Date: 20011122
Docket: IMM-5176-01
Neutral citation: 2001 FCT 1283
BETWEEN:
JEYAPADMINIDEVY ANAND
and SWETHA KHAILIL ANAND
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These Reasons concern my decision to dismiss the applicants' application for a stay of the removal, executing a departure order dated October 5, 2001 received by the applicants on October 26, 2001. The stay was sought pending determination of a motion before the Court in Court file IMM-279-01, for an extension of time in which to file a motion for reconsideration of an order rendered May 14, 2001, for reconsideration of that order, and for an extension of time to serve an application record. Further, the stay was sought pending determination of the applicants' application, filed in July 2001, for permanent residence on humanitarian and compassionate grounds pursuant to s-s. 114(2) of the Immigration Act. The matter was heard by telephone conference on an urgent basis on November 12, 2001, the afternoon before the applicants were to report for removal to the United States.
[2] The applicants are a mother and her seven year old daughter, citizens of Sri Lanka, who arrived in Canada in 1999 and made refugee claims. A negative decision was made by the Convention Refugee Determination Division ("CRDD") in relation to their refugee claims and was received on January 5, 2001. The applicants applied for judicial review of that decision by application filed January 22, 2001. That application was dismissed by Order of Mr. Justice Dubé on May 14, 2001, the applicants not having filed an application record, as required. (see Court file IMM-279-01) The applicants were apparently apprised of that decision. On July 2, 2001, with the assistance of new counsel, the applicants applied for humanitarian and compassionate ("h & c") consideration for landing from within Canada. No decision has been made on that application.
[3] On October 26, 2001, with the assistance of a second new counsel, an application was filed for consideration in writing pursuant to Rule 369, seeking an extension of time to file an application for reconsideration of the decision of Mr. Justice Dubé dated May 14, 2001, for reconsideration of that Order, and if granted for an extension of time to file an application record in relation to the application for judicial review filed in January 2001. The respondent's motion record, dealing with the application in Court file IMM-279-01 was filed in the Court on November 2, 2001 but the issues raised by the parties were yet to be determined when the application for a stay was filed on November 12, 2001.
[4] As noted, the applicants received on October 26 the notice of the decision that they be removed from Canada, and directing that they confirm their departure before reporting for removal from Canada, at 9:00 a.m. on November 13, 2001, when it was directed they would be removed to the United States. On November 9, the applicants filed an application for leave and for judicial review seeking an order to have set aside the decision that they be removed from Canada. Thereafter, on November 12 the application for a stay of removal was filed and heard that day.
[5] The adult applicant, the mother, by affidavit states that she believes her husband may have been killed in Sri Lanka in January, 2001 by the army which had detained him some three or more years ago. This is based on reports of the death of prisoners at the hands of the army, but no direct evidence relating to her husband. As a result of this fear she suffered depression which precluded her from effectively looking after her immigration concerns until recently. Her condition required medical attention. A statement of a doctor, dated October 10, 2001, concerning his assessment of her condition, the drugs prescribed and the need for continuing supervision was included with her affidavit. Her explanation of failure to file an application record in support of her earlier application for leave and for judicial review, in addition to her depressed state, is that her then counsel failed to contact her to complete an affidavit, which she understood she would be required to file as part of the record for that application. She has established self-employment as a dance teacher Toronto and has been self-supporting.
[6] After hearing counsel for the parties I dismissed the application. I was not persuaded that any serious issue was before the Court. There was no evidence that the decision for removal of the applicants from Canada was made in error and the application for judicial review, filed in January 2001, which it was urged would raise serious questions about the CRDD decision denying the applicants' claim for refugee status, was not at this stage, a matter before the Court. That application has been dismissed and in view of the burden the applicants have in justifying an application for leave to apply for reconsideration and for reconsideration of the Order of Dubé J., particularly at this stage, when no question has been previously raised, there is not an issue now before the Court about the decision of Mr. Justice Dubé, or the decision of the CRDD.
[7] Further, I am not persuaded that in this case irreparable harm is established despite the arguments of counsel for the applicants that by their removal now the applicants would effectively lose their legal rights to pursue the matter of reconsideration, and even if there should be a positive decision in relation to their h & c application it would be unlikely they could benefit from that. In my opinion no loss of legal rights would arise from removal from Canada since the application for leave to seek reconsideration can be dealt with by the Court on the basis of written submissions as originally requested, and the determination of their h & c application will proceed whether or not they are in Canada.
[8] I was not satisfied that any case was made for potential loss of access to health treatment, if required by the applicants, particularly since removal is to be to the United States and for the same reason, no risk of physical danger to either applicant was established. It was urged that the child, of tender years, would suffer from disruption to schooling and if returned to Sri Lanka, possible separation from her mother who feared possible arrest because of her husband's earlier detention and his possible death at the hands of the army. At this stage any possible harm in Sri Lanka is purely speculative and there is no basis for concluding that even that speculative harm would occur before determination of the applicants' application for reconsideration. Irreparable harm must be established as likely to occur within the period before determination of any issue before the Court and none is here established.
Conclusion
[9] The application for a stay was dismissed.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
November 22, 2001.