Date: 20011003
Docket: IMM-4394-01
Neutral citation: 2001 FCT 1088
BETWEEN:
PETER PAUL FERNANDO, PAMELA FERNANDO, CHAMILA FERNANDO,
DINUSHA FERNANDO and RASHAN FERNANDO (A minor)
Applicants
- and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] The applicants, a family unit, citizens of Sri Lanka and Sinhalese by ethnic origin, seek a stay of their removal to the United States pending consideration of their leave application filed September 20, 2001, challenging a decision of an immigration officer dated August 31, 2001, who denied their H & C application for inland processing for permanent residency in Canada.
[2] The applicants came to Canada on October 17, 1996, to claim refugee status fearing the authorities who suspected Mr. Fernando of helping Tamil rebels. Their refugee claim was dismissed by the Convention Refugee Determination Division ("CRDD") on January 27, 1998, with leave to appeal denied by this Court on April 27, 1998.
[3] The applicants then made a PDRCC application which was refused on July 7, 1999.
[4] The applicants also made, in November 1998, an application for landing from within Canada which was decided only on August 31, 2001. It is this decision which they seek leave to challenge and a stay connected to it.
[5] After being refused, on April 27, 2000, leave to challenge a direction to report for removal, the applicants entered the United States on August 19, 1999, and came back to Canada on November 19, 1999, to make a second refugee claim.
[6] This second claim was turned down by the CRDD on October 23, 2000, with leave from this Court refused on February 17, 2001.
[7] The applicants then filed a second PDRCC application but they were found ineligible to make because they had returned to Canada from the United States within six months.
[8] The applicants' H & C application was supported by a letter from their then immigration solicitor who argued, as one of the grounds, "unusual, undeserved or disproportionate hardship".
[9] In support of that ground, their solicitor advanced fear for their lives and safety at the hands of the Sri Lankan authorities and the LTTE based on events in 1995. It was argued the most significant factor establishing undue hardship was the persecution suffered by Mr. Fernando at the hands of the Sri Lankan police who perceived him as a LTTE supporter.
[10] The November 20, 1998 submissions pointed to a deteriorating situation in that country since they fled; the conflict was escalating.
[11] It was argued Mr. Fernando would be at risk of extreme sanctions and inhumane treatment if returned to Colombo.
[12] His life would be in danger, a risk objectively identifiable and not faced generally by other individuals in or from Sri Lanka, it was said.
[13] The immigration officer reviewing the H & C application called for a risk assessment by a Post Claim Determination Officer ("PCDO") who, on April 24, 2001, in accordance with Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.), provided Mr Fernando with a draft risk assessment asking for comments on errors or omissions contained therein.
[14] The PCDO referred to the submission made by their solicitor in November of 1998 which he dealt with item by item basing himself, in part, on the 1999 U.S. DOS Country Conditions for Sri Lanka and on an Amnesty International Report in 1999 on torture in custody in Sri Lanka.
[15] The PCDO's draft was commented upon by the applicants' present counsel.
CONCLUSIONS
[16] In my view, the applicants have not persuaded me that they will suffer irreparable harm if they are removed to the United States.
[17] The applicants provided no evidence whatsoever on any aspect of harm they would suffer in being removed to the United States; the affidavit of Mr. Fernando speaks to severe hardship in being uprooted from Canada where he says the family is well-established and integrated. Mr. Fernando also states his fear of returning to Sri Lanka because of their past experiences there. He adds the Civil War has only worsened in recent years and this further jeopardizes their safety at the hands of both the government and the LTTE.
[18] In circumstances analogous to those before me, Justice Wetston in Kaberuka v. Canada (Minister of Employment and Immigration), [1994], F.C.J. No. 369 and Justice Nadon, in Mikailov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 642, found that no irreparable harm had been made out in terms of removal to the United States.
[19] Although it is unnecessary for me to do so, I am not satisfied the applicants would suffer irreparable harm if returned to Sri Lanka based on Justice MacKay's view expressed in Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.) where he stated irreparable harm implies serious likelihood on harm to life and safety.
[20] Clearly the applicants have had this issue canvassed several times by the Refugee Division, by the PCDO and by this Court, all of those institutions concluding the applicants' fear had not been made out.
[21] Given my finding on lack of irreparable harm, I need not deal with serious issue and balance of convenience.
[22] This stay application is dismissed.
"François Lemieux"
J U D G E