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REPORT Nº 7/02 PETITION
11.661 MANICKAVASAGAM
SURESH CANADA February
27, 2002 I.
SUMMARY 1.
The present report deals only with the admissibility of this petition.
Mr. Suresh arrived in Canada from Sri Lanka in 1990 and was granted
refugee status. He applied for
landed immigrant status (i.e. permanent residence) in 1991 but in 1995, before
being granted such status, he was arrested, and the State began proceedings to
deport him to Sri Lanka on the grounds that he was a member and fundraiser for
an allegedly terrorist organization, the Liberation Tigers of Tamil Eelam (LTTE).
He alleged that he would be tortured if he were to be deported. The case
was appealed to the Canadian Supreme Court, which held on January 11, 2002, that
deportation to face torture is generally unconstitutional and that Mr. Suresh
was denied due process during the deportation review. The Supreme Court remanded the case to the lower court for a
new hearing on the deportation issue. 2.
Mr. Suresh also alleged that he was a victim of arbitrary detention,
since he was in confinement for a period of 2 years and 5 months, because he was
an alien without permanent residence status in Canada.
He alleges that he had no access to a prompt, simple court procedure to
test the legality of the detention and that this treatment deprived him of equal
treatment as regards Canadian citizens with respect to the enjoyment of his
liberty. The Commission, in this
report, declares the petition admissible solely on the issues of Mr. Suresh's
allegedly arbitrary detention, his access to a simple, brief procedure before
the courts to ensure respect for his legal rights, and the alleged right to
equality with Canadian citizens as regards the enjoyment of his liberty
(Articles II (right to equality), XVIII (right to a fair trial) and XXV (right
of protection from arbitrary arrest) of the American Declaration of the Rights
and Duties of Man). The State takes
the position that the detention was part of a deportation review process and
that the delay was, in part, caused by the petitioner himself.
The Canadian Courts have held the deportation review process and the
concomitant detention to be constitutional and in lieu of a habeas corpus
proceeding. The Inter-American
Commission will notify the parties of this admissibility decision and
continue its substantive consideration of the alleged violations of
Articles II, XVIII and XXV of the
American Declaration of the Rights and Duties of Man.
II.
PROCEEDINGS BEFORE THE COMMISSION 3.
The Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission” or the “IACHR”) received a petition dated July
26, 1996, filed by Barbara Jackman of Jackman and Associates, a firm of
Barristers & Solicitors in Toronto, Canada (hereinafter “the
petitioners”), in which it was alleged that the Government of Canada
(hereinafter “Canada” or “the State”) bore international responsibility
for denying Mr. Manickavasagam Suresh, a Canadian refugee from Sri Lanka,
certain fundamental human rights. Mr.
Suresh, a Tamil, had been in detention since October 18, 1995, based on his
association with a legal organization, not on the basis of any alleged unlawful
conduct on his part. 4.
Petitioners recognize that aliens are not entitled to all the rights of
citizens, such as the right to enter and remain in the country, the right to
vote and the right to participate in government, they argue, however, that the
right to due process and the right to habeas corpus, are basic fundamental human
rights which all people enjoy irrespective of their nationality, for the
determination of the legality of their detention.
Canada, they maintain, violates these rights on the basis of citizenship,
thereby failing to ensure equal protection before the law.
Further, petitioners allege that Canada detains persons based on “mere
alleged membership” in terrorist organizations and thereby also violates their
freedom of association. 5.
The petitioners claim that Canada is in violation of Article I, II, XVII,
XVIII, XXII, XXIV and XXV of the American Declaration of the Rights and Duties
of Man (hereinafter the “American Declaration"), namely, the right to
life, liberty and security (Article I); the right to equality before the law
(Article II); the right to recognition of juridical personality and of
civil rights (Article XVII); the right to a fair trial (Article XVIII), the
right of association (Article XXII), the right to petition (Article XXIV); and
the right to protection from arbitrary arrest (Article XXV). 6.
On August 15, 1996, the Commission forwarded the petition to the
Government of Canada and requested it to provide the Commission with its views
within 45 days. A hearing on this
petition was scheduled for October 8, 1996 at 3:30 pm, which was later cancelled
at the request of the State. Since
the State had not replied to the Commission’s request for information, on
February 27, 1997 the Commission reiterated its request of August 15th
, and asked the State to respond within 30 days.
On March 26, 1997, the Commission again reiterated its request for a
response. On April 22, 1997, the State requested an extension until June 30,
1997 to supply the requested information, stating that “the issues which arise
in this case require continuing consultations with a number of departments.”
On April 25, 1997, the Commission granted the State’s request for an
extension until June 30, 1997. On
July 31, 1997, the State presented its submission on the admissibility of the
petition. On August 6, 1997, the State’s response was transmitted to
the petitioners with a request that their observations be sent within 30 days of
receipt. On October 23, 1997, the
petitioners requested an extension until mid-November to present their
observations, which was granted by letter dated November 5, 1997.
The petitioners presented their observations on December 10, 1997 and
they were communicated to the State on December 17th.
7.
On January 8, 1998, Mr. Suresh was informed that he would be returned to
Sri Lanka. On January 10, 1998, the
petitioners informed the Commission of the imminent possibility of Mr.
Suresh’s deportation. The
petitioners sought the appropriate judicial review at the national level and
noted that the remedy being sought before the Commission would be rendered
illusory if Mr. Suresh were returned to Sri Lanka.
The Canadian Federal Court, on January 16, 1998, denied the application
for a stay of the deportation order on the grounds that Mr. Suresh was found to
be a danger to the security of Canada and because the judge did not find that
Mr. Suresh would suffer irreparable harm “in light of the assurance given by
the High Commissioner of Sri Lanka, the highest ranking Sri Lankan official in
Canada” that Mr. Suresh “would not be tortured or killed if returned to Sri
Lanka.” Following this ruling,
the petitioners requested precautionary measures from the Commission. 8.
On January 16, 1998, the Commission granted the request for precautionary
measures and requested the State to stay the pending deportation of Mr. Suresh
from Canada until it had an opportunity to investigate the claims raised in the
petition, pursuant to Article 29(2) of its Regulations.
A hearing on the petition was held on February 23, 1998 at 10:00 a.m.
during the Commission’s 98th period of sessions. 9.
By note dated August 7, 1998, Canada informed the Commission of the
current status of the various proceedings instituted by Mr. Suresh and requested
the Commission to withdraw its precautionary measures to stay Mr. Suresh’s
removal, arguing that Mr. Suresh had withdrawn the issue from consideration.
Mr. Suresh was released from detention on March 23, 1998 in exchange for
agreed compliance with various conditions, which had been included in a judgment
rendered on March 19th by the Canadian Federal Court.
Canada stated that the only remaining issue in the case was Mr.
Suresh’s detention, pursuant to the Immigration
Act, and the review of the detention. The
issue of Mr. Suresh’s detention, it was pointed out, was still the subject of
an action filed with the Canadian Federal Court attacking section 40.1 of the Act.
Consequently, since domestic remedies were pending, the Commission should
declare the petition inadmissible for failure to exhaust domestic remedies.
The additional information submitted by Canada was transmitted to the
petitioners on August 12, 1998 and their observations requested within 30 days.
On October 7, 1998, the petitioners filed their observations. 10.
Mr. Suresh applied to the Federal Court for judicial review, alleging
that the Minister’s decision that he was a danger to the security of Canada
was unreasonable, that the procedures under the Immigration
Act were unfair and that the Act violated sections 7 and 2 of the Canadian
Charter of Rights and Freedoms (hereinafter, "Canadian
Charter"). The judge
dismissed the application on all grounds. The
Federal Court of Appeal upheld that decision.
