Date: 20040624
Docket: IMM-5354-04
Citation: 2004 FC 913
BETWEEN:
MANICKAVASAGAR VASEEKARAN and, by his litigation
Guardian BIBI RAFEENA AZIMULLA, RAVEEN VASEEKARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR OF GENERAL OF CANADA
Respondents
[1] This is a motion by the applicant for an order staying his removal from Canada to Sri Lanka which is scheduled for June 22, 2004.
[2] The applicant is a citizen of Sri Lanka who came to Canada in 1992. He was sponsored by his father who was found to be a Convention refugee.
[3] The applicant has a Canadian born son who was born on July 30, 2001.
[4] The applicant met his wife in 1999.
[5] The applicant has no family in Sri Lanka.
[6] The applicant has a criminal record which includes various firearms charges.
[7] The applicant's longest sentence was for 2 years and 4 months.
[8] The applicant is currently detained in an Immigration Hold as it was felt he would not appear for removal.
[9] The applicant's wife and his son visited him while he was in prison and were allowed to stay with him in a trailer at the institution.
[10] The applicant filed a Humanitarian and Compassionate application dated June 9, 2004 which spoke to family unity and the best interests of the applicant's Canadian born child.
[11] The applicant has also filed a new Pre-Removal Risk Assessment ("PRRA") application dated June 9, 2004, which has not been decided.
[12] Issue: Should an order issue staying the removal of the applicant?
Analysis and Decision
[13] It is now accepted that a removals officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 F.C.T. 148).
[14] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Citizenship and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 ..... As stated by Kerans J.A. in theBlack case, supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all three branches of the tri-partite test.
Serious Issue
[15] The applicant, in my view, has raised a serious issue to be tried and that issue is whether or not the Removals officer erred in law in failing to defer removal pending an assessment of the best interests of the applicant's son through the H & C application process.
Irreparable Harm
[16] I am of the opinion that the applicant would suffer irreparable harm if an order granting the stay is denied. The applicant submits that his removal prior to a decision on the updated risk assessment and before the best interests of his Canadian born son are assessed violates his section 7, Charter Rights. If he is removed before the Court rules on these issues, "the Court process will be rendered meaningless as he will already have been exposed to the risks he seeks to prevent and the best interests of his son will have been directly affected". On the facts of this case, I am satisfied that this would cause irreparable harm to the applicant.
Balance of Convenience
[17] I am of the view that the balance of convenience favour the applicant. He is in detention awaiting his removal and the Minister can remove the applicant if he is unsuccessful in his judicial review application.
[18] The applicant's motion for a stay is granted and the removal of the applicant to Sri Lanka will be stayed until his application for leave for judicial review is denied or if leave is granted his removal is stayed until his application for judicial review is dealt with by the Court.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
June 24, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5354-04
STYLE OF CAUSE: MANICKAVASAGAR VASEEKARAN and, by his litigation Guardian BIBI RAFEENA AZIMULLA, RAVEEN VASEEKARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION & THE SOLICITOR GENERAL OF CANADA
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 21, 2004
REASONS FOR ORDER BY: O'KEEFE J.
APPEARANCES BY:
Mr. Ronald Poulton
FOR THE APPLICANTS
Ms. Robert Bafaro
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mamann & Associates
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENTS
FEDERAL COURT
Date: 20040624
Docket: IMM-5354-04
BETWEEN:
MANICKAVASAGAR VASEEKARAN and, by his litigation Guardian BIBI RAFEENA AZIMULLA, RAVEEN VASEEKARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION & THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER