Date: 20080306
Docket: IMM-248-08
Citation: 2008
FC 310
Toronto, Ontario, March 6, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JOTHIRAVI SITTAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
By a
decision of Justice Snider, dated June 28, 2007, the Applicant in the present
motion for a stay of removal was partially successful in challenging the
decision of a Minister’s Delegate pursuant to s. 115(2)(a) in which he was found
to be a danger to the public in Canada and that he would not be at risk if he
were to be returned to Sri Lanka. Justice Snider upheld the danger aspect of
the Minister’s Delegate’s decision but ordered that “[t]he opinion of the
Minister’s Delegate is set aside and the matter is remitted to the same
Minister’s Delegate for the sole purpose of re-assessing the risk to he
Applicant if he were returned to Sri Lanka.” Pursuant to the order, a Minister’s
Delegate did re-assess the risk to the Applicant with this re-assessment being
the subject of the present judicial review Application.
[2]
On the
present motion for a stay of removal, Counsel for the Applicant argues that
serious questions arise from the following passages of the re-assessment:
Given the prevailing situation of
widespread hostilities, insecurity and human rights violations in the North and
East of Sri Lanka, it is UNHCR’s view that the situation there can be
characterized as one of generalized violence and events serious disrupting
public order. All three ethnic groups, Sinhalese, Muslims and Tamils are
affected by the situation of generalized violence and armed conflict.
[…]
Analysis under Section 97
In reviewing the material to determine if
Mr. Sittampalam may face risk upon return to Sri Lanka, I am required to turn my mind to the
issues outlined in s.97 of IRPA. IRPA is very clear that one of
the keys in making a finding such as this is that the risk must be faced by the
person in every part of the country and is not faced generally by other
individuals in or from that country. While I consider the news and other
reports quite credible, I must balance them appropriately not only in terms of
personalised risk to Mr. Sittampalam but also considering if he would face
persecution based on any of the grounds enumerated in the Convention.
Mr. Sittampalam left the country as a
young man about 17 years ago. There is no warrant for his arrest in Sri Lanka, and the evidence I have
reviewed does not indicate that refugees are generally detained. I am not
satisfied on a balance of probabilities that he would either be targeted or
sought out for any of the reasons that counsel alleges. Although there is the
possibility of some generalized risk to Mr. Sittampalam on return to Sri Lanka due to the country
conditions, I am not satisfied based on a balance of probabilities that his
removal would expose him to a risk of persecution, torture, cruel or unusual
punishment or treatment.
The basis of the risk assessment is
forward looking. I am not satisfied on balance that there is a future prospect
of risk or persecution from his legal troubles or profile.
Although I noted Counsel’s submission on
the Travel Reports that recommend against non-essential travel, this is not the
equivalent of a moratorium on removals. Travel to Sri Lanka is possible and is happening as is
evidenced by the reports on the amount of tourist activity. Therefore, I have
given minimal weight to the impact of the travel report.
Based on the totality of information
before me and on a balance of probabilities, Mr. Sittampalam would be in no
different situation than other residents of Sri Lanka. There is no question that there is some
risk in a country with ongoing civil strife and unrest. However, this
generalized risk throughout the country does not meet the test of section 97.1
do not find that there is more than a possibility that Mr. Sittampalam could be
subjected to persecution as described in Section 97 of IRPA.
(Minister’s Delegate’s Decision, pp. 8
and 20-21).
[3]
In this
respect, referring to the Minister’s Delegate, Counsel for the Applicant makes
the following argument:
a. She concluded all in Sri Lanka were at the same risk, which
is not borne out in the evidence. The reports which she cited were reports
about the specific risks faced by Tamils and while they did note that others in
country were impacted by the armed conflict, they did not conclude that the
risks were equal. The delegate’s conclusion that all faced the same risk is
perverse given the tenor of the Hotham report, the Human Rights Watch reports
and the UNHCR report.
b. To the extent that she recognized a
greater risk for Tamils, she erred in characterizing this as ‘generalized’,
when it was an identifiable group to which the Applicant belonged which was at
risk.
(Applicant’s Application Record, p. 601)
[4]
I agree
with Counsel for the Applicant’s argument.
[5]
With
respect to the issues of irreparable harm and balance of convenience in the
present stay motion, since I have found that serious questions for determination
on judicial review arise from the Minister’s Delegate’s re-assessment, in my
opinion, to remove the Applicant prior to the judicial review Application being
determined will render his judicial review remedy nugatory; this circumstance
itself constitutes irreparable harm and tips the balance of convenience in the
Applicant’s favour (see eg. Resulaj v. Canada (Minister of Citizenship and
Immigration) 2003
FC 1168; Figurado v. Canada (Minister of Citizenship and
Immigration) 2005
FC 247 at paras. 43-45; Streanga v. Canada (Minister of Citizenship and
Immigration) 2007
FC 792 at para. 40).
ORDER
Accordingly, I order a stay of removal to be in
effect until the present judicial review Application is finally determined.
“Douglas R. Campbell”
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