The case of a Tamil migrant whose refugee claim was denied reveals a key problem with Canada's new refugee law, his lawyer says.
The migrant, who can't be named for fear of reprisals against his young family in Sri Lanka, is now blocked from two key avenues of appeal.
At the Toronto construction site where he worked until recently, the migrant (who we'll call John), described how he's been affected by Canada's plan to deport him.
"I haven't been able to sleep well ever since I heard about this deportation business," he says.
John arrived in Vancouver aboard the MV Sun Sea in 2010. He spent three months aboard the ship crowded with nearly 500 migrants.
After spending six months in detention, he moved to Toronto, where he found steady contracting work and won the respect of his employer.
But last year, the Immigration and Refugee Board denied his claim.
The judge who heard his case agreed with the facts John presented: that he was tortured repeatedly by the Sri Lankan military before he escaped to Thailand, and that he was never a member of or associated with the Liberation Tigers of Tamil Eelam, which Canada views as a terrorist group.
But the judge disagreed with John's belief that if he goes home, he will be tortured once again, and his family could be the target of abuse or kidnapping.
John doesn't blame Canada for the decision, but he thinks the refugee board was ill-informed about the reality in Sri Lanka. "They don't realize what I am going to be going through when I land in Sri Lanka," he said through a translator.
"The thought about what is going to happen to me is what is killing me inside. I hope the Canadian authorities take a second look at what I'm going to be facing through means of this deportation order."
Under Canada's new refugee law, John now has to wait a full year before he can appeal to the Canada Border Services Agency for a pre-removal risk assessment, or to the immigration department on humanitarian and compassionate grounds. One year is enough time for the government to deport him.
"All of this is the result of the new law," says John's lawyer, Hadayt Nazami.
"If the new law hadn't been implemented this would not have happened. And John's case is only one of many that are in this particular situation. In countries like Sri Lanka, the political situation is volatile. Canada has recognized this, Canada has criticized Sri Lanka for its human rights record."
Nazami says that new evidence has come to light through human rights groups, the United Nations and even other countries like Britain and Australia, indicating that despite the Sri Lankan government's claim the war is over, torture and extra-judicial killings continue.
But those facts cannot be heard because John's avenues for appeal are now blocked.
'Judge shopping' tactics, lawyer says
Nazami had only one legal option left — to seek a stay of his deportation at the Federal Court, so he did that last fall. But just before the hearing, the government withdrew its deportation order.
"We knew who the judge was, in this instance and she had previously stopped similar deportations. That's when they cancelled the removal," he says.
The government then issued a second deportation order, and Nazami again went to court to seek a stay. The government again cancelled the deportation with no explanation.
Nazami says he suspects the government is waiting for a judge who is likely to reject the stay of removal.
"Whatever I say would be speculating, but the way it happens to be — cancelling after discovering the identity of the judge — appears to us to be judge-shopping."
The lawyer says the board granted refugee status to other Sun Sea passengers with cases nearly identical to John's.
The government has now issued a third deportation order for Feb. 13 and once again, John intends to appeal to the Federal Court.
John's employer, David Tinmouth, is upset by the way the case has been handled.
"I'm not sure why such energy is being spent by us to send this man back to Sri Lanka," Tinmouth says. "I have been working day in day out with him for a long time now and he just strikes me as somebody who wants to live an ordinary life, send his kids to school, have a peaceful life."
Still, Tinmouth says he's hopeful that cooler heads will prevail either at the border services agency or at the Federal Court. But he thinks Canada is going to get a black eye internationally for its removal of some checks and balances from the system.
"That is what human rights should be about, is the government going out of its way for ordinary people," he says.