Date: 20040225
Citation: 2004 FC 322
BETWEEN:
SEEVARATNAM KANDIAH
SARASU SEEVARATNAM
Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
INTRODUCTION
[1] On February 24, 2004, the Court dismissed an Application to Stay the execution of the deportation order dated January 15, 2004 by which the Applicants were to be removed from Canada to the United States on February 25, 2004.
BACKGROUND
[2] The Applicants are husband and wife aged 68 years old and 57 respectively. They are citizens of Sri Lanka.
[3] The Applicants moved from Sri Lanka to Sweden in 1992. Their refugee claim was denied in 1995. They then travelled to the United Stated from which they entered Canada in 1995.
[4] The Applicants firstly submitted a false claim for refugee status misrepresenting such key facts as their history of a previous refugee claim and Mr. Seevaratnam occupation. He was in fact a retired policeman receiving a pension from Sri Lanka. When caught with these falsehoods and by virtue of a combination of events, the Applicants were permitted to have a de novo refugee hearing.
[5] The first application was denied on grounds of lack of credibility. Leave for review was denied and a PDRCC application was rejected. They were then removed to the US in March 2000.
[6] Three months later the Applicants made a second refugee claim which was rejected in July 2001, leave for review was again denied. An "H & C" application was filed but they were removed to the US in April 2002.
[7] Six months later they made this third refugee claim which was again unsuccessful. They received a negative PRRA which has led to this currently scheduled removal to the US.
[8] As mentioned in paragraph 6, the Applicants filed an H & C application before being returned to the US the second time. This January 2002 application is outstanding.
[9] In the United States, the Applicants are subject to a deportation order to Sri Lanka.
[10] Medical conditions for one or both of the Applicants is a common feature of the various immigration proceedings in Canada and elsewhere. In the first proceeding, both Mr. Seevaratnam's stress and Mrs. Seevaratnam's depression were put in issue. In the second and third proceedings, Mrs. Seevaratnam's emotional and mental state was put in issue.
[11] In this application Mrs. Seevaratnam's condition is raised as evidence of a worsening state which constitutes irreparable harm. This condition is said to be continuing to deteriorate since it first surfaced in the early 1990's in the Swedish refugee claim.
[12] To round out the current state of the Applicants' health, counsel filed on the day of the stay hearing a letter from a doctor attesting to Mr. Seevaratnam's health problems including his broken wrist, and reiterating Mrs. Seevaratnam's mental condition I note that the doctor writing the letter is not the same doctor previously treating Mrs. Seevaratnam.
[13] One of the principal factors in Mrs. Seevaratnam's depressed condition is that her claim to remain in Canada has been rejected for the third time and that she faces potential removal to the US and from the US to Sri Lanka.
[14] As argued before this Court, counsel for the Applicants stressed the medical evidence particularly of Mrs. Seevaratnam and that the H & C application may be decided in the near future.
ISSUES
[15] The issue in this application for a stay is whether the Applicants have met the three part test of serious issue, irreparable harm, and balance of convenience.
[16] In my view the focus of this application is on irreparable harm.
[17] The Applicants submit that any stay only need be granted until the H & C application is decided. This assumes success on that application.
ANALYSIS
Serious Issue
[18] The threshold for establishing a serious issue is low, lower than that required for leave for judicial review.
[19] For purposes of this application for stay, (and for that purpose only) I will accept without deciding, that the Applicants have met the requirement establishing that there is a serious issue.
Irreparable Harm
[20] On this issue, I do not accept that the Applicants have met this burden to establish irreparable harm which would allow this stay application to be granted.
[21] The Applicants' rely significantly on Mrs. Seevaratnam's depressed state caused in large measure by her fear of returning to Sri Lanka.
[22] If this were permitted as a grounds for a stay, the Applicants could never be deported to their home country, no matter how unjustified their continued presence in Canada may be. The Court is being asked, in reality, to grant a permanent injunction prohibiting removal.
[23] I am not prepared to make an order of this effect on the record in this case. That record contains several letters from doctors which are often a combination of a plea for compassion and comments on medical conditions. Much of the medical comment is based entirely on what one of the Applicants have told the doctors: The fear of persecution in Sri Lanka, a subjective matter, has been rejected by every tribunal which has dealt with the issue. I note that what is called medical evidence is a series of letters; never under oath, never subject to cross-examination but upon which this Court is asked to render what is tantamount to a permanent injunction.
[24] The Applicants are to be removed to the United States; a place to which they have been sent twice without apparent overwhelming disastrous impact.
[25] Whether the US will deport the Applicants before the H & C application is decided, even if that constituted irreparable harm, is highly speculative.
[26] Whatever the effect on the Applicants, non are beyond the natural consequences of what is inherent in the removal process.
[27] Even if the Applicants are removed to Sri Lanka, their fear of prosecution has been found not credible. On the facts, the IRB found that the Applicants would be entitled to free medical care, which would be an improvement over their current status.
Balance of Convenience
[28] A consideration of this factor is not strictly necessary given the finding on irreparable harm.
[29] However, if the Applicants had made out a case for irreparable harm on the grounds claimed, they would succeed on this last issue.
CONCLUSION
[30] In the result, this motion for a stay of removal is denied.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1486-04
STYLE OF CAUSE: SEEVARATNAM KANDIAH and
SARASU SEEVARATNAM Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER BY: PHELAN J.
DATED: FEBRUARY 25, 2004
APPEARANCES:
Osborne Barnwell For the Applicants
Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Hinkson Sachak Mcleod & Barnwell
Toronto, ON For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040225
Docket: IMM-1486-04
BETWEEN:
SEEVARATNAM KANDIAH
SARASU SEEVARATNAM
Applicants
and
SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER