Sathiskumar Kamalakanthan v. Canada

Counsel:

Max Berger, for the applicant.
Tamrat Gebeyehu, for the respondent.

Order

UPON A MOTION on behalf of the Applicant for an order that the execution of removal order be stayed until such time as the underlying Application for Leave and for Judicial Review of the exclusion order made January 24, 2008, is finally determined;

AND UPON reading the material before the Court;

AND UPON hearing counsel for the parties by teleconference;

AND UPON applying the three part test for determination whether an interlocutory injunction should be granted pending a determination of a case on its merits, to with: a) whether there is a serious question to be tried; b) whether the litigant who seeks the interlocutory injunction would, unless the injunction is granter, suffer irreparable harm; and c) on the balance of convenience, which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits;

AND UPON being satisfied that a serious issue has been raised, to the extent that it is not clear whether the applicant was effectively prevented from making a refugee claim before the exclusion order was made. Counsel for the applicant also questioned the authority of CBSA to put the applicant on a plane and send him to the United Kingdom, with the knowledge that he did not have a valid British passport. This question warrants further examination;

AND UPON finding that the applicant would face irreparable harm if eventually removed to Sri Lanka, considering the most recent country reports indicating that violence is spiralling out of control since the cease fire has come to an end, at the beginning of the month. While it is true the applicant will initially be removed to a safe county, he will in all likelihood be removed thereafter to Sri Lanka as he appears to have no legal status in the United Kingdom;

AND UPON finding that, in those circumstances, the balance of convenience clearly favours the applicant. In conformity with Canada’s international obligations, the applicant should at least have a reasonable opportunity to have his fear assessed before being sent back to his country of origin, despite his ill advised decision not to claim refugee status at the port of entry.

THIS COURT ORDERS THAT:

the application for a stay of removal is granted, until such time as the underlying application for leave and for judicial review is finally disposed of.

Yves de Montigny

Judge