Date: 20070628
Docket: IMM-4064-06
Citation: 2007 FC 687
Ottawa, Ontario, June 28,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JOTHIRAVI SITTAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and MINISTER OF PUBLIC SAFETY &
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Mr.
Jothiravi Sittampalam, seeks judicial review of the opinion of G.C. Alldridge,
the Minister’s Delegate (also referred to as the Delegate), dated July 6, 2006,
in which the Delegate determined that the Applicant:
- constitutes a
danger to the public in Canada, pursuant to s. 115(2)(a) of the Immigration and
Refugee Protection Act S.C. 2001, c. 27 (the IRPA); and
- should not be
allowed to remain in Canada based on the nature and severity of acts committed,
pursuant to s. 115(2)(b) of the IRPA.
[2] The effect of this
opinion, if sustained on judicial review, is that the Applicant, despite a
finding in 1990 that he was a Convention refugee, may be deported (or refouled)
to Sri
Lanka.
2. Issues
[3] The
issues raised by this application are as follows:
- In
concluding that the Applicant presents a danger to the public, as
contemplated by s. 115(2)(a) of the IRPA, did the Minister’s
Delegate ignore or otherwise misconstrue the evidence or err by placing
weight on incidents that had not resulted in criminal convictions?
- In
concluding that the Applicant was inadmissible to Canada on grounds of
organized criminality and should not be allowed to remain in Canada on the
basis of the nature and severity of the acts committed, as contemplated by
s. 115(2)(b) of the IRPA, did the Minister’s Delegate err by
ignoring evidence, failing to make an explicit finding of complicity or
otherwise misinterpreting s. 115(2)(b)?
- Did the
Minister’s Delegate err in his conclusion that the Applicant would not be
at risk if returned to Sri Lanka:
(a) by
selectively relying on certain evidence and ignoring the finding in 1990 that
the Applicant was a Convention refugee and, thus, presumed to be in need of
protection; and
(b) by
failing to have regard to submissions of the Applicant made in May 2006?
- Did the
Minister’s Delegate err in concluding that there were insufficient
humanitarian and compassionate (H & C) elements to warrant favourable
consideration by failing to have regard to the best interests of the
Applicant’s Canadian-born children?
- Did the
Minister’s Delegate, as a result of his errors on risk to the Applicant,
improperly fail to balance the protection interests of the Applicant with
the danger he presents to the public?
[4] In
oral submissions before this Court, the Applicant did not pursue the issue
regarding the best interests of his children. In my view, the opinion of the
Minister’s Delegate demonstrates that he was alert, alive and sensitive to the
interests of the children affected. Accordingly, this issue will not be
discussed further.
3. Background
[5] The Applicant, who is a
citizen of Sri
Lanka, has
a lengthy history with immigration officials, the police and the Courts,
including the Federal Courts. The most relevant portions of his background are
as follows:
- The Applicant arrived
in Canada in February 1990
and made a successful Convention refugee claim. He became a permanent
resident on July 17, 1992.
- The Applicant has
three criminal convictions: (1) Failing to Comply with a Recognizance,
dated January 24, 1992; (2) Trafficking in a Narcotic, dated July 8, 1996;
and (3) Obstructing a Peace Officer, dated February 1998.
- The Applicant has
also been investigated, but never convicted, for gang-related occurrences
for his role in numerous offences which include Attempted Murder, Assault
with a Weapon, Aggravated Assault, Possession of a Weapon Dangerous to the
Public, Pointing a Firearm and Using a Firearm to Commit an Offence,
Threatening, Extortion, and Trafficking.
- The Applicant was
identified by the Toronto Police as the leader of A.K. Kannan, one of two
rival Tamil gangs operating in Toronto. The Applicant admitted his former
involvement in the gang to police.
- The Applicant was
reported under s. 27(1)(d) of the Immigration Act, R.S.C. 1985, c.
I-2 [repealed] (the former Act), by virtue of his drug trafficking
conviction.
- He was subsequently
reported under s. 27(1)(a) and 19(1)(c.2) of the former Act as a person
for whom there are reasonable grounds to believe is engaged in activity
planned and organized by a number of persons acting together to commit
criminal offences. The allegation was that the appellant "is or was a
member of an organization known as the A.K. Kannan gang".
- An inquiry under
the former Act commenced in January 2002. When the IRPA came into force in
June 2002, the inquiry continued under ss. 36 and 37 of the IRPA.
The Applicant conceded that he was a person described in section 36 due to
his drug trafficking conviction, but he disputed the allegations of
organized criminality.
- In a decision dated
October 4, 2004, a panel of the Immigration and Refugee Board (the Board)
determined that the Applicant was inadmissible to Canada on grounds of
serious criminality (IRPA, s. 36(1)(a)) and organized criminality (IRPA,
s. 37(1)(a)).
- On judicial review,
the Federal Court upheld the Board's determination regarding the
Applicant’s inadmissibility to Canada (Sittampalam v. Canada (Minister
of Citizenship and Immigration and Minister of Public Safety and Emergency
Preparedness), [2005] F.C.J. No. 1485 (F.C.) (QL) (referred to as Sittampalam
I)), which in turn was upheld by the Federal Court of Appeal (Sittampalam
v. Canada (Minister of Citizenship and Immigration and Minister of Public
Safety and Emergency Preparedness), [2006] F.C.J. No. 1512 (F.C.A.)
(QL) (referred to as Sittampalam II)).
[6] Following the
inadmissibility findings of the Board (but before the Court decisions in Sittampalam
I and Sittampalam II), officials of Canada Border Services Agency
(CBSA) began a process which, if successful, would allow the refoulement of the
Applicant to Sri
Lanka.
That is, CBSA sought to obtain what is commonly referred to as a “danger
opinion” from the Minister of Citizenship and Immigration (the Minister),
pursuant to ss. 115(2)(a) and 115(2)(b) of the IRPA. A Notice, dated
November 24, 2004, was served on the Applicant by CBSA, wherein CBSA advised
the Applicant that it would be seeking an opinion of the Minister that the
Applicant was both a danger to the public and/or a person who should not be
allowed to remain in Canada on the basis of the nature and severity of the acts
committed. The letter described the evidentiary base upon which the Minister’s
opinion would be formed and invited the Applicant to make submissions.
[7] The Applicant made
submissions in response to this Notice. The next step taken was the preparation
of a formal “Request for Minister’s Opinion – A115(2)(a) and A115(2)(b)”. Once again,
in a letter dated April 8, 2005, the Applicant was informed that he could make
“such written representations or arguments as you deem necessary and submit any
documentary evidence you believe relevant”.
[8] In response to this
letter, the Applicant, through his counsel, made submissions on May 1, 2005.
Those submissions were clearly considered by the Minister’s Delegate when he
formed his opinion.
[9] After the initial
submissions were made in May 2005, there was a gap in the procedure until the opinion
was finally issued in July 2006. A second package of documents was forwarded to
the Minister, under cover letter dated May 19, 2006. This second set of
submissions was not contained in the Certified Tribunal Record. It appears to
be accepted by the parties that, while this package was received at the
Minister’s offices, it was not received or considered by the Minister’s
Delegate.
4. Statutory Framework
[10] To understand the
context of the Delegate’s opinion, it is useful to have in mind an overview of
the statutory framework that applies to the Applicant. To begin, a principle of
refugee protection in Canada is that, once a person
is found to be a Convention refugee, the IRPA provides protection to that
individual and only allows refoulement to his country of origin in certain
cases and only after following the procedures set out in the IRPA.
[11] One of the situations
where refoulement is possible begins with a finding of inadmissibility. Of
importance to the Applicant, s.36 of the IRPA applies to render a
foreign national inadmissible on grounds of criminality and s. 37 applies in
cases of organized criminality. The Applicant has been found inadmissible under
both sections (see Sittampalam I and Sittampalam II, above).
[12] A determination that a foreign
national, who is a protected person under IRPA (as is the Applicant), is
inadmissible does not automatically lead to deportation. Indeed, s. 115(1) of
the IRPA codifies what is referred to as the “principle of
non-refoulement”.
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(1) A protected person or a person who
is recognized as a Convention refugee by another country to which the person
may be returned shall not be removed from Canada to a country where they
would be at risk of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion or at risk of
torture or cruel and unusual treatment or punishment.
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(1) Ne peut être renvoyée dans un pays où elle risque la
persécution du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques, la torture ou
des traitements ou peines cruels et inusités, la personne protégée ou la
personne dont il est statué que la qualité de réfugié lui a été reconnue par
un autre pays vers lequel elle peut être renvoyée.
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[13] The exception to this
principle is set out in s. 115(2) of the IRPA.
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(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who
constitutes, in the opinion of the Minister, a danger to the public in Canada; or
(b) 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.
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(2) Le paragraphe (1) ne s’applique pas à l’interdit de
territoire :
a) pour grande criminalité qui, selon le ministre,
constitue un danger pour le public au Canada;
b) pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux ou criminalité organisée si, selon le ministre, il
ne devrait pas être présent au Canada en raison soit de la nature et de la
gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité
du Canada.
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The opinion of the Minister’s Delegate was
provided under this statutory provision.
[14] With this legislative
context, I turn to the opinion of the Minister’s Delegate.
5. Key Findings of the Minister’s Delegate in
the July 6, 2006 Opinion
[15] The
Delegate’s first task was to consider whether the Applicant constitutes a
“danger to the public” as contemplated by s. 115(2)(a) of the IRPA. In
doing so, he noted the three criminal convictions (described above) of the
Applicant. Relying on Thuraisingam v. Canada, 2004 FC 607, the Delegate
also placed weight on several incidents that did not result in criminal
convictions. He also considered whether the Applicant had changed his
“lifestyle” since his first conviction and concluded that he had not. The
Delegate concluded that the criminal convictions “were not isolated incidents”
but were part of a “pattern”. The Minister’s Delegate determined that the
Applicant “constitutes both a current and future danger to the public pursuant
to paragraph 115(2)(a) of the IRPA and should not be allowed to remain
in Canada on that
basis”.
[16] The
Minister’s Delegate turned next to a consideration of s. 115(2)(b) of the IRPA.
Specifically, the Delegate addressed the questions of whether the Applicant was
inadmissible to Canada on grounds of organized criminality and whether or not he
should be allowed to remain in Canada on the basis of the nature and severity of
the acts committed. He concluded that both elements of s. 115(2)(b) were
satisfied. He relied on the October 4, 2004 decision of the Board and the
decision of the Federal Court in Sittampalam I as support for a
conclusion that the Applicant was inadmissible to Canada on grounds
of serious criminality. In terms of the nature and severity of the acts, the
Delegate focussed on the known activities of the A.K. Kannan gangs, commenting
that “Tamil gangs, including the A.K. Kannan, pose a unique and pressing threat
to Canadian society”. He then reviewed the evidence supporting the Applicant’s
leadership role within the gang. The Delegate concluded that: (i) the Applicant
was a member of the A.K.Kannan; (ii) the A.K. Kannan is an organized group; and
(iii) the gang had a deleterious effect on the Sri Lankan community by committing
crimes of violence.
[17] Informed
by the Supreme Court of Canada decision in Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 and the
Federal Court of Appeal in Suresh v. Canada (Minister of Citizenship and
Immigration), [2000] 2 F.C. 592 and in Li v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1, 2005 FCA 1, at paras.
38-39, the Delegate then turned to consider whether the Applicant would be at
“substantial risk of torture” or “risk to life or to cruel and unusual
treatment or punishment” if returned to Sri Lanka. Since Canada had accepted
that the Applicant required refugee protection in 1990, the key question for
the Delegate was whether the situation had changed since that time. The
Delegate also considered whether, because of his activities in Canada, including
gang membership, the Applicant would be targeted. After considering the
documentary evidence and the evidence submitted by the Applicant (with the
exception of the May 2006 package), the Delegate concluded that he was “not
satisfied that Mr. Sittampalam’s return under deportation to Sri Lanka would
expose him to a substantial risk of torture, or to a risk to life or to cruel
and unusual treatment or punishment”.
[18] The
next step in the analysis was whether, in spite of the findings, there existed
H & C grounds for allowing the Applicant to remain in Canada. The
Minister’s Delegate concluded that “there are no sufficient humanitarian and
compassionate elements in this case which would warrant favourable
consideration.”
[19] Finally,
the Delegate addressed the question of whether he was required to undertake a
“balancing exercise whereby the risk, the nature and severity of the acts
committed and the humanitarian considerations are weighed against each other”,
as taught by Suresh, above. The Delegate concluded that he did not need
to conduct the “balancing exercise”. This was because: (1) the Applicant did
not face a “substantial risk of torture, a risk to life or a risk of cruel and
unusual treatment or punishment”; and (2) his H & C considerations “do not
warrant favourable consideration”. Quite simply, in the Delegate’s opinion, there
was nothing to weigh in this case.
6. Analysis
6.1 What is the
appropriate standard of review?
[20] In Suresh, above,
the Supreme Court of Canada noted that the discretionary determination of
whether someone constitutes a danger to the security of Canada is one that calls for
considerable deference:
The
court's task ... is to determine whether the Minister has exercised her
decision-making power within the constraints imposed by Parliament's
legislation and the Constitution. If the Minister has considered the
appropriate factors in conformity with these constraints, the court must uphold
her decision. It cannot set it aside even if it would have weighed the factors
differently and arrived at a different conclusion. (at para. 38)
A danger opinion should only be set if it is
patently unreasonable - that is, if it was arbitrary, if it was made in bad
faith, if it was not supported by the evidence, or if the Minister's delegate
failed to consider the appropriate factors (Suresh, above at para. 29).
