Federal Court Decisions

Decision Information

Decision Content

Date: 20040209

Docket: IMM-10512-03

Citation: 2004 FC 211

Toronto, Ontario, February 9th, 2004

Present:           The Honourable Madam Justice Mactavish                                      

BETWEEN:

SIRIYALATHA THARUMARASAH

a.k.a. SIRIYALATHA HERATH MUTHIYANSA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Siriyalatha Tharumarasah seeks a stay of the order for her removal, which is now scheduled for February 15, 2004.

[2]                 Ms. Tharumarasah is a twenty seven year old Sinhalese woman from the north east of Sri Lanka. In July of 1998, she came to Canada, where she made a refugee claim. That claim was refused by the Immigration and Refugee Board on July 27, 1999.

[3]                 In October of 2003, Ms. Tharumarasah filed an application for permanent residence on humanitarian and compassionate grounds, as well as sponsorship by her current husband. She also applied for s for a Pre-removal Risk Assessment (PRRA).    On December 17, 2003, Ms. Tharumarasah was advised of the negative decision in relation to her PRRA application, and was notified of the date of her removal from Canada.

[4]                 On December 31, 2003, Ms. Tharumarasah brought an Application for Leave and Judicial Review with respect to the PRRA decision. Although the underlying application for in this matter is a the challenge to the PRRA decision, Ms. Tharumarasah seeks a stay of her removal pending the outcome of her H & C application. The basis of her application is her assertion that the PRRA officer erred in fact and in law in concluding that Ms. Tharumarasah would not be at risk at the hands of the Sri Lankan security forces as a perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE).

[5]                 In order to grant the stay of a removal order, the onus is on an applicant to establish each of the elements of the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). Ms. Tharumarasah has not done so here.   


[6]                 Decisions of PRRA officers are to be given significant deference. Where there is nothing unreasonable in the PRRA decision, there will be no serious issue.    In this case, the PRRA officer clearly considered Ms. Tharumarasan's submissions and supporting documentary evidence with respect to ongoing human rights abuses in Sri Lanka. What Ms. Tharumarasah is asking the Court to do is to re-weigh the evidence that was before the PRRA officer. While Ms. Tharumarasah may not agree with the PRRA decision, she has not demonstrated that it was arguably either unreasonable or perverse, and accordingly no serious issue arises here.

[7]                 Ms. Tharumarasah has also failed to satisfy me that she will suffer irreparable harm if she were returned to Sri Lanka pending the outcome of her H & C application. Her affidavit states that she will suffer irreparable harm as a consequence of being separated from her husband, potentially for a significant period, while her H & C application is processed. Family separation is inherent to the removal process, and does not constitute irreparable harm. Cellis v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1231. Further, while the removal order may result in Ms. Tharumarasah being separated from her husband, she will be reunited with her parents, siblings and children, all of whom still reside in Sri Lanka.                         

[8]                 Having failed to establish either of the first two branches of the Toth test, the balance of convenience clearly favours the Minister.

[9]                 For these reasons, the motion is dismissed.

[10]            On the consent of the parties, the style of cause is amended. The Minister of Citizenship and Immigration is removed and the Solicitor General of Canada is added as the respondent.


                                                                            ORDER

THIS COURT ORDERS that

1.         The style of cause is amended. The Minister of Citizenship and Immigration is removed and the Solicitor General of Canada is added as the respondent.

2.          The motion for a stay is dismissed.

        "A. Mactavish"

line

                                                                                                                                                               J.F.C.                         


FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                    IMM-10512-03

STYLE OF CAUSE:                                   SIRIYALATHA THARUMARASAH

a.k.a. SIRIYALATHA HERATH MUTHIYANSA

                                                                                                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

PLACE OF HEARING:                           TORONTO, ONTARIO

DATE OF HEARING:                               FEBRUARY 9, 2004

REASONS FOR ORDER

AND ORDER BY :                                  MACTAVISH J.

DATED:                                                        FEBRUARY 9, 2004

APPEARANCES:

Mr. Yehuda Levinson

FOR APPLICANT

Ms. Ann Margaret Oberst

FOR RESPONDENT

SOLICITORS OF RECORD:

Levinson & Associates

Toronto, Ontario

FOR APPLICANT

                                                                                   

Morris Rosenberg                                                                          

Deputy Attorney General of Canada

Toronto, Ontario

FOR RESPONDENT


                          FEDERAL COURT

TRIAL DIVISION

                                            

Date: 20040209

Docket: IMM-10512-03

BETWEEN:

SIRIYALATHA THARUMARASAH

a.k.a. SIRIYALATHA HERATH MUTHIYANSA

                                            

                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                     Respondent

                                                                           

REASONS FOR ORDER

AND ORDER

                                                                           

                                                                                         


 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.