Sittampalam v. Canada (Minister of Citizenship and Immigration) et al., 2007 FC 687

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: May 29, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 687;(2007), 316 F.T.R. 142 (FC)

Sittampalam v. Can. (M.C.I.) (2007), 316 F.T.R. 142 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JL.015

Jothiravi Sittampalam (applicant) v. The Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (respondents)

(IMM-4064-06; 2007 FC 687)

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

Federal Court

Snider, J.

June 28, 2007.

Summary:

The applicant was a citizen of Sri Lanka. He was granted refugee status in 1990 and he became a permanent resident of Canada in 1992. He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality. In 2006, a delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) and that he should not be allowed to remain in Canada based on the nature and severity of acts committed (s. 115(2)(b)). The Minister's delegate found that there was insufficient evidence to support a finding that it was more likely than not that the applicant would face a substantial risk of torture, or a risk to life, or to cruel and unusual treatment or punishment, if returned to Sri Lanka. The applicant applied for judicial review of the delegate's decision.

The Federal Court allowed the application where the Minister's delegate failed to have regard to a package of supplemental documentation which the applicant had forwarded to the delegate. Given that the supplemental documentation contained, or purported to contain, information regarding deteriorating country conditions in Sri Lanka, it was a reviewable error for the delegate to fail to consider that information. The delegate's opinion was set aside and the matter was remitted to the same delegate for the sole purpose of re-assessing the risk to the applicant if he were returned to Sri Lanka. If the delegate concluded that the applicant would be at substantial risk, the delegate was to carry out a balancing exercise as contemplated by Suresh v. Canada (M.C.I.) (S.C.C.).

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - The applicant was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) and that he should not be allowed to remain in Canada based on the nature and severity of acts committed (s. 115(2)(b)) - In forming his opinion on whether the applicant should be allowed to remain in Canada on the basis of the nature and severity of acts committed, the Minister's delegate analysed the evidence related to the applicant's direct actions, the activities of the A.K. Kannan gang, and the applicant's role within that organization - The applicant applied for judicial review, arguing that the delegate erred by focussing on the acts of the A.K. Kannan rather than those of the applicant - The applicant submitted that the delegate was required to make an explicit finding that the applicant was complicit in the crimes and violent acts of the A.K. Kannan - The Federal Court stated that although the delegate's opinion did not specifically state that the applicant was complicit in the acts and crimes of the A.K. Kannan, the opinion established the applicant's role, as the founder, leader and active participant in a number of the specific initiatives and crimes of the A.K. Kannan - That was sufficient to establish that the delegate turned his mind to the relationship of the applicant to the acts of the gang - Even though the delegate did not use the word "complicit", his analysis demonstrated that he recognized that for s. 115(2)(b) he was required to find a close link between the applicant and the A.K. Kannan - See paragraphs 42 to 43.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - The applicant was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) and that he should not be allowed to remain in Canada based on the nature and severity of acts committed (s. 115(2)(b)) - In forming his opinion on whether the applicant should be allowed to remain in Canada on the basis of the nature and severity of acts committed, the Minister's delegate analysed the evidence related to the applicant's direct actions, the activities of the A.K. Kannan gang, and the applicant's role within that organization - The applicant applied for judicial review - The applicant argued that the delegate erred by focussing on the acts of the A.K. Kannan rather than those of the applicant - The applicant argued that s. 115(2)(b) could only apply to the acts of the individual and not of the gang to which he may have belonged - The Federal Court held that even if the applicant's interpretation of s. 115(2)(b) was correct (which it did not have to decide), the delegate did not err - When the s. 115(2)(b) analysis was read as a whole, it was clear that the delegate was not examining the acts of the A.K. Kannan on its own - An essential step in the delegate's analysis was an examination of personal criminal activities of the applicant and his leadership role in the organization - In other words, the "acts committed" were both the applicant's own criminal acts and his acts of founding, leading and belonging to the A.K. Kannan - See paragraphs 42 to 47.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - The applicant was a citizen of Sri Lanka - He was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) - The applicant applied for judicial review of the delegate's opinion - The applicant argued, inter alia, that the delegate's conclusion that there was "a pattern of participation in criminal activities that occurred over a period of a number of years" was perverse, given that there was only one gang-related conviction - The Federal Court stated that "I can see no error. In light of, not only the conviction, but the many other gang-related incidents involving the applicant, this conclusion is not unreasonable. The finding does not state that the applicant was convicted of gang-related offences. Rather, the delegate found a 'pattern' on the basis of the lengthy history of police involvement with gang incidents that included the applicant as a party. Even if this history was not sufficient for the laying of criminal charges or to obtain criminal convictions, it was evidence upon which the delegate could base his finding of a 'pattern'" - See paragraph 28.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - The applicant was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) - The applicant applied for judicial review of the delegate's opinion - The applicant argued, inter alia, that the delegate relied on irrelevant considerations by referring to past drug issues when there was no evidence that the applicant was now addicted to illegal substances - The Federal Court stated that "I do not agree. As I read the opinion, the delegate was not finding that the applicant was or was not addicted to drugs at the time of writing the opinion. Rather, he was using the evidence that the applicant had not pursued treatment, except in one prison program. It is not an unreasonable inference that a person addicted to illegal substances, who is truly intent on rehabilitation, would pursue treatment on his own initiative. It follows that his failure to do so was further evidence to support a conclusion that the applicant had not taken 'substantive steps to rehabilitate himself'" - See paragraph 30.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - The applicant was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, s. 115(2)(a)) - The applicant applied for judicial review of the delegate's opinion, arguing that the delegate erred by taking into account various incidents that did not result in a criminal conviction - The Federal Court rejected the argument - The court stated, inter alia, that "a reading of the Danger Opinion as a whole does not show that the delegate placed an inappropriate amount of weight on the failed convictions. Rather, they are seen as part of the larger picture - a pattern of behaviour" - See paragraphs 33 to 37.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - [See first and second Aliens - Topic 1645 ].

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - The applicant was a citizen of Sri Lanka - He was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - A delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, 115(2)(a)) and that he should not be allowed to remain in Canada based on the nature and severity of acts committed (s. 115(2)(b)) - The delegate found that there was insufficient evidence to support a finding that it was more likely than not that the applicant would face a substantial risk of torture, or a risk to life, or to cruel and unusual treatment or punishment, if he returned to Sri Lanka - The applicant applied for judicial review - The Federal Court allowed the application where the Minister's delegate failed to have regard to a package of supplemental documentation which the applicant had forwarded to the delegate - The delegate's risk finding had to be based on all of the material - Given that the supplemental documentation contained, or purported to contain, information regarding deteriorating country conditions in Sri Lanka, it was a reviewable error to fail to consider that information - The delegate's opinion was set aside and the matter was remitted to the same delegate for the sole purpose of re-assessing the risk to the applicant if he were returned to Sri Lanka - See paragraphs 54 to 62.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - The applicant was a citizen of Sri Lanka - He was granted refugee status in 1990 and he became a permanent resident in 1992 - He was subsequently found to be inadmissible on grounds of serious criminality and organized criminality - In 2006, a delegate of the Minister of Citizenship and Immigration rendered an opinion that the applicant constituted a danger to the public in Canada (Immigration and Refugee Protection Act, 115(2)(a)) and that he should not be allowed to remain in Canada based on the nature and severity of acts committed (s. 115(2)(b)) - The delegate had found that there was insufficient evidence to support a finding that it was more likely than not that the applicant would face a substantial risk of torture, or a risk to life or to cruel and unusual treatment or punishment if returned to Sri Lanka - The applicant applied for judicial review - The applicant argued that the delegate ignored the 1990 finding that the applicant was a Convention refugee - The applicant submitted that, absent a vacation of the refugee determination in 1990, as provided for in s. 109(1) of the Act, he was still a person in need of protection - The Federal Court rejected the argument - Section 109 only applied if the Board determined that the refugee protection was obtained as a result of misrepresenting or withholding material facts - No one was alleging that the applicant became a protected person through misrepresentation - The issue before the delegate was whether the applicant still required protection - The fact that the applicant had been considered at risk in 1990 did not establish that he was still at risk in 2006 - See paragraph 52.

Cases Noticed:

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2005), 279 F.T.R. 211 (F.C.), refd to. [para. 5].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 34 (F.C.A.), refd to. [para. 5].

Thuraisingam v. Canada (Minister of Citizenship and Immigration) (2004), 251 F.T.R. 282; 2004 FC 607, refd to. [para. 15].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 17].

Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R. 1 (F.C.A.), refd to. [para. 17].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 2005 FCA 1, refd to. [para. 17].

Nagalingam v. Canada (Minister of Citizenship and Immigration) et al. (2007), 310 F.T.R. 34; 2007 FC 229, refd to. [para. 21].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 25].

Fabian v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 497; 2006 FC 851, refd to. [para. 50].

Camara v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 86 (F.C.), refd to. [para. 52].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 56].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 56].

Turanskaya v. Canada (Minister of Citizenship and Immigration) (1997), 210 N.R. 235; 145 D.L.R.(4th) 259 (F.C.A.), refd to. [para. 67].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 115(1) [para. 12]; sect. 115(2) [para. 13].

Counsel:

Barbara Jackman and Andrew Brouwer, for the applicant;

Mary Matthews and Anshumala Juyal, for the respondents.

Solicitors of Record:

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

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

This application was heard on May 29, 2007, at Toronto, Ontario, before Snider, J., of the Federal Court, who delivered the following decision on June 28, 2007.