CAT/C/48/D/370/2009
sentenced to 31 months in prison. On 11 December 2007 his permanent residency was
revoked by Citizenship and Immigration Canada after he was declared inadmissible to
Canada on grounds of serious criminality.
2.2
On 31 December 2007, after a deportation order had been issued, the complainant
applied for refugee status. The application was dismissed because of his inadmissibility on
grounds of serious criminality. On 21 April 2008 both his pre-removal risk assessment
(PRRA) application and his humanitarian and compassionate (H&C) application were
rejected. On 27 May 2008 the deportation was temporarily suspended in order to allow the
Federal Court to carry out a judicial review of the negative decisions on the PRRA and
H&C applications. On 5 January 2009 the Federal Court rejected both applications. The
court held that the complainant had not submitted any evidence to substantiate his claim
that neither medical care by a competent cardiologist nor instruments for replacing his
pacemaker batteries were available in Haiti. Such evidence should have been submitted by
the complainant himself, the court found.
2.3
On 16 January 2009 the complainant received a letter from the Canada Border
Services Agency informing him that he would be deported on 18 February 2009. The
complainant’s counsel applied for a stay of deportation in order to be able to prove that the
medical facilities required to replace the complainant’s pacemaker were not available in
Haiti. In support of his application, the complainant claimed that evidence of the lack of
medical equipment existed but that he had been unable to submit it at the time of the PRRA
and H&C applications because he had been in prison and had not had the means to
assemble the evidence. He presented a letter from the Consulate-General of Haiti in
Montreal, dated 9 May 2008, which confirmed that, in view of the current state of medical
technology in Haiti and the nature of the complainant’s illness, the complainant would not
be able to receive the medical care he required in Haiti. The complainant submitted another
letter, dated 22 May 2008 and signed by a cardiologist in Canada, which stated that the
complainant had worn a Medtronic KDR 733 Kappa pacemaker since June 2000, which
would need to be replaced in June 2010. The cardiologist added that there was no
Medtronic service in Haiti.
The complaint
3.1
The complainant claims that his personal situation and state of health mean that he
should not be deported, especially given that he has two young children (born in 2002 and
2005) and that his wife has psychological problems brought on by his detention and by
fears of his forced removal to Haiti. The complainant also submits a document confirming
that his pacemaker will need to be replaced in 2010 and that there are no Medtronic
services in Haiti.
3.2
He submits that, as a criminal deportee having lived abroad for many years, he
would be at greater risk of being kidnapped by criminal gangs, who would see him as a
rival who had accumulated considerable wealth during his long stay in Canada. He points
out that the Immigration and Refugee Board applies a moratorium on removals to Haiti, but
the moratorium does not apply to persons considered to be major criminals or a threat to
society. He cites the Committee’s concluding observations in respect of Canada (May
2005), in which the Committee expressed its concern at the exclusion of certain categories
of persons considered as criminals from international protection against the risk of torture
or cruel and inhuman treatment. The complainant cites the case of two Haitian nationals;
one was removed from Canada and has not been heard of since, while the other has also
GE.12-43638
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