at risk
in Sri
Lanka. The
Delegate’s lengthy reasons specify that the civil war is over, conditions are
slowly improving and have changed since 2006, the reports identifying Mr.
Sittampalam as a leader of the A.K. Kannan are dated.
[38]
Mr.
Sittampalam
continues to deny his membership and leadership in the A.K. Kannan. In this
regard, it might also be noted that he previously alleged that he would also be
at risk from the Liberation Tigers of Tamil Eelam (LTTE)
because of allegedly erroneous reports indicating that he supported Tamil
groups opposed to the LTTE (2006 Danger Opinion, Applicant’s Motion Record at
p. 59; Mater Affidavit, Respondents’ Motion Record, Exhibit B at paras. 7 and
8). In that case, the Sri Lankan authorities would have no reason to oppose him
in this regard.
[39]
A
reviewable error does not arise out of the Minister’s compliance with the
specific terms of a Federal Court Order. Following the Federal Court’s decision
to allow the judicial review regarding Mr. Sittampalam’s 2008
risk assessment, the Court specifically ordered a re-determination of Mr. Sittampalam’s
risk before carrying out the balancing exercise:
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is granted.
2. The matter is
remitted back to the same Minister's Delegate for re-determination on the same
terms as Justice Snider's Order being:
1.
The
matter is remitted for the sole purpose of re-assessing the risk to the
Applicant if he were returned to Sri Lanka;
2.
In
the event that the Delegate concludes that the Applicant would be at
substantial risk, the Delegate is to carry out a balancing exercise as
contemplated by Suresh.
3. No question of general
importance is certified.
(Emphasis added).
[40]
Mr.
Sittampalam raised this same issue in submission before Justice Mandamin;
nevertheless, the reassessment on the same terms as Justice Snider
(Respondents’ Motion Record, Applicant’s Further Memorandum of Argument,
Exhibit “A” of the Mater Affidavit).
[41]
Mr.
Sittampalam’s argument represents opposition to the decisions of Justice Snider
and Justice Mandamin. The finding that Mr. Sittampalam is a danger to the
public has been decided and upheld in its final conclusion; nevertheless, Mr.
Sittampalam attempts to advance this argument again.
[42]
As Mr.
Sittampalam
has failed to raise a serious issue, this motion can be dismissed on this basis
alone.
B. Irreparable Harm
[43]
Irreparable
harm involves a high threshold. The Court must be satisfied that irreparable
harm will occur if the stay is not granted (Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S. (3d) 261 at paras.
12-20; Stampp v. Canada (Minister of Citizenship and Immigration)
(1997), 127 F.T.R. 107, 69 A.C.W.S. (3d) 901 at paras. 15-16; Atakora v.
Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 122, 42 A.C.W.S.
(3d) 486 at paras. 11-12 (T.D.); Legrand v. Canada (Minister of Citizenship
and Immigration) (1994), 27 Imm. L.R. (2d) 259, 52 A.C.W.S. (3d) 1301 at
para. 5 (F.C.T.D.); Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, 124
A.C.W.S. (3d) 1119 at para. 7).
[44]
Jurisprudence
from the Federal Court of Appeal makes clear that mootness in itself cannot
establish irreparable harm. If it were otherwise, it would deny the Court the
discretion to assess irreparable harm on a case-by-case basis (El Ouardi v. Canada
(Solicitor General), 2005 FCA 42, 137 A.C.W.S. (3d) 161 at para. 8; Palka
v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA
165, 167 A.C.W.S. (3d) 570 at paras. 18-20; Selliah, above, at para. 20;
Ryan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1413,
110 A.C.W.S. (3d) 890 at para. 8; Akyol, above, at par. 11).
[45]
Discretion
is retained to hear appeals that are technically moot and a discretion exists in
favour of hearing appeals after stays have been dismissed. The Federal Court of
Appeal’s decision in Perez which concerned a negative Pre-Removal Risk
Assessment (PRRA) decision, follows the Borowski decision, criteria for
determining whether the Court should entertain a case despite its mootness (Perez
v. Canada (Minister of Citizenship and Immigration), 2009 FCA 171, 82 Imm.
L.R. (3d) 167, at paras. 3 and 7; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342,
92 N.R. 10; reference is also made to Palka, above, at paras. 18-20).
[46]
An
applicant may continue his litigation by instructing counsel from abroad. Based
on the jurisprudence, removal while an applicant’s application is pending does
not constitute irreparable harm (Selliah, above; Ariyaratnam v. MCI,
IMM-8121-04, September 28, 2004; Hussein v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1266, 162 A.C.W.S. (3d) 647 at para.
11).
[47]
Mr.
Sittampalam
has not substantiated his allegation of irreparable harm neither because he is
a Tamil male nor because of his activities in Canada.
[48]
This
Court and the Federal Court of Appeal have dismissed a substantial number of
stays brought by Tamils, including stays of young Tamil males, who argue that
they would be at risk if returned to Sri Lanka (Reference is made to: Selliah,
above, Sivananthem v. MCI, IMM-3948-04, May 3, 2004); Sivagnanansuntharam
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 70, 129
A.C.W.S. (3d) 567; Nagalingam v. MCI , IMM-6447-05, December 2, 2005;
FCA refused to entertain stay motion, December 3, 2005; Thanabalasingham,
2006 FC 486, above; Thanabalasingham v. MPSEP, IMM-1649-06, March 27,
2006; Ariyaratnam, above; Rajalingam v. MCI, IMM-5783-05,
September 27, 2005; Kathiravelu v. MCI, IMM4359-06, August 15, 2006; Naganathan
v. MPSEP, IMM-1422-06, March 20, 2006; Jeyakumar v. MCI,
IMM-2619-06, June 6, 2006; Archarige v. Canada (Minister of Citizenship and
Immigration), 2006 FC 240, 146 A.C.W.S. (3d) 532; Sornalingam v. MCI,
IMM-3366-06; Poopalasingam v. MCI, IMM-1547-06; Vidnusingam v. MCI,
IMM-2984-06; Tharmaratnam v. MPSEP, IMM-3208-06; Tharmaratnam v. MCI,
IMM-2934-06; Saravanapavananthan v. MPSEP, IMM-1689-06; Saravanapavananthan
v. MPSEP, IMM-1352-06; Manohararaj v. MPSEP, IMM-1509-06; Sellatharai
v. MCI, IMM-2620-06, Thangasivam v. MCI, IMM-1824-06; Figurado v.
Canada (Solicitor General), 2004 FC 241, 129 A.C.W.S. (3d) 374; Thuraisingam
v. Canada (Minister of Citizenship and Immigration), 2006 FC 72; 145
A.C.W.S. (3d) 888; Sebamalaimuthu v. MCI, IMM-4379-04 May 17, 2004; Jesudhasmanohararaj
v. Canada (Solicitor General), 2004 FC 596, 130 A.C.W.S. (3d) 987; Thurairajah
v. MCI, IMM-7478-03, December 12, 2003); Thileepan v. MCI,
IMM-8535-03, November 20, 2003; Thangasivam v. MCI, IMM-8986-03).
[49]
This
Court has also held that the improving conditions in Sri Lanka cannot form the basis
of irreparable harm, even for a young Tamil male from the north. As Justice
Richard Mosley held in a stay motion brought earlier this year involving a
young Tamil male from the north, from Jaffna, who was a television and radio producer
in Canada, and whose father was a journalist at a Sri Lankan-based Tamil
newspaper:
The applicant has failed to persuade me
on the evidence on a balance of probabilities that he will likely suffer
irreparable harm if a stay is not now granted and he is returned to Sri Lanka. I accept that there continue
to be serious human rights issues in Sri Lanka
but from the evidence in the records, the situation appears to be improving.
(Sivabalasuntharampillai v. MCI,
IMM-6702-09, January 27, 2010, at p. 3).
[50]
No
irreparable harm in Sivabalasuntharampillai was found due to improving
conditions in Sri
Lanka.
Justice James Russell dismissed the stay motion in Arumugam, wherein a
young Tamil male from the north brought a stay motion on a negative PRRA (Arumugam v. MCI,
IMM-565-10, March 1, 2010).
[51]
While
the situation in Sri Lanka remains a work in progress, the real question is
whether Mr. Sittampalam
has demonstrated on a balance of probabilities that the situation in Sri Lanka is such that
he would be personally targeted for harm if he were returned.
[52]
Mr.
Sittampalam
has had his alleged risk upon return to Sri Lanka assessed by the Minister’s Delgate. Expertise of
this nature has been recognized by the Supreme Court of Canada in Suresh,
above.
