Date: 20031120
Docket: IMM-8535-03
Citation: 2003 FC 1370
BETWEEN:
MAHALINGHAM THILEEPAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicant is a 23- year old Tamil male from Sri Lanka. He came to Canada in 1998 and commenced a refugee application, claiming that he faced persecution from the Tamil Tigers (LTTE) and the Sri Lankan Army (SLA). In a decision dated August 28th, 1998, the CRDD refused the application, finding that the applicant had failed to provide sufficient credible and trustworthy evidence to support his claim. A similar finding was reached when the CRDD reconsidered the application in October 2000.
[2] In November 2000, the applicant applied for permanent residency as a member of the Post-Determination Refugee Claimants in Canada class. The application was converted to a Pre-Removal Risk Assessment (PRRA) application in June 2002. In July 2003, the applicant filed submissions with the Court in which he stated that he had provided false information in his refugee application. A narrative was provided containing the facts upon which the applicant asked the PRRA Officer to rely when considering his application.
[3] In a decision dated September 12th, 2003, the officer concluded that the applicant had failed to establish that he would be charged with illegal exit on his return, and that even if he was so charged, there was no evidence that any sentence given to him would amount to persecution or cruel and unusual punishment. In addition, the officer found that the applicant faced no risk of persecution in Kondavil, his undisputed home town. In light of these findings, the applicant was refused and the applicant was issued a removal order, scheduled to be executed on December 4th, 2003.
[4] On October 30th, 2003, the applicant filed an application for leave to commence judicial review of the decision of the PRRA Officer. He has asked this Court to grant him a stay of the removal order, pending the outcome of his leave application.
[5] In order to be granted a stay, the applicant must meet the three elements of the test set out in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.), namely that there is a serious issue to be tried, that the applicant would suffer irreparable harm if the stay was not granted and that the balance of convenience favours the granting of the stay.
[6] The applicant has failed to provide this Court with evidence that there is a serious issue to be tried in this case. The Reasons make it clear that the officer considered the past detention which the applicant alleges he suffered as well as his profile. Based upon this evidence, she concluded that he had failed to establish that he faced a serious possibility of persecution if he returned to his home town. Undoubtedly there are young Tamil males at risk of persecution or torture in some areas of Sri Lanka. However, the applicant failed to establish that he falls within this category of young Tamils. He cannot claim to face similar conditions simply because he is a young Tamil male. I can find no error with the officer's decision to refuse the PRRA application given the evidence which was before her and the particular facts of this case.
[7] The applicant made two final points: namely, that, in the reasons, the officer failed to refer to amendments made after 1993 to the Immigrants and Emigrants Act of Sri Lanka and that she failed to consider recent case law and documentary evidence regarding the general applicability of this law.
[8] With regards to the first issue, it is true that the officer looked at the 1993 version of Immigrants and Emigrants Act instead of the 1998 version. Unlike the former, the latter provides for mandatory prison sentences for illegal emigrants. However, notwithstanding the change in penalty, it is still a law of general application and its application is subject to prosecutorial discretion. Thus, the following finding made by the officer applies equally when considered in light of the 1998 amendments:
The Applicant is not a person of interest to the SLA, the police , state security or LTTE officials. He left the country at age seventeen without having participated in the conflict. He has ben out of the country for five years and eight months. Return to Sri Lanka with a travel document issued by Sri Lankan authorities in Canada would not put him at serious risk of persecution or mistreatment. It is unlikely that he would be charged with illegal exit. Even if he was, the evidence does not establish that the sentence would be so disproportionate to constitute persecution (as opposed to prosecution) or cruel and unusual punishment. (Tribunal Record p. 556)
[9] With regards to the second issue, the case officer looked at the October 2002 UK IND Sri Lanka country assessment report.
[10] Set out below are the sections of that report which relate to the enforcement of the Immigrants and Emigrants Act:
Immigrants and Emigrants Act
6.55 The Immigrants and Emigrants Act was first introduced in 1949. Section 45 lists various categories of people who are guilty of offences under the Act, which include anyone who forges, alters or tampers with any passport, or has in their possession any forged passport, or who uses such a document. Section 45 sets out the punishment, which consists of a fine, or a period of imprisonment, or both. Section 45A provides punishments for those found guilty of facilitating illegal entry into Sri Lanka.
6.56 The Immigrants and Emigrants (Amendment) Act was passed in July 1998. During the passage of the Bill the Sri Lankan Immigration Minister told Parliament that the amendment was designed to combat "the crime of illicit trafficking of persons from Sri Lanka." The Minister stated that the diplomatic missions of various western countries had made representations to the Sri Lankan authorities about organised groups engaged in the business of securing illicit entry of Sri Lankans to their countries.
6.57 The Amendment Act increases the fines and the term of imprisonment which may be imposed on those found guilty under the Act, and makes the term of imprisonment mandatory. The Act disallows the imposition of a suspended sentence, and certain offences under the Act are non-bailable.
6.58 Contrary to what is stated in the Organisation Suisse d'aide aux Réfugiés report of 31 May 1999, the Immigrants and Emigrants Act has no retroactive effect.
6.59 According to the report produced by the Dutch Ministry of Foreign Affairs, published 30 September 1999, prosecution on the grounds of illegal emigration is as a rule only pursued at the time of emigration. In the case of immigration, the CID in practice will only proceed to investigate the illegal emigration if the returning person is still in possession of the forged travel document or if there are other indications that the interested party has emigrated illegally (e.g. if the interested party declares this him or herself). A rejected asylum seeker who is returned to Sri Lanka does not always have to fear being prosecuted under the Immigrants and Emigrants Act unless he/she is entering on a false travel document. The immigration authorities can question someone on arrival about their outward journey, but they generally do not have access to sufficient means of proof regarding the emigration. Asylum seekers expelled by the Netherlands for example, are on arrival in Sri Lanka, in possession of a valid travel document, usually a recently issued laissez-passer from the Sri Lankan Embassy: thus such returnees are not in violation of the Immigrants and Emigrants Act.
6.60 With regard to the burden of proof in the Immigrants and Emigrants Act, the Dutch Ministry of Foreign Affairs state that, unless otherwise specified, the general definitions of the Sri Lankan Criminal Code are applied (i.e. the Criminal Procedure Code, and the Evidence Ordinance). According to these general definitions, the burden of proof of a violation of a criminal law rests with the public prosecutor, thus not on the suspect.
6.61 On the fact-finding mission to Sri Lanka in July 2001, United Kingdom Home Office officials were told by the CID that an Anti-Human Smuggling Bureau headed by the Superintendent of Police was set up in June 2001 following discussions with Heads of Missions at various Embassies in Colombo. This was operating at Bandaranaike International Airport and is manned 24 hours a day. Home Office officials were told that the CID had had a very good recent detection rate of illegal migrants at the airport. However, the CID considered there was a need for greater detection of forged visas. Returnees who are arriving at the airport who are unable to establish their identity satisfactorily are brought before a magistrate within 24 hours and granted bail until CID have investigated the returnees circumstances. CID drops almost all cases once they have identified the person.
6.62 Members of the joint Danish/Canadian fact-finding mission were informed during their visit to Sri Lanka from 1-12 October 2001 that 99% of cases brought against returnees under the Immigrants and Emigrants Act are discharged without charges being laid. The Negombo Magistrate and Director of CID explained that for a returnee to be released on bail, he/she needs a person to stand surety to sign a bond. After release, the Magistrate gives a new date for the CID to forward a report on the investigation, normally within a month. If there is evidence to continue the investigation after one month, a new date is given for a court appearance. Most cases are concluded without charges within a period ranging from two weeks to three months. Between January 2001 and October 2001, only one returnee was deemed a terrorist, the Magistrate added.
Clearly the case officer considered how the act is being applied and therefore this argument also fails.
[11] As the test under Toth, supra, is conjunctive, I need not consider the other two legs of the test. In light of the foregoing, this application for a stay is dismissed.
"K. von Finckenstein"
J.F.C.
Toronto, Ontario
November 20, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8535-03
STYLE OF CAUSE: MAHALINGHAM THILEEPAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 17, 2003
REASONS FOR ORDER BY: von FINCKENSTEIN J.
APPEARANCES BY: Mr. Clifford Luyt
FOR APPLICANT
Mr. Jamie Todd
FOR RESPONDENT
SOLICITORS OF RECORD: Waldman & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031120
Docket: IMM-8535-03
BETWEEN:
MAHALINGHAM THILEEPAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER