Selliah v. Canada (Minister of Citizenship and Immigration), 2003 FCT 190

Date: 20030218

Docket: IMM-656-03

IMM-661-03

Neutral citation: 2003 FCT 190

Ottawa, Ontario, this 18th day of February, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                         GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN

and MAHISHAN GNANASEHARAN

                                                                                                                                                      Applicants

                                                                              - and -

                                THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by the applicants for an order granting a stay against the removal of the applicants, scheduled for February 19, 2003, until such time as the applicants' applications for leave and judicial review are considered and finally determined by the Court.

[2]                 The applicants are citizens of Sri Lanka. The applicants, Gnanaseharan Selliah and Nirmala Gnanaseharan are spouses of each other and the applicant, Mahishan Gnanaseharan is their son, who was born on May 1, 1998.

[3]                 The applicants arrived in Canada on November 24, 2000 and made a Convention refugee claim which was denied. The judicial review of this decision was also denied. The applicants made a Post-determination Refugee Claimants in Canada Class ("PDRCC") application on December 18, 2001. In August 2002, when the applicants were called in for removal arrangements, they were told that they would be considered under the Pre-removal Risk Assessment ("PRRA") provision of the new Immigration and Refugee Protection Act, S.C. 2001, c.-27 (the "IRPA"). The applicants also made a humanitarian and compassionate ("H & C") application in April 2002.

[4]                 The applicants received notice to attend at the immigration office on January 23, 2003. When they attended the office on that date, they were given the decisions of the PRRA application and the H & C application. The PRRA and the H & C decisions were dated November 26, 2002. However, they were not communicated to the applicants until January 23, 2003.

[5]                 The applicants filed new submissions and documents with respect to the PRRA application on January 20, 2003. These were not considered by anyone.

[6]                 The PRRA and H & C decisions were made by the same officer.

Issue

[7]                 Should the removal of the applicants be stayed?

Analysis and Decision

[8]                 The Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (C.A.) has stated that an applicant for a stay must, in order to obtain a stay, satisfy me that (1) there is a serious issue to be tried; (2) the applicant will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours the applicant.

[9]                 Serious Issue

I am of the opinion that the applicants have satisfied me that serious issues to be tried do exist. These issues are:

1.          Should the applicants' further submissions have been considered as the PRRA decision had not yet been communicated to the applicants?

2.          Were the interests of the four year old son properly assessed?

[10]            Irreparable Harm

The applicant, Gnanaseharan Selliah states in paragraph 15 of his affidavit, " . . . If we are removed to Sri Lanka we face detention there because under Sri Lankan law we face prosecution for having left Sri Lanka on invalid passports . . ." If the parents are detained, what happens to their four year old child? This has not been addressed. In the above circumstances, I find that irreparable harm would result.

[11]            Balance of Convenience

I am of the view that the balance of convenience favours the applicants. They are not a danger to the public.

[12]            The motion for a stay of the removal order is granted until the applicants' applications for leave for judicial review are denied, or if leave is granted, then until their application or applications for judicial review have been finally dealt with by the Court.

ORDER

[13]            IT IS ORDERED that the motion for a stay of the removal order is granted until the

applicants' applications for leave for judicial review are denied, or if leave is granted, then until their application or applications for judicial review have been finally dealt with by the Court.

                                                                                                                                       "John A. O'Keefe"             

                                                                                                                                                          J.F.C.C.                     

Ottawa, Ontario

February 18, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-656-03 and IMM-661-03

STYLE OF CAUSE:                           GNANASEHARAN SELLIAH,

NIRMALA GNANASEHARAN and

MAHISHAN GNANASEHARAN

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       Wednesday, February 12, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                                                Tuesday, February 18, 2003

APPEARANCES:

Barbara Jackman

FOR APPLICANT

Marcel Larouche

FOR RESPONDENT

SOLICITORS OF RECORD:

Barbara Jackman

FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR RESPONDENT