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(Source picture: Wikipedia)

Suresh v. Canada (Minister of Citizenship and Immigration)

Court Federal Court of Appeal, Canada
Case number A-415-99
Decision title Judgment
Decision date 18 January 2000
Parties
  • Manickavasagam Suresh
  • The Minister of Citizenship and Immigration
  • The Attorney General of Canada
Categories Torture
Keywords terrorism, torture, non-refoulement
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Summary

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.

After the Federal Court rejected Manickavasagam Suresh’s complaint against the decision to deport him, the Court of Appeal reassessed this rejection. It concluded that while torture is prohibited in all cases, there can be circumstances in which a person is removed to a country where he/she is at risk of being subjected to torture. On several places, the Court reiterated that a Minister sometimes has to subordinate the interests of one person to societal interests like national security. In this case, Suresh support of the Tamil Tigers justified the Minister’s appraisal. Such a decision increases public confidence in an adequate application of immigration law, according to the Court. Suresh’s appeal was rejected. 

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Procedural 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.

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Related 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.

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Legally relevant facts

Manickavasagam Suresh fled from Sri Lanka to Canada 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, 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. 5). 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.  

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Core legal questions

The Federal Court of Appeal broke Suresh’s grounds of appeal down into four major issues:

  1. Does a non-derogable right exist against expulsion to a country where the person being returned will be at risk of torture (principle of non-refoulement) and, if so, has this become a peremptory norm binding Canada, despite provisions of the Immigration Act?
  2. Do para. 19(1)(e) and (f) of the Immigration Act, which deal with inadmissibility of a person due to membership of a terrorist organisation, violate the rights to freedom of expression and association?
  3. Does paragraph 53(1)(b), which determines that no person shall be removed to a country where his/her of freedom would be threatened, unless the person is, for example, member of a terrorist organisation, violate the right to security contrary to the principles of fundamental justice?
  4. With regard to the review of the Minister’s decision, two standards of review are being applied: a constitutional standard of review (would deportation to face torture in the circumstances of this case sufficiently shock the national conscience?) and the administrative standard (has the Minister exercised her discretion in a capricious and vexatious manner?).
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Specific legal rules and provisions

  • Sections 2 and 7of 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.
  • Articles 4 and 7 of the International Covenant on Civil and Political Rights.
  • Article 32 of the United Nations Convention Relating to the Status of Refugees.

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Court's holding and analysis

The Court recognised that human rights treaties include a non-derogable right not to be subjected to torture, but held that derogation from the principle of non-refoulement was possible (para. 28).  Even if under international customary law a non-derogable peremptory norm of non-refoulement would exist, this would have no effect as such a norm would be inconsistent with domestic law (para. 32).  

The Court stated that Suresh coordinated fundraising in the pursuit of terrorist activities and that his actions in this regard fall outside the sphere of protected expression (para. 44).

Most relevant, the Court held that the principles of fundamental justice allow a balancing act between individual rights and collective interests and that individual interests may be subordinated to substantial and compelling societal interests, as was done in this case (para. 87). 

The Court held that the Minister’s decision is more likely to create public confidence than public outrage (para. 165) and that it cannot be said that the Minister exercised her discretion in a capricious and vexatious manner (para. 164).

For reasons outlined above, the appeal was dismissed.

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Further 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.

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Instruments cited

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Related cases

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Additional 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. The continuing relevance of this case becomes clear as newspapers continue to report on extradition cases against alleged members of Al Qaeda.

‘Accused terrorist's low-key life’, National Post, 29 October 2005.

J. Bronskill and S. Bailey, ‘Ottawa eyes changes to Canada's anti-terrorist law’, The Canadian Press, 13 December 2009.

M. Shephard, ‘Inside Gitmo North’, The Star, 6 January 2007.