SUJEEVAN RATNAM Applicant v. THE MINISTER OF PUBLIC SAFETY, 2022 FC 372

Date: 20220318 Docket: IMM-2483-22 Citation: 2022 FC 372 Ottawa, Ontario, March 18, 2022 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: SUJEEVAN RATNAM Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant, Mr. Sujeevan Ratnam, applied for a stay of his removal on March 16, 2022, from Canada to Sri Lanka, scheduled for March 23, 2022. Mr. Ratnam is presently being detained by the Canada Border Services Agency [CBSA] with the intention that he be escorted for his removal.

The Minister of Public Safety and Emergency Preparedness [Minister] asks this Court to decline to hear the motion as Mr. Ratnam is without clean hands and has brought the motion too late. [ 2 ] Mr. Ratnam claims to be at risk of torture upon his return to Sri Lanka because he is suspected of being associated with the Liberation Tigers of Tamil Eelam [LTTE], and that his removal would violate

section 12 of the Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , as well as Canada’s international obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations International Covenant on Civil and Political Rights by placing his life and personal security in danger. Mr. Ratnam also claims to have strong evidence concerning the ongoing torture in Sri Lanka of returning failed refugee claimants. [ 3 ] Mr. Ratnam’s immigration history is robust. He arrived in Canada in early 2015 and filed for refugee protection.

His claim was dismissed by the Refugee Protection Division [RPD] in February 2015 as was his appeal to the Refugee Appeal Division [RAD] in August 2015; put simply, his claim was found to lack credibility. Leave for judicial review was denied by this Court in November 2015 (IMM-3951-15). Mr. Ratnam then filed for his first Pre-removal risk assessment [PRRA] based on new evidence – an affidavit from his mother, a letter from his brother and a letter from a member of parliament claiming that Mr. Ratnam’s brother was ordered to report to an army camp in July 2018, was interrogated regarding Mr.

Ratnam’s whereabouts, and later fled Sri Lanka in October 2018 on account of the intensity of the interrogation. Concurrently, Mr. Ratnam also filed an application for permanent residency on humanitarian and compassionate grounds [H&C application]. [ 4 ] Both the PRRA and H&C applications were refused in January 2019, and leave for judicial review of both decisions were denied by this Court in July 2019 (IMM-1971-19 and IMM-1975-19). On October 16, 2019, Mr.

Ratnam was advised that he would have to leave Canada by the end of the month; his deferral request was denied by the Minister on October 21, 2019, and this Court dismissed Mr. Ratnam’s first application for a stay of his deportation on October 29, 2019 (IMM-6372-19). Leave for the underlying application for judicial review was eventually denied in January 2020. [ 5 ] Mr. Ratnam failed to report for his removal on October 30, 2019, and a warrant for his arrest was issued in November 2019; cash bonds totalling $6,000 tendered to secure compliance with his release conditions were forfeited. Mr.

Ratnam filed a second H&C application, which was refused in September 2020; judicial review of that negative H&C decision was not sought. [ 6 ] Over two years after his failure to report for his removal and having gone “underground”, as Mr. Ratnam put it, on December 21, 2021, Mr. Ratnam was finally located by the police, working without a valid work permit at a restaurant in Quebec City; his most recent work permit had expired in April 2020. Mr. Ratnam was arrested and has been in CBSA detention ever since pending his removal from Canada. [ 7 ] On February 17, 2022, Mr.

Ratnam was advised of his scheduled removal date of March 23, 2022. He was also interviewed by the CBSA on February 21, 2022. [ 8 ] Over two weeks later, on March 10, 2022, Mr. Ratman filed a second PRRA application claiming substantial risk of torture in Sri Lanka and again providing further new evidence: he claims that his wife (who remains in Sri Lanka) received a direction for him to attend from the Terrorism Investigation Division of the Sri Lanka Police dated March 10, 2020 (the direction to attend), and that his brother obtained refugee protection in France in July 2021. Mr.

Ratnam has also filed another letter from a member of Parliament, Jaffna District, dated February 9, 2020, in support of his claim, as well as updated country conditions documents for Sri Lanka. [ 9 ] On March 12, 2022, Mr. Ratnam also sought a deferral of his pending deportation given the risks inherent in his return, as well as to have more time to prepare for his return; Mr. Ratnam submitted in support of his deferral request the same documents he filed for his second PRRA application. The enforcement officer denied Mr.

Ratnam’s deferral request on March 15, 2022, being the decision which is the subject matter of the underlying application for judicial review. In denying Mr. Ratnam’s request for a deferral of his removal, the officer noted that most of the supporting documentation were the same documents as were provided in support of Mr. Ratnam’s first deferral request in October 2019. As to the direction to attend, the officer found the document to lack credibility. As regards the letter from the member of Parliament, the officer noted that it reports on the general conditions in Sri Lanka, but does not demonstrate that Mr.

Ratnam is personally targeted. As regards the court judgment awarding Mr. Ratnam’s brother refugee protection in France, the officer

determined that the acceptance of the brother’s claim does not establish any risk as regards Mr. Ratnam who, it was noted, has not livedin Sri Lanka since 2015, and prior to that, spent most of the period between 2001 and 2011 in Qatar. The officer also addressed theupdated country condition documents submitted by Mr. Ratnam, but in the end, determined that there were simply insufficient groundsto justify a deferral of Mr. Ratnam’s removal. [10] I should mention that Mr.

Ratnam’s immigration history outlined above was not clearly set out in either his affidavit filed in supportof the present motion or in the written submissions filed by his counsel. The Court was compelled to piece together Mr. Ratnam’s time inCanada from the

summary set out in the decision denying his deferral request dated March 15, 2022, as well as the letter from theMinister; simply reading through Mr. Ratnam’s material, one could easily have overlooked his immigration history. Mr. Ratnam hasbeen represented by the same counsel from the outset. [11] As stated, the Minister requests that the Court exercise its discretion not to hear the present motion which was served upon him after5:00 p.m. on March 16, 2022.

The letter from the Minister received yesterday also underscores what the Minister describes as Mr.Ratnam’s clear disregard for this Court and the immigration laws of Canada. I issued a directive for Mr. Ratnam to respond to theMinister’s submissions by 10:00 a.m. this morning. [12] In his response to the Minister’s submissions, Mr. Ratnam fully disclosed his immigration history and provided copies of theprevious RPD, RAD, PRRA and H&C decisions to which reference is made above. Why Mr. Ratnam waited until being prompted by theCourt to address his immigration history is troubling. In his response submissions, Mr.

Ratnam sets out the difficulty in communicatingwith his solicitors on account of his language skills and the fact that he had been in immigration detention as the reason for the delay infiling the present motion. I accept that such constraints could factor into the determination of whether Mr. Ratnam filed his applicationfor a stay late in the day, but they do not address his failure to report for his deportation in October 2019. His written response does notaddress the circumstances of such failure other than to concede that it took place; that too is troubling. [13] I must agree with the Minister. Mr.

Ratnam does not come to this Court with clean hands, and his immigration history does not assisthim. He has shown disdain for validly issued deportation orders and the rules relating to valid employment, of which he is fully aware.Mr.

Ratnam remained “underground” since having failed to report for removal in October 2019, has failed to make his address changesas required by the conditions of his release at the time, and, in the words of the officer who denied his latest request for a deferral: "“Ifhe had not been arrested by the police, it is reasonable to believe that [he] would still be in hiding.”" [14] By evading removal, Mr.

Ratnam has directly challenged the integrity of the judicial and administrative processes of the Canadianimmigration system (Nwafor Ep Antoine Sayegh v Canada (Citizenship and Immigration), 2021 FC 795 at para 29; Balog v Canada(Citizenship and Immigration), 2021 FC 605; Ngo Sen v Canada (Citizenship and Immigration), 2020 FC 331 at para 25). As stated byMr. Justice Grammond in Abu Aldabat v Canada (Citizenship and Immigration), 2021 FC 277: [22] A stay of removal is an equitable and discretionary remedy. It may be refused for a number of reasons, including theapplicant’s objectionable conduct.

The expression “clean hands” is often used to describe this discretionary factor. This mayinclude situations where the applicant has a serious criminal record, has attempted to evade immigration authorities or hasfailed to disclose relevant information in his motion record: see, for examples, Bentamtam v Canada (Public Safety andEmergency Preparedness), 2019 FC 984; Pierre v Canada (Public Safety and Emergency Preparedness), 2020 FC 887[Pierre]; Gracia v Canada (Citizenship and Immigration), 2021 FC 158. [15] As stated by Mr.

Justice Shore in Sanabria Castillo v Canada (Public Safety and Emergency Preparedness), 2008 FC 172[Sanabria Castillo], "“[n]o person should able to benefit from their own wrongdoing. This is why the Court consistently refuses to hearpeople who do not appear before them with clean hands”" (Sanabria Castillo at para 3). In fact, the failure of Mr.

Ratnam to report forremoval on October 30, 2019, is enough in itself to dismiss a request to stay his subsequent deportation (Sanabria Castillo at para 2). [16] There is no doubt that the Court has the discretionary power to refuse to hear an application (Strickland v Canada (AttorneyGeneral), 2015 SCC 37 at para 37, [2015] 2 SCR 713). I appreciate that I also have the discretion to hear Mr. Ratnam’s applicationdespite the fact that he does not come to this Court with clean hands (Erhire v Canada (Public Safety and Emergency Preparedness),). However, in this case, given the significant immigration history of Mr.

Ratnam, I think it more appropriate for meto exercise my discretion to not hear the present motion. In doing so, I am particularly mindful of the fact that Mr. Ratnam has now hadhis risk of returning to Sri Lanka assessed several times over the last seven years, by a significant number of tribunals and immigrationofficers, as well as this Court, all with similar outcomes. [17] Considering my decision in relation to the “clean hands” issue, I need not consider the issue of the timeliness of Mr. Ratnam’s filingfor a stay of his removal.

I only would make the point, however, that this Court has issued Practice Guidelines – Immigration andRefugee Proceedings Urgent Stay Motions for Removal from Canada dated February 18, 2021, as well as countless decisions confirmingthat last-minute requests of this nature, without valid reason, are not in the interest of justice (Beros v Canada (Citizenship andImmigration), 2019 FC 325; Khan v Canada (Public Safety and Emergency Preparedness), 2018 FC 1275 [Khan]; Ocaya v Canada(Citizenship and Immigration), (FC); Miranda v Canada (Public Safety and Emergency Preparedness), 2012 FC1057).

ORDER in IMM-2483-22 THIS COURT declines to hear the applicant’s motion for stay of removal. "Peter G. Pamel" Judge