Date: 19980707
Docket: IMM-3331-98
OTTAWA, ONTARIO, THIS 7TH DAY OF JULY, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
UTHAYAKKUMAR KARTHIGESU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM J.:
[1] This is an application for an order granting a stay against the execution of a removal order until such time as the applicant's humanitarian and compassionate application, which has been pending for sometime, from the month of February 1998, is considered and finally determined.
[2] I heard this present application for stay on today's date by means of a telephone conference call.
[3] The applicant is scheduled to be removed from Canada to the United States of America at 9:00 a.m., July 8, 1998.
[4] It is trite law to say that in order for an application to stay a removal order, the applicant has the onus to show that he has an arguable case, will suffer irreparable harm if the removal order is carried out and that the balance of convenience lies in his favour.
[5] The applicant must show all three of the above "elements" in order to succeed in his application.
[6] Counsel for the respondent concedes that the applicant has an arguable case but contexts the issue of irreparable harm as well as the issue of the balance of convenience.
[7] Under normal circumstances, I am satisfied that being removed from Canada to the United States of America for a citizen of Sri Lanka, as is the applicant, cannot be considered as causing irreparable harm.
[8] In the present case, the facts are somewhat unusual. If the applicant is removed to the United States and because he is a citizen of Sri Lanka with no right to remain in the United States, according to the affidavit evidence of Lorne Waldman, a well known expert in Immigration Law, the United States Immigration and Naturalization Service officials have implemented a stricter policy for the treatment of persons being returned to the United Stated from Canada and it has become the practice to detain persons who fall within the applicant's profile.
[9] Although the applicant, according to Mr. Waldman, can claim asylum in the United States, he would most likely, be detained while this process was taking place.
[10] I am satisfied that being detained, by itself, in the present circumstances, would not be irreparable harm.
[11] Counsel for the applicant states that the applicant would suffer irreparable harm because, if he is detained in the United States, and the respondent agrees that the applicant has a valid humanitarian and compassionate claim, the applicant would not be permitted by the United States Immigrations authorities to return to Canada.
[12] I have no evidence to this effect.
[13] Therefore, I cannot accept the submission that the applicant would be subject to irreparable harm by being returned to the United States.
[14] The issue that the applicant will be returned to Sri Lanka by the United States Authorities in the event that his claim for asylum fails was put forward.
[15] Although, the affidavit evidence of Mr. Waldman strongly suggests that the applicant may not be granted asylum in the United Stated and that he will likely be removed to Sri Lanka, I am satisfied that this evidence is speculation at this time.
[16] The applicant submits that he faces removal from the United States to Sri Lanka where he claims a clear risk of torture and other forms of cruel, inhuman or degrading treatment.
[17] The applicant had made two refugee applications. He was refused on both occasions. In the last decision of the Refugee Board, the applicant's credibility was seriously questioned. The applicant did not file an application for leave and for judicial review of this decision.
[18] Therefore, I cannot accept the submission, based on the information before me, that the applicant would be subject to cruel treatment at the hands of the Sri Lankan authorities.
[19] The application for stay is denied.
OTTAWA, ONTARIO "Max M. Teitelbaum"
July 7, 1998. J.F.C.C.