[21] This standard of review
has been consistently applied by this Court and was recently applied to an
opinion under s. 115 of the IRPA by Justice Kelen in Nagalingam v.
Canada (Minister of
Citizenship and Immigration), 2007 FC 229, at paras.18-19.
[22] A breach of procedural
fairness may also constitute a reviewable error, without reference to any
standard of review. Finally, the Applicant raises two legal issues (related to
the s. 115(2)(b) finding) that are reviewable on a standard of correctness.
6.2 Issue #1: Did the Minister err in his
determination under s. 115(2)(a) of the IRPA?
[23] With respect to s.
115(2)(a) of the IRPA, the Minister’s Delegate opined that:
Mr.
Sittampalam does in fact pose an unacceptable risk to the public of Canada and
I find that he constitutes both a current and future danger to the public
pursuant to paragraph 115(2)(a) of the IRPA and should not be allowed to
remain in Canada on that basis.
[24] The
Applicant raises a number of alleged errors in the Delegate’s opinion, most of
which are based on an argument that the Minister’s Delegate ignored, or
selectively relied upon the evidence.
[25] The
Applicant relies upon Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) for the
proposition that an inference can be drawn by a Board failure to mention
evidence in a decision that was favourable to the applicant, particularly when
the reasons are detailed. Thus, the Applicant argues that it cannot always be
presumed that the blanket statement that the Minister’s Delegate considered all
facts should be seen to apply. Allegedly, by failing to mention the evidence of
Detective Fernandez on the Applicant’s attempts to get out of the gang, his
work as an independent trucker beginning in 1999 or the evidence of
co-operation with the police, it must be inferred that the Delegate ignored
that evidence. I do not agree.
[26] Most
of the submissions of the Applicant are no more than a disagreement with the
weight given to the evidence by the Minister’s Delegate. I consider first the
numerous assertions that the Delegate ignored evidence. Given that there were 14
large volumes of evidence before the Delegate, it is understandable that
not every document received a specific reference in the opinion. On the facts
before the Delegate, it was not an error to omit specific reference to evidence
of Detective Fernandez, the trucking business established in 1999 or the
evidence of co-operation with the police. Omission of these details does not
mean that the Delegate did not consider and appreciate the evidence on these
matters. I am satisfied that the Minister’s Delegate had considered all of the
evidence on these points when he concluded:
There is little evidence in the material
before me that would support an inference that Mr. Sittampalam is serious about
changing the pattern of behaviour resulting in his criminal convictions.
Likewise, there is little evidence in support of a finding that he is taking
active substantive steps to rehabilitate himself and become a productive member
of society.
[27] As
is apparent from reading the opinion as a whole, the Minister’s Delegate was
simply not persuaded that the seriousness of the convictions and the incidents
in which the Applicant was involved were outweighed by the “little evidence”
that he had reformed his life.
[28] Secondly,
the Applicant submits 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.
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”.
[29] Another
error alleged by the Applicant relates to the Delegate’s references to his drug
addiction. In the opinion, the Delegate states as follows:
I do acknowledge that Mr. Sittampalam
participated in a drug addiction program while in detention; however, there is
nothing in the material before me indicating that he continued to participate
in this type of program once released from detention. In like manner, there is
nothing in the material before me indicating that he has recently participated
in such a program. I also acknowledge that Mr. Sittampalam has indicated that
he is no longer addicted to illegal substances.
[30] The
Applicant argues that the Delegate relied on irrelevant considerations by
referring to the past drug issues when, as the Delegate stated, there is no
evidence that he is now addicted to illegal substances. 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”.
[31] Next,
contrary to the assertion of the Applicant, this is not a case where the
passage of time necessarily weighs in his favour. Admittedly, the Applicant has
not had a criminal conviction or a gang-related incident since 2001. However,
it is certainly not unreasonable to conclude that the Applicant’s detention,
rather than rehabilitation, was the main reason for the lack of criminal or
gang-related activity. I see no error.
[32] In response to the
arguments related to the Applicant’s claim that he is no longer a member of the
A.K. Kannan, the Federal Court of Appeal has provided a full response in Sittampalam II,
at para.
23,
where the Court states:
Such an interpretation would also mean that a former member of the
Nazi party in Germany could not be found inadmissible because the Nazi party no
longer exists, so that he is no longer a member. It would mean that a member of
an international terrorist organization could renounce his or her membership
immediately prior to making a refugee claim, and would not be inadmissible
because he is not a current member of a terrorist organization. It would also
mean that a person who spends ten years as a member of an organization engaged
in criminal activities within Canada could withdraw from the organization
before being reported under the IRPA and avoid a finding of inadmissibility.
