Suresh v. Canada (Minister of Citizenship and Immigration)
| Court |
Federal Court, Canada |
| Case number |
IMM-117-98 |
| Decision title |
Reasons for Order |
| Decision date |
11 June 1999 |
| Parties |
- Manickavasagam Suresh
- The Minister of Citizenship and Immigration
- The Attorney General of Canada
|
| Categories |
Torture |
| Keywords |
terrorism, torture, non-refoulement |
| Links |
|
back to topSummary
The principle of non-refoulement prohibits deportation of a person if there is a significant risk of that person being subjected to torture in the country of arrival. The principle has been repeatedly in the spotlights since 2001, as states came under increasing obligation to deny safe havens to terrorists. However, as this case proves, the principle was an issue even before September 11, 2001.
Manickavasagam Suresh fled from Sri Lanka to Canada, was granted a refugee status there, but was ultimately denied a permanent status as it was alleged that he supported the Tamil Tigers. Since Canada considered the Tamil Tigers to be a terrorist organisation, it started the procedure to deport Suresh to Sri Lanka. Suresh went to court, stating, among other things, that deportation would violate the principle of non-refoulement. The Court disagreed, stating, most importantly, that the Minister was allowed to enter into a balancing act between national security and Suresh’s individual rights. The Court did not consider the result of this balancing act to be unreasonable, given the evidence of the Tamil Tigers’ activities and Suresh role therein. Also, the Court stated that Suresh had not established ‘substantial grounds’ that he would be subjected to torture.
back to topProcedural history
Manickavasagam Suresh’s application for permanent residence status was denied in 1995 on security grounds, as the Minister of Citizenship and Immigration (hereafter: the Minister) issued a certificate alleging that Suresh fell into three of the inadmissible classes of section 19 of the Immigration Act due to his association with the Liberation Tigers of Tamil Elam (Tamil Tigers). The validity of the certificate and Suresh’s inadmissibility was confirmed by the Federal Court on 29 August 1997. An adjudicator ordered Suresh’s deportation on 17 September 1997. He disagreed with the Minister that there were reasonable grounds to believe that Suresh had engaged in terrorism, but considered that there was sufficient evidence of membership to a terrorist organisation. Hereafter, the Minister rendered a decision pursuant to section 53(1)(b) of the Immigration Act that Suresh posed a danger to national security. The Federal Court rejected Suresh’s application for judicial review, as did the Federal Court of Appeal. The Supreme Court found that Suresh had made a prima facie case that he could be subjected to torture if deported and decided to return the case to the Minister of Citizenship and Immigration.
back to topRelated developments
In 2003 the last judicial review regarding Suresh was rendered (until this date). The Federal Court turned down his application to ease the conditions for his release. In a 2005 news article, the National Post remarked that the Suresh case did no longer get much attention: “his case has been eclipsed by others, which involve alleged members of the Osama bin Laden network”. In 2008, the government decided not to file a new security certificate. His status, however, remains unclear.
back to topLegally relevant facts
Manickavasagam Suresh fled from Sri Lanka to Canada in 1990 and was recognised as a refugee in 1991. He applied for a permanent residence status in 1995. The Canadian government rejected his application, as it was alleged that he was associated with the Tamil Tigers (para. 4), an organisation which the government held responsible for rape, torture, assassination and terrorism. Although an adjudicator considered it unproven that Suresh himself had committed terrorist acts, it did consider that the government had sufficiently substantiated his association with the Tamil Tigers (para. 6). His deportation was ordered and the Minister rendered a decision that Suresh posed a danger to national security. Suresh applied for a judicial review, arguing, among other things, that he was at risk of being subjected to torture in Sri Lanka (para. 9).
back to topCore legal questions
The Court had to assess Suresh’s application for judicial review of the Minister’s decision to qualify him as a danger to security of Canada. Suresh presented two main grounds for his application.
Firstly, a violation of sections 2 (e.g. freedom of expression) and 7 (right to life, liberty and security) of the Charter of Rights and Freedoms, as well as the Convention Against Torture (CAT), which informs the interpretation of Charter rights. Specifically, the Court had to assess whether the decision contravened the principle of non-refoulement, which prohibits states to expulse individuals who might be subjected to torture in the country of arrival.
Secondly, Suresh alleged that the procedure had been unfair, as he had not been given notice of all the evidence to be considered by the Minister. Additionally, Suresh argued that terms like ‘threat to security’ and ‘terrorism’ were unconstitutionally vague.
back to topSpecific legal rules and provisions
- Section 2 of the Charter of Rights and Freedoms;
- Section 7 of the Charter of Rights and Freedoms;
- Article 3(1) of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment;
- Section s. 53(1)(b) of the Immigration Act 1976;
- 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii) of the Immigration Act 1976.
back to topCourt's holding and analysis
The Court held that standards of procedural fairness had been met, as Suresh was aware of the information underlying the Minister’s decision (para. 27). Also, the Court considered terms like ‘threat to security’ and ‘terrorism’ to be sufficiently precise (para. 76).
In assessing the Minister’s decision, the Court held that it must exercise restraint: only if the Minister had exercised her discretion in a capricious and vexatious manner, judiciary should interfere (paras. 16-17).
According to the Court, the decision did not violate the Charter of Rights and Freedoms. It emphasised that fundamental justice requires a fair balance between societal interests and individual interests and that the Minister had acted in accordance with this requirement (para. 42). Regarding the CAT, the Court stated that Suresh had not sufficiently substantiated that he would be tortured (para. 47). Additionally, the Court stated that the principle of ‘non-refoulement’ allows a balancing act between national security and the risk of ill-treatment (para. 52). Regarding freedom of expression, the Court held that Suresh’s activities as coordinator of a movement which at least supported terrorist activities of the Tamil Tigers, did not fall within the scope of Article 2 (para. 63).
back to topFurther analysis
The rulings of the Federal Court of Appeal and the Supreme Court have been examined by, retrospectively, Fox-Decent and Okafor and Okoronkwa. The principle of non-refoulement has been assessed extensively. For example by Messineo, Chetail, Padmanabhan and Duffy. Roach placed the Suresh ruling from the Supreme Court in the context of the challenges posed to Canadian law by the terrorist attacks on September 11, 2001.
E. Fox-Decent, ‘Suresh and Canada's Obligations Regarding Torture’, National Journal of Constitutional Law, 2001, vol. 12, pp. 425-447.
O. C. Okafor and P. Okoronkwo, ‘Re-Configuring Non-Refoulement? The Suresh Decision, 'Security Relativism', and the International Human Rights Imperative’, International Journal of Refugee Law, 2003, vol. 15, pp. 30-67.
F. Messineo, ‘Non-Refoulement Obligations in Public International Law: Towards a New Protection Status?’, in: S. S. Juss (ed.), ‘The Ashgate Research Companion to Migration Law, Theory and Policy’, Ashgate 2011, pp. 129-155.
V. Chetail, ‘The Principle of Non-Refoulement and the Refugee Status Under International Law’, in : V. Chetail and J. Flauss (eds.), ‘La Convention de Genève de 28 Juillet 1951 Relative au Statut des Réfugiés - 50 Ans Après: Bilan et Perspectives’, Bruylant: Bussels 2001, pp. 3-61.
V. M. Padmanabhan, ‘To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-Refoulement’, Fordham Law Review, 2011, vol. 80, pp. 73-1234.
A. Duffy, ‘Expulsion to Face Torture? Non-Refoulement in International Law’, International Journal of Refugee Law, 2008, vol. 20, pp. 373-390.
K. Roach, ‘Did September 11 Really Change Everything: Preserving Canadian Values in the Face of Terrorism’, McGil Law Journal, 2002, vol. 47, pp. 894-947.
back to topInstruments cited
back to topRelated cases
back to topAdditional materials
In a news article in 2005, the National Post remarked that Suresh case did no longer get much attention: ‘his case has been eclipsed by others, which involve alleged members of the Osama bin Laden network’. In 2008, the government decided not to file a new security certificate. His status, however, remains unclear.
