Federal Court Decisions

Date: 20031114

Docket: IMM-7942-03

Citation: 2003 FC 1348

Ottawa, Ontario, this 14^th day of November, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                NANTHAGOBAL THAVACHELVAM

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Thavachelvam has asked me to stay the execution of an order requiring him to leave Canada for his native Sri Lanka on November 16, 2003. I find that he has satisfied the three-part test for a stay.

[2]                 Mr. Thavachelvam has raised a serious legal issue to be tried in his case. The issue is whether the reasons provided by the officer who conducted an analysis of the personal risk to Mr. Thavachelvam were adequate in light of the fact that he and his counsel had made supplementary submissions at the officer's invitation.

[3]                 The final negative pre-removal risk assessment, delivered to Mr. Thavachelvam shortly before he was ordered to leave Canada, made no reference to those submissions and, in fact, pre-dated them.

[4]                 Given that this serious issue casts some doubt on the adequacy of the risk assessment, it follows that Mr. Thavachelvam would suffer irreparable harm if he were forced to face any such risk before he had a chance to pursue his remaining legal remedies in Canada: Nawaz Ahmad v. Canada (Minister of Citizenship and Immigration) 2003 FC 1295.

[5]                 In light of the above, the balance of convenience lies in favour of allowing Mr. Thavachelvam to remain in Canada while pursuing his judicial review application.

[6]                 Accordingly, the removal order dated September 30,2 003 is stayed pending determination of the leave to seek judicial review and, if leave is granted, until final adjudication of the judicial review.

                                                                            ORDER

THIS COURT ORDERS that:

1.          The removal order dated September 30, 2003 is stayed pending determination of the leave to seek judicial review and, if leave is granted, until final adjudication of the judicial review.

                                                                                                                                      "James W. O'Reilly"          

                                                                                                                                                               Judge

        

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-7942-03

STYLE OF CAUSE:                           NANTHAGOBAL THAVACHELVAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH BY TELECONFERENCE

REASONS FOR ORDER

AND ORDER BY:                           THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                November 14, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: