Benedict v. Canada (Solicitor General), 2004 FC 555

Date: 20040414

Docket: IMM-3374-04

Citation: 2004 FC 555

BETWEEN:

                                              JUDE KODEESWARAN BENEDICT

                                                                                                                                            Applicant

                                                                           and

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PHELAN, J.

[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 8^th 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

DATED:                                              April 14, 2004

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