Date: 19980917
Docket: IMM-4698-98
BETWEEN:
TUAN NIZAM OSSEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS, J.:
[1] This is a motion by the applicant, a Tamil-speaking Muslim who is citizen of Sri Lanka, to stay the execution of a deportation order scheduled for September 17, 1998. The hearing was conducted by telephone conference.
[2] The applicant has filed an application for leave to commence an application for judicial review of his removal, on the ground that, since it exposes him to the threat of death or torture at the hands of the Sri Lankan army or police, it violates his right under section 7 of the Charter not to be deprived of the right to life, liberty or security of the person other than in accordance with the principles of fundamental justice. He has also applied under section 114(2) of the Immigration Act to be considered for landing within Canada on humanitarian and compassionate grounds.
[3] After jumping ship the applicant applied for refugee status in Canada in 1993. The Convention Refugee Determination Division of the Immigration and Refugee Board rejected the claim in 1996. The panel hearing the claim did not believe the applicant's allegations that he had been detained and tortured by the Liberation Tigers of Tamil Eelam and the Sri Lankan security forces, that he had gone into hiding, and that he was still being sought by them. An application for judicial review of that decision was dismissed in October 1997.
[4] In August of this year, the applicant was informed that his PDRCC application had been unsuccessful. Although he did not impugn the fairness of that process for assessing the risk to which he would be exposed if returned to Sri Lanka, he stated in his affidavit that he did not make any submissions because his lawyer at that time did not advise him of this possibility.
[5] I accept that this Court has jurisdiction to order a stay of a person"s removal from Canada on the ground that in the circumstances of the particular case the removal would violate his constitutional rights, even though the validity of the underlying deportation order is not questioned. I also accept that removing a person to a country where there are substantial grounds for believing that the person will be tortured or killed may violate section 7 of the Charter , and that accordingly there must be an adequate assessment of the risk facing the person concerned before that person may lawfully be removed.
[6] Counsel for the applicant in this motion, Ms. Jackman, argued that certain pieces of evidence that had not been considered in either the refugee determination or in the PDRCC application supported the applicant's view that he would be killed or tortured if returned to Sri Lanka. She argued that it would be unconstitutional to remove him before there had been another risk assessment, this time under section 114(2), in which that evidence could be taken into account.
[7] It was agreed by counsel for both parties that, in order to succeed in this motion, the applicant had to satisfy the familiar three-prong test prescribed in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA). The first of these prongs requires the applicant to establish that the application for judicial review of his removal raises a serious question. For the following reasons I have concluded that the applicant has failed to do this.
[8] First, the applicant has already had two opportunities to establish the well-grounded nature of his fears. It is highly pertinent that, in the light of other evidence before it, and the implausibility of crucial parts of the applicant"s testimony, the Board found his claim to lack any credibility. Moreover, the applicant"s PDRCC application has been sufficiently recently rejected to enable the decision-maker to take into account prevailing conditions in Sri Lanka, and in particular in Colombo, for Tamils, including Tamil-speaking Muslims like the applicant. The fact that one expert on Sri Lanka has now given an opinion that Colombo is no longer a safe haven for young Tamil males is in my view not enough to raise a serious question, particularly since the applicant was born and lived for many years in Colombo.
[9] Second, the applicant relied on two letters from lawyers in Colombo stating that he had been detained and tortured in 1990 and 1992, and that he would be in danger of his life if he were returned to Sri Lanka, where he is on army and police wanted lists. However, the probative weight that can be given to these letters is decreased by the fact that they could have been, but were not, submitted to the Board when it heard the applicant"s refugee claim, they appeared just before his removal, and lack any supporting detail.
[10] Third, the applicant alleges in his affidavit that his wife was harassed by the Sri Lankan police in 1997 and had to flee to Canada where she has made a refugee claim. A letter from a Sri Lankan lawyer supports this statement, although it contains little by way of detail. The applicant alleges that this harassment of his wife occurred because the police were still searching for him after they had learned of his refugee claim as a result of a leak in 1996 by Canadian immigration authorities to a private investigator. However, while the evidence of the wife"s harassment is new, the Board considered the leak when it heard his refugee claim. When viewed in all the circumstances of this case, the evidence relating to the applicant"s wife"s harassment, and the reasons for it, do not in my opinion satisfy the "serious question" standard required to justify a stay.
[11] For these reasons I dismiss the motion for a stay of the applicant"s removal to Sri Lanka on September 17, 1998.
"John M. Evans"
Judge
Toronto, Ontario
September 17, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4698-98
| STYLE OF CAUSE: TUAN NIZAM OSSEN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, SEPTEMBER 16, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: THURSDAY, SEPTEMBER 17, 1998
APPEARANCES:
Ms. Barbara Jackman
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980917
Docket: IMM-4698-98
Between:
| TUAN NIZAM OSSEN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER