Ghanaseharan Selliah v. Canada

Ghanaseharan Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 (CanLII)

• Sri Lankan Tamil family (father, mother, young child)
• Had initially claimed refugee status and were denied; JR of refugee decision denied
• Then tried PRRA and H&C
• PRRA decision denied and then negative JR
• Judge certified a question re: standard of proof for s. 97 claims (hadn’t yet been decided in the jurisprudence)
• This is the stay of removal application pending appeal of the negative JR decision
• In this case the stay of removal application is rejected
• This case is frequently cited for irreparable harm as needing to be more than just mere convenience, and that irreparable harm does not necessarily flow from a finding that there is a serious issue in a negative PRRA decision

• Serious issue threshold is just met here due to certified question being material to judge’s decision
• No irreparable harm

o Counsel relies on three kinds of irreparable harm if they are removed on July 20: disruption to the lives that they have built in Canada; the risk of persecution if they are returned to Sri Lanka; and their right of appeal will be rendered nugatory.

o [13] The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here. This is likely to be particularly true of young children who have no memory of the country that they left. Nonetheless, the kinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth rule, otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 2000 CanLII 16220 (FC), 188 F.T.R. 29.

o [14] I am not persuaded that the adult appellants’ success in finding employment (which they will lose on removal), their commitment to improving their vocational qualifications, and their community involvement, are sufficient to demonstrate that their situation is any different from that of most others who face removal. Similarly, their child’s separation from his school and friends pending the disposition of the appeal is a routine, if painful, incident of removal.

o Risk of persecution wasn’t more than mere possibility

o Note that the Court’s analysis re: appeal of negative PRRA decision not being nugatory if appellants are deported is now wrong following Perez v Canada , 2009 FCAA 171, 2009 FCJ 691

o Balance of convenience favours the Minister
o There have been three negative administrative decisions all held up by the Federal Court
o Appellants have a duty to leave Canada
o Also duty of Minister to enforce removal as soon as reasonably practicable