Date: 20031002
Docket: IMM-6670-03
Citation: 2003 FC 1138
Ottawa, Ontario, this 2nd day of October, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MAHESH MUTHUMUDALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion for an order staying the removal of the applicant from Canada which removal is scheduled for October 2, 2003.
[2] The applicant is a citizen of Sri Lanka who arrived in Canada on December 9, 1999. He made a claim for Convention refugee status which was denied by the Refugee Division of the Immigration and Refugee Board on June 14, 2001.
[3] The applicant made an application on July 23, 2001 to be recognized as a member of the Post Determination Refugee Claimants in Canada ("PDRCC") class.
[4] As a result of the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the applicant's PDRCC application was converted to a Pre-Removal Risk Assessment ("PPRA"). The applicant was given until January 10, 2003 to provide further submissions in addition to his submissions given in relation to the PDRCC application on August 24, 2001.
[5] The applicant received a negative PRAA decision on August 12, 2003.
[6] In reaching her decision, the PRAA officer relied on the Amnesty International Report 2003 - Sri Lanka and the U.S. Department of State Country Report on Human Rights Practices 2002 - Sri Lanka. These reports were not published or publically available at the time the applicant made his final submissions. The PRRA officer did not provide the applicant with a copy of these reports.
[7] The applicant stated at paragraphs 12 and 13 of his affidavit:
I continue to believe that I will suffer persecution if I am returned to Sri Lanka. I believe that I will be killed by the henchmen of Gamini Lokuge, a member of the Sri Lankan ruling party.
Mr. Kokuge's henchmen have visited my family's home in Sri Lanka numerous times since I left Sri Lanka inquiring about my whereabouts.
[8] Issue
Should an order issue granting a stay of the removal order?
[9] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
The applicant must meet all three branches of the tri-partite test set out in Toth, supra.
Analysis and Decision
[10] I propose to deal first with the issue of whether or not the applicant will suffer irreparable harm if the removal order is not granted.
[11] Irreparable Harm
The establishment of irreparable harm involves a high threshold. The applicant bases his fear of persecution on the fact that Gamini Lokuge and his "henchmen" will persecute him because of his political involvement in campaigns, rallies and writing media articles against a hotel development in Sri Lanka. He supports this position with the fact he was attacked and stabbed in 1989 and the fact that Mr. Lokuge and his followers have been inquiring about the applicant's whereabouts from his family in Sri Lanka. The evidence does not establish when the last inquiries were made of his family. As well, the evidence does not mention any threats being made against the applicant or his family. The applicant left Sri Lanka in 1989. Based on the above evidence and considering the arguments presented to me, I am not satisfied that the applicant would suffer irreparable harm if the order is not granted.
[12] Since the applicant must meet all three parts of the tri-partite test for his removal order to be stayed, I need not deal with the other two parts of the test.
[13] The motion of the applicant is dismissed.
ORDER
[14] IT IS ORDERED that the motion of the applicant for a stay of the removal order issued against him is denied.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 2, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6670-03
STYLE OF CAUSE: MAHESH MUTHUMUDALI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Wednesday, October 1, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, October 2, 2003
APPEARANCES:
Mike Bell
FOR APPLICANT
Susanne Pereira
FOR RESPONDENT
SOLICITORS OF RECORD:
Bell, Unger, Morris
Ottawa, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
FOR RESPONDENT