[53]
The
Respondents have filed evidence from immigration officials pertaining to the
situation faced by ordinary and high-profile returnees to Sri Lanka. This evidence provides
first-hand accounts of the return of other high-profile Tamil gang members and
LTTE members. Consistent with the 2009 Report from the UK Home Office
referenced in the Delegate’s reasons, and with the end of the civil war, the
situation is now different.
[54]
In
the last few years, this Court has dismissed stays from several Tamil gang
members, including high-profile members in leadership positions, who alleged
that they would be perceived as having ties to the LTTE and would therefore
experience harm (Ariyarathnam,
above; reference is also made to Canada (Minister of Citizenship and
Immigration) v. Ariyarathnam, 2002 FCT 48, 215 F.T.R. 255; Thamotharampillai
v. Canada (Solicitor General), 2004 FC 583, 130 A.C.W.S. (3d) 986 at para.
9; Nagalingam v. MCI, IMM-6447-05, December 2, 2005; for further
context, see Nagalingam v. Canada (Minister of Citizenship and Immigration),
2007 FC 229, [2008] 1 F.C.R. 87 at paras. 14-16; Nagalingam v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1397, 134 A.C.W.S. (3d)
489; Canada (Minister of Citizenship and Immigration) v. Nagalingam,
2004 FC 1757, 136 A.C.W.S. (3d) 115; Thuraisingam, above;
Thanabalasingham, above, at para. 11).
[55]
The
Court also notes the eight-member decision of the European Court of Human
Rights in Thampibillai v. The Netherlands, rendered on February
17, 2004.
In that case, the applicant’s father had been shot dead by the Sri Lankan
army, his brother was an LTTE fighter, and he had been repeatedly beaten and
abused by the army. Nonetheless, the European Court found there was
insufficient evidence to establish that the applicant could face a real risk of
being subjected to treatment contrary to Article 3. The applicant had left
Sri Lanka in 1994 and the climate
in Sri
Lanka had
changed in the intervening 10 years so as to no longer put him at risk (Thampibillai
v. The Netherlands, European Court of Human
Rights (Application No. 61350/00, February 17, 2004)). It is reasonable to say
that, with the end of the civil war, Tamils suspected of having LTTE links are
even less at risk than they were in 2004.
[56]
Mr.
Sittampalam
has included in his Motion Record a letter from Mr. Nagalingam’s counsel and a
statement by Mr. Thanabalasingham alleging that the two gang members were
mistreated upon their return to Sri Lanka. These documents, however, do not establish
that Mr.
Sittampalam
himself would experience irreparable harm. The letter from Mr. Nagalingam’s
counsel indicates that, aside from being questioned on two occasions (at the
airport upon arrival and later at an army checkpoint), Mr. Nagalingam resided
in Sri
Lanka
between December 2005 and January 2009 without serious incident. The motivation
for the alleged incident that took place in January 2009 is described by
counsel as follows: “[i]t appears that the motivation for his arrest may have
been his alleged ties to the Tamil gang in Toronto” (Letter from Counsel for Mr. Nagalingam,
Applicant’s Motion Record at p. 475). It is speculation to attempt to fathom
why Sri Lankan authorities acted the way they did after a period of three
years.
[57]
Similarly,
little or no weight can be placed on the statement from Mr. Thanabalasingham,
witnessed by his wife. Both he and his family have repeatedly made
misrepresentations during the course of his immigration proceedings in Canada. In dismissing Mr.
Thanabalasingham’s stay motion, Justice Barnes placed little weight on his
affidavits “given the past propensity of the Applicant and some of his
supporters for misrepresentation.” He noted some of the findings made by the
Immigration Appeal Division (IAD) when it dismissed Mr. Thanabalasingham’s
appeal:
…
a.
The Applicant acknowledged numerous instances of
perjury in his efforts to gain release from detention. When he was ultimately
successful in that regard, he did nothing to correct the record as his case
proceeded through the various Court reviews …
b.
The Applicant continued to minimize his gang ties
in testimony before the Board and, in that respect, he lacked credibility.
c.
The Applicant's testimony
was often evasive and, as an example, he professed an inability to remember if
he had ever pulled his machete on anyone beyond the time he had used it for an
assault.
…
d.
Members of the Applicant's family had lied on his
behalf in earlier immigration proceedings.
