Date: 20040209
Docket: IMM-10512-03
Citation: 2004 FC 211
Toronto, Ontario, February 9th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
SIRIYALATHA THARUMARASAH
a.k.a. SIRIYALATHA HERATH MUTHIYANSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Siriyalatha Tharumarasah seeks a stay of the order for her removal, which is now scheduled for February 15, 2004.
[2] Ms. Tharumarasah is a twenty seven year old Sinhalese woman from the north east of Sri Lanka. In July of 1998, she came to Canada, where she made a refugee claim. That claim was refused by the Immigration and Refugee Board on July 27, 1999.
[3] In October of 2003, Ms. Tharumarasah filed an application for permanent residence on humanitarian and compassionate grounds, as well as sponsorship by her current husband. She also applied for s for a Pre-removal Risk Assessment (PRRA). On December 17, 2003, Ms. Tharumarasah was advised of the negative decision in relation to her PRRA application, and was notified of the date of her removal from Canada.
[4] On December 31, 2003, Ms. Tharumarasah brought an Application for Leave and Judicial Review with respect to the PRRA decision. Although the underlying application for in this matter is a the challenge to the PRRA decision, Ms. Tharumarasah seeks a stay of her removal pending the outcome of her H & C application. The basis of her application is her assertion that the PRRA officer erred in fact and in law in concluding that Ms. Tharumarasah would not be at risk at the hands of the Sri Lankan security forces as a perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE).
[5] In order to grant the stay of a removal order, the onus is on an applicant to establish each of the elements of the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). Ms. Tharumarasah has not done so here.
[6] Decisions of PRRA officers are to be given significant deference. Where there is nothing unreasonable in the PRRA decision, there will be no serious issue. In this case, the PRRA officer clearly considered Ms. Tharumarasan's submissions and supporting documentary evidence with respect to ongoing human rights abuses in Sri Lanka. What Ms. Tharumarasah is asking the Court to do is to re-weigh the evidence that was before the PRRA officer. While Ms. Tharumarasah may not agree with the PRRA decision, she has not demonstrated that it was arguably either unreasonable or perverse, and accordingly no serious issue arises here.
[7] Ms. Tharumarasah has also failed to satisfy me that she will suffer irreparable harm if she were returned to Sri Lanka pending the outcome of her H & C application. Her affidavit states that she will suffer irreparable harm as a consequence of being separated from her husband, potentially for a significant period, while her H & C application is processed. Family separation is inherent to the removal process, and does not constitute irreparable harm. Cellis v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1231. Further, while the removal order may result in Ms. Tharumarasah being separated from her husband, she will be reunited with her parents, siblings and children, all of whom still reside in Sri Lanka.
[8] Having failed to establish either of the first two branches of the Toth test, the balance of convenience clearly favours the Minister.
[9] For these reasons, the motion is dismissed.
[10] On the consent of the parties, the style of cause is amended. The Minister of Citizenship and Immigration is removed and the Solicitor General of Canada is added as the respondent.
ORDER
THIS COURT ORDERS that
1. The style of cause is amended. The Minister of Citizenship and Immigration is removed and the Solicitor General of Canada is added as the respondent.
2. The motion for a stay is dismissed.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10512-03
STYLE OF CAUSE: SIRIYALATHA THARUMARASAH
a.k.a. SIRIYALATHA HERATH MUTHIYANSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 9, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: FEBRUARY 9, 2004
APPEARANCES:
Mr. Yehuda Levinson
FOR APPLICANT
Ms. Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Levinson & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040209
Docket: IMM-10512-03
BETWEEN:
SIRIYALATHA THARUMARASAH
a.k.a. SIRIYALATHA HERATH MUTHIYANSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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