Date: 20031106
Docket: IMM-8299-03
BETWEEN:
RAPHIAPILLAI MANVALPILLAI
SELLAM MANVALPILLAI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants live in Markham, Ontario. Unlike many elderly couples, he is 81, she 79, they have not been abandoned by their children. They live with and are completely dependent on their daughter, MaryTreesa and her husband, Soosaipillai. They are peaceful, church-going people. The only trouble is - they are aliens. They do not hold the right papers. They have been ordered to leave Canada tomorrow and return to Sri Lanka. They do not want to go. They do not have to go.
[2] The applicants are Tamils from the village of Urumpirah, Northern Sri Lanka. They left their war torn land and came to Canada in 1996 and asked for refugee status. They were turned down almost 2 years later, in August 1998. They then made an application under the former Immigration Act (R.S.C. 1985, c.I-2, as amended) for risk assessment under the Post-Determination Refugee Claimants in Canada class. More than four and one half years later they received a letter in the mail. They were told their application had been automatically transferred to the new programme, the Pre-Removal Risk Assessment ("PRRA"). They took advantage of the opportunity to submit up-to-date material.
[3] Section 113 of the current Immigration and Refugee Protection Act (S.C. 2001, c.27) allows applicants who have been denied Refugee status to provide current evidence that if they were to return to their homeland they would have well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or because of their political opinion. In addition, they can claim that removal to their country of nationality would subject them to torture, to a risk to their lives or to risk of cruel and unusual treatment or punishment.
[4] In their application they pointed out that three of their children are in Canada. They provided documentation as current as the day of their application which indicated that both the Sri Lankan government and the Liberation Tigers of Tamil Eelam ("LTTE") shared the view that conditions were not yet conducive for the return of refugee Tamils. The applicants' village is in a high security zone which makes it difficult or impossible for Tamils to return.
[5] While this application was pending, the applicants also applied for immigration to Canada on humanitarian and compassionate grounds. Of their nine children, three are in Canada, two as Convention Refugees. One daughter, who was last seen in Sri Lanka, cannot be found and the only child they know is in Sri Lanka is in a seminary. That application may take some time to be heard.
[6] In the meantime, their PRRA application was rejected. The Assessment Officer was of the view that the applicants were not at risk should they return to Sri Lanka and in any event their subjective fears could be addressed by an internal flight alternative, i.e. staying in Columbo rather than returning to the north. In reaching that conclusion the Officer unilaterally searched for and found documentary material on the internet which was not on all fours with that submitted by applicants' counsel.
[7] Application for judicial review of the PRRA rejection has been filed. First, leave has to be obtained. Leave may or may not be granted. This will take some time as the delays to complete the record have not yet expired and the Minister must be given time to respond. In the meantime, the Court has been asked to stay the removal order.
[8] In order to stay the removal order, which is valid on its face, the applicants must raise a serious issue to be tried, establish that, absent the stay, they run a well-founded risk of suffering irreparable harm and that the balance of convenience favours them (Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (C.A.)).
SERIOUS ISSUE
[9] The applicants submit there are two serious issues. They say the PRRA was flawed due to the procedural unfairness referred to above. Secondly, their Humanitarian and Compassionate ("H & C") application is a serious issue not yet determined.
[10] Counsel for the Minister urged the proposition upon me that section 18.1 of the Federal Courts Act (R.S.C. 1985, c.F-7, as amended) only allows the Court to grant the interim relief of a stay if the serious issue is already before the courts. While I can look at the PRRA, I cannot look at the H & C application because no decision on it has been made. Oddly, if the H & C application had been rejected and leave for judicial review launched, the Court could look at it. I make no comment as I am satisfied that the PRRA rejection raises a serious issue of procedural fairness.
[11] In Mancia v. Canada (MCI), [1998] 3 F.C. 461, Décary J.A., speaking of a failure of an officer to disclose documents relied upon from public sources in relation to general country conditions, stated:
I would therefore answer the certified question as follows, it being understood that each case will have to be decided according to its own circumstances and it being assumed that the documents at issue in a given case are of a nature such as that described above:
(a) with respect to documents relied upon from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by an applicant, fairness does not require the post claims determination officer to disclose them in advance of determining the matter;
(b) with respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of an applicant's submissions, fairness requires disclosure by the post claims determination officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision.
[12] In this case the officer picked and chose from material submitted and material the applicants had no notice might be relied upon. It is arguable that the circumstances are different here, and that if given a chance to comment the applicants' counsel might have provided other material. It should be noted that Mancia, supra was decided before the decision of the Supreme Court of Canada in Porto Segura Companhia de Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278. That case dealt with the admiralty practice of disallowing expert evidence in cases where nautical assessors were appointed by the Court. MacLachlin J., as she then was, revised the old judge-made rule. She said, inter alia, at page 1299:
First, assessors should be permitted to assist judges in understanding technical evidence. Second, assessors may go further and advise the judge on matters of fact in dispute between the parties, but only on condition of disclosure and a right of response sufficient to comply with the requirements of natural justice. In all cases, the parties are entitled to call expert evidence subject to the limits and procedures set out in the Evidence Act and the rules of practice. I state these propositions as general guidelines.
[13] By necessity, country conditions to a large extent comprise hearsay heaped upon hearsay. It is indeed fortunate for applicants that this information is receivable as otherwise they would almost never be able to discharge the burden against them.
[14] However, in this case I draw an analogy between the information, and opinions, obtained unilaterally by the officer with the information and opinions an assessor might express in chambers. It is certainly arguable that when an officer intends to rely on information different from that advanced by the applicant, and selectively picks and chooses, there should be "disclosure and a right of response sufficient to comply with the requirements of natural justice".
IRREPARABLE HARM
[15] I find for the applicants. Except for Canada, "[they] ain't got no home in this world anymore" (Woody Guthrie). They are elderly, with no one to care for them in Sri Lanka. Their evidence that they would have difficulty receiving medical care in the north has only been answered with the remark that they do not have to go to the north from whence they came: they could stay in Columbo. In Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403, this Court stated that to find irreparable harm, there must be prejudice beyond that which is inherent in the notion of deportation itself. I find that the harm contemplated here is more than unpleasant or distasteful. These circumstances engage interests beyond those which are inherent in the nature of a deportation.
BALANCE OF CONVENIENCE
[16] I find for the applicants. There have been great delays in processing this matter, delays which have allowed them time to feel at home in Canada and to be distanced from Sri Lanka. No doubt the Minister's resources are limited and he may well have focussed on more undesirable elements. They were not high on the list. They waited while the wheels turned slowly; now both they and the Minister must wait a little longer. However, I will only stay the removal order until such time as a decision is made on the leave application and, if in the affirmative, until disposition of the application for judicial review, without prejudice to such rights as the applicants may have with respect to their H & C application.
"Sean Harrington"
JUDGE
OTTAWA, ONTARIO
November 6, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8299-03
STYLE OF CAUSE: RAPHIAPILLAI MANVALPILLAI
SELLAM MANVALPILLAI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 3, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: NOVEMBER 6, 2003
APPEARANCES:
Mr. Jegan N. Mohan FOR APPLICANTS
Ms. Rhonda Marquis FOR RESPONDENT
SOLICITORS OF RECORD:
Mohan & Mohan FOR APPLICANTS
3300 McNicoll Avenue, Suite 225
Scarborough, ON M1V 5J6
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada