Date: 20010704
Docket: IMM-3195-01
Neutral citation: 2001 FCT 757
BETWEEN:
Ashley Chandrasekaran (a.k.a. Ashley Thiagarajah)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks a stay of the removal officer's decision not to defer his removal from Canada, now scheduled for 11:30 p.m. this day.
[2] The applicant submits that his application for judicial review of the removal officer's decision raises a serious issue and that he will suffer irreparable harm if I do not grant the remedy sought.
[3] Unfortunately for the applicant, I have come to the conclusion that his application for a stay must be denied.
[4] On the evidence before me, I have not been persuaded that irreparable harm will result if I deny his application. The evidence adduced by the applicant regarding irreparable harm appears in paragraphs 17, 18 and 19 of his affidavit, dated June 29, 2001, which read as follows:
17. I believe that I will suffer irreparable harm should I be removed from Canada. I currently and [sic] the sole owner of "Studio Hideaway" which operates as a music studio/music booking agency/musical equipment retailer and disc jockey school and has been in existence for eight months. The operation pays five Canadian citizens on a "half time" basis (ie. it provides the equivalent of two and one-half full-time jobs). These individuals are employed as independent contractors. Not only do I pay them monies, but two of them, Jason Spanu and Christopher Hughes, earn additional monies through disc jockey appearances which are obtained as a result of their association with me.
18. These individuals' livelihoods will be jeopardized by my removal from the country. In addition, I am the sole principal of this business and I make all the important day to day decisions regarding the operation of the business. I solicit business, I teach in the school, I purchase the equipment to be sold, I book musical acts and I decide on the school's curriculum. If I were removed from Canada there is no possibility that the business would survive in my absence. As well I have invested approximately $30,000.00 in musical equipment, leases, and leasehold improvements. These monies represent my life savings. It will be impossible for me to recoup even one-quarter of these monies should I be removed from the country on such short notice.
19. Attached to this affidavit as Exhibit "J" is various documentation supporting the legitimacy of my business and its operations as well as letters from various employees that speak to their plight if the business failed.
[5] In my view, this evidence does not come close to demonstrating irreparable harm. The applicant's assertions and the documentary evidence attached as Exhibit "J", fail to show that his business will either fail or cease to operate if he is removed. There is simply no evidence to allow me to make a proper assessment of the business so as to determine whether irreparable harm would result. There is also no satisfactory evidence to allow me to determine the impact, if any, on the employees of the business if the applicant is removed.
[6] Consequently, I need not dispose of the issue as to whether the judicial review application raises a serious issue. I might perhaps say on that count that I agree entirely with the decision of my colleague Mr. Justice Pelletier in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148 and more particularly with the remarks made by the learned judge at paragraphs 47 to 52 of his reasons.
[7] It should be noted that the applicant's judicial review application does not challenge the Department's failure to make a decision on his application for landing. In other words, the applicant has not sought a mandamus against the Minister. The applicant has also not challenged the validity of the deportation order which the removal officer is enforcing.
[8] For these reasons, the applicant's application for a stay will be denied.
Marc Nadon
JUDGE
OTTAWA, Ontario
July 4, 2001