Date: 19980703
Docket: IMM-3019-98
BETWEEN:
RAVI DEVAPRACKASH ARUNACHALAM
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN, J.:
[1] The applicant seeks a stay of a deportation order until such time as the applicant's humanitarian and compassionate application is concluded and finally determined.
[2] On the question of serious issue, there is a serious issue as to whether a risk assessment has been done in light of the recent and unchallenged for purposes of this motion allegations of the likelihood of torture in the event that the applicant is returned to Sri Lanka. There was a risk assessment done at the Post Determination Refugee Claimants in Canada Class on March 8, 1995 but this did not include the newest information with respect to torture and rape of the applicant's brothers and sisters.
[3] On the question of irreparable harm, the applicant has alleged that members of his family have been tortured and raped. There is no contrary evidence for purposes of this motion, as Justice D. Lane stated in Suresh v. Canada 98-CV139810 Ontario General Division January 28, 1998, in respect of a fear of torture in the receiving country.
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If the Applicant is deported to Sri Lanka, the evidence shows that he will almost certainly be detained and questioned and exposed to the risks of torture and extra-judicial execution described above. In such circumstances, there is a strong probability that it will be impossible for the Canadian courts to influence the situation at all. His Application will become moot, for any relief he might obtain would be unenforceable. De facto, refusal of the injunctive relief decides the whole case against him. |
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There was irreparable harm for purposes of this motion.
[4] On the balance of convenience, although I must seriously consider the Minister's legal obligation to deport promptly, in light of my findings on serious issue and irreparable harm, the balance of convenience is with the applicant.
[5] The applicant is granted a stay of the execution of the removal order pending the determination of an application for humanitarian and compassionate consideration pursuant to section 114(2) of the Immigration Act made on May 28, 1998.
William P. McKeown
JUDGE
O T T A W A, Ontario
July 3, 1998
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