Date: 20060222
Docket: IMM-847-06
Citation: 2006 FC 240
Vancouver, British Columbia, Wednesday, the 22nd day of February, 2006
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Mansil Pathmanath
KAMBURUGAMUWA LOKU ACHARIGE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
Despite the able efforts made by the applicant's counsel to demonstrate that the Officer's conclusion is unreasonable, the documentary evidence is not unequivocal. Questions of weight and credibility to be given to evidence in risk assessment are entirely within the discretion of the PRRA Officer, and normally the Court should not substitute its analysis for that of the Officer.
Sidhu v. Canada, [2004] F.C. IMM-3920-03, Justice Martineau, January 6, 2004; Kaur v. Canada (M.C.I.), [2003] F.C. 1293; Singh v. Canada (M.C.I.), [2003] F.C. 1303, Justice Lemieux.
BACKGROUND
[1] The Applicant, Mansil Pathmanath Kamburugamuwa Loku Acharige ("Mr. Acharige") is a citizen of Sri Lanka. He is subject to an order requiring his removal from Canada (the "Removal Order").
[2] Mr. Acharige filed an application for a Pre-Removal Risk Assessment in December 2004 (the "PRRA Application"). In September 2005, the PRRA Officer determined that he would not be at risk to his life or subject to cruel and unusual treatment or punishment if he were returned to Sri Lanka (the "First PRRA Decision"). Mr. Acharige challenged that decision in the Federal Court, and sought a stay of his removal from Canada pending the outcome of that challenge. That application for a stay was successful, the First PRRA Decision was set aside by the consent of the parties, and Mr. Acharige's PRRA Application was re-considered by a new PRRA Officer.
[3] The PRRA Officer conducting the redetermination, concluded that Mr. Acharige would not be at risk to his life or subject to cruel and unusual treatment or punishment if he were returned to Sri Lanka (the "Second PRRA Decision"). Mr. Acharige has now challenged this decision in the Federal Court, and once again seeks an order staying his removal from Canada pending the determination of his Application for Leave and for Judicial Review.
THE FACTS
[4] Mr. Acharige is a 32-year old citizen of Sri Lanka. He arrived in Canada in September 2002 on a student visa and claimed refugee protection in February 2003 (RPD Decision, Applicant's Motion Record ("AMR"), at Tab 7, pp. 47 and 51).
[5] On April 13, 2004, the the Refugee Protection Division of the Immigration and Refugee Board ("RPD") heard Mr. Acharige's refugee claim. His claim was based on his membership in the People's Alliance party (the "PA"), one of the two main political parties in Sri Lanka. He claimed that members of the United National Party (the "UNP"), the other main political party in Sri Lanka, threatened him because of his recruiting activities for the PA during the 2001 elections. In addition, Mr. Acharige claimed that he was at risk from both UNP members and the police in Sri Lanka because of his suspected involvement in the murder of a UNP official, Olvin Senarathna ("Olvin") (RPD Decision, AMR at Tab 7, pp. 50 - 51).
[6] On April 19, 2004, the RPD refused Mr. Acharige's refugee claim. It found that Mr. Acharige's claim was not credible because of significant contradictions and inconsistencies between his initial Personal Information Form ("PIF") and the documentary evidence. The RPD specifically rejected Mr. Acharige's explanation that the inconsistencies were the result of mis-communication with his former counsel. As a result, the RPD did not accept that Mr. Acharige would face any risk from either the UNP or the police in Sri Lanka (RPD Decision, AMR at Tab 7, pp. 51 - 56).
[7] The RPD also concluded that the five-month delay between Mr. Acharige's arrival in Canada and making the refugee claim demonstrated a lack of subjective fear. The RPD did not accept Mr. Acharige's explanation for this delay as reasonable (RPD Decision, AMR at Tab 7, p. 54).
[8] On December 1, 2004, Mr. Acharige filed his application for a PRRA. He raised essentially the same issues that he raised before the RPD, namely, that he faced a risk from the UNP because of his former political involvement with the PA, as well as a risk from both the UNP and the police because of his suspected involvement in the Olvin murder (First PRRA Application, AMR at Tab 9, pp. 58 - 68; First PRRA Submissions, AMR at Tab 9, pp. 69 - 73).
[9] Mr. Acharige also filed new evidence that was not before the RPD in his PRRA Application, including a Summons from a Sri Lankan court (the "Summons"). He stated that the Summons was further evidence of his risk from the Sri Lankan authorities (First PRRA Submissions, AMR at Tab 9, pp. 69 - 73; Summons, AMR Tab 14, p. 131).
[10] On September 6, 2005, the PRRA Officer rejected Mr. Acharige's PRRA Application. She found that he would not suffer risk to his life or cruel and unusual treatment or punishment if he were returned to Sri Lanka. In doing so, she highlighted discrepancies in the Summons and provided it little weight (First PRRA Decision, AMR Tab 10, pp. 74 - 84).
[11] Mr. Acharige filed an Application for Leave and Judicial Review of the First PRRA Decision, and sought an Order from the Federal Court staying his removal from Canada until that application could be considered. On September 22, 2005, Mr. Justice Gibson granted the stay motion (Order Granting Stay, AMR Tab 11, pp. 84 - 85).
[12] By the consent of the parties, the First PRRA Decision was set aside, and Mr. Acharige's PRRA Application was to be redetermined by a different officer (Notice of Discontinuance by Consent, AMR Tab 13, p. 88).
[13] On January 4, 2006, Mr. Acharige provided updated PRRA submissions for the redetermination of his PRRA Application. He alleged a continued risk on two grounds: first, that he feared the Sri Lankan police, who he claimed were seeking him in relation to the death of the UNP official, Olvin; secondly, that he continued to fear members of the UNP who might be seeking retribution for that incident. In support of his application, he provided new evidence which was not before the RPD, including:
i) The Summons from the Sri Lankan court;
ii) A note from a police inspector named P.C. Gunathilake;
iii) Letters confirming his membership in political parties;
iv) Several Sri Lankan news articles; and
v) Several news articles on conditions in Sri Lanka.
(Second PRRA Submissions, AMR Tab 14, pp. 89 - 101.)
[14] In addition, Mr. Acharige provided evidence of developments in Sri Lanka that had arisen after the First PRRA Decision. Specifically, Mr. Acharige alleged that a gang of UNP supporters attacked his father, Simil Kamburugamuwa, in November 2005, and demanded that his father bring him back to Sri Lanka. In support of this allegation, Mr. Acharige provided a police report from when his father reported the incident to the Sri Lankan authorities, a medical report with respect to his father's injuries, and a newspaper article detailing the incident (Second PRRA Submissions, AMR Tab 14, pp. 97; Police Report dated 2005/11/03, AMR Tab 14, p. 102; Sirlaka Newspaper article, AMR Tab 14, p. 104).
[15] On January 30, 2006, the PRRA Officer considered Mr. Acharige's PRRA Application and updated submissions and rejected his claim. She found that he would not suffer risk to his life or cruel and unusual treatment or punishment if he were returned to Sri Lanka (Second PRRA Decision, AMR Tab 16, pp. 270 - 285).
[16] With respect to the fear alleged from the Sri Lankan police, the PRRA Officer found that there was no evidence that Mr. Acharige was similarly situated to the people who might be at risk from the authorities as outlined in the country conditions documents. With respect to the Summons he produced, she found that it was unrelated to any of his allegations of fear with respect to the incident involving Olvin. While she accepted that the Sri Lankan police were interested in contacting him, there was no indication that the police would mistreat him (Second PRRA Decision, AMR Tab 16, pp. 281 - 282).
[17] With respect to the alleged fear from UNP supporters, the PRRA Officer examined the country conditions documents and found that the Sri Lankan authorities could adequately protect Mr. Acharige from the violent members of the UNP (Second PRRA Decision, AMR Tab 16, pp. 282 - 283).
[18] Mr. Acharige has filed an Application for Leave and Judicial review of the PRRA Officer's decision. He now seeks an Order staying his removal from Canada until that application is finally dealt with.
[19] Mr. Acharige is currently scheduled to be removed from Canada on Thursday, February 23, 2006.
ISSUES
[20] The issue before the Court on this motion is whether Mr. Acharige has satisfied the three-part test for an order staying his removal from Canada by demonstrating that:
(a) he has raised a serious issue to be tried with respect to the Second PRRA Decision;
(b) he will suffer irreparable harm if his removal is not stayed; and
(c) considering the total situation of both parties, the balance of convenience favours staying his removal.
The test for a stay order is conjunctive. To be granted the relief he seeks, Mr. Acharige must satisfy all three parts (Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.)).
ARGUMENT
A) No Serious Issue to Be Tried
[21] In order to satisfy the first branch of the Toth test, the onus is on Mr. Acharige to show that the issues in the underlying Application for Leave and for Judicial Review raise at least an arguable case (Rahman v.Canada (M.C.I.), [2001] F.C.J. No. 106 at para. 15; Molnar v. Canada (M.C.I.), 2001 FCT 325 at para. 12).
[22] Mr. Acharige argues that the PRRA Officer committed three errors when she determined that he would not be at risk in Sri Lanka:
1) He argues that the PRRA Officer erred in assessing the Summons because she did not determine whether it was genuine. He argues that if the Summons is genuine, then he is wanted by the police and therefore at risk. In order to determine if the Summons was genuine, he argues the PRRA Officer was obligated to interview him, and he claims it was an error on her part not to summon him for an interview.
2) He argues that the PRRA Officer did not adequately assess his two risk claims under both sections 96 and 97 of IRPA, and that her reasons are inadequate as they do not address his claims to protection under both grounds.
3) He argues that the PRRA Officer erred in her state protection findings because she did not consider the evidence of Mr. Acharige's father, and because she did not consider that, by virtue of the Summons, Mr. Acharige is wanted by the police and cannot rely on them for protection.
(Applicant's Written Representations, AMR Tab 17, at para 32.)
[23] The Minister submits that none of these arguments raise a serious issue to be tried, and are based on a narrow reading of the Second PRRA Decision.
[24] Mr. Acharige argues that the court Summons that he presented was conclusive evidence that he would be at risk if he returned to Sri Lanka. More particularly, he argues that the PRRA Officer erred by not clearly stating whether she found the court Summons was fraudulent. Furthermore, he argues that since the Summons had to be presumed to be valid and since the PRRA Officer did not clearly find that it was fraudulent, the only reasonable conclusion open to the PRRA Officer was that Mr. Acharige would be at risk if he returned to Sri Lank (Applicant's Written Representations, AMR Tab 17, at paras 40 - 43).
[25] The PRRA Officer accepted that the Summons presented by Mr. Acharige was genuine and established that the authorities in Sri Lanka were attempting to contact him. She specifically did not find that the Summons was fraudulent. She found:
I will not make a finding as to whether the summons is genuine, as that might be construed as a credibility finding. I will consider the summons in conjunction with the other evidence provided by counsel. My research and comments are only made to demonstrate that I have taken the time to review the Summons very carefully in light of the importance placed upon it by Counsel.
(Second PRRA Decision, AMR Tab 16, p. 281.)
[26] Although the PRRA Officer accepted that the Summons established that Mr. Acharige was being sought by the authorities in Sri Lanka, she reasonably found that that fact alone did not establish that he would be at risk if he returned to Sri Lanka. The PRRA Officer found:
In my opinion, it is simply part of the evidence placed before me, and I do not find it determinative of risk in and of itself.
(Second PRRA Decision, AMR Tab 16, p. 281.)
[27] Contrary to what Mr. Acharige argues, it does not necessarily follow that simply because he was directed to appear in court in Sri Lanka, or is required to contact a police officer, that he would be at risk from the authorities. This, particularly, since the court Summons and the note from the police officer in Sri Lanka do not appear to relate to the events surrounding Olvin, which caused Mr. Acharige to leave Sri Lanka in 2002 (Summons, AMR Tab 14, p. 131; Note from P.C. Gunathilake, AMR Tab 14, p. 135).
[28] A genuine court summons is not necessarily conclusive evidence that a person is at risk, unlike an identity document, which if genuine, is arguably determinative of a person's identity. Mr. Acharige argues that the PRRA Officer had to conclude either that the court Summons was genuine and he was at risk or that the court Summons was fraudulent; however, these were not the only two conclusions that could be drawn by the PRRA Officer with respect to the court Summons. There was also at least one more reasonable conclusion, namely that the court Summons, even accepting that it was genuine, did not establish that Mr. Acharige would be at risk if he returned to Sri Lanka now. That finding is reasonable because the Summons was entirely unrelated to the events which formed the basis of his risk claim, did not situate Mr. Acharige as a person at risk within the country condition documents, and there was no indication that he would be mistreated by the police for whatever it is they may now be seeking him. This is the conclusion that the PRRA Officer reached.
[29] Since the PRRA Officer did not find the Summons to be fraudulent, she did not impeach the credibility of Mr. Acharige or his documentation. Consequently, she was not required to interview him and it was not an error to reach her conclusions on the basis of the documents before her.
[30] Mr. Acharige is actually asking this Court to endorse his position that if the court Summons is genuine, then he is automatically at risk in Sri Lanka. He is asking this Court to reconsider the evidence that was before the PRRA Officer and draw inferences from that evidence which she refused to draw; however, it is well-settled law that it is not the role of this Court on a judicial review application to reconsider and re-weigh the evidence, and it cannot form the basis of a serious issue on this stay motion.
[31] Mr. Acharige argues that the PRRA Officer failed to properly analyze his risk claims under both sections 96 and 97 of IRPA. He argues that by refusing to determine whether the Summons was fraudulent, the PRRA Officer failed to assess his s. 96 fears from the Sri Lankan authorities because of his involvement in Olvin's death. He further argues that she does not understand and address his s. 97 claim of risk from UNP supporters, also because of his involvement with Olvin (Applicant's Written Representations, AMR Tab 17, at paras 60 - 61).
[32] Contrary to Mr. Acharige's claim, the PRRA Officer properly assessed both of his allegations of risk, and provided adequate reasons for rejecting both claims.
[33] With respect to the allegation that Mr. Acharige was at risk from the Sri Lankan authorities because of his involvement in the death of Olvin, this was the same allegation that was rejected as not credible by the RPD. Mr. Acharige provided new information to support that allegation, namely the court Summons and a note from a Sri Lankan police officer requesting that Mr. Acharige "please meet P.C. Gunathilake as you have a complaint." (Summons, AMR Tab 14, p. 131; Note from P.C. Gunathilake, AMR Tab 14, p. 135.)
[34] The PRRA Officer found that the new evidence which Mr. Acharige produced did not establish that he was at risk from the Sri Lankan authorities. As stated above, she found that the court Summons was not indicative of risk to Mr. Acharige. It was not in relation to events surrounding the death and investigation related to Olvin, which was the basis for Mr. Acharige's fear from the authorities. She also found that the note from the Sri Lankan police did not establish that Mr. Acharige was at risk from the police, as it did not state the nature of the complaint, whether the complaint was against Mr. Acharige or made on his behalf, or to what matter the complaint related. Ultimately, the PRRA Officer reasonably concluded:
The Applicant has not placed anything before me that is new since the RPD decision which demonstrates that the police have an interest in arresting, torturing, or killing him, as he has alleged. I do not find him to be at risk from the Police in the event of his return to Sri Lanka.
(Second PRRA Decision, AMR Tab 16, p. 282.)
[35] That conclusion adequately addresses Mr. Acharige's claim in relation to the Sri Lankan authorities under s. 96 of IRPA. The reasons are clear, well-articulated, and the PRRA Officer's inferences are supported by the evidence, even if they are not the inferences that Mr. Acharige would have liked her to draw.
[36] With respect to the allegation that Mr. Acharige continued to be at risk from UNP supporters seeking retribution for the death of Olvin in 2002, he again provided new evidence which was not before the RPD. That evidence consisted of a police report filed by his father, who claimed he was attacked by UNP supporters demanding that Mr. Acharige return to Sri Lanka, a medical report regarding his father's injuries suffered in that attack, and a newspaper article documenting the assault (Applicant's Written Representations, AMR Tab 17, at para 65; Police Report dated 2005/11/03, AMR Tab 14, p. 102); Sirlaka Newspaper article, AMR Tab 14, p. 104).
[37] The PRRA Officer found that Mr. Acharige could seek state protection from any supporters of the UNP who wished to harm him if he returned to Sri Lanka. Her reasons are clear that since he had nothing to fear from the Sri Lankan authorities, he was not prevented from seeking their protection (Second PRRA Decision, AMR Tab 16, pp. 281 - 283).
[38] The PRRA Officer assessed the evidence that Mr. Acharige presented with respect to the November 2005 attack on his father, but found that this did not indicate that the state could not protect him. In fact, his father had accessed state protection when he was the victim of that assault, indicating that protection exists and could be similarly accessed by Mr. Acharige. The PRRA Officer also found that the general country conditions suggested that the police investigate complaints and arrest suspects. She concluded that Mr. Acharige had failed to provide clear and convincing evidence to rebut the presumption that the Sri Lankan state was able to protect him from UNP supporters (Second PRRA Decision, AMR Tab 16, pp. 282 - 283).
[39] That state protection finding adequately addressed Mr. Acharige's claim in relation to UNP supporters under s. 97 of IRPA. The state protection findings are clear and supported by both the country conditions documents and the evidence specific to Mr. Acharige.
