Date: 20040708
Docket: IMM-5982-04
Citation: 2004 FC 975
Ottawa, Ontario, this 8th day of July, 2004
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
NANDANI BALIRAJ
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
(Delivered orally and subsequently written for clarification and precision)
[1] At the request of the respondent, and to reflect the recent government reorganization, the style of cause is changed to show 'Solicitor General of Canada' as respondent .
[2] This is an application for stay of a removal order pending the outcome of an H & C application made by the applicant more or less contemporaneously with her PRRA application.
[3] The applicant advanced three points to establish irreparable harm under the test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, namely:
a) that she has no relatives left in Trinidad;
b) that she has a fiancé who relies on her emotionally for support and would be devastated by her departure; and
c) a report from a psychologist dated June 30th regarding her mental state.
[4] The applicant is a 34 year-old divorced woman with a college degree in business. While having to return to a country where she does not have relatives anymore will undoubtedly cause hardship, this fact does not constitute irreparable harm. Rather, it is one of the negative elements inherent in the notion of deportation itself. (See Melo v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 403, at para 20 (QL)).
[5] The possible impact on the fiancé, while regrettable, does not amount to irreparable harm. (See Banwait v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 522 (QL)).
[6] Lastly, the psychologist's report was based on a two-hour interview with the applicant. It reflects the statements of the applicant to the psychologist and his conclusions therefrom. However, it is noteworthy that the applicant, when filing her Request for Exemption from Permanent Visa Requirement on February 10, 2003, marked Box 4 under section "M" with a "No" to the question : Had or still has any serious disease or mental or physical disorder ? In addition, the applicant 's affidavit sworn two days prior to the interview with the psychologist makes no reference to her suicidal tendencies, fears or traumas. Moreover, the doctor's finding is not very conclusive. He states: "I fear that she may act on her passive suicidal ideation and take her life rather than return to Trinidad". Taken together, I do not find that these factors amount to serious likelihood or jeopardy to the applicant's life as required by the jurisprudence regarding the second leg of the Toth test. (See Calderon v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107 at 111, also Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 at para 4 (QL)).
[7] Given that the Toth test is conjunctive, I need not address the points of "balance of convenience" and "serious issue". Consequently, this application will be dismissed.
ORDER
THIS COURT ORDERS that this application for a stay of the execution of a removal order against the applicant is denied.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5982-04
STYLE OF CAUSE: NANDANI BALIRAJ
and
SOLICITOR GENERAL OF CANADA
HEARD VIA TELECONFERENCE BETWEEN OTTAWA AND TORONTO, ONTARIO
DATE OF HEARING: JULY 8, 2004
REASONS FOR ORDER
AND ORDER : von FINCKENSTEIN J.
DATED: JULY 8, 2004
APPEARANCES:
Robin Seligman FOR APPLICANT
Mielka Visnic FOR RESPONDENT
SOLICITORS OF RECORD:
Robin Seligman
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT