Puvaneswaran v. Canada, docket IMM-200-99

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docket IMM-200-99

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Date: 19990119

Docket: IMM-200-99

BETWEEN:

LUXMEDEVI PUVANESWARAN

Plaintiff

- and -

HER MAJESTY THE QUEEN and

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Defendants

REASONS FOR JUDGMENT

TEITELBAUM J.

[1] This is a motion for an order for an interim injunction "enjoining against executing the removal order issued against the Appellant (Plaintiff) to Sri Lanka until such time as his action is dealt with".

[2] I first state that it appears that the Plaintiff is not male but is female (see affidavit of Marie-Claude Rigaud).

[3] The Plaintiff filed into the Federal Court Registry a Statement of Claim on January 13, 1999 wherein she asked for:

a) An order for an interim injunction pursuant to section 373 of the Federal Court Rules, 1998 enjoining against executing the removal order issued against the Appellant to Sri Lanka, until such time as his action is dealt with; and

b) Such further and other relief as counsel may advise and this Court permit.

[4] The Plaintiff is a Tamil from the North of Sri Lanka. In February 1995 she fled Sri Lanka and sought refugee status upon her arrival in Canada on February 26, 1995. The claim was heard on September 8, 1995 and was rejected by decision dated January 17, 1996. A PDRCC decision was made and the PDRCC application was rejected by decision dated February 22, 1997.

[5] Plaintiff states that she failed to make any submissions with regard to the PDRCC hearing "as I was unaware I could make submissions and did not have funds to pay a lawyer at the time".

[6] On September 18, 1998, some 19 months after the PDRCC application was rejected, the Plaintiff submitted and application on humanitarian and compassionate grounds, the basis for her application was her fear of returning to Sri Lanka, as she believes "that since three years had passed since my case was rejected and two years had passed since the PDRCC officer had last reviewed the file, that it should again be reviewed.

[7] In effect, the Plaintiff believes another risk assessment is required because the situation in Sri Lanka has deteriorated since the last risk assessment and because of this deterioration she will be at risk if now returned to Sri Lanka.

[8] In paragraph 2 of her affidavit, the Plaintiff states:

I believed that since three years had passed since my case was rejected and two years had passed since the PDRCC officer had last reviewed the file that it should again be reviewed. This was particularly so because in January, 1996, when the CRDD decided my case, there was some hope that the situation in my country would improve. Indeed in January, 1995, there was truce between the Tamil Tigers and the Sri Lankan government. However, this truce ended on April 19, 1995. I attach as Exhibit "E" a newspaper article from the Toronto Star, dated June 12, 1995, that confirms this information. This accounts for the reason why I was not arrested during my stay in Colombo, since during my stay there, from January to February 1995, there was a truce between the Tamil Tigers and the government forces. My fear is also particularly accentuated because both my father and brother were killed by members of PLOTE. My mother who intervened on behalf of them at that time was also attacked and cut up so that she lost the use of her right hand. I attach a letter from Dr. Gangam I. Devi as Exhibit "F" which confirms this information. Although I did not submit any documentation concerning my fear of persecution upon return to my country, I did clearly indicate that I feared returning there. Indeed it was my intention to submit documentary evidence when I attended at the interview. To date, no decision has been made on my humanitarian and compassionate application.

[9] It is trite law that in order to obtain the issuance of an interim injunction the Plaintiff has the burden to show, on a balance of probability, an arguable case, will suffer irreparable harm and that the balance of convenience is in her favour.

[10] All three of these elements must be shown.

[11] After listening to the submission of Counsel for the Plaintiff, I am satisfied that I have no new evidence that the Plaintiff would be more at risk today than the risk she faced at the CRDD heaving or at the PDRCC hearing.

[12] Ricardo Max Aguirre submitted an affidavit sworn January 12, 1999 in which he states that on January 12, 1999 he reviewed the contents of two letters sent from Colombo, Sri Lanka in which he states, in paragraphs 3 and 4:

3. The first letter is from S. K" Arumugam, Justice of the Peace, dated January 6, 1999. In it, Mr. Arumugam confirms that Mrs. Puvaneswaran's father and brother were shot dead. Please see EXHIBIT "A".

4. The second letter is from N. Chelliah, Attorney-at-Law, dated January 9, 1999. In it, Mr. Chelliah also confirms the fate of Mrs. Puvaneswaran's father and brother and that Mrs. Puvaneswaran is in the list of persons wanted by the PLOTE and the Sri Lankan security. Please see EXHIBIT "B".

[13] If one looks at the two letters (found under Tabs 17 and 18 of the Motion Record of the Plaintiff), other than the fact that they are signed by different persons on different dates, one is a virtual copy of the other.

[14] Is this a coincidence? I think not. I am satisfied that these two letters were invented to give the impression the Plaintiff would be more at risk if she were to be returned to Sri Lanka at the present time.

[15] I have read the Exhibit A to the Affidavit of Ron Edward, a document entitled Sir Lanka: Internal Flight Alternatives: An Update, a document dated October 1998, emanating from the Research Directorate, Immigration and Refugee Board, Ottawa, Canada and in particular what is stated with regard to Colombo and see very little difference in the situation from what existed in 1995-1996 and today.

[16] I do not mean to say that life is very pleasant for a young Tamil to live in Sri Lanka. Nevertheless, in the case at bar, the Plaintiff was found not to be a refugee and was found, on two occasions, not to be at risk if returned to Sri Lanka where she has an IFA in Colombo.

[17] The evidence placed before me, the two letters above mentioned and the document of the IRB do not indicate that the Plaintiff will now be at a risk different than that before the CRDD and the PDRCC or, at least, not at more risk.

[18] I fail to see why the Plaintiff should now have a further risk assessment.

[19] The application for an injunction to stay the order of removal is denied.

"Max M. Teitelbaum"

Judge

Toronto, Ontario

January 19, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-200-99

STYLE OF CAUSE: LUXMEDEVI PUVANESWARAN

and -

HER MAJESTY THE QUEEN and THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: MONDAY, JANUARY 18, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: TEITELBAUM, J.

DATED: TUESDAY, JANUARY 19, 1999

APPEARANCES: Mr. Lorne Waldman

For the Plaintiff

Ms. Ann Margaret Oberst

For the Defendants

SOLICITORS OF RECORD: Jackman, Waldman & Associates

Barristers & Solicitors

281 Eglinton Ave. E.,

Toronto, Ontario

M4P 1L3

For the Plaintiff

Morris Rosenberg

Deputy Attorney General

of Canada