Date: 20040119
Docket: IMM-10292-03
Citation: 2004 FC 77
Toronto, Ontario, January 19th, 2004
Present: The Honourable Mr. Justice Shore
BETWEEN:
PARARAJASINGAM THAMBIRAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is a motion to stay the execution of a removal order. The Applicant is being removed from Canada on January 22, 2004.
[2] The Applicant seeks that an order in the nature of certiorari be granted to quash the decision of the immigration officer.
[3] The Applicant was assessed under the PRRA.
[4] The Applicant further seeks that an order be issued in the nature of mandamus compelling the Respondent to provide the Applicant with a full and fair determination of the Applicant's risk should be return to Sri Lanka.
BACKGROUND
[5] The Applicant is a Tamil from Sri Lanka. It appears that the Applicant came to Canada in late 1999 or early 2000. He claimed refugee status, but was rejected. He has received a PRRA assessment, and was rejected.
[6] The Applicant claims to have a common law wife. His common law wife has a 7 year old daughter that is very ill, with Combined Immunodeficiency Disease and Lymphoma. The Applicant claims that he financially supports his common law wife and her daughter.
ISSUE
[7] Should the removal order be stayed?
ANALYSIS
[8] In order to grant a stay of a removal order, the Court must be satisfied:
a) the Applicant has raised a serious issue to be tried;
b) the Applicant will suffer irreparable harm if removed from Canada;
c) the balance of convenience favours the Applicant.
The Applicant must satisfy all three branches of the test (See Toth v. Canada (Minister of Employment and Immigration [1998], 86 N.R. 302 (F.C.A.).
[9] Prior to examining the substantive test there is a potential inconsistency in the Applicant's materials. The Applicant claims that he has a common law wife and his wife has a seven year old daughter. However, the letter from Sick Kids Hospital states that the girl who is ill is the Applicant's "niece", (p. 61 of the Record) is possibly a translation error from the Tamil. If this inconsistency is sorted out or a simple error of translation, then it would appear that there would be irreparable harm for the common law wife and child but not necessarily the Applicant, should the Applicant be removed from Canada as the Applicant's wife depends upon him emotionally and financially. The balance of convenience also appears to be one that would favour the situation. Nevertheless, the Toth test must be applied thoroughly. Reference is made to the Zolotareva v. Canada (M.C.I.) [2003] F.C.J. No. 1596 which is key to this motion to stay, wherein the H and C matter has been brought to the fore and not that of the PRRA officer. Reference is made to Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C., 682, paragraphs 47 and 48.
[10] Even if a stay was granted, there is no serious issue to be tried.
[11] The Applicant submits that the immigration officer was under a duty to give the Applicant the opportunity to refute his or her assessment that the Applicant would not be at risk of persecution should he be removed to Sri Lanka and cites Yang v. Canada (M.E.I.) [1989] F.C.J. No. 218 in support of the submission. Yang is not applicable, as that case is in respect of a visa matter. In that case, an interview was conducted but the officer failed in his or her duty to ask pertinent questions. Here, however, the Applicant does not prove that an interview in which further information would be disclosed was obligatory. Moreover, in visa cases the onus is still on the Applicant to demonstrate that she or he meets the selection criteria. In the context of the PRRA, the Applicant must demonstrate that her or she would be at risk were he ro she to be removed from Canada. It is not the duty of the immigration officer to advise the Applicant as to what the Applicant must satisfy in order to be accepted under the PRRA. This is essentially, what the Applicant is arguing the immigration officer must do, and as such, that argument is rejected.
[12] The Applicant submits that the immigration officer should have assessed whether there would be irreparable harm to the Applicant's common law wife and daughter should he be removed from Canada. However, in accordance with sections 96-98 if the IRPA, the officer only assesses the harm that may occur to the person himself should he be removed. Irreparable harm that would occur to the Applicant's family members should they be left in Canada when the Applicant is deported is not within the purview of a PRRA assessment.
[13] The Applicant appears to submit that the immigration officer had a duty to consider whether the Applicant would qualify for a spousal sponsorship. However, the Applicant does not cite any authority to support his submission. An immigration officer determining a PRRA, has no duty to look at whether the Applicant could qualify for some other form of status in the country.
[14] Finally, the Applicant argues that the immigration officer erred in his or her assessment of the documentary evidence. This submission is not persuasive. The officer did note that there was a slowdown in the improvements to the political situation in Sri Lanka (at p. 49 of the record) and that there had been reports of extrajudicial killings, reports of disappearances and institutionalized discrimination against Tamils (at p. 54). The officer weighed the positive and negative occurrences in Sri Lanka and decided that there was sufficient improvement that the Applicant would not be harmed should he be removed from Canada to Sri Lanka.
CONCLUSION
[15] The Toth test is a tri-partite conjunctive test, wherein all three branches must be satisfied. On that alone, the stay application fails.
ORDER
THIS COURT ORDERS that the application for stay is denied.
"Michel M. J. Shore"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10292-03
STYLE OF CAUSE: PARARAJA THAMBIRAJA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 19, 2004
REASONS FOR ORDER
AND ORDER BY: SHORE J.
DATED: JANUARY 19, 2004
APPEARANCES:
Helen P. Luzius For the Applicant
Martin Anderson For the Respondent
SOLICITORS OF RECORD:
Helen P. Luzius
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto Ontario For the Respondent