Nagalingam v. Canada (Minister of Citizenship and Immigration) et al., 2008 FCA 153

• Judge: Décary, Nadon and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 24, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FCA 153;(2008), 377 N.R. 151 (FCA);292 DLR (4th) 463;377 NR 151

Nagalingam v. Can. (M.C.I.) (2008), 377 N.R. 151 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. JL.047

Panchalingam Nagalingam (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-170-07; 2008 FCA 153)

Indexed As: Nagalingam v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court of Appeal

Décary, Nadon and Trudel, JJ.A.

April 24, 2008.

Summary:

Nagalingam was found inadmissible to Canada on grounds of organized criminality pursuant to s. 37 of the Immigration and Refugee Protection Act (IRPA) and he was ordered deported. A delegate of the Minister of Citizenship and Immigration issued an opinion pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act that Nagalingam should not be allowed to remain in Canada based on the nature and severity of acts committed. Nagalingam applied for judicial review.

The Federal Court, in a decision reported at 310 F.T.R. 34, dismissed the application. The court certified the following questions: "1. If, in the preparation of an opinion under paragraph 115(2)(b) of the Immigration and Refugee Protection Act, the Minister finds that a refugee who is inadmissible on grounds of organized criminality does not face a risk of persecution, torture, cruel and unusual punishment or treatment upon return to his country of origin, does such a finding render unnecessary the Minister's consideration of the 'nature and severity of acts committed' under paragraph 115(2)(b); 2. If the lack of risk identified in question #1 is not determinative, is paragraph 115(2)(b) of the Immigration and Refugee Protection Act to be applied 'on the basis of the nature and severity of acts committed' by the criminal organization of which the person is a member, or of acts committed by the person being considered for removal (including acts of the criminal organization in which the person was complicit)". Nagalingam appealed.

The Federal Court of Appeal allowed the appeal. The court allowed Naglingam's application for judicial review and remitted the matter to the Minister's delegate for redetermination. The court answered "No" to the first certified question. The court answered the second certified question as follows "The exception of paragraph 115(2)(b) regarding organized criminality will apply to a Convention refugee or a protected person if, in the opinion of the Minister, that person should not be allowed to remain in Canada on the basis of the nature and substantial gravity of acts committed (in the context of organized criminality) personally or through complicity, as defined by our domestic laws, but established on a standard of reasonable grounds".

