Rajendran v. Canada ( Minister of Citizenship and Immigration )
IMM-1208-99
Sharlow J.
18/3/99
7 pp.
Application for stay of execution of removal order pending determination of "humanitarian and compassionate" request under Immigration Act, s. 114(2)-Applicant, Tamil from Sri Lanka, came to Canada with wife in 1985-Convention refugee claim denied on basis of internal flight alternative in Columbo-Leave to appeal denied in 1992-PDRCCC assessment refused in 1994-Applicant moving to Seattle; wife, daughters living in Vancouver-Evidence suggesting Columbo not as safe for Tamils as thought to be in 1992-Applicant repeatedly entering Canada in contravention of expulsion orders, allegedly to visit daughters-Apprehended in September 1998-Although evidence of applicant's criminal record, no evidence of circumstances of offences, sentences-In November 1998 applicant advised informally Minister would seek removal order-In March 1999 submitting s. 114(2) request-Application allowed-(1) Serious issue to be tried: whether cases from this Court holding Minister under no obligation to consider s. 114(2) prior to removal can stand in light of recent decisions-Dissenting judgment in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 describing as "unthinkable" if fair hearing not held to determine whether substantial grounds for believing individual to be deported would face risk of serious violation of human rights-Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 605 (C.A.) suggesting person at risk of deportation, who has concerns about risks faced in country to which will be deported, having right to request consideration under s. 114(2)-Some evidence, not previously considered by any decision maker under Immigration Act, Colombo unsafe place for applicant-Also, very recent decisions setting aside Refugee Division's decisions disregarding new situation in Colombo-Delay in requesting s. 114(2) consideration reasonably explained-(2) Applicant risks serious harm if removed to area of Sri Lanka formerly thought to be internal flight alternative-(3) Evidence of criminal record so incomplete Court unable to conclude how serious offences were-Also impossible to find disregard of immigration laws so serious as to override risk of harm faces if removed to Sri Lanka-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).