Date: 20101122
Docket: IMM-6584-10
Citation: 2010 FC 1169
BETWEEN:
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PATHMALOGENI JAYASUNDARARAJAH, ABISHNA
JAYASUNDARARAJAH (BY HER GUARDIAN PATHMALOGENI JAYASUNDARARAJAH) AND
SUVIGSHAN JAYASUNDARARAJAH (BY HIS GUARDIAN PATHMALOGENI JAYASUNDARARAJAH)
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR ORDER
LEMIEUX J.
[1]
On
Friday November 12, 2010, I stayed the removal to Sri Lanka that country
of the Applicants, a Tamil mother and her two minor children, citizens of that
country, scheduled for Monday, the 15th of November 2010.
[2]
The
underlying proceeding to which the stay application was grafted is an
application for leave and judicial review dated November 9th 2010
from a deemed refusal to defer their removal pending the determination
of their recently filed applications for permanent residence in Canada based on
Humanitarian and Compassionate grounds (new H&C application), filed on July
9, 2010, and as well as a new Pre-Removal Risk Assessment application (the PRRA
application), filed on October 22nd 2010. A removal officer decided
on November 10th 2010 not to defer their removal which
deferral had been requested by the Applicants on November 1, 2010.
[3]
These
are my reasons for granting that stay.
I. Background
[4]
The
Applicants were part of a family unit which had included Jayasundararajah
Murugan (Mr. Murugan), her husband and the children’s father. The couple
separated in late 2008 because of his abuse towards his wife over several
years. Mr. Murugan was removed to Sri Lanka on November 7th
2010.
[5]
As
a family unit they came to Canada on September 9, 2004, making a
refugee claim which was denied on August 16, 2005 on grounds of
credibility, leave to appeal denied on December 1, 2005. An application
for permanent residence to Canada with risks, was filed on February 1,
2006, refused on December 22nd 2009, leave to appeal
denied on June 8th 2010. A PRRA application was filed on December
28th 2006, refused on December 29th 2009 and
leave denied on June 8th 2010.
[6]
The
family unit was advised on March 1, 2010 that negative decisions had
been rendered on their two applications. On October 12th 2010,
the Applicants were served with a Direction to Report for Removal on the 15th
day of November 2010. Mr. Murugan had previously been interviewed on October
8th 2010 at which time Canada Border Services Agency (CBSA) was
informed by him the couple had separated. Mr. Murugan had been charged in June
2008 with assault on his wife contrary to section 266 of the Criminal
Code.
[7]
On
Friday October 22nd 2010, Counsel for the Applicants wrote to
the PRRA Office in Toronto filing, on their behalf, a recently completed PRRA
application (dated October 18th 2010) and to give that Office a
“heads-up” that on the following Monday, October 25th 2010,
the PRRA Office would be receiving the Applicants’ submissions along with
supporting documentation including an affidavit from a friend of the principal
applicant regarding the abuse she suffered, a report from psychiatrists and
country condition documents on Sri Lanka.
[8]
Specifically,
that letter of October 22nd 2010 submitted she faced grave personal
risks if returned to Sri Lanka, risks which had
never been assessed before and ought to be assessed by the PRRA Office
prior to her removal. She asked for an urgent consideration of the newly filed
PRRA.
[9]
On
October 25, 2010, the Applicant’s Counsel filed the promised material,
extensive submissions and documents requesting that documentation ought to be
assessed by “an officer with expertise in such matters (…) before their
scheduled removal date”. It was pointed out that the principal applicant
(hereinafter Logeni) and her children had never before had an independent PRRA
assessed because the previously filed PRRA had been based on her now separated
husband’s circumstances and not on her own situation. She submitted their new
PRRA application contained new grounds of personalized risk and new information
relating to her husband’s family in Sri Lanka and also risks from the
State since she had been identified as a LTTE sympathizer.
[10]
On
November 1, 2010, Counsel for the Applicants made a formal request to
the Greater Toronto Enforcement Centre to defer their removal. She enclosed the
complete set of documents which had been filed with the PRRA Office. She
requested deferral “until such time as qualified PRRA and H&C officers
have had a chance to consider the [matter]”. She requested a decision by November
3rd 2010 at noon and, if that deadline was not met, “I would
assume that your decision is in the negative”.
[11]
As
noted on November 10th 2010, the Removal officer refused to
defer. The hearing of the stay application proceeded on the basis of the
Removal officer’s notes to file. I also note that as of Friday the 12th
of November 2010, the new PRRA application and the new H&C application
still remain outstanding, i.e. have not be decided on the merits.
II. The Minister’s Preliminary
Observations
[12]
Counsel
for the Minister made a number of preliminary observations on the stay motion.
She argued the stay motion was on abuse of process for the following reasons:
i.
the Applicants’ have
not explained their delay in initiating the deferral request proceedings.
ii.
the Applicants’
inappropriately imposed an unilateral deadline of less than two days for the
completion of a decision on the deferral request on the Respondent Minister.
iii.
the Applicants’
prematurely filed the present stay motion and underlying application for leave
and judicial review prior to the existence of a decision on their deferral
request.
iv.
the Respondent
Minister was forced to prepare a speculative defense for a heretofore
non-existent decision within an artificially short time frame.
v.
despite the
artificial urgency of the present proceedings generated by the Applicants’
actions, the Respondent Minister and this Court have endeavoured to ensure that
the Applicants’ receive due process and a fair hearing.
[13]
I
agree with Counsel for the Minister that the Applicants inappropriately imposed
a unilateral deadline of less than two days for the deferral request and
prematurely filed an application for leave and judicial review. However, in my
view, these factors are not sufficient to lead me to decide not to hear the
stay motion particularly when a decision was made on November 10th
2010 upon a request dated November 1st 2010.
[14]
It
may also be true that the Minister was forced to prepare a speculative defense
for a heretobefore non-existent decision. If so, the appropriate remedy is an
award of costs for special reasons under section 22 of the Federal Courts
Immigration and Refugee Protection Rules.
[15]
I do
not accept Counsel’s submission the Applicants had unduly delayed initiating
the deferral request. The Applicants did not ask the Removal officer to analyze
and decide on the merits the new PRRA application recently filed by the
Applicants. She was asked to defer until an official with expertise in these
matters had an opportunity to determine the PRRA application. Such a request is
not novel and is analogous to the case of a stay application before this Court,
where a judge is not expected, in most cases, to decide the underlying issue on
the merits but simply to determine whether it has some merit. However, in this
case, the Removal officer engaged in a substantive consideration of the merits
of the PRRA application which was not appropriate given her limited discretion
and, in my view, led her to commit the errors she did.
[16]
It also
cannot realistically be argued the Applicants unduly delayed the filing of
their PRRA application. Leave was denied on the family’s February 2006 PRRA
on June 8, 2010. The Court has to be sensitive to the fact it took
Logeni a considerable amount of time and required some assistance from her
friends and a doctor for her to be able to talk of her ordeal as is common with
women in her circumstances. In particular, I note Dr. Thirlwell in her October
19, 2010 report saw her for consultations on September 6, 2010 and October
18, 2010. She diagnosed the patient as a woman suffering from the battered
woman syndrome who needed to be assessed on multiple occasions because such
women are generally very reluctant to talk about their issues for a number of
reasons. Removal, she added, “before she receives treatment will place her in
even greater risk of harm as she is currently not well enough mentally to defend
herself against psychological or physical harm” i.e. psychological collapse and
potential suicide.
III. The test for stay is met
[17]
It
is trite law that to obtain a stay of removal the Applicants must meet the
conjunctive three-part test namely they must establish (1) the existence of one
or more serious issues, (2) the applicants will suffer irreparable harm if the
stay is not granted and (3) the balance of convenience favours the applicants.
A. Serious Issue
[18]
Because
the grant of a stay will give the Applicants the relief they seek on their
application for leave and judicial review, that is, their non-removal to Sri
Lanka, the gauge of serious issue is not simply whether the serious issue raised
is not frivolous or vexatious but rather the Applicants’ must “put forward
quite a strong case” (see Baron v. Canada (MPSEP), 2009 FCA 81 at para.
66 and 67).
[19]
Counsel
for the Applicants raised the following serious issues which may be
characterized as either ignoring or misreading the evidence: except in the
first instance below.
[20]
First,
she argues the Removal officer failed to provide adequate reasons on an
important finding. She points to the following sentence:
I
note that while the information that is being provided in the deferral request
with regards to the abuse that Ms. JAYASUNDARARAJAH and her children has
suffered at the hands of Mr. MURUGAN, not been reviewed in the context of the
PRRA application, I am not convinced that Ms. Ms. JAYASUNDARARAJAH
She submits the
sentence is incomplete and makes no sense.
[21]
Second,
she next refers to the following finding:
Inherent
in the request, is that the government of Sri
Lanka would be unable to
offer the family members protection from Mr. MURUGAN and his family at the
possibility of them pursuing retribution against her and her children. I note I
am not convinced that Ms. JAYASUNDARARAJAH would not be able to seek protection
from the Sri Lankan authorities and social agencies, as she has done in Canada, or that they will be unwilling to take measures to counter
ay threat presented to her and her children.
She submits this finding in contrary to the
documentary evidence citing UNHCR’s 2010 Report on State Protection in Sri Lanka. That report found
evidence at pages 112 and 171 of sexual and gender based violence against
single Tamil women and girls at the hands of the military and security forces.
It also noted existing legal provisions in Sri Lanka concerning rape and domestic violence were
not enforced.
[22]
Third,
she submits the finding the Applicants would be able to avail themselves of the
assistance and support of her family in Sri Lanka is perverse because
Logeni has no family in Sri
Lanka and
her ex-husband’s family had threatened her with retribution for bringing the
assault charge.
[23]
Fourth,
the Removal officer was not convinced that sufficient new risk evidence had
been presented or that deferral of removal was warranted. In support of those
propositions, the Officer said that the RPD had already assessed “the subject’s
circumstances and found them not to be Convention Refugees”. Moreover, the Officer
said that the PRRA officer “found the subject not to be at risk”.
[24]
On
this point, the Applicant’s Counsel submits the Officer failed to appreciate
that this case was about a new risk which had not been previously
assessed either by the RPD or by the previous PRRA officer.
[25]
Counsel
for the Respondent did not seriously challenge the Applicants’ points nor did
she dispute Logeni had been abused by her husband. Rather, on serious issue, she
submitted that the issue was whether or not there was in the record any
sufficiently compelling evidence to show the Applicants would be at risk if
returned to Sri
Lanka. She
argued there was no evidence that her husband had threatened her since he
returned to Sri
Lanka nor
was there any evidence his family would seek reprisal. There was no evidence,
according to Respondent’s Counsel, that the Applicants would remain in Colombo and that they could not
be safe in other areas of that country.
[26]
My
appreciation of all of the evidence in the record and the submissions of the
parties leads me to conclude that Counsel for the Applicants has made quite a
strong case and, in particular, Logeni would be at serious risk of harm if returned
to Sri
Lanka.
B. Irreparable Harm
[27]
Having
raised a serious issue that if returned to Sri Lanka the Applicants face a serious risk of
harm, the jurisprudence teaches us that irreparable harm has been made out.
Counsel for the Respondent conceded of this Court this point.
C. Balance of convenience
[28]
Having
made out serious issues and irreparable harm, the balance of convenience
favours the Applicants.
[29]
For
these reasons, a stay is granted until leave has been determined in respect of
the Removals officer’s decision not to defer and if, leave is granted, until
the judicial review of that decision has been determined.
“François
Lemieux”
Ottawa,
Ontario
November
19, 2010
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