Jayasinghe v. Canada (Minister of Citizenship and Immigration), (2007) 309 F.T.R. 185 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: February 13, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 309 F.T.R. 185 (FC);2007 FC 193

Jayasinghe v. Can. (M.C.I.) (2007), 309 F.T.R. 185 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. MR.006

Sujeewa Senani Priyanta Jayasinghe (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1424-06; 2007 FC 193)

Indexed As: Jayasinghe v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

February 22, 2007.

Summary:

The First Secretary of the Canadian High Commission in Colombo, Sri Lanka (the officer) determined that Jayasinghe did not meet the requirements for a temporary resident visa. The officer found that Jayasinghe was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act as there were reasonable grounds to believe that Jayasinghe had either personally committed, or was complicit in, the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations during his service with the Special Forces of the Sri Lankan Army. Jayasinghe applied for judicial review of the officer's decision.

The Federal Court dismissed the application.

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - A visa officer found that Jayasinghe was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act as there were reasonable grounds to believe that Jayasinghe had either personally committed, or was complicit in, the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations during his service with the Special Forces of the Sri Lankan Army - Jayasinghe applied for judicial review - The Federal Court held that the officer's inadmissibility finding was not unreasonable - The officer did not err in finding that Jayasinghe was complicit in, as well as directly responsible for, the commission of crimes - With respect to the complicity finding, the court considered that Jayasinghe was a long-standing member of the Sri Lankan Army and a commanding officer in regions of Sri Lanka where human rights abuses were known to have been committed; he demonstrated a personal and knowing control and participation in military operations, beyond mere membership, and a shared, common purpose by reason of his role and training of others; he demonstrated relevant knowledge of specialized military operations and the commission of specific offences; and he was promoted repeatedly and was still an active member of the forces at the time of his application - See paragraphs 57 to 66.

Aliens - Topic 4502

Evidence - Duty to disclose - A visa officer determined that Jayasinghe was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act as there were reasonable grounds to believe that Jayasinghe had either personally committed, or was complicit in, the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations during his service with the Special Forces of the Sri Lankan Army - Jayasinghe applied for judicial review, arguing that the officer should have notified him of the relevant passages of the reports on human rights abuses committed by the Sri Lankan Army to which she referred - The Federal Court dismissed the application - In cases alleging a breach of the duty of fairness based on the failure to disclose reports which existed in the public domain, the question was whether disclosure of the reports or references to specific passages was required in order to provide a reasonable opportunity to participate in a meaningful manner in the decision-making process - The officer's actions did not prevent Jayasinghe from participating meaningfully in the decision-making process - He was aware of the allegations of misconduct imputed against the Sri Lankan Army and was given a fair opportunity to respond - See paragraphs 24 to 28.

Aliens - Topic 4502

Evidence - Duty to disclose - A visa officer determined that Jayasinghe was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act as there were reasonable grounds to believe that Jayasinghe had either personally committed, or was complicit in, the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations during his service with the Special Forces of the Sri Lankan Army - Jayasinghe applied for judicial review, arguing that the officer should have produced a copy of the communication received from Canada Border Services Agency (CBSA response) - Jayasinghe compared the officer's decision to a Ministerial danger opinion and relied on the reasoning in Canada (M.C.I.) v. Bhagwandass (F.C.A.) - The Federal Court dismissed the application - A visa officer's decision differed significantly in both nature and procedure from a Ministerial danger opinion - The reasoning in Bhagwandass was specific to the danger opinion context and was not applicable to this case - Given that the CBSA response provided only assistance to the officer, rather than a decisive opinion, Jayasinghe failed to establish that disclosure of the CBSA response was necessary in order for him to address the officer's concerns about his inadmissibility - The officer did not breach any duty of fairness - See paragraphs 29 to 34.

Cases Noticed:

Zazai v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 78; 262 F.T.R. 246 (F.C.), affd. (2001), 339 N.R. 201; 2005 FCA 303, refd to. [para. 1].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178; 2003 FCA 39, refd to. [para. 17].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 17].

Najat v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 737; 2006 FC 1237, refd to. [para. 23].

Mittal v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285 (T.D.), dist. [para. 25].

Haghighi v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 139 (F.C.A.), refd to. [para. 26].

Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461; 226 N.R. 134 (F.C.A.), refd to. [para. 28].

Khwaja v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 319; 2006 FC 522, refd to. [para. 28].

Bhagwandass v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 337; 2001 FCA 49, dist. [para. 29].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 264; 2002 FCT 389, refd to. [para. 31].

Chen v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 12; 2002 FCT 266, refd to. [para. 32].

Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642; 141 F.T.R. 81 (T.D.), affd. [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), leave to appeal refused (2001), 286 N.R. 199 (S.C.C.), refd to. [para. 40].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 40].

Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3; 284 N.R. 201 (F.C.A.), refd to. [para. 40].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 42].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229, refd to. [para. 54].

Kasturiarachchi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 200; 2006 FC 295, refd to. [para. 57].

Hamidi v. Canada (Minister of Citizenship and Immigration) (2006), 289 F.T.R. 110; 2006 FC 333, refd to. [para. 59].

Murcia v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 175; 2006 FC 287, refd to. [para. 61].

Ardila v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 892; 2005 FC 1518, refd to. [para. 61].

Bedoya v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 632; 2005 FC 1092, refd to. [para. 61].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 63].

Andeel v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 1; 2003 FC 1085, refd to. [para. 64].

Counsel:

Ronald Shacter, for the applicant;

Linda Chen and Matina Karvellas, for the respondent.

Solicitors of Record:

Ronald Shacter, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 13, 2007, at Toronto, Ontario, before Shore, J., of the Federal Court, who delivered the following decision on February 22, 2007.