Date: 20040414
Docket: IMM-3374-04
Citation: 2004 FC 555
BETWEEN:
JUDE KODEESWARAN BENEDICT
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
[1] These are the reasons for the Court's Order dismissing an application to stay a removal order. The Applicant sought a stay of a removal order to the United States to be effected at 9:00 a.m. on Tuesday April 13, 2004, the day following the end of the Easter weekend break. The application for the stay was filed on the Thursday before the long Easter weekend and was heard on the Monday, April 12, 2004, via teleconference.
[2] The Applicant, a citizen of Sri Lanka, was denied refugee status in November 2001. He married a Canadian citizen in December 2002 while his immigration status was, at best, uncertain. He and his wife proceeded to buy a condominium, secure a significant mortgage which required their two incomes to service.
[3] The Applicant's wife sponsored his Humanitarian and Compassionate application in August 2003. That application is pending and may not be decided for twenty-four months.
[4] The Applicant's spouse is now scheduled for surgery to address her infertility so that she and the Applicant can continue with their plans to have a family.
[5] On February 17, 2004, a negative Pre-Removal Risk Assessment ("PRRA") decision was made. The actual date of receipt of that decision is February 25, 2004. On that same day, a Removal Order was issued for 9:00 a.m. on April 13, 1004.
[6] Despite having the results of the PRRA process and the Removal Order, the Applicant waited until Thursday, April 8th to file a Leave Application in respect of the PRRA decision and to file this stay application.
[7] Since the date of the Removal Order, the Applicant has made three requests for deferral. This stay is in respect of the last deferral request.
[8] The Applicant says:
(a) that the serious issue includes the PRRA officer's failure to consider the evidence of country conditions as well as the fact that country conditions have changed since the PRRA decision;
(b) that the Applicant and his spouse will suffer irreparable harm by virtue of the loss of their condominium and that they will not be able to have a family if he is sent back to Sri Lanka (presumably by US authorities);
(c) that in view of a likely successful sponsorship, lack of criminality and current employment, the balance of convenience favours the Applicant.
[9] While the last minute nature of this Application for stay is not determinative of its merits, its lateness is a relevant factor as to its bona fides and the exercise of the Court's discretion.
[10] For purposes of this Application to stay, the Court accepts, without in any way suggesting much less finding, that there is a serious issue.
[11] As to irreparable harm related to their ownership of a condominium, this is not the type of harm which justifies a stay. Moreover, the Applicant is the creator of his own mischief. The Applicant took on his married status and economic burdens in the face of a finding that he had no status in Canada.
[12] It has been said in other cases and will be said again, a party cannot create the circumstances of the harm which they then rely upon in order to secure a stay.
[13] The Applicant raises a fairly novel ground of harm in respect to family planning. The Applicant says that his wife needs to cure her infertility so that her biological clock can keep ticking to successfully conceive before her time runs out. His presence is essential to assist with conception. His removal will irreparably harm their opportunity to have a family because the sponsorship application will take twenty-four months, by which time the biological clock might well have stopped.
[14] As important and desirable creating a family may be, it is not grounds for a stay. The harm is at best speculative as to the success, either from the operation or the efforts at conception.
[15] I, therefore, find that the Applicant has not made out a case of irreparable harm, this application must be dismissed.
"Michael L. Phelan"
JUDGE
Ottawa, Ontario
April 14, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3374-04
STYLE OF CAUSE: JUDE KODEESWARAN BENEDICT and
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 12, 2004
REASONS FOR ORDER : The Honourable Mr. Justice Phelan
APPEARANCES:
Mr. Steve W. Rosenbaum FOR APPLICANT
Mr. Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Riverdale Law Centre FOR APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario