Date: 20061025
Docket: IMM-5547-06
Citation: 2006 FC 1280
Ottawa, Ontario, October 25, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
KASTURI ARACHCH PERERA (a.k.a.
JOSEPH GAMINI
PERERA) and NILUPA DILAKSHA FERNANDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDERS
[1]
The applicants, husband and wife, are scheduled to be
removed from Canada next week. Although they are
Sri Lankan citizens, Mr. Perera is to be removed to the United States, and Ms. Fernando to Sri Lanka. Ms. Fernando intends to take their two
Canadian-born children with her.
[2]
They seek a stay of their removal pending the resolution of
proceedings currently before this Court. After their claim for refugee status
was dismissed, they sought a pre-removal risk assessment (PRRA) of the
situation in Sri Lanka and as well requested permission to stay in Canada on humanitarian and compassionate (H&C) grounds. Both
applications were dismissed.
[3]
Their applications for leave and for judicial review
thereof were recently filed. No decisions have been rendered as yet.
[4]
The motions for a stay of removal were made in Court docket
number IMM-5547-06 in which leave and judicial review is sought from the PRRA
decision. The H&C application is under Court docket number IMM-5460-06.
However, the Ministers did not protest this irregularity and I waive it.
[5]
It is well established that in order to obtain the
interlocutory remedy of a stay, the applicant must raise a serious issue in the
underlying proceedings which have not yet been decided, irreparable harm and establish
that the balance of convenience favours him. The applicant must succeed on all
three points (Toth v. Canada (Minister of Employment and
Immigration), [1988] F.C.J. No. 587 (QL), (1988), 86 N.R. 302 (F.C.A.); RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R.
311).
[6]
As I am not satisfied that a case of irreparable harm has
been made out, it is not necessary to consider whether there is a serious issue
in either of the underlying applications. No case of irreparable harm has been
made out covering the relatively short timeframe for the applications to be
resolved. The officer who rendered the PRRA and H&C decisions was criticized
for referring to negative credibility findings in the refugee decision. It was
suggested that she should have made a credibility finding de novo.
However, as stated by Mr. Justice Nadon in Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (QL) at paragraph 12:
The Applicants
seem to be of the view that if they continue to add documents to the record,
the credibility findings of the Refugee Board are somehow going to be
"reversed" or "forgotten". In my view, that is a mistaken
view because the officer who hears an H&C application does not sit in
appeal or review of either the Refugee Board or the PDRCC Officer's decision. Thus,
on the H&C application, Mr. St. Vincent could not proceed on the basis that
Mr. Hussain was an MQM member, given the Refugee Board's findings in that
respect. In short, the purpose of the H&C application is not to re-argue
the facts which were originally before the Refugee Board, or to do indirectly
what cannot be done directly -- i.e., contest the findings of the Refugee
Board.
[7]
The officer is also criticized for not considering the
possibility that husband and wife would be separated and that the wife, and
their children, would be susceptible to persecution in Sri
Lanka as a family headed by a single mother.
[8]
The officer did take into account the interests of the
Canadian-born children, both under five years of age, and acted on the premise
that the family would stay together. She specifically stated that there was no
evidence to support the proposition that the best interests of the children
would be compromised “upon returning to Sri
Lanka with their parents.”
[9]
However Mr. Perera and Ms. Fernando, although already
married, arrived in Canada
separately. Mr. Perera arrived via the United States and so, in accordance with
arrangements Canada has with that country, could
be returned there. Ms. Fernando and the children cannot.
[10]
The enforcement officer charged with the responsibility of
removing the couple (but not the children who are entitled to remain here) was
quite aware of the situation and gave Mr. Perera three weeks to decide whether
he would prefer to return directly to Sri Lanka with his wife. They together, it seems, would prefer the children to
remain with Ms. Fernando, rather than to stay in Canada with her parents. Apparently in order to prove his fear is legitimate,
notwithstanding that it has so far been considered to be ill-founded; Mr.
Perera said he would prefer to go to the United
States. In fact he suggests that he may be there for years, which
implies that he would make a refugee claim there.
[11]
A good part of Ms. Fernando’s application, which was
separate from that of her husband’s, was based upon the IRB’s Country of Origin
Research concerning widows, single women and single mothers in Sri Lanka. However, it is her husband’s choice
that she be a single mother in Sri Lanka, not the enforcement officer’s, and it is completely inappropriate to
bring the PRRA officer to task. Although the officer did consider violence
against women, there was no need for her to consider the plight of single
mothers.
“Sean Harrington”
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