Date: 20040713
Docket: A-363-04
Citation: 2004 FCA 261
Present: EVANS J.A.
BETWEEN:
GHANASEHARAN SELLIAH, NIRMALA GNANASEHARAN
and MAHISHAN GNANASEHARAN
Appellants
(Applicants in the Trial Division)
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
(Respondent in the Trial Division)
and
SOLICITOR GENERAL OF CANADA
Respondent
Heard by teleconference at Ottawa, Ontario, on July 12, 2004.
Order delivered at Ottawa, Ontario, on July 13, 2004.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20040713
Docket: A-363-04
Citation: 2004 FCA 261
Present: EVANS J.A.
BETWEEN:
GHANASEHARAN SELLIAH, NIRMALA GNANASEHARAN
and MAHISHAN GNANASEHARAN
Appellants
(Applicants in the Trial Division)
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
(Respondent in the Trial Division)
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
EVANS J.A.
A. INTRODUCTION
[1] This is a motion on behalf of the appellants for a stay of their removal from Canada pending the disposition of their appeal from a decision of Blanchard J. of the Federal Court. He had dismissed their applications for judicial review of an immigration officer's decision that they were not at risk of persecution if returned to Sri Lanka, their country of nationality, and the same officer's refusal of their application to remain in Canada on humanitarian and compassionate grounds. The appellants are scheduled for removal to the United States on July 20, 2004.
[2] The motion was heard by means of a telephone conference. I also granted a motion made on behalf of the Minister, which was unopposed by counsel for the appellants, to amend the style of cause by adding the Solicitor General of Canada as a respondent.
B. THE FACTUAL BACKGROUND
[3] A brief account of the events leading up to the principal motion will suffice. The appellants are a family: husband, wife and their two year old child. They arrived in Canada on November 24, 2000, via the United States, and claimed refugee status on the ground that, as Tamils, they feared persecution in Sri Lanka by reason of ethnicity. Their claims were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 29, 2001, on the ground of the adult claimants' lack of credibility and the absence of sufficient proof that there was any more than a mere possibility that they would be persecuted if returned to Sri Lanka.
[4] Their application for leave to bring an application for judicial review of this decision was granted by the Federal Court, but the application itself was dismissed on October 2, 2002.
[5] On December 18, 2002, the appellants applied for consideration to remain in Canada as persons at risk under the Post Determination Refugee Claimants in Canada Class ("PDRCC"); this application was considered under the Pre-Removal Risk Assessment program ("PRRA") on the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). On April 17, 2002, they also applied for permanent residence on H & C grounds under subsection 25(1) of the IRPA.
[6] This latter application was refused, without an interview, on November 28, 2002. On the same day, the officer who decided their H & C application also denied their PRRA application on the ground that the appellants had adduced insufficient evidence to prove that they personally were at risk of torture, loss of life, or cruel and unusual punishment. The appellants were advised of both decisions when they attended at an Immigration Canada office on January 23, 2003.
[7] Separate applications for judicial review of these decisions were dismissed by Blanchard J., with extensive and careful reasons, in a decision rendered on June 17, 2004. The Applications Judge certified the following as a serious question of general interest which may be determinative of an appeal against the dismissal of the application to review the PRRA decision:
"Does section 97 of the IRPA require that a person establish, on the balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) or (b)?"
[8] However, he refused to certify two other questions on the ground that, if errors were committed, they were not material to the officer's decision. Since the Applications Judge certified no question in respect of the application to review the H & C decision, his dismissal of the application to review this decision is therefore not the subject of an appeal to this Court.
C. ANALYSIS
[9] The tripartite test for the grant of a stay of a removal pending the determination of a case on its merits is well known: Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
(i) Existence of a serious issue
[10] Despite the cases decided in the Federal Court holding that an error under section 97 is immaterial when the section 96 analysis has been upheld, I am prepared to accept that the appellants just meet the low threshold requirement that the certified question must raise an arguable issue.