[40] The PRRA Officer did not err in concluding that Mr. Acharige had not rebutted the presumption of state protection. He argues that this finding was unreasonable on two grounds:
i) Mr. Acharige cannot be expected to seek state protection from a risk posed by agents of the state. He argues that the court Summons indicates that he is at risk from the police; and
ii) The newspaper article recounting the November 2005 attack on Mr. Acharige's father indicated that the police had not yet taken action on his father's complaint. He argues this is sufficient to demonstrate that police protection is not forthcoming in Sri Lanka.
[41] Mr. Acharige's first argument ignores the findings the PRRA Officer actually made. As has already been demonstrated, she found that Mr. Acharige did not establish that he faced a risk from the police because of a lack of evidence that he would be mistreated by the police. The court Summons alone is not sufficient to establish that Mr. Acharige is at risk from the police, and it does not follow that simply because the authorities wish to contact him he would be at risk. This, especially, since neither the court Summons nor the note from the Sri Lankan police indicates that they are in relation to any of the events that Mr. Acharige claims are the foundation for his fears (Second PRRA Decision, AMR at Tab 16, pp. 281 - 282).
[42] The PRRA Officer did not find that Mr. Acharige failed to establish a risk from the police because the state could protect him from that risk. The case law he cites on this point therefore simply does not apply. The Respondent concedes that if Mr. Acharige had established a likely risk from the police in Sri Lanka, he should not have been required to seek protection from the state; however, the PRRA Officer found that he did not establish that he faced such a risk from the police. Her state protection finding relates only to the alleged risk from UNP members, and not the alleged risk from the police.
[43] The PRRA Officer reviewed the general country conditions documents and found that, while state protection in Sri Lanka was not perfect, there had not been a total breakdown of the state apparatus. She found that police do investigate complaints and make arrests when required. This conclusion was supported by the objective documents. Further, the PRRA Officer found that there was specific evidence of state protection in Mr. Acharige's case, as his father had complained to the police when he was assaulted in November 2005, and that complaint was being investigated. Consequently, the PRRA Officer's state protection conclusions were based on the evidence and were reasonable (Second PRRA Decision, AMR Tab 16, pp. 282 - 283).
[44] With respect to the newspaper article that Mr. Acharige provided that recounted the attack on his father and stated that "somehow the police have not yet taken any action with regard to this incident", that article was dated November 6, 2005, only four days after the attack took place, and only three days after Mr. Acharige's father made the complaint to the police. In those circumstances, it was reasonable for the PRRA Officer to find that Mr. Acharige had not provided clear and convincing evidence rebutting the presumption of state protection (Police Report dated 2005/11/03, AMR Tab 14, p. 102; Sirlaka Newspaper article, AMR Tab 14, p. 104).
B. No Irreparable Harm on Return to Sri Lanka
[45] In order to satisfy the second branch of the Toth test, the onus is on Mr. Acharige to establish a risk of harm that is not speculative or based on a series of possibilities. He must satisfy the Court of the likelihood of harm if the stay is refused (Molnar v. Canada (M.C.I.), 2001 FCT 325 at para. 15; Akyol v. Canada (M.C.I.), 2003 FC 931 at para. 7).
[46] Mr. Acharige submits that he will suffer irreparable harm in two ways: first, he claims that he will face a risk to his life if he is removed to Sri Lanka based on the same arguments he made to the PRRA Officer; second, he claims that the underlying application for leave and for judicial review of the PRRA Decision will become moot once he is removed to Sri Lanka. Neither of these arguments meets the test for irreparable harm (Applicant's Written Representations, AMR at Tab 17, paras 78 - 81).
i) No Risk to Life in Sri Lanka
[47] With respect to the first argument, Mr. Acharige's allegations of risk from the UNP and the police in Sri Lanka have been assessed twice. Both the RPD and the PRRA Officer found that he would not be at risk if he were returned to Sri Lanka (Akyol v. Canada (M.C.I.), 2003 FC 931 at para. 8).
[48] Further, the RPD found that Mr. Acharige's claim failed because his evidence was not credible. The RPD did not believe that Mr. Acharige was involved in Olvin's death or that the police were interested in him because of that incident. The RPD's finding is relevant to this stay motion and the issue of whether Mr. Acharige would suffer irreparable harm if he returned to Sri Lanka because this Court has held that an applicant's story that has been found not to be credible by the RPD cannot later still serve as the basis for an argument supporting irreparable harm. Mr. Acharige cannot rely on his previous alleged risk in Sri Lanka to establish irreparable harm (Akyol v.Canada (M.C.I.), 2003 FC 931 para 8; Saibu v. Canada(M.C.I.), 2002 FCT 103 para 11).
