Date: 20040510
Docket: IMM-4060-04
Citation: 2004 FC 684
Toronto, Ontario, May 10th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MAJESTLY CHARLES DEVENDRARAJAH SOOSAIPILLAI, ARULLEELI SOORIAKUMARI DEVENDRARAJAH, VENOJ WINSTON DEVENDRARAJAH, MANOJ CHRISTON DEVENDRARAJAH
Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a Sri Lankan Tamil family who came to Canada, via the United States, in 2000. The Immigration and Refugee Board rejected the family's refugee claim on the basis that the principle applicant failed to adduce sufficient evidence with respect to his identity. The Board also found that the principal applicant failed to establish that he would face a serious possibility of persecution at the hands of the Sri Lankan authorities if he were returned to Sri Lanka. As the claims of the other applicants were based upon that of the principal applicant, these claims were also rejected. An application to judicially review this decision was subsequently dismissed by the Federal Court.
[2] In February, 2003, the applicants applied for an humanitarian and compassionate exemption. No decision has been made with respect to this application. A subsequent Pre-removal Risk Assessment found no serious possibility that the applicants would be persecuted if they were returned to Sri Lanka.
[3] The applicants are now scheduled to be removed to the United States on May 12, 2004. A request to defer the applicants' removal until such time as their H & C application was dealt with was rejected.
[4] Applications for judicial review are currently pending with respect to both the PRAA and the refusal to defer the applicants' removal.
[5] In order to grant the stay of a removal order, the onus is on the applicants to establish each of the elements of the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). In order to succeed, the applicants must establish that (1) there is a serious issue to be tried with regards to the underlying matters, (2) they will suffer irreparable harm if the stay is not granted and (3) the balance of convenience favours the granting of the stay. The test is conjunctive. That is, the motion cannot succeed if the applicants fail to meet one part of the test.
[6] Assuming, without deciding, that the applicants have established that there is a serious issue to be determined in this case, they have not satisfied me that they will suffer irreparable harm if the removal order is executed. The existence of irreparable harm must be established by credible evidence, and the risk of harm must not be speculative: Malik v. Minister of Citizenship and Immigration, (Imm-3737-04).
[7] In this case, the applicants are to be removed to the United States, not to Sri Lanka. While counsel for the applicants has argued that the applicants will likely be returned to Sri Lanka by the American authorities, this argument is entirely speculative. There is simply no evidence before me to support such a conclusion.
[8] The applicants further submit that they will suffer economic losses if they are removed from Canada. However, the only potential loss that the applicants have identified is the loss of the principal applicant's employment. In my view, loss of employment is inherent to the removal process, and does not rise to the level of irreparable harm.
[9] For these reasons, the motion is dismissed.
ORDER
THIS COURT ORDERS that the motion for a stay is dismissed.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4060-04
STYLE OF CAUSE: MAJESTLY CHARLES DEVENDRARAJAH SOOSAIPILLAI, ARULLEELI SOORIAKUMARI DEVENDRARAJAH, VENOJ WINSTON DEVENDRARAJAH, MANOJ CHRISTON DEVENDRARAJAH
Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: MAY 10, 2004
APPEARANCES:
Waikwa Wanyoike FOR THE APPLICANTS
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waikwa Wanyoike
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040510
Docket: IMM-4060-04
BETWEEN:
MAJESTLY CHARLES DEVENDRARAJAH SOOSAIPILLAI, ARULLEELI SOORIAKUMARI DEVENDRARAJAH, VENOJ WINSTON DEVENDRARAJAH, MANOJ CHRISTON DEVENDRARAJAH
Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER
AND ORDER
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