[11] Blanchard J. considered that the standard of proof applicable by the officer in making the PRRA determination under section 97 of the IRPA was material to her negative decision. The Applications Judge refused to certify other proposed questions precisely because he thought that, even if errors had occurred as alleged, they were not material to the officer's ultimate decision. Whether or not the alleged error is material in this case can be argued fully when the appeal is heard.
(ii) Irreparable harm
[12] I am not persuaded that the appellants have met the requirement of showing that, unless their removal is stayed pending the determination of their appeal, they will suffer irreparable harm. Counsel relies on three kinds of irreparable harm if they are removed on July 20: disruption to the lives that they have built in Canada; the risk of persecution if they are returned to Sri Lanka; and their right of appeal will be rendered nugatory. I shall deal briefly with each.
(a) disruption to the family
[13] The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here. This is likely to be particularly true of young children who have no memory of the country that they left. Nonetheless, the kinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth rule, otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 29.
[14] I am not persuaded that the adult appellants' success in finding employment (which they will lose on removal), their commitment to improving their vocational qualifications, and their community involvement, are sufficient to demonstrate that their situation is any different from that of most others who face removal. Similarly, their child's separation from his school and friends pending the disposition of the appeal is a routine, if painful, incident of removal.
[15] The social and economic roots that the appellants have started to put down in Canada during the nearly four years that they have legitimately pursued all legal means of obtaining permanent residence status cannot in themselves provide the basis for a finding that the appellants' removal before their appeal is decided will cause them irreparable harm. If their appeal is successful, they will probably be permitted to return to Canada pending the new determination of their PRAA application.
[16] Counsel argued that, in Toth, the Court found irreparable harm without insisting on some particular level of hardship that was likely to be caused by the disruption of the applicant's life in Canada as a result of his removal. In that case, however, the evidence was that removal would deprive the applicant of his ability to support his family in Canada if his appeal was successful because the family business would fail. No analogous evidence exists in the present case.
(b) risk of persecution on section 97 grounds
[17] Counsel submitted that, while the appellants will be removed on July 20, 2004, from Canada to the United States, it can be assumed that they will be returned from there to Sri Lanka. The motion record contains evidence that, after a period of improvement in the human rights picture, country conditions in Sri Lanka have recently deteriorated and that the current situation is uncertain.
[18] Thus, for example, peace negotiations to end the civil war in Sri Lanka and to establish a new relationship between the Tamil minority and the Sinhalese majority seem to have stalled following the election in April this year. The recruitment of child soldiers by the Tamil Tigers has been resumed. And, a recent suicide bomb explosion in Colombo, attributed to, but denied by, the Tamil Tigers, seems to have prompted a resumption of searches for, and the detention and interrogation of, Tamils.
[19] In my opinion, looking at the record as a whole, the appellants have not established that, if returned to Sri Lanka, they personally will be at risk of one of the forms of persecution identified in subsection 97(1). Neither the Refugee Board nor the immigration officer who made the PRAA decision was satisfied that the appellants were personally at risk of persecution. At most, the appellants were found to face a mere possibility of persecution. I do not find that the new evidence provides a sufficient basis for reaching a contrary conclusion.
(c) appeal will be rendered nugatory
[20] Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
(iii) Balance of convenience
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
D. CONCLUSIONS
[23] For these reasons, the appellants' motion for a stay is dismissed.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-363-04
STYLE OF CAUSE: Ghanaseharan Selliah et al. v. The Minister of Citizenship & Immigration and Solicitor General of Canada
MOTION DEALT ORALLY BY TELECONFERENCE
REASONS FOR ORDER BY: Evans J.A.
DATED: July 13, 2004
WRITTEN REPRESENTATIONS BY:
Ms. Barbara Jackman FOR THE APPELLANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Barbara Jackman FOR THE APPELLANT
Barrister & Solicitor
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada