Date: 20070910
Docket: IMM-3529-07
Citation: 2007 FC 895
Ottawa, Ontario, September
10, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
THANESWARAN SINNARAJAH
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
[1]
These
are the reasons for dismissing on September 4, 2003, the applicant’s
application for a stay of his removal to Sri Lanka scheduled
for later that afternoon.
[2]
The
applicant’s request for a deferral of his removal was denied by an Enforcement
Officer on August 30, 2007, with reasons provided to the applicant’s counsel on
August 31, 2007, at approximately 1:50 p.m. August 31, 2007, was the Friday of
the Labour Day weekend.
[3]
The
material and contextual facts underlying the stay application are as follows:
1. The applicant
is a male Tamil 35-years of age and a citizen of Sri Lanka;
2. He came to Canada on the 12th
of May, 1994, as a permanent resident upon his sponsorship by his parents;
3. In March of
2002, the applicant was convicted of assault causing bodily harm. In April of
2002, the applicant was convicted of assault. The applicant was also charged
for criminal harassment but this charge was stayed at the request of the Canada
Border Services Agency (CBSA) in order to effect his removal from Canada;
4. On February
7, 2006, the applicant was found inadmissible to remain in Canada on the
grounds that he is an individual described in paragraph 37(1)(a) of the Immigration
and Refugee Protection Act (the Act) in that he has engaged in activity
which was part of a gang-related pattern of criminal activity organized by a
number of persons acting in concert in furtherance of offences punishable under
an Act of Canada by way of an indictment. He was ordered deported. In
addition, on the basis of the evidence adduced at the admissibility hearing a
second deportation order issued against the applicant, the Immigration Division
determining he was a person described in paragraph 36(1)(a) of IRPA,
i.e., excluded on the grounds of serious criminality;
5. The applicant
challenged the inadmissibility decision in this Court. My colleague Justice Shore on February
20, 2007 dismissed the applicant’s judicial review application. The Court
concluded given the applicant’s association with known members of a criminal
group and his involvement in numerous criminal incidents his allegation he was
not involved in the gang was not credible;
6. On March 23,
2006, the applicant was notified he could make a pre-removal risk assessment
(PRRA) application which he did. On August 8, 2006, a PRRA Officer determined
he was not at risk;
7. On March 8, 2007,
counsel made a new PRRA application. This PRAA request was refused on May 11,
2007. The PRRA Officer concluded the applicant had provided insufficient
evidence he would be personally at risk if returned to Sri Lanka or that he
would be a person of interest to the Sri Lankan Army (SLA). He was of the view
documentary evidence showed for people of no interest to the SLA, detention was
for a short period. He was of the view there was insufficient evidence to
suggest the applicant’s medical condition would put him at risk in returning to
Sri
Lanka.
8. The applicant sought
judicial review of this PRRA refusal. His application was filed on May 30,
2007 and perfected on June 29, 2007. On August 16, 2007, my colleague Justice
Teitelbaum refused to grant leave for judicial review.
9. Before Justice
Teitelbaum’s decision was rendered, counsel for the applicant had written to a
Removal’s Officer asking that the applicant’s removal be deferred pending the
consideration of the leave application in the PRRA matter. Counsel made
submissions and submitted new reports on Sri Lanka issued by
international human rights organizations.
10.
Counsel
was advised that the deferral request would not be considered until a removal
date had been scheduled. A removal date was scheduled for September 4, 2007.
Counsel for the applicant received notice of this fact on August 22, 2007, at
which time she renewed the request for deferral making further submissions;
11.
When
counsel’s office received word on August 27, 2007 that the leave application
had been dismissed, counsel for the applicant submitted to the PRRA office in Toronto, a new PRRA
application with a request that it be assessed on an urgent basis. Additional
submissions and evidence in support were provided. She repeated her request for
deferral.
12. I mention an
additional fact. The applicant had been detained for some time at the time of
his deportation. His application for release on conditions was denied. The
Immigration Officer was satisfied there was a strong case to conclude the
applicant was a danger to the Canadian public.
[4] As noted, on August 31, 2007,
Enforcement Officer Leblanc’s reasons were forwarded to counsel for the
applicant. She noted the latest submissions to defer were dated August 27,
2007. She also noted the documents provided by counsel were country and travel
reports that deal with the instability and the human rights situations in Sri Lanka. She noted
previous submissions had referred to the applicant’s health and his entitlement
to an effective remedy by a competent court prior to being put at risk.
[5] Enforcement Officer Leblanc further
concluded in her reasons as follows:
“I have considered my discretion to defer a removal under
section 48 of IRPA and have considered all of counsel’s submissions.
I am satisfied that the client has had opportunity to
present his personal risk in that he was provided with an application
for PRRA submitted on March 23, 2006, and determined on August 8, 2006. Given
a second opportunity on March 14, 2007, and received a negative decision on May
11, 1007. Leave was denied on August 21, 2007. For these reasons I am
satisfied that this issue has been fully explored.
In regards to his medical condition,
Immigration Medical Services has advised that medical and treatment are available in Sri Lanka for epilepsy.”
After reviewing the submissions provided
to me and having no new information, a deferral is not appropriate in this
case.” [Emphasis
mine]
[6] Counsel for the applicant argued
the Enforcement Officer erred in two ways demonstrating the existence of
serious issue. First, there was new information available in the documentation
recently provided and second, the applicant was denied procedural fairness in
not being able to respond to the advice provided by Immigration Medical
Services that medication and medical treatment is available in Sri Lanka for
epilepsy, confirmation of which was included in the respondent’s record by way
of a document found on the Government of Sri Lanka’s website referring to the
existence of 300,000 epilepsy patients on the island and 70% treated by
medicines and 30% by surgery. This website document also talked about Colombo National Hospital’s Epilepsy
Centre.
[8] It is trite law that the scope of
an Enforcement Officer’s discretion to defer removal under section 48 of the Immigration
and Refugee Protection Act is limited.
[9] In the case at hand the context is
important. The applicant has had two negative PRRA decisions. The first one
dated August 8, 2006 analysed his fear of return to Sri Lanka on account
of his epilepsy; leave for judicial review was not sought of that decision.
His second PRRA application was also denied. It is very recent – May 11, 2007;
it analysed the applicant’s risk in terms of current country conditions and
also touched upon his medical condition.
[10] The new information which counsel
for the applicant says was not considered by the Enforcement Officer was a
recent report concerning Tamil evictions from Colombo (made public
on June 1, 2007). I was not satisfied this new fact materially altered the
risk analysis he had received previously. It appears from the report itself
the expulsions were a one-time occurrence which has been restrained by the
Courts and have been discounted.
[11] As to counsel for the applicant’s
second argument I was also of the view no serious issue was raised. It is also
trite law the content of procedural fairness is variable. I took into account
the fact of his epilepsy had been previously canvassed and the fact the
Enforcement Officer relied on the expert advice of Immigration Medical Services
was corroborated. Moreover, counsel for the applicant could have challenged
the finding of medical availability at the stay hearing.
[12] In the circumstances, I was of the
view the applicant’s claim of irreparable harm was speculative. Finally, the
balance of convenience favoured the Minister particularly the fact the applicant
had been found to be a danger to the public.
“François
Lemieux”
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