SURESH v. CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION), 2002 SCC 1

Before the declaration of deportation of a refugee, factors such as refugee being subjected to substantial risk of torture in the other country have to be taken into consideration.

This case is an appeal where the Appellant, Mr. Suresh, a refugee from Sri Lanka, was declared a danger to the security of Canada under Section 53(1)(b) of the Immigration Act by the Minister of Citizenship and Immigration, the respondent here. The facts of the case are that the appellant was recognised as Convention refugee in April, 1991 but in the summer of 1991 when he applied for landed immigrant status, the Canadian government detained him and started deportation proceedings against him on security grounds. The Canadian Security Intelligence Service opined that the appellant is a member of the terrorist organisation named the Liberation Tigers of Tamil Eelam [LTTE]. He was declared a danger to the security of the nation under the Immigration Act by Respondent. Appellant was neither provided with the immigration officer’s memorandum nor was he given the opportunity of being heard. It was argued by the Appellant that deporting him to face torture is unconstitutional, against the International norms and the procedure used by the Minister in the decision of his deportation was also not proper.

Four issues were discussed in this case. First, the constitutionality of the provisions of Immigration Act, second, the question that whether Suresh is a threat to national security of Canada? Third, the probability that whether Suresh would face torture in Sri Lanka, if deported? and fourth, the adequacy of the procedures adopted by the Respondent. For the first issue, the court observed that the Canadian perspective by inquiry into the principles of fundamental justice is to be looked into. The terms “Danger to the Security of Canada” and “Terrorism” in Section 53 of the Immigration Act were considered to be determined by “the individual’s discretion of association or complicity with a terrorist organisation” and therefore, these terms were held to be not unconstitutionally vague. Court dismissed the suggestion by the Federal Court that Canada acts like an involuntary intermediary in expelling a refugee to a risk of torture and is merely a passive participant. The contention that Section 53(1)(b) and Section 19 of the Immigration Act violates the freedom of expression and association was also not accepted. Moreover, the court pressed upon the fact that the procedural protections need not be invoked in every case and the appellant has to make a prima facie case that he is subject to torture and degrading treatment upon deportation which the Appellant has made in the case at hand. With respect to the argument that procedure adopted by the respondent was a sheer violation of Section 7 of the Charter, the court rejected the respondent’s contention that even if there is lack of fair procedure to the appellant, it was justified by Section 1 of the Charter. Thus, the appeal was allowed and the case was remanded to the Minister (Respondent) for reconsideration.