Federal Court Decisions

Date: 20061025

Docket: IMM-5547-06

Citation: 2006 FC 1280

Ottawa, Ontario, October 25, 2006

PRESENT:     The Honourable Mr. Justice Harrington

BETWEEN:

KASTURI ARACHCH PERERA (a.k.a. JOSEPH GAMINI

PERERA) and NILUPA DILAKSHA FERNANDO

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION and

THE MINISTER OF PUBLIC SAFETY AND

EMERGENCY PREPAREDNESS

Respondents

REASONS FOR ORDERS

[1]               The applicants, husband and wife, are scheduled to be removed from Canada next week. Although they are Sri Lankan citizens, Mr. Perera is to be removed to the United States, and Ms. Fernando to Sri Lanka. Ms. Fernando intends to take their two Canadian-born children with her.

[2]               They seek a stay of their removal pending the resolution of proceedings currently before this Court. After their claim for refugee status was dismissed, they sought a pre-removal risk assessment (PRRA) of the situation in Sri Lanka and as well requested permission to stay in Canada on humanitarian and compassionate (H&C) grounds. Both applications were dismissed.

[3]               Their applications for leave and for judicial review thereof were recently filed. No decisions have been rendered as yet.

[4]               The motions for a stay of removal were made in Court docket number IMM-5547-06 in which leave and judicial review is sought from the PRRA decision. The H&C application is under Court docket number IMM-5460-06. However, the Ministers did not protest this irregularity and I waive it.

[5]               It is well established that in order to obtain the interlocutory remedy of a stay, the applicant must raise a serious issue in the underlying proceedings which have not yet been decided, irreparable harm and establish that the balance of convenience favours him. The applicant must succeed on all three points (Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL), (1988), 86 N.R. 302 (F.C.A.); RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).

[6]               As I am not satisfied that a case of irreparable harm has been made out, it is not necessary to consider whether there is a serious issue in either of the underlying applications. No case of irreparable harm has been made out covering the relatively short timeframe for the applications to be resolved. The officer who rendered the PRRA and H&C decisions was criticized for referring to negative credibility findings in the refugee decision. It was suggested that she should have made a credibility finding de novo. However, as stated by Mr. Justice Nadon in Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (QL) at paragraph 12:

The Applicants seem to be of the view that if they continue to add documents to the record, the credibility findings of the Refugee Board are somehow going to be "reversed" or "forgotten". In my view, that is a mistaken view because the officer who hears an H&C application does not sit in appeal or review of either the Refugee Board or the PDRCC Officer's decision. Thus, on the H&C application, Mr. St. Vincent could not proceed on the basis that Mr. Hussain was an MQM member, given the Refugee Board's findings in that respect. In short, the purpose of the H&C application is not to re-argue the facts which were originally before the Refugee Board, or to do indirectly what cannot be done directly -- i.e., contest the findings of the Refugee Board.

[7]               The officer is also criticized for not considering the possibility that husband and wife would be separated and that the wife, and their children, would be susceptible to persecution in Sri Lanka as a family headed by a single mother.

[8]               The officer did take into account the interests of the Canadian-born children, both under five years of age, and acted on the premise that the family would stay together. She specifically stated that there was no evidence to support the proposition that the best interests of the children would be compromised “upon returning to Sri Lanka with their parents.”

[9]               However Mr. Perera and Ms. Fernando, although already married, arrived in Canada separately. Mr. Perera arrived via the United States and so, in accordance with arrangements Canada has with that country, could be returned there. Ms. Fernando and the children cannot.

[10]           The enforcement officer charged with the responsibility of removing the couple (but not the children who are entitled to remain here) was quite aware of the situation and gave Mr. Perera three weeks to decide whether he would prefer to return directly to Sri Lanka with his wife. They together, it seems, would prefer the children to remain with Ms. Fernando, rather than to stay in Canada with her parents. Apparently in order to prove his fear is legitimate, notwithstanding that it has so far been considered to be ill-founded; Mr. Perera said he would prefer to go to the United States. In fact he suggests that he may be there for years, which implies that he would make a refugee claim there.

[11]           A good part of Ms. Fernando’s application, which was separate from that of her husband’s, was based upon the IRB’s Country of Origin Research concerning widows, single women and single mothers in Sri Lanka. However, it is her husband’s choice that she be a single mother in Sri Lanka, not the enforcement officer’s, and it is completely inappropriate to bring the PRRA officer to task. Although the officer did consider violence against women, there was no need for her to consider the plight of single mothers.

“Sean Harrington”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-5547-06

STYLE OF CAUSE:                          KASTURI ARACHCH PERERA (a.k.a. JOSEPH GAMINI PERERA) and NILUPA DILAKSHA FERNANDO

v.

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      October 23, 2006

REASONS FOR ORDERS:             HARRINGTON J.

DATED:                                             October 25, 2006

APPEARANCES:

SOLICITORS OF RECORD: