Date: 20041012
Docket: IMM-4388-03
Citation: 2004 FC 1397
Ottawa, Ontario this 12th day of October 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
PANCHALINGAM NAGALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Panchalingam Nagalingam (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Division (the "Board"), dated May 28, 2003. In its decision, the Board determined the Applicant to be inadmissible to Canada pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] The Applicant, a citizen of Sri Lanka, obtained landed immigrant status in Canada on March 13, 1997, following a successful claim for Convention refugee status in this country. At the time of his hearing before the Board, he was the common-law husband of Ms. Seuranie Persaud with whom he fathered a son who was born on December 10, 1999.
[3] The Applicant was reported for inquiry pursuant to section 27(1)(a) of the former legislation, the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "former Act"). A direction was issued pursuant to section 27(3) of the former Act. Pursuant to section 193 of IRPA and section 321(1) and 321(2)(f) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended (the "Regulations"), the admissibility hearing that originated under the former Act continued under IRPA and the Immigration Division Rules, SOR/2002-229 (the "Rules").
[4] The issue before the Board was whether the Applicant was inadmissible to Canada on the basis of membership in a prohibited class, that is organized criminality, pursuant to section 37(1)(a) of IRPA. The Board found that he was such a person, specifically that there were reasonable grounds to believe that he was a member of a Tamil group known as "A.K. Kannan".
[5] The Board, in its reasons, clearly stated that it relied heavily on Exhibit 4, a transcript of a cautioned statement provided to two detectives with the Toronto Police Service by one P.A. In that interview, which was conducted on February 22, 2001, P.A. said that the Applicant was a member of the A.K. Kannan. According to P.A., the A.K. Kannan was known to be a gang and the Applicant was known to be an "enforcer" with that group.
[6] Some months later, P.A. purported to recant what he had said in his interview with the police officers. An affidavit from him, dated December 6, 2001, was entered as an exhibit at the Applicant's admissibility hearing before the Board. The Board gave no weight to that evidence and P.A. was not called to testify.
[7] Similarly, the Board accorded no credibility to the evidence of the Applicant and Ms. Persaud concerning the Applicant's alleged membership in the inadmissible class of membership in a criminal organization. It rejected the arguments advanced by the Applicant's counsel, concerning the credibility of this evidence, and described their evidence "generally speaking to be somewhat contradictory, extremely self-serving and totally lacking in credibility".
[8] The Applicant argues that although the Board identified the correct legal test for determining membership in a criminal organization, the test was improperly applied. The Applicant submits that the Board committed a reviewable error by ignoring the affidavit of P.A. That affidavit was evidence which cast doubt on the evidence contained in the transcript of the police interview that had been conducted on February 22, 2001.
[9] Second, the Applicant argues that the Board erred by failing to give clear and adequate reasons for rejecting the evidence of the Applicant and Ms. Persaud respecting his membership in a gang.
[10] Third, the Applicant argues that the Board ignored evidence from a disinterested third party, that is the statutory declaration provided by Ramanathar Sethukavalar. As well, the Applicant submits that the Board erred by ignoring documentary evidence that suggested that the A.K. Kannan was not a gang or criminal organization. Finally, the Applicant argues that the Board failed to give clear reasons for its findings.
[11] The Respondent argues that the Board was authorized to decide what evidence it could accept and further, to weigh that evidence. The Respondent submits that the Board's findings were open to it and are supported by the record.
[12] The Board's decision was made in the exercise of authority conferred under sections 172 and 173 of IRPA, as follows:
| 172. (1) The Immigration Division consists of the Director General and other directors and members necessary to carry out its functions and who are employed in accordance with the Public Service Employment Act.
(2) The Director General and the directors of the Immigration Division have all the powers and may carry out the duties and functions of members of the Division.
173. The Immigration Division, in any proceeding before it,
(a) must, where practicable, hold a hearing;
(b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;
(c) is not bound by any legal or technical rules of evidence; and
(d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
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172. (1) La Section de l'immigration se compose du directeur général, des directeurs et des commissaires, nommés conformément à la Loi sur l'emploi dans la fonction publique, nécessaires à l'exercice de sa juridiction.
(2) Le directeur général et les directeurs peuvent exercer les fonctions des commissaires de la Section de l'immigration.
173. Dans toute affaire dont elle est saisie, la Section de l'immigration_:
a) dispose de celle-ci, dans la mesure du possible, par la tenue d'une audience;
b) convoque la personne en cause et le ministre à une audience et la tient dans les meilleurs délais;
c) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
d) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
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[13] The Applicant's arguments are primarily directed to the manner in which the Board dealt with the evidence before it. As appears from section 173 above, that is specifically the role of the Board. It was entitled to reject the evidence of the Applicant and of Ms. Persaud, as well as the affidavit of P.A. and the statutory declarations tendered on behalf of the Applicant.
[14] In my opinion, following a review of the record, in particular Exhibit 4, there was sufficient evidence before the Board to support its finding as to the Applicant's association with organized criminality, that is the A.K. Kannan gang. There is no error in the manner in which the Board dealt with the evidence before it.
[15] As well, contrary to the submissions of the Applicant, the Board met its obligation to provide clear and coherent reasons for its decision.
[16] In the result, there is no basis for judicial intervention in the Board's decision and this application for judicial review is dismissed. Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4388-03
STYLE OF CAUSE: PANCHALINGAM NAGALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 27, 2004
REASONS FOR ORDER
AND ORDER BY: Heneghan, J.
DATED: October 12, 2004
APPEARANCES BY:
Ms. Krassina Kostadinov
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD:
Ms. Krassina Kostadinov
Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20041012
Docket: IMM-4388-03
BETWEEN:
PANCHALINGAM NAGALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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