Date: 20040130
Docket: IMM-474-04
Citation: 2004 FC 170
Ottawa, Ontario, this 30th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
SINNATHAMPY SIVANANTHAN
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] This is an application for:
(a) Leave to commence an application for an interim order of prohibition or for an interim stay of the removal of the Applicant from Canada, scheduled for February 5, 2004, pursuant to a removal order which became effective on a date unknown to the Applicant, prohibiting the Respondent and/or Citizenship and Immigration Canada from removing the Applicant from Canada, pending determination by this Court of the application for leave and for judicial review in Registry No. IMM-474-04, issued, served and filed January 20, 2004;
(b) If leave is granted, for an interim order of prohibition or for an interim stay of the removal of the Applicant as aforesaid, pursuant to section 18.2 of the Federal Court Act.
[2] The Respondent requested that, as a result of changes in the organization of the Government of Canada, the style of cause be amended to substitute The Solicitor General of Canada for The Minister of Citizenship and Immigration.
The Facts
[3] The facts of this case are somewhat unusual and the responsibility for the unusual circumstances does not rest with the Respondent. However, the Court's function in this instance is not to assign blame, but to deal with the facts as they have ultimately been flushed out.
[4] The Applicant is a 45 year old male citizen of Sri Lanka. He is married to Mallika Sivanantham and they have two children aged 20 and 13 years respectively.
[5] The Applicant's wife and children came to Canada in June 1993 and claimed refugee status which was granted in September 1993.
[6] In October 1993, the Applicant's wife applied for landed status in which she included the Applicant as a family member who was to be processed overseas as he had remained in Sri Lanka.
[7] There was substantial delay in dealing with the wife's landing application such that by 1997, despite no landing decision, the Applicant came to Canada to make a refugee claim.
[8] The Applicant's landing was being dealt with at the Canadian High Commission in Colombo. Having located to Canada, the Applicant did not receive a letter scheduling his interview in Sri Lanka and therefore did not attend. His refugee application was denied.
[9] The Applicant in 1999 made a PDRCC application which was subsequently changed to a Pre-Removal Risk Assessment ("PRRA"). In July 2003 he also filed an application for permanent residence on humanitarian and compassionate grounds.
[10] Things started to go badly in October 2001 when the Applicant's wife, in response to a request for an up-dated permanent residence form, omitted the Applicant from the form.
[11] To compound matters, in 2003, in filing up-dated forms, the Applicant's wife added the Applicant to the form this time but then proceeded to tick the box "No" in answer to whether he was included in the application. This same "no" box was also ticked in respect of the daughter who had been included in all previous filings.
[12] On January 5, 2004 the Applicant received a negative PRRA and is scheduled for removal on February 5, 2004.
[13] The Applicant's counsel then requested a deferral which was denied by Bob Hickson ("Hickson") on the basis that the wife's landing application had indicated that the Applicant was not included in her application.
[14] The Applicant's counsel immediately filed a further up-dated landing application adding the Applicant and daughter to the application and requested Hickson to reconsider the deferral decision.
[15] Upon being advised that Hickson was away and the matter of removal being increasingly imminent, counsel requested that another officer consider the deferral request.
[16] On January 26, 2004, Kateja Nikitin ("Nikitin") denied the deferral. The letter to the Applicant gives no hint of the reasons for such refusal however, in the internal file memo, Nikitin indicates that the deferral was refused because the Applicant "will not be landed with his family in the near future" ("speed of landing").
Decision
[17] It is clear from the evidence that the first two up-dated landing applications did not reflect the true intentions of the Applicant and more importantly, the Applicant's wife.
[18] Since the errors were corrected only after Hickson issued his first refusal to defer, which was reasonable to do in the circumstances, that decision cannot be impeached.
[19] The second decision, the one rendered by Nikitin, arose in circumstances of urgency and in the face of a confusing record. No criticism of Nikitin should be taken from this decision, except for the Respondent's common enough practice of not disclosing the real reason for a deferral until the matter comes to this Court.
[20] Having said that, there is a serious issue on the question of whether "speed of landing" is a relevant matter in circumstances where the sponsor for landing is also a refugee living in Canada.
[21] The Court was presented with an affidavit of Barbara Jackman, a well known immigration lawyer, attesting to what is the practice of the immigration officials and opining on the legal and policy rationale for the practice. The admissibility of such evidence is highly questionable and was not particularly helpful. I take nothing from it.
[22] Neither party directed the Court to any case where the legal issue had been considered in this context. I find that a serious issue has been raised.
[23] The harm which would flow from a removal is not that which would be the natural consequences of a deportation. The Applicant's wife could not visit the Applicant or move back given her status. In addition, there are particular circumstances of economic harm which would likely result.
[24] There is other evidence of harm which cumulatively is irreparable. I note that despite numerous decisions that adverse economic consequences are a natural result of deportation, in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), so often cited for the tri-partite test for a stay in immigration matters, the Federal Court of Appeal found on the facts of that case, that where a family business may fail and where immediate family and others are dependant on that business, at least a portion of this potential harm is irreparable.
[25] Therefore, given all the facts of this case considered as a whole, I find that the Applicant has made out a case for irreparable harm.
[26] I also find that the balance of convenience favours the Applicant.
ORDER
THIS COURT ORDERS that:
1. The Minister of Citizenship and Immigration is removed from the style of cause as the Respondent and The Solicitor General of Canada is added as the Respondent.
2. The Applicant's removal scheduled for February 5, 2004 is stayed until the earlier of one (1) year from this date or the decision in respect of Mallika Sivanantham's application for permanent residence, or until otherwise ordered by this Court.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
January 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-474-04
STYLE OF CAUSE: SINNATHAMPY SIVANANTHAN
- and -
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, January 26, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Friday, January 30, 2004
APPEARANCES:
D. Clifford Luyt
FOR APPLICANT
Matina Karvellas
FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT