Sinnakkuddy v. Canada, docket IMM-201-99

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docket IMM-201-99

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Date: 19990119

Docket: IMM-201-99

BETWEEN:

SASEEKALA SINNAKKUDDY

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 Plaintiff to Sri Lanka.

[2] The facts of this case, can be found in the affidavit of Marie-Claude Rigaud, "a lawyer in the office of Lorne Waldman" who is Counsel representing the present Plaintiff.

[3] As she states, the Plaintiff (Applicant) was found by the CRDD not to be a Convention refugee on September 15, 1997. The CRDD panel considered the risk the Applicant would be subject to if she were returned to Sri Lanka.

[4] This decision of the CRDD was the subject of a judicial review. The judicial review application was dismissed on August 21, 1998 and, as a result, the Plaintiff "had effectively exhausted her remedies with respect to a risk assessment, since the legislation does not provide for a reconsideration of a decision in the original forum".

[5] The Plaintiff, in order to obtain a further risk assessment made an application for consideration on Humanitarian and Compassionate (H & C) grounds.

[6] On December 16, 1998, the Plaintiff submitted an H & C application. The H & C application has not, as yet, "been acknowledged and no interview" has, so far, been scheduled. Ms. Rigaud states in paragraph 3 of her affidavit:

One of the facts that can be considered in processing H & C applications is the issue of risk. The procedure involved in the processing of humanitarian applications requires that the application first be sent to Vegreville. Once in Vegreville, a file is opened and the matter is referred back for an interview at the local immigration office. The time for processing such applications is usually as long as six months. The application in this case was filed on December 16, 1998. In the normal course of events the applicant ought to be interviewed within the next five months. However, the Applicant has now been scheduled for removal from Canada on January 28, 1999 and, given that she has not yet been convoked for an interview, there is no possibility that a risk assessment concerning the Applicant will have been conducted before her removal. The Applicant thus faces imminent deportation to Sri Lanka, a country in which she fears persecution and torture, in circumstances where the last risk assessment in her case was conducted almost a year and a half ago.

[7] In an affidavit of Vladislav Tumir, "a lawyer" in the same office of Lorne Waldman, he states, in paragraph 3:

Based on my knowledge of the country conditions in Sri Lanka, which I have acquired from my thorough review of extensive documentary evidence on country conditions, there has been a severe deterioration in the human rights situation in that country, specifically as it pertains to the Tamils from the north, in the last year and five months since the last risk assessment concerning the Applicant was performed. Given the current situation in that country at this time, I believe that the Applicant's situation is particularly concerning, given the fact that her family has experienced persecution at the hands of PLOTE, the LTTE and government security forces.

[8] The Plaintiff filed an affidavit sworn to on January 13, 1999, in which she gives her reasons for fearing to return to Sri Lanka.

[9] In order to obtain a stay of execution of a removal order, the Plaintiff must show an arguable case, irreparable harm and that the balance of convenience is in the Plaintiff's favour.

[10] After reading the decision of the CRDD, in which a risk assessment is made, I am not satisfied that the Plaintiff would be subject to irreparable harm if she were returned to Sri Lanka where the CRDD found that the Plaintiff had an IFA.

[11] After reading the affidavits and documents filed in this case, I am not satisfied that conditions in Sri Lanka have so changed so as to say that there is a reasonable probability that the Plaintiff no longer has an IFA in Colombo and is now subject to any greater (or lesser) risk than when the CRDD held its hearing.

[12] In that one of the three essential elements needed for the issuance of an injunction is not in evidence, irreparable harm, the application is denied.

[13] I need not discuss the issue of an arguable case nor the issue of the balance of convenience.

[14] As can be seen from the affidavit of Marie-Claude Rigaud, the procedure involved in processing a H & C application requires that the application first be sent to Vegreville, Alberta, from wherever the application originated, and, once in Vegreville, a file is opened and the matter is referred back for an interview at the local office, from which the application originated. The time that this takes is approximately six months.

[15] I have a great deal of difficulty in understanding the need of sending an application for a H & C hearing to Vegreville, Alberta to open a file and to return, in a case such as the present one, the H & C application for an interview to the place or area where the application originated. With respect, I find that this system is both a waste of time and taxpayers' money.

[16] For the above reasons, the application for stay 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-201-99

STYLE OF CAUSE: SASEEKALA SINNAKKUDDY

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

Mr. Kevin Lunney

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