Thamotharampillai v. Canada (Minister of Citizenship and Immigration), 2003 FC 822

Date: 20030703

Docket: IMM-4014-02

Citation: 2003 FC 822

Toronto, Ontario, Thursday, July 3, 2003

BETWEEN:

                                           PAKEERATHAN THAMOTHARAMPILLAI

Applicant

and

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

                                               REASONS FOR ORDER AND ORDER

SIMPSON J.

[1]                 UPON the Applicant's application for judicial review (the "Application") of a decision of a Citizenship and Immigration Officer (the "Officer") dated July 29, 2002 (the "Decision").

[2]                 AND UPON reviewing the file and hearing the submissions of counsel for both parties in Toronto on July 2, 2003.

[3]                 AND UPON concluding that the Officer erred in the following material respects:

a)         She referred to a Minister's Opinion that the Applicant was a danger to the public without noting that the Opinion had been set aside.

b)         She referred in her Decision to a "pattern" of criminal activity and, to the Applicant's "actions" in relation to the Criminal Law and, even though she noted that the Applicant had only one criminal conviction (albeit a serious one) and that, with regard to two other events, he had been charged and acquitted and not charged at all, the language she used in her Decision nonetheless suggests that it was based on more than one conviction.

c)         She accepted the positive risk assessment but does not appear to have included it in her assessment of the factors in favour of a successful humanitarian and compassionate ruling. Rather, she mentioned only the Applicant's subjective fear and the degree of his establishment in Canada.

[4]                 AND UPON noting that the question posed by the Applicant for certification need not be considered given the Applicant's success on this Application.

ORDER

NOW THEREFORE THIS COURT ORDERS that, for the reasons given above, this Application is allowed. The matter is hereby referred back for a fresh determination and a fresh risk opinion.

"Sandra J. Simpson"

                                                                                                                                                          J.F.C.C.                        

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                               IMM-4014-02

STYLE OF CAUSE:                              PAKEERATHAN THAMOTHARAMPILLAI

                                                                          Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                         Respondent

DATE OF HEARING:              JULY 2, 2003

PLACE OF HEARING:                        TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                                  SIMPSON J.

DATED:                                                   JULY 3, 2003

APPEARANCES BY:                         Mr. Lorne Waldman

For the Applicant

                                                                 Mr. Stephen Gold

For the Respondent

SOLICITORS OF RECORD:           Lorne Waldman

Barrister & Solicitor

Toronto, Ontario

For the Applicant

                                                                Morris Rosenberg

Deputy Attorney General

For the Respondent     

                                                                             FEDERAL COURT OF CANADA

Date: 20030703

                                                Docket: IMM-4014-02

BETWEEN:

PAKEERATHAN THAMOTHARAMPILLAI

                                                                Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                               Respondent

REASONS FOR ORDER

AND ORDER