2013 ONSC 1231
COURT FILE NO.: CV-13-00474069
DATE: 20130227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHANADASAN ANTHONIPILLAI
Applicant
– and –
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
Barbara Jackman and Caitlin Maxwell,
for the Applicant Anthonipillai
Rachel Hepburn Craig, for the Respondent Minister of Public Safety and Emergency Preparedness
HEARD: February 12, 2012
GOLDSTEIN J.:
REASONS FOR JUDGMENT
[1] The Applicant arrived in Canada from Sri Lanka aboard the vessel M.V. Sun Sea in August 2010. The vessel’s arrival off the coast of British Columbia attracted significant media attention. The Applicant, like all of the passengers on the vessel, claimed refugee status. His claim was dismissed. The Minister sought to remove him. The Canada Border Services Agency^1 determined that he was not at risk of death, extreme sanction, or inhumane treatment if he were removed to Sri Lanka.
[2] The Applicant’s removal from Canada was scheduled for February 12, 2013. He brought an application for a stay of removal in the Federal Court. Madam Justice Gagné dismissed that stay application on the morning of February 12, 2013. The Applicant then brought an emergency application in this Court later the same day. I dismissed the application and endorsed the record as follows:
The Applicant is a failed refugee claimant from Sri Lanka. His claim was denied by the Refugee Protection Division. A pre-removal risk assessment found that he was not at risk of torture if he is removed to Sri Lanka. This morning, Madam Justice Gagné of the Federal Court dismissed an application for a stay. Although this Court has jurisdiction to entertain a stay application, in my view it is appropriate in this case to defer to the Federal Court: see Reza v. Canada, 1994 91 (SCC), [1994] 2 S.C.R. 394; Sittampalan v. Canada, 2010 ONSC 3205. Thus, the application for an interim injunction is dismissed. I decline to stay the Notice of Application, as requested by counsel for the Attorney General of Canada. Given the short time frame in which a decision is required, I will issue this short endorsement now, with more extensive reasons to follow. No costs are awarded on this motion.
[3] These are the more extensive reasons mentioned in my short endorsement.
BACKGROUND
[4] The lengthy civil war in Sri Lanka ended in 2009 in total victory by the Sri Lankan Army over the Liberation Tigers of Tamil Eelam.^2 In March 2009 the Applicant was placed in a government detention camp where he says that he was subjected to harsh treatment and interrogation about his possible involvement with the LTTE. He denied any involvement with the LTTE. The Applicant was able to travel to Thailand in 2010 using a smuggler, where he registered with the United Nations High Commission for Refugees. When he registered he claimed, falsely, that he was a member of the LTTE.
[5] The Refugee Protection Division denied the Applicant’s claim on the basis that the Sri Lankan Army and government did not suspect that he was involved with or a member of the LTTE. As well, the Refugee Protection Division found no basis for the Applicant’s assertion that he would be at risk in Sri Lanka as a perceived former low-level member of the LTTE, or as a passenger on the MV Sun Sea.
[6] The Applicant applied for leave to judicially review the decision of the Refugee Protection Division in the Federal Court in April 2012. Leave was denied. A removal order was issued.
[7] The Applicant subsequently made three requests to defer removal. In November 2012 a CBSA officer denied his first request. The Applicant sought judicial review of that decision. The judicial review was subsequently withdrawn when the Department of Justice and CBSA agreed to have the deferral request reviewed by a different officer.
[8] In December the Applicant’s deferral request was again denied by CBSA. The Applicant again sought judicial review. The Department of Justice and CBSA agreed again to have the deferral request reviewed by a different CBSA officer.
[9] In January and February 2013 the Applicant made extensive written submissions to CBSA. He argued that the situation in Sri Lanka had deteriorated for young Tamil males since the Refugee Protection Division had made its decision. A CBSA officer again rejected the deferral request in an extensive decision. The officer said:
I also find it important to reiterate that my discretion as an Inland Enforcement Officer is extremely limited. I may assess whether removal at this time would expose the Applicant to risk of death, extreme sanction, or inhumane treatment. Based on the information provided, I am unable to conclude that removal to Sri Lanka at this time would expose the Applicant to risk of death, extreme sanction or inhumane treatment.