[49] Further, the evidence Mr. Acharige provided the PRRA Officer demonstrates that he would not suffer risk to his life in Sri Lanka. He is not at risk from the police in Sri Lanka; he has been requested to contact them upon his return and may be required to appear in a Sri Lankan court, but nothing in the evidence establishes beyond speculation that the police are seeking to harm him or would mistreat him in any way. According to his own evidence, he was released by the police without harm after they investigated Olvin's death in 2002.
[50] The evidence also indicates that the Sri Lankan police are in a position to protect Mr. Acharige should he have further difficulties with UNP supporters. They responded promptly to his father's complaint when he was assaulted in November 2005, and the country conditions documents indicate that the police are capable of investigating any future complaint that Mr. Acharige may have.
[51] With respect to the second argument, that Mr. Acharige would lose his opportunity to challenge the PRRA on judicial review, the Minister submits that the possible mootness of any subsequent judicial review proceedings cannot form the basis for irreparable harm. The Federal Court of Appeal rejected such an argument in two recent cases involving applications for stays of removal orders pending the hearing of an appeal from the judicial review of a PRRA decision. This Court has followed those decisions in several recent cases. There is no reason why similar principles should not apply to the circumstances of this case (Selliah v. Canada (M.C.I.), 2004 FCA 261 at para. 20; El Ouardi v. Canada (M.C.I.), 2005 FCA 42 at para. 8; Kaur v. Canada (M.C.I.), 2005 FC 16 at para. 6; Singh v. Canada (M.C.I.), 2005 FC 159 at paras. 39-40).
[52] In any event, the Minister submits that it is speculative to say that Mr. Acharige's Application for Leave and for Judicial Review will become moot. The Court retains a discretionary power to hear matters that are technically moot and has recently exercised that discretion in favour of hearing judicial reviews of PRRA decisions after stays have been dismissed. Mr. Acharige's allegation that the subsequent judicial review of the PRRA Decision will become moot is therefore based on a mere possibility and cannot amount to irreparable harm (Alfred v. Canada (M.C.I.), 2005 FC 1134; Figurado v.Canada (M.C.I.), 2005 FC 347).
C. The Balance of Convenience Favours the Respondent
[53] The circumstances of this case are such that the balance of convenience lies with the Minister. The Minister is under a statutory duty to enforce the Removal Order as soon as is reasonably practicable. There is a public interest in enforcing removal orders in an efficient, expeditious and fair manner. Only in exceptional cases will a person's individual interest outweigh the public interest (Immigration and Refugee Protection Act, S.C. 2001, c.27, s. 48; Akyol v. Canada (M.C.I.), 2003 FC 931 at para. 12; Dugonitsch v. Canada (M.E.I.), [1992] F.C.J. No. 320 (T.D.)).
[54] The simple facts that Mr. Acharige has cooperated with immigration officials, has not committed any criminal offences, and would be available for removal should his application for judicial review be unsuccessful do not mean that the balance of convenience favours granting a stay. The Federal Court of Appeal recently rejected such an argument, stating:
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge either of their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove as soon as reasonably practicable. ¼This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
(Selliah v. Canada (M.C.I.), 2004 FCA 261 at paras. 21 - 22.)
[55] Mr. Acharige is the subject of a valid, enforceable removal order. He entered Canada on a student visa in September 2002 and made a claim for refugee protection in February 2003. Mr. Acharige has had the benefit of independent assessments of his risk claims by both the RPD and a PRRA Officer, both of which determined that he does not face a risk if he returns to Sri Lanka. In these circumstances, the public's interest in the proper and effective administration of Canada's immigration laws outweighs Mr. Acharige's desire to delay his removal.
ORDER
THIS COURT ORDERS that:
1) The motion to stay the Applicant's removal from Canada be denied.
2) No question be certified.
(Sgd.) "Michel M. Shore"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-847-06
STYLE OF CAUSE: MANSIL PATHMANATH KAMBURUGAMUWA
LOKU ACHARIGE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 20, 2006
REASONS FOR ORDER AND ORDER: SHORE J.
DATED: February 22, 2006
APPEARANCES:
Ms. Nora Ng FOR THE APPLICANT(S)
Mr. Jonathan Shapiro FOR THE RESPONDENT(S)
SOLICITORS OF RECORD:
Elgin Cannon FOR THE APPLICANT(S)
Vancouver, BC
John H. Sims, Q.C. FOR THE RESPONDENT(S)
Deputy Attorney General of Canada
Department of Justice - Vancouver