Petitioners appealed to the Supreme Court of Canada. 11.
On January 11, 2002, the Canadian Supreme Court held that Mr. Suresh was
entitled to a new deportation hearing and that the impugned legislation was
constitutional. It found that Mr.
Suresh had made a prima facie case
that he might be subject to a risk of torture upon deportation to Sri Lanka.
The Court held that once a prima
facie case had been made that he was entitled to present evidence and make
submissions, and that the procedures followed in Mr. Suresh’s case did not
meet the required constitutional standards.
In fact, Mr. Suresh had not been provided with an opportunity to respond
orally or in writing to the submissions and documentary evidence provided by the
Minister. 12.
The issue of whether Mr. Suresh can be deported back to Sri Lanka if he
might be subject to risk of torture is not before the Commission since due to
the Canadian Supreme Court’s holding that Mr. Suresh is entitled to a new
deportation hearing it is clear that domestic remedies have not been exhausted
on that issue. The issue before the
Commission is only whether Mr. Suresh has the right to have the legality of his
detention ascertained without delay, by a simple, brief procedure before a court
(Article XVIII) and whether his detention for 2 years and 5 months as a
non-resident alien violated (Articles II and XXVI) the American Declaration. The
Canadian Immigration Act sets out a
scheme for the removal from Canada of persons who are not citizens or permanent
residents for reasons of national security. III.
POSITIONS OF THE PARTIES A.
The petitioners 13.
In order to make a determination on the admissibility of the petition it
is important to understand the factual context and the facts relating to the
deportation review proceedings will be set forth following the positions of the
parties. Mr. Manickavasagam Suresh
is a Sri Lankan citizen of Tamil origin. He
was born in 1955 and entered Canada in October 1990. He was recognized as a Convention refugee in April 1991, and
in early summer 1991, he applied for landed immigrant status.
As a consequence of his refugee status, Mr. Suresh is protected by the
principle of non refoulement which
means that he cannot be returned “to a country where [his] life or freedom
would be threatened for reasons of race, religion, nationality, membership in a
particular social group or political opinion.”
Mr. Suresh is unmarried with no dependents and his closest family members
live in England. 14.
Mr. Suresh’s application for landed immigrant status was not finalized
because in 1995 the Solicitor General of Canada and the Minister of Citizenship
and Immigration commenced proceedings to deport him to Sri Lanka on security
grounds. The first step in the
procedure was a certification under section 40.1 of the Immigration Act alleging that Mr. Suresh was inadmissible to Canada
on security grounds. The Solicitor
General and the Minister filed the certificate with the Federal Court of Canada
on October 17, 1995, and Mr. Suresh was detained the following day. 15.
The certificate was based on the opinion of the Canadian Security
Intelligence Service (CSIS) that Mr. Suresh is a member of the Liberation Tigers
of Tamil Eelam (LTTE). Petitioners
allege that the CSIS considers the LTTE to be a terrorist organization which
operates in Canada under the auspices of a front organization, the World Tamil
Movement (WTM), for the purpose of fundraising, propaganda and procurement of
material. Mr. Suresh was the
coordinator for the WTM in Canada. The
Tamil minority is in rebellion against the democratically elected government of
Sri Lanka for violation of their basic linguistic, cultural and political
rights. The Minister’s counsel at
the hearing into the reasonableness of the issuance of the certificate conceded
that there are no allegations of criminal misconduct or criminal activity
against Mr. Suresh either in Canada or Sri Lanka. Mr. Suresh was detained from October 18, 1995 until his
release on March 23, 1998, for approximately 29 months. 16.
Specifically, the petitioners claim that Mr. Suresh was being detained in
violation of Articles I, II, XVII, XVIII, XXII, XXIV and XXV of the American
Declaration, and that: a.
He was detained by Canadian Immigration Authorities under a legislative
provision which provides for indefinite, mandatory detention without review; b.
He was detained on the basis of his association with an organization, not
on the basis of any alleged unlawful conduct on his part; c.
Habeas corpus was not available to him, as a non-citizen detained
under the Immigration Act, even though
it is constitutionally entrenched in section 10 of the Canadian
Charter of Rights and Freedoms; d.
He had no effective remedy to challenge his detention. B.
The State 17.
The State’s position is that the petition of Mr. Suresh was manifestly
inadmissible as the petitioner had failed to exhaust available domestic remedies
and that the record as a whole did not disclose a violation of any article of
the American Declaration. The State
argued that Mr. Suresh was detained pursuant to valid legislation which had been
found, [by Canadian Courts], not to violate Canadian constitutional rights to
liberty and freedom from arbitrary detention. 18.
At the time of the Canadian Government’s first response, on July 31,
1997, Mr. Suresh was still exhausting domestic remedies by testing the validity
of his detention in two cases before the Federal Court of Canada.
As mentioned above, the first was a test of the reasonableness of the
certificate authorizing his detention and the second was an action challenging
the constitutionality of his detention on allegations that the statutory
provision which authorized it infringed his constitutional rights to freedom of
expression, freedom of association and equality. 19.
The State maintains that Mr. Suresh was detained for immigration purposes
and that Section 19 of the Immigration Act
lists classes of aliens who are inadmissible because they are involved in
espionage, subversion of democratic governments or terrorism.
The Act permits the detention
of aliens in the immigration context, to achieve two purposes: to ensure the
effective removal of inadmissible individuals who may resist removal and to
protect Canadian society from persons who are considered dangerous. 20.
Following the exhaustion of Mr. Suresh's domestic remedies, the State
emphasized that the only issue properly before the Commission is Mr. Suresh's
detention and that due to his release from detention that issue has been
rendered moot.
IV.
ANALYSIS OF ADMISSIBILITY A.
Competence of the Commission ratione personae, ratione loci, ratione temporis and
ratione materiae 21.
The petitioner claims that Canada has violated Mr. Suresh's rights under
the American Declaration of the Rights and Duties of Man.
The Declaration became a source of legal norms for application by the
Commission upon Canada when it became a member State of the Organization of
American States. Canada deposited its instrument of ratification to the OAS
Charter on January 8, 1990. Article
20 of the Commission's Statute, and the Rules of Procedure of the Commission,
authorize the Commission to entertain the alleged violations of the Declaration
raised by the petitioners against the State, which relate to acts or omissions
that transpired after the State joined the Organization of American States.
1.
Ratione personae
22.
The alleged victim is a natural person, and the petition was lodged by
Barbara Jackman, a laywer authorized to lodge petitions with the Commission
under Article 28 of the commission's Rules of Procedure. Accordingly, the Commission is competent ratione personae to examine the petition.
2.
Ratione loci
23.
The Commission is competent ratione
loci to take cognizance of the petition, as it alleges violations of rights
protected in the American Declaration of the Rights and Duties of Man within the
territory of a State subject to the Commission's jurisdiction under that
instrument.
3.
Ratione temporis
24.
The Commission is competent ratione
temporis, insofar as the obligation to respect and ensure the
internationally protected rights was already in force for the State as of the
date of the facts alleged in the petition under the American Declaration.
4.
Ratione materiae 25.
Finally, the Commission is competent ratione
materiae, because the petition alleges violations of human rights protected
by the American Declaration of the Rights and Duties of Man.
Both the petitioner and the state are in agreement that the only issue
before the Commission is with regard to Mr. Suresh's detention and the lack of
remedies available to him to have the legality of his detention reviewed by a
competent State authority, by means of a simple and prompt procedure. The
larger issue presented is whether international human rights law requires states
to grant not only citizens, but also aliens, the right to habeas corpus, to
determine the legality of their detention in status proceedings.
B.
Other admissibility requirements of a petition
1.
Exhaustion of domestic remedies
26.
On the issue of detention, which the parties agree is the only issue
before the Commission, Mr. Suresh filed an action in Federal Court claiming that
the detention provisions of section 40.1 of the Immigration
Act violated the Charter
of Rights and Freedoms. The
Canadian courts in Ahani v Canada (1996) have already determined the detention
provisions of Section 40.1 to be constitutionally valid.
The Federal Court Trial Division rendered judgment that there was no
breach of the principles of fundamental justice under Section 7 of the Charter
in relation to the process and the detention, nor any breach of the right to be
free from arbitrary detention under Section 9 of the charter. This judgment was upheld by the Federal Court of appeal and
leave was denied by the Supreme Court of Canada.
Mr. Suresh was permitted to proceed on his challenge to the detention
provisions only on the grounds of discrimination and breach of expression and
association, because the issue of arbitrary detention and lack of fair process
have already been determined by the Canadian Courts. In 1999, the Federal Court dismissed Mr. Suresh's application
on all grounds. The Court found
that Mr. Suresh's activities as a fundraiser could not be considered
"expression" under Section 2(b) of the Charter since those activities
were conducted in the service of a violent organization.
He also found that his activities were not protected under Section
2(d), since the association in question existed to commit acts of
violence. Mr. Suresh appealed to
the Federal Court of Appeal, it too dismissed his application.[1]
The State recognizes that the petitioner has no further domestic remedies to
exhaust on the detention issue.
2.
Time period for submission
27.
Article 32 of the Commission's Rules of Procedure indicates that the
petition must be presented within six months from the time the petitioner is
notified of the final decision that has exhausted domestic remedies, or if the
exhaustion requirement is not relevant, due to one of the exceptions set forth
in Article 31 of the Commission's Rules, then it shall be filed within a
reasonable period of time. 28.
The petitioner sent his complaint to the Commission on July 26, 1996,
long before domestic remedies were exhausted.
The petitioner had resided in Canada from October 1990, but an arrest
warrant was issued for his detention five years later, and he was detained on
October 18, 1995. Since the issue
concerns the lack of a simple and prompt judicial remedy to challenge what is
alleged to be an arbitrary detention, the presentation of the case in July 1996,
after Mr. Suresh had spent nine months in detention, is a reasonable time to
wait to file a petition. Since this petition was submitted nine months after Mr.
Suresh was placed in detention, the Commission considers it in keeping with
Article 32 of the Commission's Rules of Procedure.
3.
Duplication of procedure and res
judicata
29.
The Commission is of the view that the subject matter of the petition is
not pending settlement before any other international organization, nor does it
reproduce a petition already examined by this or any other international
organization. Therefore, the
requirements established at Article 33 of the Commission's Rules of Procedure
are also satisfied.
4.
Characterization of the facts alleged
30.
The Commission considers that the petitioner’s complaint refers to
facts which, if true, tend to establish a violation of the rights guaranteed by
Articles II, XVIII, and XXV of the American Declaration, thus the requirements
of Article 47(b) of the Convention have been met.
V.
CONCLUSION
31.
Based on the foregoing considerations of fact and law, the Commission
concludes that this case meets the admissibility requirements set forth at
Articles 46 and 47 of the American Convention, and, without prejudging on the
merits, THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS, DECIDES:
1. To
declare this case admissible with respect to Articles II, XVIII and XXV of the
American Declaration.
2. To
transmit this report to the petitioner and to the State. 3.
To continue with the analysis of the merits. 4.
To make this report public and to include it in the Annual Report of the
Commission to the OAS General Assembly.
Done and signed at the headquarters
of the Inter-American Commission on Human Rights, in the city of Washington,
D.C., on the 27 day of the month of February in the year 2002.
(Signed) Juan Mendez,
Chairman; Marta Altolaguirre, First Vice-President; Jose Zalaquett Daher, Second
Vice-President; Comissioners: Robert
K. Goldman, Julio Prado Vallejo and Clare K. Roberts. |