ANALYSIS
[10] There are four issues to be determined:
Should the Superior Court defer to the Federal Court? If the answer is no, I must then deal with the rest of the issues.
Does the application meet the test for an injunction?
Did the CBSA officer apply the wrong test?
Is there new evidence justifying a departure from the decision of the Federal Court?
1. Should the Superior Court defer to the Federal Court?
[11] Parliament clearly intended that the Federal Court be the primary means of judicially supervising the immigration and refugee protection process: Reza v. Canada, 1994 91 (SCC), [1994] 2 S.C.R. 394. Parliament has created “a comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum”: Reza, supra; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809.
[12] Federal Court judges deal with immigration matters on virtually a daily basis. The Immigration and Refugee Protection Act[^3] is complex legislation that seeks to balance several objectives, including Canada’s international obligation to protect genuine refugees; maintaining the security of our borders; the government’s obligation to comply with the Canadian Charter of Rights and Freedoms; and the frankly political objective of ensuring popular support for immigration and refugee protection by maintaining a credible refugee determination system. Federal Court judges are simply better equipped to deal with this complex area of the law by virtue of their experience and expertise. To use a baseball analogy, immigration is right in the wheelhouse of the Federal Court.
[13] In the absence of a constitutional issue, the Federal Court has exclusive jurisdiction to issue prerogative remedies in respect of a “federal board, commission, or other tribunal”: Federal Courts Act, s. 18(1).[^4] Thus, although the Federal Court hears virtually all immigration matters, the superior courts of the provinces have jurisdiction where constitutional issues are raised.[^5] Since the Applicant raises his s. 7 rights in this particular case, as well as the constitutionality of certain provisions of the IRPA, there is no doubt that I can hear the Application.
[14] Notwithstanding that this Court can hear immigration matters, it should only do so where the Federal Court provides an inappropriate or ineffective remedy. Inappropriate or ineffective does not mean merely different. As the Ontario Court of Appeal commented in Francis (Litigation Guardian) v. Attorney General of Canada, [2003] O.J. No. 691, 171 O.A.C. 198, 2003 64349:
4 The appellants' contention that the Federal Court is not an appropriate or effective court comes down to the submission that the Federal Court's interpretation of the interests of the child in the context of the deportation of a parent has effectively denied the existence of the constitutional rights relied on by the appellants.
5 We do not agree with that reading of the case law and in any event it is irrelevant to the issue before the court. The fact that the jurisprudence of the court may not leave much hope for success does not render the court either inappropriate or ineffective. Ultimately the Federal Court and this court take their law from the Supreme Court and it can't be assumed that a different law would be applied in the Federal Court than would be applied in the Superior Court.
[15] Ms. Jackman very candidly admitted that there was a certain element of forum shopping in her application to this Court, although she couched her arguments in the ineffectiveness of the Federal Court. With her usual skill, she argued that the inclusion of a leave provision from stay of deportation decisions makes the Federal Court a less effective forum than the Superior Court of Justice.
[16] I respectfully disagree. Although the Federal Courts Act provides an appeal from the Federal Court to the Federal Court of Appeal in interlocutory matters,[^6] the IRPA provides an exception to the general rule:
- (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.
(2) The following provisions govern an application under subsection (1):
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
[17] There is an exception to the exception: Federal Court judge may certify a question to the Federal Court of Appeal:
- Judicial review is subject to the following provisions:
(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
[18] The Courts of Justice Act[^7] also contains a leave provision in interlocutory matters:
- (1) An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
[19] The Rules of Civil Procedure provide the basis upon which leave to appeal an interlocutory matter to the Divisional Court may be granted:
62.02 4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[20] The Federal Court leave provisions are no more onerous than the Superior Court leave provisions, and arguably even less so. A Federal Court judge may certify a question of general importance. A judge of the Superior Court may grant leave to appeal to the Divisional Court in interlocutory matters either on the basis of conflicting decisions and that it is desirable that leave be granted; or, that there is good reason to doubt the correctness of the decision and that the matter involves something of such importance that leave ought to be granted.
[21] I conclude, therefore, that there is no basis for the assertion that the remedy in the Federal Court is less effective than that available in the Superior Court.
[22] Ms. Jackman further argues, as a practical matter, that there are grounds for believing that if the Applicant is returned to Sri Lanka he will be subjected to torture or other inhumane treatment. This is, of course, a serious concern that engages this Court’s responsibilities under s. 7 of the Canadian Charter of Rights and Freedoms.[^8]
[23] Absent frivolous claims, a submission of this nature demands the most careful consideration. The Applicant’s claims are not frivolous. That said, they have also been subject to very thorough examination by a CBSA officer and a Federal Court judge. The comments of my colleague D. Brown J. in Sittampalam v. Canada[^9] apply here:
31 Second, on his motion to continue in this court Mr. Sittampalam wishes to re-litigate issues already fully argued and decided before the Federal Court. The relief he seeks before the Superior Court of Justice is virtually identical to that which he sought before the Federal Court. Shore J. gave extensive reasons for denying the applicant an injunction preventing his removal. As I read the applicant's materials in this court, he simply wishes to re-litigate the same issues. That indicates to me that Mr. Sittampalam is engaged in forum-shopping. Although the respondents stated that they were not relying on the principles of res judicata or issue estoppel, the Supreme Court of Canada has spoken clearly about the need for courts to scrutinize attempts by parties to re-litigate matters already decided.
32 Next, it would be inappropriate for this court to make itself available as a kind of "emergency court of appeal" from orders of the Federal Court of Appeal refusing stays in deportation cases. Mr. Poulton submitted that granting the relief requested by the applicant would not open the floodgates to further litigation of that sort in this court. I take a more skeptical view; I think it very much would, and such a development would not be appropriate.
[24] Simply put, I am not in a better position to decide this matter than Madam Justice Gagné. I find, therefore, that the Superior Court should defer to the Federal Court in this matter. I exercise my discretion and dismiss this application on that basis.
[25] Although it is not necessary for me to determine the other three issues, I will do so for the sake of completeness.
2. Does the application meet the test for an injunction?
[26] The Applicant will be eligible for a statutory pre-removal assessment on March 12, 2013, only one month from the date set for his removal. As a practical matter, Ms. Jackman asks for an injunction to prevent his removal for only that short period of time.
[27] Refugee claimants whose claims have been rejected by the Refugee Protection Division are eligible to have a pre-removal risk assessment under section 112(1) of the IRPA:
- (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
[28] A failed refugee claimant is not, however, entitled to apply for a pre-removal risk assessment unless one year has passed since the date that his refugee claim was determined:
(2) Despite subsection (1), a person may not apply for protection if
(b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division.
[29] The Applicant’s claim rests on an assertion that s. 112(2)(b.1) is contrary to s. 7 of the Canadian Charter of Rights and Freedoms
[30] In dealing with the application before her, Madam Justice Gagné applied the well-known test for an injunction:
• Whether a serious issue exists;
• Whether there would be irreparable harm if the application were dismissed; and
• Whether the balance of convenience favours granting the application.[^10]
[31] Madam Justice Gagné accepted that the constitutionality of s. 112(2)(b.1) is a serious issue. She did not, however, accept that if the Applicant were returned to Sri Lanka that he would suffer irreparable harm.
[32] I recognize that there is some force in Ms. Jackman’s argument that, as a practical matter, there is no harm in waiting for a month so that the Applicant is eligible for another pre-removal risk assessment. That is, in essence, an argument based on the balance of convenience. I therefore accept that the Applicant has shown a serious issue to be tried and that the balance of convenience favours granting the injunction, although it should be noted that the Minister has another obligation: to conduct removals as soon as practicable.[^11] That still does not assist the Applicant. I can see no error in the CBSA officer’s extensive and careful reasons denying deferral of removal. That was also Madam Justice Gagné’s conclusion and I agree. The Applicant’s real quarrel is with the result: he simply disagrees with the officer’s conclusion. I find that he has not shown on a balance of probabilities that he will suffer irreparable harm and that the application does not meet the test for an injunction.
3. Did the CBSA Officer Apply The Wrong Test?
[33] Ms. Jackman argues that the CBSA officer applied the wrong test in his assessment. In essence, Ms. Jackman argues that this is a serious issue as well.
[34] The officer applied a narrow test: whether the Applicant would be at risk of death, extreme sanction, or inhumane treatment. This test was articulated by Pelletier J. of the Federal Court in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295, [2001] 3 F.C. 682:
48 It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. The grant of discretion is found in the same section which imposes the obligation to execute removal orders, a juxtaposition which is not insignificant. At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.
[35] IRPA distinguishes between Convention refugees and persons in need of protection:
- A Convention refugee[^12] is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
- (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture[^13]; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment…
[36] Ms. Jackman argues that the CBSA officer had no jurisdiction to apply the wider test set out in s. 96, which, she says, would have resulted in a different outcome. She argues that an oral hearing is required much as the Applicant had before the Refugee Protection Division. Ms. Jackman further argues that there is a split in the Federal Court on this issue, with two lines of authority. This, she argues, means that the Federal Court is not an effective forum, and that this Court should, therefore, exercise its discretion and issue a remedy.
[37] I respectfully disagree for three reasons: first, I do not accept that two lines of authority among judges of a particular court that has not been resolved by a court of appeal makes the forum ineffective; in other words, this argument does not raise a serious issue. Second, this argument was made before Madam Justice Gagné, who rejected it in no uncertain terms:
… even if I were to agree with the Applicant that a serious issue arises from the simple fact that this Court is to be applied to the risk assessment and as to the identity of the agent who should make this final assessment – which is not the case – the Applicant has failed to establish by clear and convincing evidence that he would suffer irreparable harm if removed to Sri Lanka…
[38] In any event, whether or not there is a “split” is a classic example of the type of immigration law issue best determined by the Federal Court.
[39] Third, the test applied by Madam Justice Gagné for a stay of removal was the test that is to be applied in this Court for an interim injunction, as I have set out. The Applicant was not able to persuade either Madam Justice Gagné or me that he could meet the irreparable harm element of the test. Even if I were to accept that this argument raises a serious issue, which I do not, it would still not assist the Applicant.
4. Is there new evidence justifying a departure from the decision of the Federal Court?
[40] The final argument made by Ms. Jackman was that there was new evidence before me that was not before either the CBSA officers who refused to defer removal, or before Madam Justice Gagné. That evidence consisted of a notarized letter from a coroner from the Applicant’s home area. The letter suggested that the Applicant would be at risk if he was returned to Sri Lanka.
[41] In my view, the coroner’s letter does not constitute new evidence at all. It repeats, in some respects very closely, the information set out in the Applicant’s personal information form filed with the Refugee Protection Division as well as information that was submitted to the CBSA, Madam Justice Gagné, and this Court. Although the letter was new, the evidence was not. The Refugee Protection Division, the CBSA, and Madam Justice Gagné gave very careful consideration to that evidence.
CONCLUSION
[42] The application is dismissed without costs.
GOLDSTEIN J.
Released: February 27, 2013
2013 ONSC 1231
COURT FILE NO.: CV-13-00474069
DATE: 20130227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHANADASAN ANTHONIPILLAI
Applicant
– and –
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
GOLDSTEIN J.
Released: February 27, 2013
[^3]: S.C. 2001, c. 27 (“IRPA”). [^4]: R.S.C. 1985, c. F-7 (“Federal Courts Act”). See also Canada (Labour Relations Board) v. L’Anglais, [1983] S.C.R. 147. [^5]: Canada (Attorney General) v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307. [^6]: Section 27(1)(c). [^7]: R.S.O. 1990, c. C.43. [^8]: See: Suresh v. R., 1990 6958 (ON SC), [1999] O.J. No. 28, 42 O.R. (3d) 797 (Div.Ct.). [^9]: [2010] O.J. No. 2401, 2010 ONSC 3205, 89 Imm. L.R. (3d) 305, 2010 CarswellOnt 3797. [^10]: Toth v. Canada (Minister of Employment and Immigration) (1988) 1988 1420 (FCA), 86 N.R. 302 (F.C.A.). See also: R.J.R.-MacDonald Inc. v. Attorney General of Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311. [^11]: IRPA, s. 50. [^12]: Convention Relating to the Status of Refugees C.T.S. 1969 No. 6, Art. 33. [^13]: Convention Against Torture C.T.S. 1987, No. 36, Art. 3.```