[1] Subakaran Thevaraja (the "applicant"), a citizen of Sri Lanka, in this judicial review application (the "application") scheduled for hearing before the Court in Toronto on Tuesday, August 9, 2005, challenges the August 3, 2004 decision of a removal officer not to defer his removal scheduled for August 5, 2004, pending the determination of an application for landing on humanitarian and compassionate grounds ("H & C"), filed on July 29, 2004.
[2] His removal from Canada was stayed by order of a judge of this Court pending the resolution of this judicial review application.
[3] The central question raised in this application focusses on the taking into account of the best interest of Thamini Subharan, who is seven years old.
[4] The applicant states the best interest of the child must be considered before he is removed, preferably in the context of the determination of his H & C application.
[5] Subakaran Thevaraja says he is Thamini's father. He alleges that in 1996, he met Narmatha Thanagnanam in India where he knew her for six months before they separated. He alleges when he left India in September 1996, he was not aware, at the time, Ms. Thanagnanam was three months pregnant.
[6] In 1999, he came to Canada and made a refugee claim. In his Personal Information Form ("PIF"), written in 2000, he included information about Ms. Thanagnanam and Thamini. His refugee claim was refused in 2001, the panel finding him not credible.
[7] In 2003, Ms. Thanagnanam and Thamini arrived in Canada and made refugee claims. They were recognized as Convention refugees.
[8] In February 2004, Subakaran Thevaraja "met up with" Ms. Thanagnanam and Thamini. He married her July 30, 2004, and advances he has a close and loving relationship with their daughter.
[9] Prior to the hearing of this application, counsel for the respondents filed a motion with the Court requesting that I not hear the application on its merits but rather dismiss it because the applicant was before me without clean hands. Counsel for the respondents alleges that the applicant, in his affidavit in support of this application, contained a material misrepresentation which centres on whether he was legally married in 1996 in India to Ms. Thanagnanam.
[10] The offending paragraph in the applicant's affidavit reads:
4. I came to Canada in 1999 and made a refugee claim. Attached hereto and marked as Exhibit A is a copy of my PIF. In this PIF, written in 2000, Narmala and Thamini are listed as my wife and daughter. At the time I wrote this PIF I could not speak or read English. Consequently, I relied entirely on my interpreter. Although I did tell this interpreter about Narmala (my nickname for Narmatha) and Thamini, I never told this person that Narmala was my wife. I told him that I had been with Narmala.
[11] In his affidavit sworn on August 5, 2005, responding to the respondents' motion, the applicant stated their relationship developed in India whereas an extract from his refugee hearing suggests that relationship occurred in Sri Lanka.
[12] The combined effect of these divergences, in counsel for the respondents' submission, raises serious questions of when and where Thamini was conceived and raises questions about the veracity of Ms. Thanagnanam's affidavits before the Court.
[13] Counsel for the applicant argues a number of points: there is no intention by the applicant to deceive the Court; throughout the proceedings in which the applicant was involved, there is a misunderstanding about what the applicant meant in using the word "marriage"; before me, there is no clear evidence of misrepresentation; the applicant had no motive to deceive the Court and, in any event, if there was any misrepresentation which is denied, that misrepresentation is not material to the judicial review application.
[14] I do not agree with counsel for the applicant that if there was misrepresentation, that misrepresentation was not material to his application. In my view, the thrust of the respondents' argument and all of the evidence before me raises a question whether Thamini is the applicant's daughter. If Thamini is not his daughter, it seems to me that the factual foundation to the application is materially impacted as is the Charter question.
[15] During argument, I raised the idea of DNA testing. After argument, I reserved my decision on the respondents' motion and adjourned the main hearing of the judicial review application to another day to be fixed.
[16] In my view, it is in the interest of justice that there be a determination whether Thamini is the applicant's child.
ORDER
THIS COURT ORDERS that the applicants (Subakaran Thevaraja and Thamini Subharan) undergo DNA testing to determine whether Thamini is his child. I will hold my decision on the respondents' motion in abeyance until I am advised of the results of the testing. The DNA testing shall be at the expense of Citizenship and Immigration Canada.
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6773-04
STYLE OF CAUSE: SUBAKARAN THEVARAJA and
THAMINI SUBHARAN by her litigation
guardian NARMATHA THANAGNANAM Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE
SOLICITOR GENERAL OF CANADA
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 9, 2005
REASONS FOR AND ORDER: The Honourable Mr. Justice Lemieux
DATED: August 16, 2005
APPEARANCES:
Mr. Ron Poulton FOR THE APPLICANTS
Mr. Jeremiah Eastman FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mamann & Associates
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENTS
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