[33] The
most serious argument of the Applicant appears to be that the Delegate erred by
taking into account the various incidents that did not result in criminal
conviction. The Applicant argues that the Minister’s Delegate relied on Thuraisingam,
above, to consider charges not resulting in convictions. The Applicant argues
that these reports cannot constitute “evidence” underlying the charges as
contemplated in Thuraisingam.
[34] I
first observe 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 behavior – that
continued up until 2001 when the Applicant was allegedly found with instruments
of forgery.
[35] However,
even more responsive to this argument, are the opinions of the Federal Court
and the Federal Court of Appeal in Sittampalam I and Sittampalam II.
I turn to the comments of Justice Hughes in Sittampalam I, at para. 35
where he stated:
I
do not read the Member's Report at pages 53 and following under the heading
"Criminality" as giving improper weight to charges laid or
contemplated to be laid but which never went forward. These circumstances are
mentioned in the Report but only in the context of a detailed consideration as
to the circumstances themselves that were behind the charges or contemplated
charges. It was these circumstances and not the charges or contemplated charges
that supported the Member's findings that there were reasonable grounds for
finding that section 37(1)(a) of IRPA applied.
[36] The
Court of Appeal confirmed this point in Sittampalam II, at paragraphs
50-51 where that Court stated as follows:
The jurisprudence of this Court indicates that
evidence surrounding withdrawn or dismissed charges can be taken into
consideration at an immigration hearing. However, such charges cannot be used,
in and of themselves, as evidence of an individual's criminality: see, for
example, Veerasingam v. Canada (M.C.I.) (2004), [2004] F.C.J. No. 2014,
135 A.C.W.S. (3d) 456 (F.C.T.D.) at para.11; Thuraisingam v. Canada (M.C.I.)
(2004), 251 F.T.R. 282 (T.D.) at para. 35.
In this regard, I agree with the Judge that the
Board did not rely on the police source evidence as evidence of the appellant's
wrongdoing. Rather, he considered the circumstances underlying the charges and
contemplated charges -- including the frequency of the appellant's interactions
with the police and the fact that others involved were often gang members -- to
establish that there are "reasonable grounds to believe", a standard
that is lower than the civil standard, that the A.K. Kannan gang engages in the
type of activity set out in paragraph 37(1)(a).”
[37] In my view, in the
present application, we have exactly the same evidence of the police incidents
being put to substantially the same use as was done by the Board in reaching
the conclusion on inadmissibility. If reliance in that manner by the Board, in
the context of the inadmissibility determination, was acceptable to the Courts
in Sittampalam
I and Sittampalam
II, it
is certainly acceptable in the context before me.
[38] In conclusion on this
issue,
having considered all of the submissions of the Applicant, I am not persuaded
that the Minister’s Delegate was patently unreasonable in his opinion that the
Applicant presents a danger to Canada as contemplated by s. 115(2(a)).
6.3 Issue #2: Did the Minister err in his
determination under s. 115(2)(b) of the IRPA?
[39] In forming his opinion
on whether the Applicant should not be allowed to remain in Canada on the basis
of the nature and severity of acts committed (s. 115(2)(b)), the Minister’s
Delegate entered into a lengthy analysis of the evidence related to the direct
actions of the Applicant, the activities of the A.K. Kannan and the role of the
Applicant within that organization. In short, he concluded that:
In
terms of the nature and severity of the acts committed, the evidence shows the
existence of facts supporting Mr. Sittampalam’s membership in and participation
in the criminal activities of the A.K. Kannan, that Tamil gangs, including the
A.K. Kannan, pose a unique and pressing threat to Canadian society, and the
fact that the A.K. Kannan has been involved in a significant and serious
criminal activity against civilians and a rival gang (i.e. the VVT) including
violence.
[40] Further, the Delegate
was satisfied that the Applicant was a member of the gang. Indeed, his
involvement reached far beyond mere membership; as noted by the Delegate, “the
evidence shows the existence of facts supporting Mr. Sittampalam’s membership
in the leadership in and involvement in the criminal activities of the A.K.
Kannan.” In his analysis, the Delegate also referred to Sittampalam I,
where Justice Hughes upheld the decision of the Board that there were
reasonable grounds to believe that the A.K. Kannan met the definition of
“organized criminality” set out in s. 37(1)(a) the IRPA and that the
Applicant was a member of that organization. It is important to note that the
Delegate did not simply adopt the findings of the Board or the Court. Since
this was a determination under s. 115(2)(b) of the IRPA, the Delegate
recognized his responsibility to carry out his own analysis of the evidence. I
am satisfied that he did so.
[41] Many of the arguments by
the Applicant with respect to the factual findings under s. 115(2)(b) are the
same as those made for the s. 115(2)(a) finding. The Applicant submits that the
Delegate ignored evidence on the Applicant’s membership status in the gang, his
efforts to leave the gang and the co-operation with police. As I have already
determined that the Board did not ignore this evidence, I conclude that the
Delegate did not err.
[42] The more serious argument
advanced by the Applicant is that the Delegate erred by focusing on the acts of
the A.K. Kannan rather than those of the Applicant. In doing so, the Applicant
asserts that there are two errors. The first is 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 (Nagalingam, above). Secondly, the
Applicant argues that s. 115(2)(b) can only apply to the acts of the individual
and not of the gang to which he may have belonged.
[43] In my view, the
complicity argument is not well-founded on these facts. Although there is not a
specific sentence in the opinion that states that the Applicant was complicit
in the acts and crimes of the A.K. Kannan, the opinion certainly establishes
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. In my view, this is
sufficient to establish that the Delegate turned his mind to the relationship
of the Applicant to the acts of the gang. In fact, there was evidence to show
that the Applicant was, at certain times of the gang’s violent history, a
directing mind of the organization. In my view, the Minister’s Delegate had
before him sufficient evidence to conclude that the Applicant “was a personal
and knowing participant in the criminal activities of the organization” (Nagalingam,
above, at para. 63). Thus, even though the Delegate did not use of the word
“complicit”, his analysis demonstrates 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. Because of that close link, the acts of the A.K. Kannan, in
effect, become the acts of the Applicant.
[44] The other issue is
whether the Delegate was limited to a consideration of the nature and severity
of the acts committed by the Applicant, and could not consider the acts of the
criminal organization. The Applicant points to the words used in the French
version of s. 115(2)(b) which, in part, read “en raison soit de la nature et de
la gravité de ses actes passés”. In the English version, the provision
refers to the “nature and severity of acts committed”, with no modifier of the
word “acts”. Thus, submits the Applicant, Parliament must have intended the
provision to apply only to the acts of the Applicant. This interpretation of s.
115(2)(b) was accepted, albeit in obiter, by Justice Kelen in Nagalingam,
above, at paras. 52-61.
[45] I do not agree that the
Delegate erred, even if the Applicant’s interpretation of s. 115(2)(b) is
correct (which determination I do not need to make on these facts). The problem
with the argument is that, in my view, the Applicant mischaracterizes this
section of the opinion. When the s. 115(2)(b) analysis is read as a whole, it
is clear that the Delegate was not examining the acts of the A.K. Kannan on its
own.
[46] I observe that the
Delegate could not ignore the nature of the A.K. Kanaan. Absent a finding that
the group is involved in “organized criminality”, s. 115(2)(b) is inapplicable
to the Applicant. Thus, it would be nonsensical for the Delegate to ignore the
acts of the gang for the purpose of establishing that the A.K. Kanaan met the
definition of “organized criminality”.
[47] However, the Delegate
did not assess only the activities of the gang. 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. Kanaan, an organized gang with a
violent and dangerous purpose. Accordingly, the Delegate, in my view,
demonstrates that his finding related to the “la nature et la gravité de ses
actes passés”. There was no error.
6.4 Issue #3(a): Did the Minister’s Delegate
err in his risk opinion?
[48] As noted, the Delegate found
that “there is insufficient evidence to support a finding that it is more
likely that not that Mr. Sittampalam would face a substantial risk of torture,
or a risk to life or to cruel and unusual treatment or punishment.” The
Applicant takes issue with this conclusion on two grounds:
- the Delegate
selectively relied on certain evidence and ignored the 1990 finding that
the Applicant was a Convention refugee, and thus, presumed to be in need
of protection; and
- the Delegate failed
to have regard to the documents submitted in May 2006.
I will deal with each of these arguments
separately.
[49] On
the first alleged error, the Applicant seems to be asking for a re-weighing of
the findings as they related to Sri Lankan country conditions.
[50] I
note the decision of Justice Mactavish in Fabian v. Minister of Citizenship
and Immigration, 2006 FC 851, which, in my opinion, is exactly on point.
That case involved a VVT Tamil Gang leader in Toronto (found to be
a danger to the public) who argued that, because of his notoriety, he would be
harmed upon returning to Sri Lanka. Justice Mactavish
stated at para. 58:
It
is clear from a review of the Minister's Delegate's decision that he
specifically turned his mind to the treatment afforded returning Sri Lankan
nationals, including those with a profile such as that of Mr. Fabian, finding
that the prevailing conditions were such that Mr. Fabian would not be at any
greater risk than any other returning Sri Lankan national.
[51] In
my opinion, a similar situation exists in the instant case. There was a large
volume of material available for the Minister’s Delegate, and he is presumed to
have considered it all. There is no reviewable error.
[52] The
Applicant submits that, absent a vacation of the refugee determination in 1990,
as provided for in s. 109(1) of the IRPA, he is still a person in need
of protection. This argument has no merit. First, s. 109 only applies if the
Board determines that the refugee protection was obtained “as a result of
directly or indirectly misrepresenting or withholding material facts”. This
provision is inapplicable as no one is alleging that, in 1990, the Applicant
became a protected person through misrepresentation. The issue before the
Delegate was whether, in 2006, he still requires protection. Paraphrasing
Justice Yvon Pinard in Camara v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 221 at para. 58, the
fact that the Applicant had been considered at risk by the Board in 1990 does
not establish that he was still at risk in 2006. There is no need, in this
situation, to formally vacate the refugee determination.
[53] To
this point, I can see no reviewable error in the risk assessment conducted on
the Delegate’s review of the material before him. Of course, this view is
subject to the issue of whether the Delegate erred by failing to have regard to
the materials submitted in May 2006. That issue is discussed below.
6.5 Issue #3(b): Did the Delegate err by
failing to have regard to submissions of the Applicant made in May 2006?
[54] It
is undisputed that the Applicant forwarded a package of supplemental
documentation to the attention of the Minister’s Delegate under cover letter
dated May 19, 2006. There is evidence that the documents were received.
However, there is not a single reference to the materials in the opinion and
they are not contained in the Certified Tribunal Record. Accordingly, I find
that the Delegate failed to consider these materials.
[55] Failure
to have regard to the materials is a breach of procedural fairness and a ground
upon which the decision of the Minister’s Delegate may be overturned.
[56] A breach of natural
justice or procedural fairness will, in general, render the decision invalid (Cardinal
v. Kent Institution, [1985] 2 S.C.R. 643 at page 661; Mobil Oil Canada
Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
The Respondent argues that this case presents a set of exceptional facts where
the decision of the Minister’s Delegate should stand. In effect, the Respondent
argues that any breach of fairness was de minimus and that it would not
have affected the outcome of the danger opinion. To some extent, I agree with
the Respondent. However, there is one aspect of the decision that may be
affected in a significant way.
[57] Having reviewed the
materials in question, I begin by considering what parts of the Delegate’s
opinion would (or would not) be impacted by the May 2006 materials. First, the
May 2006 information would not change the analysis of the Minister’s Delegate
with respect to the danger to the public in Canada or the
nature and severity of the acts committed by the Applicant. None of the May
2006 information relates to these issues.
[58] Second,
I also do not believe the information would alter the risk assessment with
respect to the Applicant not having proper documentation upon returning to Sri Lanka, as the
Minister’s Delegate was clear that no such risk existed, and, in my opinion,
the May 2006 information does not serve to rebut this finding.
[59] Third,
I do not believe it can be said that the Minister’s Delegate was unaware of the
inherent risks present to young Tamil males in northern Sri Lanka. The May
2006 documents do not disclose any new evidence on this point that was not
already before the Minister’s Delegate.
[60] However,
in my opinion, the main issue would be with respect to the changing country conditions
documented in the May 2006 information package. In the Delegate’s opinion, at
page 18, he specifically finds:
[i]n my view, conditions in Sri Lanka are
vastly different than when Mr. Sittampalam left that country for Canada, and
when he was found to be in need of protection.
[61] Further,
at page 21 of his Danger Opinion the Minister’s Delegate specifically finds:
…while things are far from ideal in Sri
Lanka, a comparison of two documents does not reveal any substantial increase
in ceasefire violations which may suggest that the peace accord between the
warring parties is becoming an accepted fact.
[62] My
concern with these statements is that, if the Minister’s Delegate is going to
make such a risk finding, it must be based on all the material. Given
that the May 2006 information contains – or at least purports to contain –
information regarding deteriorating country conditions, it was a reviewable
error for the Delegate to fail to take this information into consideration. In
my view, it is necessary for the Minister’s Delegate re-examine this aspect of
the case with the benefit of the full information in front of him. I will
return to the extent of any reconsideration below.
6.6 Issue #5: Did the Delegate
improperly fail to balance the protection interests of the Applicant with the
danger he presents to the public?
[63] As established by Suresh,
above, and recognized by the Minister’s Delegate, a balancing exercise is
sometimes necessary in the context of a danger opinion. Specifically, where a Delegate
concludes that a person, otherwise found to be a person described in s.
115(2)(a) or 115(2)(b), would face a substantial risk if returned, the Delegate
must weigh that risk in light of all the other factors. In this case, the
Delegate concluded that the Applicant would not face a substantial risk and
that H & C considerations did not warrant favourable consideration.
Accordingly, he determined that:
I
do not need to undertake a balancing exercise whereby the risk, the nature and
severity of acts committed, and the humanitarian considerations are weighed
against each other in accordance with the legal principles enunciated by the
Supreme Court in Suresh, as this simply does not arise on the facts of this
case.
[64] This conclusion is plain
common sense. If there is no risk found, there is nothing to balance under s.
115(2) of IRPA. This was confirmed by Justice Kelen in Nagalingam, at para.
43. However, if the Minister’s Delegate erred and ultimately a risk is found, a
balancing would be required (Nagalingam, above, at para. 47). Because I
have found that there is one reviewable error, absent a further assessment of
risk by the Delegate, I cannot provide any definitive answer to this issue.
6.7 What is the appropriate remedy in
this case?
[65] Having reviewed the
submissions and arguments of the parties, I am persuaded that, although the
Minister’s Delegate did not err in a number of areas, there was one error that
warrants judicial intervention. The Applicant requests that the opinion be
quashed and the matter be returned for reconsideration by a different
Delegate.
[66] However,
in my opinion, that would be an inappropriate remedy in this case. I note that,
on an application for judicial review, s. 18.1(3) of the Federal Courts Act,
R.S.C. 1985, c. F-7, provides this Court with a range of options. Specifically,
the Court may:
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(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
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a) ordonner
à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis
ou refusé d’accomplir ou dont il a retardé l’exécution de manière
déraisonnable;
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
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[67] In Turanskaya v. Canada (Minister of
Citizenship and Immigration) 145 D.L.R. (4th) 259 the Federal Court of
Appeal held, when considering the scope of 18.1(3)(b) of the Federal Courts
Act:
The
"directions" which the Trial Division is authorized to give under
paragraph 18.1(3)(b) will vary with the circumstances of a particular case.
If, for example, issues of fact remain to be resolved it would be
appropriate for the Trial Division to refer a matter back for a new hearing
before the same or differently constituted panel depending on the
circumstances.
The assessment of risk and any change in country
conditions in Sri
Lanka
constitute factual issues as contemplated in Turanskaya and can
therefore be returned to the original decision maker.
[68] Further, in my view,
there is no need for the Minister’s Delegate to redo everything that he has
done in the opinion. Given my reasons, the Delegate’s findings that the
Applicant has been involved in serious criminality and poses a danger to the
public in Canada and that he should not be allowed to remain in Canada on the basis of the
nature and severity of acts committed in Canada should not be disturbed. The only error is that
the Minister’s Delegate erred in his assessment of risk to the Applicant if
returned to Sri
Lanka by
failing to have regard to all of evidence before him. Thus, the matter will be
remitted to the original Minister's Delegate for a new risk assessment. This is
consistent with the decision of Justice Mactavish in Thuraisingam v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 746, where she was faced
with a similar error with respect to the risk assessment portion of the
opinion.
[69] In the event that, after
this review, the Delegate concludes that the Applicant would be at substantial
risk, I would further direct the Delegate to undertake a balancing exercise as
contemplated by Suresh, above. Otherwise there will be no need for a
final balancing.
7. Conclusion
[70] For the above reasons,
this application for judicial review will be allowed with the matter remitted
to the same Minister’s Delegate for reconsideration in accordance with the
directions of this Court, as outlined above and set out in the Order.
[71] Both parties suggested
that, if I dismissed the application, I should certify the same questions as
those certified by Justice Kelen in Nagalingam, above. Since I have
allowed the judicial review, these questions are not dispositive of this
matter. Accordingly, I will not certify any questions.
ORDER
THIS COURT ORDERS that:
- The application for
judicial review is allowed with respect to the Delegate’s finding that the
Applicant’s return to Sri Lanka would not expose him to a substantial risk
of torture or to a risk to life or cruel and unusual treatment;
- The opinion of the
Minister’s Delegate is set aside and the matter is remitted to the same
Minister's Delegate for the sole purpose of re-assessing the risk to the
Applicant if he were returned to Sri Lanka;
- In the event that
the Delegate concludes that the Applicant would be at substantial risk,
the Delegate is to carry out a balancing exercise, as contemplated by Suresh;
and
- No question is
certified.
“Judith A. Snider”
________________________
Judge
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