Date: 19980804
Docket: IMM-3858-98
BETWEEN:
SULOJANA BALASUMBRAMANIAM and
BALAMUGUNTHAN BALASUBRAMANIAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
[1] This is an application to stay the removal of the applicants to the United States scheduled for August 5, 1998, pursuant to a departure order dated July 24, 1991.
[2] The applicants" Convention refugee claim was denied on July 4, 1996, and leave to commence an application for judicial review was denied by this Court on January 30, 1997.
[3] The decision on the applicants" Post-Determination Refugee Claimant in Canada class application was made on December 16, 1996, and leave to review that decision was denied by this Court on June 8, 1998.
[4] The applicants applied for permanent residence from within Canada in January 1998, on humanitarian and compassionate grounds. No decision has been received on that application.
[5] The applicants challenge the decision of the Minister"s delegate not to process the application earlier and seek a stay until such decision is made.
[6] Absent a test prescribed by statute, the Court can only grant a stay of proceeding in the circumstances set out by the Supreme Court of Canada in RJR MacDonald v. Canada (A.G.), [1994] 1 S.C.R. 311.
[7] The applicants have not satisfied me that there is a serious issue to be tried. The applicants rely on their length of stay in Canada to assert that they are de facto residents. There is no such class of resident in the Immigration Act. The validity of the departure order is not a serious issue.
[8] The applicants have made a bare assertion of harm if they should be removed to the United States with the possibility of being returned to Sri Lanka. At the most, based on the material before the Court, the displacement occasioned by their removal may result in hardship, but it does not establish irreparable harm.
[9] I cannot accept the argument of counsel that the respondent has an obligation to consider an application for humanitarian and compassionate relief under subsection 114(2) of the Immigration Act prior to effecting the removal of the applicants.
[10] The balance of convenience also favours the execution of the order
____________________________
Associate Chief Justice
Ottawa, Ontario
August 4, 1998