Date: 20030917
Docket: IMM-7068-03
Citation: 2003 FC 1075
Toronto, Ontario, September 17th, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
SUDHAHINI THIRUNAVUKKARASU,
ANTON FREDRICK MARIANAYAGAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants seek a stay of the execution of their removal orders scheduled for September 18, 2003, with the underlying application being a challenge to the enforcement officer's refusal to defer removal. The female applicant, Sudhahini Thirunavukkarasu, is a citizen of Sri Lanka and the male applicant, Anton Fredrick Marianayagam, is a citizen of Germany. The immigration history of this couple is set out in the paragraph that follows.
[2] The female applicant entered Canada on January 11, 1999 and claimed refugee status. The male applicant entered Canada on May 1, 1999 and claimed refugee status. The male applicant withdrew his claim orally at his hearing on November 9, 1999 because of his German citizenship. The female applicant's refugee status (granted April 28, 1999) was vacated on January 9, 2002, on the grounds that she framed her claim on fraudulent information and misrepresented material facts concerning her personal situation in Sri Lanka. She did not seek leave for judicial review of that decision. Each of the applicants was provided the opportunity to make application for a Pre-Removal Risk Assessment (PRRA). The male applicant signed a declaration of "no intention" regarding the PRRA. The female applicant submitted a PRRA application and a negative decision was rendered on July 9, 2003. She did not seek leave to challenge that decision. On August 19, 2003, the applicants were provided with the directions to report for removal. On August 25th , they forwarded a humanitarian and compassionate (H & C) application to Citizenship and Immigration Canada. On August 28th, the enforcement officer in Montreal received a request for deferral of the applicants' removal. On September 9th, the enforcement officer informed the applicants that after reviewing the documentation and evaluating the situation, his conclusion was that "the circumstances do not warrant a delay in the removal".
[3] It is common ground that the applicants must satisfy the tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) that there exists a serious issue, that irreparable harm will result if the stay is not granted and that the balance of convenience favours the applicant. It is also common ground that the test is conjunctive so that failure on any one of the requirements will be fatal. I regard it as settled law that where a stay would effectively grant the relief sought on the underlying application, the "serious issue" threshold is not merely that the question raised is not frivolous or vexatious. Where a motion for a stay is made with respect to a refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application: Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.).
[4] The applicants argue that because they have submitted an H & C application, section 233 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) establishes that the Minister may stay removal if there exist humanitarian and compassionate considerations pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) even before a final decision has been made as to whether or not to grant permanent resident status pursuant to an H & C application. This subsection, it is argued, requires at least some assessment of the H & C application on the merits and the enforcement officer has a duty to assess, at least on an interim basis, whether H & C considerations exist.
[5] This submission does not raise a serious issue. Madam Justice Simpson in Banik v. Minister of Citizenship and Immigration, IMM-4861-03 stated that "to accept the applicant's interpretation would be to bring the administration of the Act to a standstill and without any supporting legislative history or a clear statement in the IRPA that the removal officer's obligations have changed, I am not prepared to conclude that the applicant's submission raises a serious question of law". Madam Justice Simpson concluded that the law that developed limiting a removal officer's discretion under the former Act is still applicable. Similarly, Mr. Justice O'Reilly, in Firsova v. Canada (Minister of Citizenship and Immigration) 2003 FC 933, F.C.J. No. 1190 concluded that, "The provision simply states that persons who have been granted the exemption shall not be removed until their applications for permanent residence have been decided. It recognizes that officers often deal with requests for humanitarian and compassionate consideration while the applicants are still in Canada". I endorse and adopt the reasoning of my colleagues in this respect.
[6] The failure to establish a serious issue disposes of the motion. I add, however, that had I found a serious issue, the motion would nonetheless have failed on the basis of irreparable harm.
The female applicant alleges that she would be victimized by the Sri Lankan security forces and the Liberation Tigers of Tamil Eelam (LTTE) who will extort her due to the fact that she has been away from the country for several years and her husband has been abroad for 18 years. It is less than two months since a PRRA officer determined that the female applicant and her children would not face persecution, threats to their lives, risks of cruel and unusual treatment or sanction upon returning to Sri Lanka. As stated earlier, the female applicant did not challenge the results of the PRRA assessment. She has not provided any further evidence to indicate that circumstances have changed since July 8th. The male applicant , it is alleged, would suffer persecution in Sri Lanka on similar grounds. He is being removed to Germany, not Sri Lanka. Since he waived his opportunity to apply for a PRRA assessment regarding Germany, I take it that he does not consider himself to be at risk there. It is further submitted that the male applicant will suffer emotional and psychological harm due to the devastating effect of separation from his wife and children. There exists a plethora of case law from this court wherein family separation has been held to constitute an unfortunate but inevitable consequence of deportation. It does not constitute irreparable harm.
ORDER
THIS COURT ORDERS that the motion is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7068-03
STYLE OF CAUSE: SUDHAHINI THIRUNAVUKKARASU,
ANTON FREDRICK MARIANAYAGAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 16, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: SEPTEMBER 17, 2003
APPEARANCES BY: Ms. Lani Gozlan
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Max Berger & Associates
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030917
Docket: IMM-7068-03
BETWEEN:
SUDHAHINI THIRUNAVUKKARASU,
ANTON FREDRICK MARIANAYAGAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER