Date: 20040324
Docket: IMM-2112-04
IMM-2114-04
Ottawa, Ontario, on this 24th day of March, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
PUSHPARAJAH KANAGASABAPATHY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These reasons follow my Order of March 12, 2004, whereby I granted the applicant's motion for a stay of his removal from Canada, in relation to IMM-2114-04, pending the determination of his humanitarian and compassionate application ("H & C application") . I dismissed the applicant's motion for a stay of removal in relation to IMM-2112-04.
[2] The applicant, Mr. Kanagasabapathy, is a citizen of Sri Lanka. He received a negative Pre-Removal Risk Assessment ("PRRA"), dated January 14, 2004, made pursuant to section 112 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA"). He was informed of this PRRA decision on February 11, 2004, upon meeting with an enforcement officer. The officer gave him an interval of time to present information as to why his removal should be deferred. The officer determined that a removal order should be issued against him, and issued such an order on February 26, 2004.
[3] The applicant's wife and two children were granted Convention refugee status in this country in April 1998. The applicant arrived in Canada after that time, in April 2000, and made his own Convention refugee claim, which was eventually denied by the Immigration and Refugee Board in December 2001. The applicant was initially included as a dependent on his spouse's application for permanent residence, however, he withdrew this application, due to the fact that he could not obtain the necessary documentation and this was delaying his wife's and children's applications for permanent residence. The applicant's wife and children became permanent residents of Canada in December 2002.
[4] The applicant applied to this Court for leave and judicial review of his negative refugee decision. This application was ultimately dismissed by the Federal Court in January 2003. The applicant filed his H & C application in November 2003. The applicant currently seeks judicial review of the enforcement officer's decision not to defer his removal and also the PRRA officer's negative determination in relation to his PRRA application.
[5] Applying the three-part, conjunctive test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A), I dismissed the first motion for a stay in relation to IMM-2112-04, as disclosing no serious issue to be tried. That judicial review dealt with the applicant's challenge to the immigration officer's refusal to defer his removal.
[6] As enunciated by Pelletier J., as he then was, in Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (T.D.)(QL), an elevated standard applies to a stay motion arising from a refusal to defer an applicant's removal because the stay, if granted, effectively grants the relief sought in the underlying judicial review application. Accordingly, it is necessary to go further than simply applying the "serious issue" test and to closely examine the merits of the underlying application.
[7] Enforcement officers executing removal orders under section 48 of IRPA have a very limited discretion to defer removal. The order must be "enforced as soon as reasonably practicable" in the words of that legislative section. There must be a lawful reason for not executing the removal order, found in the statute or in some other legal obligation sufficient in importance to relieve the Minister from compliance with section 48: Wang, supra.
[8] The affidavit of enforcement officer, Tammy Hanlon, satisfies me that the officer did not unlawfully fetter her discretion and considered all of the applicant's submissions in support of his request for a deferral of his removal. There is nothing to indicate that the officer's section 48 discretion was improperly exercised, therefore, the motion for a stay in relation to this decision, that is file IMM-2112-04, was dismissed.
[9] Moving to the second motion for a stay of removal, that is, file IMM-2114-04, I was satisfied that the applicant had demonstrated the existence of a serious issue to be tried, pursuant to the first branch of the Toth, supra, test. That serious issue is the appropriate standard of proof to be applied when analyzing risk pursuant to subsection 97(1)(b) of IRPA. The officer, in his reasons for the negative PRRA decision, concluded that it was not "more likely than not that he [the applicant] faces a substantial risk to life, of torture, or of cruel and unusual treatment or punishment per section 97" (emphasis added). This reflects that the officer subsumed the threshold of "substantial grounds" of torture, set out in subsection 97(1)(a), into the threshold of personalized risk as set out in subsection 97(1)(b).
[10] While the recent decision of Li v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1934, addressed the standard of proof to be applied to subsection 97(1) as that of a balance of probabilities, the decision only peripherally touches upon the explicit difference in statutory language between subsections (a) and (b) of 97(1). Questions, however, in relation to this issue were certified and an appeal to the Federal Court of Appeal is now pending.
[11] The respondent also referred to the order of Justice Snider in Kantheepan Thangasivam v. Minister of Citizenship and Immigration (November 25, 2003), IMM-8986-03 (Unreported), in which an applicant alleged that a PRRA officer erred in applying the balance of probabilities test to subsection 97(1) of IRPA. This order does not refer to the possibility of a difference in standards between paragraphs (a) and (b) of subsection 97(1) due to the difference in the wording of each subsection, instead focussing on the different standards between sections 96 and 97. In my opinion, this order does not indicate that the law in this area is, as of yet, settled, and therefore a serious issue to be tried does exist.
[12] As for the second branch of irreparable harm, I am satisfied that the harm to the applicant's family, and in particular the harm to his two children, ages 10 and 15, would be serious and irreparable. As held in Richards v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 890 (T.D.)(QL), Toth, supra, is authority for the proposition that irreparable harm can encompass harm to others and is not limited to harm to the person whose removal is imminent.
[13] The applicant and his wife have attested in affidavits filed in this proceeding that the standard of living of the family left in Canada would be greatly impaired if the applicant were removed. The applicant's wife and children would have difficulty making ends meet on her salary of $22,000 a year and a down payment on a house would be lost. On the issue of financial harm having the potential to be irreparable for an applicant's family see: Sivananthan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 199 (T.D.)(QL), Owusu v. Minister of Citizenship and Immigration (December 8, 2003), 2003 FCA 470. In addition to the financial impact, the children's best interests would also be affected through the loss of the emotional support and presence of their father.
[14] And finally, the balance of convenience favours the applicant, as the interests of the respondent in ensuring the efficient implementation of removal orders under IRPA does not outweigh the harm to the applicant and his family. Moreover, no risk to the Canadian public in the applicant remaining in Canada pending the determination of his H & C application is identified in this case.
[15] This motion for stay of removal was, accordingly, allowed.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2112-04 & IMM-2114-04
STYLE OF CAUSE: PUSHPARAJAH KANAGASABAPATHY
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 12, 2004
REASONS FOR ORDER
BY : The Honourable Mr. Justice Mosley
DATED: March 24, 2004
APPEARANCES:
Micheal Crane FOR THE APPLICANT
Mandeep Atwal FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEAL CRANE
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General for Canada
Toronto, Ontario FOR THE RESPONDENT