Date: 20000317
Docket: IMM-741-00
Ottawa, Ontario, this 17th day of March 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
NISHAN GAGEETAN JEYARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The applicant seeks a stay of a deportation order while he challenges the refusal of his application to be allowed to apply for landing from within Canada.
[2] The circumstances of Mr. Jeyarajah, the applicant"s dealings with the immigration system are documented in Jeyarajah v. Canada , [1999] F.C.J. No. 198, (1999) 236 N.R. 175 which I will not repeat here. For my purposes, this story begins with the respondent"s agreement not to deport the applicant when his remedies with respect to his deportation order were exhausted. At that time, the respondent"s officials agreed not to deport the applicant until his application for humanitarian and compassionate consideration under s. 114(2) of the Immigration Act , R.S.C. 1985 c. I-2 ("H & C application") had been disposed of. He and his counsel were given the opportunity to make submissions on the issue of risk to the applicant should he be returned to Sri Lanka. His counsel made two separate submissions but in the end, his application for humanitarian consideration was declined. The respondent thereupon began proceedings to deport the applicant. However, his counsel brought an application for judicial review of the refusal of his H & C application.
[3] The test for the granting of a stay of execution is well known and needs no development here other than to state the three elements of the test. Toth v. Canada (1988) 86 N.R. 302, [1988] F.C.J. No. 587. There must be a serious issue to be tried in the underlying judicial review application, it must be shown that the applicant will suffer irreparable harm if the stay is not granted and the balance of convenience must favour the applicant.
[4] In this case, counsel for the respondent conceded that there was a serious issue to be tried. The issue raised in the material filed with the Court was the failure to disclose to the applicant and his counsel prior risk assessments which had been prepared and which were relied upon in the processing of the H & C application. The applicant relies upon Haghighi v. Canada, [1999] F.C.J. No. 1367 which held that the applicant was entitled to disclosure of materials used by the officer processing the H & C application for the purpose of correcting any errors which they might contain.
[5] The real issue is irreparable harm. The respondent relies upon its risk assessments to show that there will be no risk of serious harm to the applicant. She points to documentation that Columbo Tamils with long residence in Columbo are not the object of serious scrutiny by the security forces. Mr. L. Waldman, counsel for the applicant, points out that while his client was born in Columbo, he has not resided there for some time and is not a person of long residence in Columbo. Furthermore, the applicant"s affidavit shows that his drug conviction will be known to the Sri Lankan authorities who will consider a sign of complicity with the Tigers since it is known that drug running is one of the means by which they raise funds.
[6] The issue of risk to the applicant is particularly raised by the following paragraph in the applicant"s affidavit:
| I have been advised that the immigration authorities will have advised the Sri Lankan government as to my conviction for drug trafficking. I am very concerned, because I have been convicted under a drug offence and the Sri Lankan government believes that Tamil Tigers use drug trafficking as a means of raising funds, that even though I have nothing to do with the Tigers, I will be suspected of connections to the Tigers upon return to Sri Lanka and that this will cause serious risk to my life. This is especially so since Toronto is widely known through local newspapers in Sri Lanka to be the most fertile ground for fund-raising for the Tamil Tigers. I attach as Exhibit "E" to this my affidavit, documentary evidence that supports my concern. |
[7] The treatment of this issue in the risk assessment is as follows:
| Most torture victims were Tamils suspected of being LTTE insurgents or collaborators. Amnesty International relates those persons suspected of having links to the LTTE being subjected to torture. The subject"s background does not reveal any contact or links to the LTTE. He has been outside of Sri Lanka for approximately 15 years. Risk submissions inform the subject does not support the Tigers" military action and according to his H and C application he does not belong to any organizations. He has been convicted of importing narcotics and according to Correctional Services Canada the subject had a car accident with his father"s best friend car which resulted in $6,000.00 damage which he had to pay. He quit school and began working two jobs to pay for the damage. He met a school chum who suggested he do this one job (importing narcotics) to pay for the damage. There is no indication of any LTTE involvement and by his own statements he did it to pay off this debt. |
[8] The risk assessment concludes that the applicant will not face an objectively identifiable risk of harm that would not apply to other individuals from that country. While the report comes to no specific conclusion on the question of his drug conviction, it is implicit in its overall conclusion that the drug conviction will cause him no particular problems. It is certainly arguable that it is the perception which the security forces have of the applicant"s conduct which will determine their response to him, not his version of events, whatever it happens to be. The documentary evidence supports the view that the drug trade is a source of revenue for the Tigers. Tamils who are deported from western countries for drug trafficking would look like potential sources of useful information. The absence of any self-reported links with the LTTE is hardly surprising since membership in the LTTE would subject one to deportation on the ground of membership in a terrorist organization Suresh v. Canada , [2000] F.C.J. No. 5, [1999] 4 F.C. 206.
[9] While it is the role of the respondent"s officials to assess risk, and the Court should not substitute its opinion for theirs, it is for the Court to satisfy itself as to the existence or not of irreparable harm. The applicant has raised an issue as to the risk of harm to him because of his drug conviction which the respondent"s officials, in my view, have not rebutted. The issue before me is not whether the risk of harm to the applicant is balanced by the danger he represents to Canadian society. That will be decided by others. My function is to determine whether the risk of harm to the applicant is such that he should not be deported before his application for judicial review is completed. On the evidence before me, I find that as a convicted drug importer, the applicant will be of particular interest to the Sri Lankan security forces and as a result, he faces a significant risk of being tortured or subjected to other inhumane treatment. This constitutes irreparable harm. It may be that the applicant will eventually have to face the interrogators but for the moment he is entitled to remain here until his application is heard.
[10] There will be an order staying the execution of the deportation order against the applicant until the final disposition of his application for leave and judicial review.
ORDER
The execution of the deportation order against the applicant is hereby stayed until his application for leave and judicial review is finally disposed of.
"J.D. Denis Pelletier"
Judge
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