(Thanabalasingham v. Canada (Minister of
Public Safety and Emergency Preparedness), 2006 FC 486, 148 A.C.W.S. (3d)
103 at paras. 5 and 12; reference is also made to Thanabalasingham v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 599, 315
F.T.R. 40, where Justice Johanne Gauthier noted that Mr. Thanabalasingham
“committed perjury on numerous occasions prior to the hearing before the IAD.”
at para. 16).
[58]
The
civil war has ended. The changed conditions mean that the alleged experiences
of Mr. Nagalingam and Mr. Thanabalasingham cannot be used as a barometer
of what Mr. Sittampalam will experience.
[59]
In
addition to the above evidence about specific risks, the objective documentary
evidence demonstrates that Tamils are not targeted simply because they are
Tamil or may support the LTTE, as suggested by Mr. Sittampalam. Tamils
make up between 9 and 16% of the population of Sri Lanka, and the Tamil
National Alliance, a pro-LTTE party, won 14 seats in the April 2010
Parliamentary elections (down from 22) (Mater Affidavit, Respondents’
Motion Record, Exhibit E (first article) and Exhibit F at pp. 9 and 37-44). Moreover,
the Sri Lankan government continues to release detained LTTE cadres once it is
determined that they are not hardcore terrorists or wanted for serious crimes.
[60]
For
all of these reasons, Mr. Sittampalam has failed to demonstrate on a
balance of probabilities that he would experience harm if returned to Sri Lanka.
[61]
Each
failure of a business or economic loss as a consequence of removal does not
amount to irreparable harm (Selliah, above at para. 15; Kerrutt v.
Canada (Minister of Citizenship and Immigration) (1992), 53 F.T.R. 93, 32
A.C.W.S. (3d) 621 at paras. 15-16; Simoes v. Canada (Minister of Citizenship
and Immigration) (2000), 187 F.T.R. 219, 98 A.C.W.S. (3d) 422 at paras.
18-19).
[62]
Mr.
Sittampalam
has shown he has been under an enforceable removal order since October 2004. Knowing he was subject
to an enforceable removal order and a pending Danger Opinion, Mr. Sittampalam
could have acted accordingly, e.g. in preparing a back-up plan for someone to
take care of his exotic bird business.
[63]
With
respect to Mr. Sittampalam’s argument that his removal would result in harm to
others, the weight of the jurisprudence provides that irreparable harm must be
harm to the individual seeking the stay and not to third parties. (RJR-
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para.
58; Csanyi v. Canada (Minister of Citizenship and Immigration) (2000),
97 A.C.W.S. (3d) 1192, [2000] F.C.J. No. 758 (QL); Perry v. Canada (Minister
of Public Safety and Emergency Preparedness), 2006 FC 378, 146 A.C.W.S.
(3d) 1036 at para. 30; Mariona v. Canada (Minister of Citizenship and
Immigration) (2000), 100 A.C.W.S. (3d) 302, 9 Imm. L.R. (3d) 58; Tulina-Litvin
v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 105, 155
A.C.W.S. (3d) 383 at para. 37). Even where separation caused by removal may
produce substantial economic hardship to the family unit, the test remains
whether an applicant himself will suffer irreparable harm.
[64]
It
is well-established that dislocation and disruption are the normal consequences
of deportation. Whether Mr. Sittampalam’s family remain in Canada or accompany
him, those stresses are faced by everyone who is required to leave Canada involuntarily. They do
not amount to irreparable harm. This principle was recognized by the Federal
Court of Appeal in Selliah, above, and Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, 79 Imm. L.R. (3d) 157. In Selliah,
Justice John Maxwell Evans commented as follows:
[13] The
removal of persons who have remained in Canada without status will always disrupt the
lives that they have succeeded in building here. This is likely to be
particularly true of young children who have no memory of the country that they
left. Nonetheless, the kinds of hardship typically occasioned by removal
cannot, in my view, constitute irreparable harm for the purpose of the Toth
rule, otherwise stays would have to be granted in most cases, provided only
that there is a serious issue to be tried: Melo v. Canada (Minister of
Citizenship and Immigration) (2000), 188 F.T.R. 29.
(Reference is also made to Sklarzyk v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 336, 105 A.C.W.S. (3d) 116 at para.
17; Simoes, above, at paras. 18-19).
[65]
A contextual
factor in this case should be highlighted. While it is understandable that Mr. Sittampalam
would like to remain in Canada with his wife and children, Mr.
Sittampalam was in detention from October 2001 until April 2007, and so his
family was living apart from him and without his support for all that time.
[66]
Mr.
Sittampalam
also argues that it is discriminatory to require an applicant to show that harm
is more than “the normal consequences of deportation” to establish irreparable
harm. He argues that this test is discriminatory to non-citizens. The most
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter or remain in the country. As the Supreme Court of
Canada set out in Canada (Minister of Employment and Immigration) v. Chiarelli,
[1992] 1 S.C.R. 711, the government of Canada has the right to deport
non-citizens, who do not have an unqualified right to remain. As such, it is
not discriminatory to treat non-citizens differently than citizens or to
require them to demonstrate that harm beyond deportation is to befall them.
(As also specified unanimously, in Medovarski, above, by the Supreme
Court of Canada in 2005).
[67]
In
conclusion Mr.
Sittampalam
has failed to establish that he would suffer irreparable harm if the stay were
not granted.
C. Balance of
Convenience
[68]
The
considerations pertinent to assessing balance of convenience are set out by
Justice Andrew MacKay:
Absent evidence of irreparable harm, it is strictly speaking
unnecessary to consider the question of the balance of convenience.
Nevertheless, it is useful to recall that in discussing the test for a stay or
an interlocutory injunction in the Metropolitan Stores case Mr. Justice Beetz
stressed the importance of giving appropriate weight to the public interest in
a case where a stay is sought against a body acting under public statutes and
regulations which have not yet been determined to be invalid or inapplicable to
the case at hand. That public interest supports the maintenance of statutory
programs and the efforts of those responsible for carrying them out. Only in
exceptional cases will the individual's interest, which on the evidence is
likely to suffer irreparable harm, outweigh the public interest… (Emphasis
added).
(Dugonitsch v. Canada (Minister of Employment
and Immigration) (1992), 53 F.T.R. 314, 32 A.C.W.S. (3d) 314).
[69]
The
comments of Justice Evans in Selliah, above are also applicable:
[21] Counsel says that since the appellants
have no criminal record, are not security concerns, and are financially established
and socially integrated in Canada, the balance of convenience favours maintaining the status
quo until their appeal is decided.
[22] I
do not agree. They have had three negative administrative decisions, which have
all been upheld by the Federal Court. It is nearly four years since they first
arrived here. In my view, the balance of convenience does not favour
delaying further the discharge of either their duty, as persons subject to an
enforceable removal order, to leave Canada immediately, or the Minister's duty
to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This
is not simply a question of administrative convenience, but implicates the
integrity and fairness of, and public confidence in, Canada's system of immigration control. (Emphasis added).
[70]
This
Court has recognized that, where an applicant has been convicted of criminal
offences, the balance of convenience weighs heavily in the Minister’s favour:
[7] With respect to the balance of
convenience test, I am in agreement with the reasoning of Rothstein J. in
Mahadeo v. Canada (Secretary of State), October 31, 1994, (unreported), Court
File IMM-4647-94 (F.C.T.D). In that case, Rothstein J. stated that when the
applicant is guilty of welfare fraud or has been convicted of a criminal
offence in Canada, the balance of convenience weighs
heavily in favour of the respondent. In this case the applicant was convicted
of assault causing bodily harm, which I find to outweigh any consideration of
the emotional devastation of the applicant's family. I therefore find that the balance of
convenience in this case lies with the respondent. (Emphasis added).
(Gomes v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 199 (QL), 91 F.T.R. 264; reference is also
made to Townsend v. Canada (Minister of Citizenship and Immigration),
2004 FCA 247, 53 A.C.W.S. (3d) 358 at para. 6; Thamotharampillai, above,
at para. 10; Moncrieffe v. Canada (Minister of Citizenship and Immigration)
(1995), 62 A.C.W.S. (3d) 964; [1995] F.C.J. No. 1576 (QL) T.D. at para. 13; Grant
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141, 112
A.C.W.S. (3d)128 at para. 10).
[71]
The
comments of Justice Evans of the Federal Court of Appeal in Tesoro v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 148, [2005] 4 F.C.R. 210, where the
applicant had been convicted of serious property fraud offences and had sought
a stay of removal, are equally applicable:
[47] However,
if I had determined that Mr. Tesoro's removal would cause irreparable harm, on
the ground that the effects of family separation were more than mere
inconveniences, I would have located the harm at the less serious end of the
range, and concluded that, on the balance of convenience, it was outweighed
by the public interest in the prompt removal from Canada of those found to be
inadmissible for serious criminality. If the administration of immigration law
is to be credible, the prompt removal of those ordered deported must be the
rule, and the grant of a stay pending the disposition of legal proceedings, the
exception. (Emphasis added).
[72]
The
Court must consider that Mr. Sittampalam is defined as a danger to the
public in Canada. If a person
is a danger to the public, the public interest and the balance of convenience
favours not staying removal from Canada (Jama v. Canada (Minister of
Citizenship and Immigration), 2008 FC 374, 166 A.C.W.S. (3d) 297 at paras.
8, 10, 24-25 and 32; Choubaev v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 816, 115 A.C.W.S. (3d) 854 at para. 17).
[73]
It
is reiterated that in n upholding section 196 of the IRPA in Medovarski,
above, the Supreme Court of Canada held that the intent of the IRPA is to
prioritize the security of Canada. This intent is reflected in the scheme to facilitate the
removal of permanent residents who have engaged in serious criminality, and the
IRPA’s emphasis on the obligation of permanent residents to behave lawfully
while in Canada. The Rt. Honourable
Chief Justice of Canada, Beverley McLachlin, in speaking for a unanimous Court,
wrote the following:
[9] The IRPA
enacted a series of provisions intended to facilitate the removal of permanent
residents who have engaged in serious criminality. This intent is reflected
in the objectives of the IRPA, the provisions of the IRPA
governing permanent residents and the legislative hearings preceding the
enactment of the IRPA.
[10] The objectives
as expressed in the IRPA indicate an intent to prioritize security. This
objective is given effect by preventing the entry of applicants with criminal
records, by removing applicants with such records from Canada, and by
emphasizing the obligation of permanent residents to behave lawfully while in
Canada. This marks a change from the focus in the predecessor statute,
which emphasized the successful integration of applicants more than security:
e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the
former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the
former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the
former Act. Viewed collectively, the objectives of the IRPA and
its provisions concerning permanent residents, communicate a strong desire to
treat criminals and security threats less leniently than under the former Act.
…
[12] In introducing the IRPA,
the Minister emphasized that the purpose of provisions such as s. 64 was to
remove the right to appeal by serious criminals. She voiced the concern that
“those who pose a security risk to Canada be removed from our country as quickly
as possible” … (Emphasis
added).
[74]
In
the instant case, there can be little doubt that the balance of convenience
favours the Minister. Mr. Sittampalam is and was regarded in
previous decisions as a danger to the Canadian public, and his continued
presence calls into question the integrity of our immigration system. Any
inconvenience that Mr. Sittampalam may suffer as a result
of his removal from Canada does not outweigh the public interest in executing
the removal order as soon as reasonably practicable.
[75]
In
dismissing the motion for a stay of removal brought by Mr. Thanabalasingham, a
leader of the rival V.V.T. gang, Justice Barnes stated:
[19] In
conclusion, I would adopt the position advanced by counsel for the Respondent
on this motion where he stated:
101 Every
year this Honourable Court hears hundreds of stay applications. Although
illegal, many applicants are hard working, law-abiding people who are simply
here in order to improve their lives and the lives of their families.
Nonetheless, in order to uphold the immigration scheme and the law, this Court
is required to dismiss the motions of most of these would be immigrants. In the
instant case, we have an immigrant who has had the opportunity to make a better
life for himself in Canada and
contribute to Canadian society. He chose not to do so, and instead engaged in
serious and violent criminal activity, violating and putting at risk the peace
and safety of the Canadian public. To grant a stay in these circumstances, in
the Respondent's respectful submission, would be contrary to the spirit,
principles, and objectives of the IRPA, not to mention the principles
underlying this Court's discretion to grant the requested relief.
(Thanabalasingham, above).
[76]
Mr.
Sittampalam
has been before the Federal Courts on a number of occasions. As Justice Donna
McGillis stated in Sinnappu: “it must be
recognized that, at some point in the system, there has to be finality.” (Sinnappu v. Canada (Minister of
Citizenship and Immigration) (1997), 2 F.C. 791 (T.D.) at para. 73).
VI. Conclusion
[77]
For
all of the above reasons, the Applicant’s application for a stay of the
execution of his removal is denied.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s application for a stay of execution of the
removal order be denied. No question of general importance be certified.
“Michel M.J. Shore”
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