Date: 20040422
Docket: IMM-3085-04
Citation: 2004 FC 596
Ottawa, Ontario, this 22nd of April, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MARY REGINA JESUDHASMANOHARARAJ
MARY JEYANTHINI JESUDHASMANOHARARAJ
Applicants
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, a mother (Mary Regina) and daughter (Mary Jeyanthini, aged 19) are citizens of Sri Lanka. They have brought a motion for stay of the execution of a removal order scheduled to be carried out on April 25, 2004, until such time as an application for leave and for judicial review of the decision of a Pre-Removal Risk Assessment ("PRRA") Officer is determined.
[2] The applicants arrived in Canada in June of 1997 with the aid of an agent and false documents. They made a claim for refugee protection that was refused by the Immigration and Refugee Board on August 5, 1998. The Board concluded that the applicants could safely reside in Columbo. An application for leave and for judicial review was denied on January 9, 1999. An application for permanent residency on humanitarian and compassionate grounds was also denied and leave has been sought for judicial review of that decision.
[3] An application was submitted under the then Post Determination Refugee Claimants in Canada class, which was then converted into a PRRA application. That application was refused on October 16, 2003. The officer's risk opinion was disclosed to the applicants in advance of his final decision and an opportunity provided the applicants to comment on the findings. No comments were offered.
[4] The applicants contend that the officer erred in failing to take into account the applicants' fear that Mary Jeyanthini will be forcibly recruited by the Liberation Tigers of Tamil Eelam ("LTTE") if returned to Sri Lanka. This was also the primary concern raised at their refugee hearing, although at that time, the focus was more on the LTTE's practise of recruiting children. They also contend that there was new evidence to consider in that she was now of an age more likely to be at risk of forced recruitment and new evidence of a recent change in country conditions that would put them both at risk of serious harm. The applicants argue, therefore, that there are serious issues to be tried in the underlying application, that they would suffer irreparable harm if returned and that the balance of convenience is in their favour.
[5] The applicants further argue that their extended family in Canada, a sister, a nephew and their children, would be emotionally harmed if they were compelled to leave. There is authority for the concept that the irreparable harm element of the test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A) can arise where children of the applicant will be directly and severely affected. I do not accept that it extends to third parties such as extended family members.
[6] The applicants are Christian Tamils from the north of Sri Lanka and have become well-established during the seven years they have been in Canada. Mary Regina has been employed until recently and Mary Jeyanthini is attending Humber college. The elder applicant's husband and the younger applicant's father is a long time employee of the Sri Lankan government and has remained in that country. Initially, in submitting her Personal Information Form in support of the refugee claim, the elder applicant falsely stated that she was not aware of his whereabouts. That was corrected at the outset of the hearing. In the current motion, Mary Regina has attested that she has not been in touch with her husband for a year and considers herself separated from the relationship. He is, apparently, currently residing in Mannar in an area under Sri Lankan government control and continues to work for the government.
[7] The applicant relies upon the recent decision of Rouleau J. in Sabaratnam v. Minister of Citizenship and Immigration (5 December 2003), IMM-8929-03, (Unreported) for the proposition that it is necessary for the PRRA officer to engage in a thorough analysis of the issue of potential forced recruitment where there are applicants of a recruitable age. The respondent argues that Sabaratnam is easily distinguishable on its facts in that the applicant's father in that case had been a senior officer in an organization opposed to the LTTE and had in fact been kidnapped and probably killed in Jaffna in 1990. There is no comparable evidence before the court in this matter and the allegations of risk are vague and speculative. It is clear from the PRRA officer's analysis that he carefully considered the extensive country documentation and representations concerning forced recruitment submitted by the applicants prior to arriving at his decision.
[8] The motion record contains an additional package of country documentation concerning recent developments in the Sri Lankan peace process and cease fire. Counsel for the applicants drew the court's attention to numerous references to the fragility of the situation in Sri Lanka including reports of continued recruitment by the LTTE, sectarian killings and breaches of the cease fire. The respondent has pointed out, however, that most of this material is dated after the PRRA decision and was not before the officer. Moreover it concerns events mainly in the east of Sri Lanka and conflicts within the ranks of the LTTE itself. None of it points to any reasonable basis to conclude that these specific applicants would be at risk if returned to Sri Lanka and resided in Columbo. The applicants are not from those parts of Sri Lanka where the incidents have occurred.
[9] It is not for this court to determine on this motion whether the applicants will succeed on their leave application in challenging the PRRA officer's decision. Yet I have difficulty in accepting that they have raised a serious issue with respect to that decision even on a low threshold standard. Assuming, however, that the first branch of the test in Toth, supra, has been satisfied, there is an insufficient basis in the evidence before me to conclude that the applicants will suffer irreparable harm if the removal order is executed. With regard to the balance of convenience, I accept the applicants' submissions that they are decent, hard-working people who have not been a burden on Canadian society or engaged in any criminality. However, that is not sufficient in my view to overcome the public interest in the efficient administration of the immigration laws. They have no unqualified right to remain in Canada and the evidence does not substantiate their concerns about a return to their country of origin.
ORDER
THIS COURT ORDERS that the application for a stay of execution of the removal orders against the applicants is hereby dismissed.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3085-04
STYLE OF CAUSE: MARY REGINA JESUDHASMANOHARARAJ
MARY JEYANTHINI JESUDHASMANOHARARAJ
AND
SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: April 22, 2004
APPEARANCES:
John Grant FOR THE APPLICANT
Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN GRANT FOR THE APPLICANT
Mississauga, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario