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(Source picture: Wikipedia)

(Source picture: Wikipedia)

Suresh v. Canada (Minister of Citizenship and Immigration)

Court Supreme Court of Canada, Canada
Case number 27790
Decision title Judgment
Decision date 1 November 2002
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.

The Federal Court and the Court of Appeal rejected Suresh’s complaint against the decision to deport him. The Supreme Court held that the Minister of Citizenship and Immigration should reassess that decision, most importantly because both the Canadian constitution and international law rejects deportation to torture, as there would be a clear connection between the deprivation of someone’s human rights and the Canadian decision to expulse that person. Still, the Court did not exclude the possibility that in some cases, Canada may deport despite risk of torture. Also, the Court held that the Immigration Act had not provided Suresh with sufficient procedural safeguards.  

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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 Supreme Court identified four issues to be considered:

  1. The standard to be applied in reviewing a ministerial decision to deport a person.
  2. The constitutionality of the conditions for deportation in the Immigration Act.
  3. The constitutional validity of the procedure for deportation set out in the Immigration Act.
  4. The question whether the Minister’s, in light of the conclusions to the foregoing questions, should be set aside. 
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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 Supreme Court agreed with the Federal Court and the Court of Appeal that the judiciary should exercise restraint in reviewing the Minister’s discretionary decisions. (para. 39).

Most importantly, the Court concluded that ‘international law rejects deportation to torture, even where national security is at stake’ (para. 75). The Court established that deportation to torture will generally violate the Constitution (para. 76), as there would be a causal connection between Canada and the deprivation of rights (paras. 54-55). Still, there are instances when Canada may deport despite risk of torture (para. 58). The Court did not consider ‘terrorism’ and ‘danger to security’ to be unconstitutionally vague (para. 99).

The Court ruled that Suresh’s significant interest in remaining in Canada increased the importance of procedural safeguards surrounding a decision on deportation (para. 18). According to the Court, at that point, the Immigration Act did not provide sufficient procedural safeguards (paras. 121-122).

The Court concluded that Suresh made a prima facie showing that he might be tortured in Sri Lanka. Also, he should have been provided with sufficient procedural safeguards. Therefore, the Court remanded the case to the Minister for reconsideration (paras. 129-130). 

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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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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.

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