Date: 20031217
Docket: IMM 9332-03
Citation: 2003 FC 1496
Toronto, Ontario December 17, 2003
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
PRATHEEPAN LOGESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 24 year old Tamil from Sri Lanka. His claim for refugee status was denied on February 13, 2001 and he was denied leave to seek review on June 11, 2001. His application under the Pre-Removal Risk Assessment program was denied on December 14th 2003 and his removal has been scheduled for January 8th, 2004.
[2] The applicant seeks a stay of that removal order pending the outcome of judicial review of his PRRA decision. The leave application for such review is pending.
[3] It is well established that to be successful the applicant has to meet the threefold test set out in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.), namely a) that there is a serious issue to be tried, b) that the applicant would suffer irreparable harm if the stay was not granted, and c) that the balance of convenience favours the granting of the stay.
[4] The key finding of the PRRA officer where as follows:
The evidence also suggests that the applicant has a viable internal flight alternative available to him. The evidence shows that there is a large Tamil population in Columbo and that freedom of movement is accorded all citizens.
The Constitution grants every citizen "freedom of movement and of choosing his residence" and "freedom to return to [the country]." The Government generally respects the right to domestic and foreign travel.
Tamils fleeing persecution can generally find a safe haven in the areas under Government control. There are large numbers of Tamils living in greater Colombo, the Puttalam district of north of Negombo, and the central highlands. In Matale there is a long established community of "Up-country Tamils" as well as Tamils from the north usually seek accommodation with acquaintances or relatives, or in lodges.
There are estimated to be 150,000 Tamils from the north east in Colombo, in addition to the 250,000 Tamils who have been resident in the city for a long period. Tamils coming from the north usually seek accommodation with acquaintances or relatives, or in lodges.
I am therefore, satisfied that on a balance of probabilities, that there exists no serious possibility of the applicant facing persecution in Colombo and secondly, that it would not be unduly harsh for the applicant to move to Colombo.
After careful consideration of all the evidence in its entirety, I find that the applicant faces no more than a mere possibility of persecution in Sri Lanka. My own independent research leads me to conclude that while Sri Lanka is in a state of transition, the government remains committed to the tenets of the MOU. I find, that the applicant does not meet the requirements of Section 96 of the Immigration and Refugee Protection Act.
With regard to Section 97, I find it not likely that the applicant would be in danger of torture or a risk to life or cruel and unusual treatment or punishment and therefore he does not meet the requirements of persons in need of protection as found in Section 97 of the Immigration and Refugee Protection Act.
[5] In respect to the internal flight alternative , i.e. living in Colombo the applicant argues
that:
a. The officer accepted that torture of those detained remains a problem, but ignored the evidence before her that Mr. Logeswaran had traveled to Canada on false document, certainly facing some degree of questioning and detention on his return, particularly as he is a young Tamil northern male.
b. The officer appears to accept that there is a risk for Mr. Logeswaran in the north, but concludes that he could live in Colombo. The officer ignores her own conclusion that the reason why Mr. Logeswaran's parents would not likely be in the same position to assist him on detention in Colombo, as they live in the north, and presumably know people there to assist their son, when detained.
[6] For the purposes of a stay of removal "irreparable harm" is a very strict test. It implies the serious likelihood of jeopardy to the applicant's life or safety. Irreparable harm is very grave. It must be more than unfortunate hardship, including breakup or dislocation of family.
[7] The submission of the applicant regarding the internal flight alternative set out above is built on several suppositions, namely that the applicant will be arrested, that the judicial process will provide no relief, that it will be necessary for his parents to come to his aid, and that his parents will have difficulty to assist him from the north where they live. These are suppositions that hardly amount to a serious allegation of serious risk.
[8] Given the existence of an internal flight alternative, established by the PRRA officer which the applicant did not successfully rebut, I cannot find that irreparable harm has been established.
[9] Given the conjunctive nature of Toth test, I need not consider the other two points of serious issue or balance of convenience.
[10] Accordingly this application for a stay is dismissed.
ORDER
UPON MOTION dated December 10, 2003, on behalf of the Applicant, for:
An Order granting a stay against the removal of the Applicant for January 8, 2004, pursuant to section 18.2 of the Federal Court Act, until such time as the Applicant's Application for leave and Judicial Review is considered and finally determined.
THIS COURT ORDERS that this application is dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9332-03
STYLE OF CAUSE: PRATHEEPAN LOGESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 15, 2003
REASONS FOR ORDER
AND ORDER: VON FINCKENSTEIN J.
DATED: DECEMBER 17, 2003
APPEARANCES:
Barbara Jackman FOR THE APPLICANT
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barbara Jackman
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20031217
Docket: IMM-9332-03
BETWEEN:
PRATHEEPAN LOGESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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