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A protected person or a Convention refugee benefited from the principle of non-refoulement recognized by s. 115(1) of the Immigration and Refugee Protection Act - However, s. 115(2)(b) provided that s. 115(1) did not apply in the case of a person "who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" - The Federal Court of Appeal summarized the principles applicable to a decision of the Minister under s. 115(2)(b) and the steps leading to that decision - See paragraph 44.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A protected person or a Convention refugee benefited from the principle of non-refoulement recognized by s. 115(1) of the Immigration and Refugee Protection Act - However, s. 115(2)(b) provided that s. 115(1) did not apply in the case of a person "who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" - The Federal Court of Appeal considered the following certified question "If, in the preparation of an opinion under paragraph 115(2)(b) of the Immigration and Refugee Protection Act, the Minister finds that a refugee who is inadmissible on grounds of organized criminality does not face a risk of persecution, torture, cruel and unusual punishment or treatment upon return to his country of origin, does such a finding render unnecessary the Minister's consideration of the 'nature and severity of acts committed' under paragraph 115(2)(b)" - The court answered "No" to the question - See paragraph 45.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A protected person or a Convention refugee benefited from the principle of non-refoulement recognized by s. 115(1) of the Immigration and Refugee Protection Act - However, s. 115(2)(b) provided that s. 115(1) did not apply in the case of a person "who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" - The Federal Court of Appeal held that the proper standard of proof for a determination under s. 115(2)(b) of the Act was reasonable grounds - See paragraphs 47 to 50.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A protected person or a Convention refugee benefited from the principle of non-refoulement recognized by s. 115(1) of the Immigration and Refugee Protection Act - However, s. 115(2)(b) provided that s. 115(1) did not apply in the case of a person "who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" - The Federal Court of Appeal held that "when applying paragraph 115(2)(b) in relation to an individual found inadmissible for reasons of organized criminality (section 37 of the Act), there must be reasonable grounds to believe that the person committed, himself or through complicity, as defined in our criminal legal system, acts of organized criminality" - See paragraphs 51 to 68.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A protected person or a Convention refugee benefited from the principle of non-refoulement recognized by s. 115(1) of the Immigration and Refugee Protection Act - However, s. 115(2)(b) provided that s. 115(1) did not apply in the case of a person "who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" - The Federal Court of Appeal held that there was a high threshold with respect to the "nature and severity of acts" in s. 115(2)(b) and that s. 115(2)(b) would only be triggered where the acts committed were of "substantial gravity" - See paragraphs 69 to 76.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - Nagalingam was found inadmissible to Canada on grounds of organized criminality pursuant to s. 37 of the Immigration and Refugee Protection Act (IRPA) and he was ordered deported - A delegate of the Minister of Citizenship and Immigration issued an opinion pursuant to s. 115(2)(b) of the IRPA that Nagalingam should not be allowed to remain in Canada based on the nature and severity of acts committed - In addressing this issue, the Minister placed particular emphasis on evidence supporting Nagalingam's membership and involvement in the criminal activities of the A.K. Kannan gang - Nagalingam applied for judicial review - The application was dismissed - Nagalingam appealed - The Federal Court of Appeal allowed the appeal - The Minister's delegate found that the A.K. Kannan was a criminal organization generally involved in severe criminal acts, and that Nagalingam was an active member in that group - That was not sufficient to meet the threshold of s.115(2)(b) - The courts stated that "not having to make an express finding of complicity does not mean that the delegate was not required to conclude, on reasonable grounds, that the evidence pointed to the appellant as being complicit in the acts of organized criminality committed by the organization, acts that were of such nature and severity as to warrant his removal. The delegate failed to do so" - See paragraphs 77 to 80.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 29].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 29].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 30].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 30].

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 30].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 32].

Ragupathy v. Canada (Minister of Citizenship and Immigration) (2006), 350 N.R. 137; 2006 FCA 151, refd to. [para. 39].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 52].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 761; 307 N.R. 201; 2003 FCA 178, refd to. [para. 52].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 54].

Zazai v. Canada (Minister of Citizenship and Immigration) (2005), 339 N.R. 201; 2005 FCA 303, refd to. [para. 54].

Lennikov et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 24; 2007 FC 43, refd to. [para. 54].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 62].

R. v. Smith - see R. v. James (W.A.) et al.

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 2007 NSCA 19, refd to. [para. 62].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 63].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 64].

R. v. Terezakis (A.) (2007), 245 B.C.A.C. 74; 405 W.A.C. 74; 2007 BCCA 384, leave to appeal dismissed (2008), 385 N.R. 380 (S.C.C.), refd to. [para. 66].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2007), 316 F.T.R. 142; 2007 FC 687, refd to. [para. 77].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 37(1), sect. 98, sect. 115 [para. 11].

Authors and Works Noticed:

Feller, Erika, Türk, Volker, and Nicholson, Frances, Refugee Protection in International Law (2003), paras. 169 [para. 69]; 186 [para. 71].

Lauterpacht, Elihu, and Bethlehem, Daniel, The Scope and Content of the Principle of Non-refoulement, in Feller, Erika, Türk, Volker, and Nicholson, Frances, Refugee Protection in International Law (2003), paras. 169 [para. 69]; 186 [para. 71].

Counsel:

Barbara Jackman and Andrew Brouwer, for the appellant;

Bridgett O'Leary and Amy Lambiris, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the appellant;

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

This appeal was heard on January 24, 2008, at Toronto, Ontario, before Décary, Nadon and Trudel, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Trudel, J.A., on April 24, 2008.