Date: 19990707
Docket: IMM-3732-98
Ottawa, Ontario, this 7th day of July, 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
B E T W E E N:
SATHIYASEELAN NAGULARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
The application is dismissed. The following question is certified:
| Did the Appeal Division of the Immigration and Refugee Board exceed its jurisdiction when it considered public safety in the appeal of a deportation order under paragraph 70(3)(b) of the Immigration Act? |
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"Karen R. Sharlow"
Judge
Date: 19990707
Docket: IMM-3732-98
B E T W E E N:
SATHIYASEELAN NAGULARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant Mr. Sathiyaseelan Nagularajah challenges a decision of the Appeal Division of the Immigration and Refugee Board refusing to stay a deportation order.
[2] Mr. Nagularajah is a citizen of Sri Lanka, born in 1974. He came to Canada in 1993 and in 1994 was granted refugee status. He quit school in 1995 but could not find employment. He received some welfare benefits but they soon ceased.
[3] On March 25, 1996, Mr. Nagularajah went to the welfare office with an axe, demanding to see a case worker. When the case worker did not come out, Mr. Nagularajah smashed a glass partition with the axe and swung the axe at a security guard. No one was injured. Mr. Nagularajah was arrested and released two days later on his own recognizance.
[4] On May 17, 1996, Mr. Nagularajah was involved in a fight at a gas station over window-cleaning squeegees. Mr. Nagularajah fled and was apprehended later the same day at a donut shop, brandishing a machete and challenging passersby to fight him.
[5] These events led on September 20, 1996 to Mr. Nagularajah being convicted of three criminal offences, the most serious of which was assault with a weapon. He was sentenced to time served, six months, plus 211 days. He was also placed on probation for 2 years. The criminal conviction led to an inquiry under section 27 of the Immigration Act on February 20, 1997. The adjudicator issued a deportation order.
[6] There has been no opinion by the Minister that Mr. Nagularajah is a danger to the public in Canada. He was entitled to appeal the deportation order to the Appeal Division and did so. Because he is a Convention refugee, the appeal was brought pursuant to paragraph 70(2)(a) of the Immigration Act.
[7] There was no challenge to the validity of the deportation order. The basis of the appeal was paragraph 70(3)(b), "on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada."
[8] The record includes the report of a psychiatrist dated June 28, 1996 that was prepared for the criminal proceedings, and another report by the same psychiatrist dated January 9, 1998 that was prepared for the hearing before the Appeal Division. Those reports indicate that Mr. Nagularajah suffers from psychotic depression with a differential diagnosis of paranoid schizophrenia. The psychiatrist believes that Mr. Nagularajah's criminal behaviour was attributable to his mental illness.
[9] The record indicates that since Mr. Nagularajah's release from incarceration, he has been living with his family and has been under psychiatric care. His family supervises his activities very closely. He has consistently taken his prescribed medications. He has been employed. He complied with all of the terms of his probation, including the requirement to report regularly. There is no indication on the record that he has exhibited dangerous behaviour while on medication.
[10] The psychiatrist's second report says:
| In my professional opinion, Sathiyaseelan is a very gentle and law abiding citizen who's [sic] inappropriate behaviour at the Welfare office on the 25th of March, 1996 and at a service station on May 17, 1996 were due to the psychiatric illness he was suffering from at that time. |
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| As mentioned earlier, with treatment he has improved very much and the chances of re-offending are nil provided he continues with our treatment. Sathiyaseelan has complied fully in our treatment plan and I am sure he and his parents would see that this compliance would continue in future. |
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| Again, in my professional opinion, Sathiyaseelan is not a violent risk to the public, his illness is fully controlled with treatment and, hence, the prognosis is very good. |
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[11] The Appeal Division dismissed the appeal and refused to stay the deportation order. It is useful to quote the portion of the reasons for decision that set out its conclusions:
| The nature of the appellant's offences are severe, repeated and violent. The appellant has no memory of them. He does not show any genuine insight into what he did. He appreciates that it was because of his illness that he acted in such an extreme fashion on repeated occasions. But he does not appear to have made any connections between his illness and the need to manage it in the future in order to deal with the very real possibility that his illness could trigger further violent outbursts. He does not appear to appreciate the consequences of how he behaved on the earlier occasions when he was violent. |
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| He agrees to keep taking his medicine, but there is also evidence that his psychiatrist intends to stop seeing him within the next few months. The appellant has been suffering from severe paranoid schizophrenia with periods of violent psychosis. The panel is not persuaded by the evidence presented, both medical and non-medical, that this appellant should be the subject of a stay. The panel must consider the risk posed by the appellant to the safety and well-being of the general public. |
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| The appellant is very isolated. He has family support but no friends or other supports. He has expressed a wish to become independent of his family someday. Currently, they are the only buffer between the appellant and others to whom the appellant appears to have great difficulty relating. |
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| The panel does not know how these factors will unfold. Despite some of the evidence before the panel that the appellant has a reduced risk of repeat offences, this is predicated on many factors which would need to unfold in a favourable fashion for the appellant in order to outweigh the risk to the public of placing the appellant on a stay. These include continuing to take consistent treatment and developing some understanding and insight into his illness and what impact it will have on the rest of his life, as well as developing supports and resources other than those offered by his family. The panel is not satisfied that the appellant or his family have made this realization. |
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| In addition, the family has not demonstrated much awareness of the appellant's mood or health in the past. They never noticed how ill he was until his violent public outbursts. The panel does not have confidence in the expectation that they can be watchdogs for the appellant indefinitely. There are too many risks in this scenario for the appellant to be the subject of a stay of the deportation order. |
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[12] Counsel for Mr. Nagularajah raises four arguments. I will discuss each in turn.
Factual conclusions
It is argued for Mr. Nagularajah that the reasons for the decision of the Appeal Division indicate a disregard or misapprehension of the evidence. I do not agree. The Appeal Division gave careful and thorough consideration to the nature and cause of Mr. Nagularajah's criminal behaviour, the manner in which his behaviour was controlled after his release from incarceration, and the various factors that are relevant to the prospects for the control of his behaviour in future. All of the factual conclusions of the Appeal Division are supported by evidence. The weight to be given to the evidence is a matter within the sole jurisdiction of the Appeal Division.
Meaning of "humanitarian and compassion considerations"
[13] It is argued for Mr. Nagularajah that if the appeal had been brought under paragraph 70(1)(b), the Appeal Division would be required to consider "all the circumstances of the case," which would include the question of public safety: Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (C.A.), Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.). However, an appeal by a Convention refugee brought under the paragraph 70(3)(b) is governed by narrower language ("humanitarian and compassionate considerations"), which must be interpreted to include only Mr. Nagularajah's personal characteristics. That should exclude any consideration of public safety.
[14] Counsel for the Minister argues that the phrase "humanitarian and compassionate considerations" is broad enough to include public safety. He relies on Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.).
[15] There is very little jurisprudence on the scope of paragraph 70(3)(b), and none on the difference between paragraphs 70(1)(b) ("all the circumstances of the case") and 70(3)(b) ("humanitarian and compassionate considerations").
[16] In the Barrera case, the Federal Court of Appeal said that in an appeal under paragraph 70(3)(b) based on humanitarian and compassionate considerations, the Appeal Division may consider the seriousness of past criminal offences. In fact, the Appeal Division has been held to be in error when it disregards such evidence: Canada (Minister of Citizenship and Immigration v. Mansoobi), [1997] F.C.J. No. 353 (T.D.)(Q.L.).
[17] Evidence of criminal history would be pointless in a paragraph 70(3)(b) appeal without evidence that would assist in assessing rehabilitation and the likelihood of future criminal behaviour. Therefore, evidence of rehabilitation and future prospects must be relevant in such an appeal. But it is not meaningful to weigh such evidence without taking into account the potential seriousness and impact of future criminal behaviour. That necessarily includes an assessment of the risk to the public. To put it another way, any realistic assessment of a person's criminal history must take into account the question of how the risk of future criminal activity might affect the public. In that sense, counsel for Mr. Nagularajah poses a false dilemma when he argues that the factors to be taken into account in an appeal under paragraph 70(3)(b) must be limited to Mr. Nagularajah's personal characteristics.
[18] I conclude that whatever the difference is between the phrase "all the circumstances of the case" and the phrase "humanitarian and compassionate considerations," they are both broad enough to include evidence of criminal history, rehabilitation and future prospects, including the risk of future danger to the public.
[19] The Barrera and Mansoobi cases may be distinguished from Mr. Nagularajah's case on the basis that Mr. Nagularajah's criminal behaviour was caused by mental illness. That distinction may make Mr. Nagularajah more worthy of sympathetic consideration, but it does not detract from the conclusion that the Appeal Division is entitled to consider the question of public safety in an appeal under paragraph 70(3)(b).
Subsection 70(5)
[20] It is argued for Mr. Nagularajah that if there is concern about public safety, the proper procedure is for the Minister to invoke subsection 70(5), which provides for a danger opinion to be issued by the Minister so as to preclude any appeal at all to the Appeal Division. It is said that the availability of that procedure supports the argument that the Appeal Division exceeds its jurisdiction when it considers the question of public safety.
[21] Counsel for the Minister argues that subsection 70(5) does not shed any light on the scope of paragraph 70(3)(b). I agree with him.
[22] Subsection 70(5) gives the Minister a tool for facilitating the removal from Canada of persons thought to be dangerous to the public. However, the existence of subsection 70(5) does not suggest that the question of public safety cannot be considered under other provisions of the Immigration Act. After all, subsection 70(5) was enacted in 1995, when paragraph 70(3)(b) was already in place. It cannot be the case that before 1995, no one had the right to take public safety into account.
Opportunity to present evidence on public risk
[23] Finally, it is argued for Mr. Nagularajah that it is unfair for the Appeal Division to consider the question of public safety because Mr. Nagularajah has had no opportunity to respond specifically to an allegation of that nature, as he would if the Minister were proposing to consider a danger opinion under subsection 70(5).
[24] There is no merit in this argument. In the hearing before the Appeal Division, Mr. Nagularajah had ample opportunity to present evidence relating to the question of public risk, and he took that opportunity. The transcript of the hearing before the Appeal Division indicates that in the direct examination of Mr. Nagularajah, his own counsel put questions to him that were intended to deal with future events, including the likelihood of his continuing with medical treatment so as to reduce the risk of criminal behaviour. There are comments in the report of the psychiatrist and a letter from Mr. Nagularajah's probation officer that are also intended to address that issue.
Conclusion
[25] For these reasons, I have concluded that the Appeal Division is entitled to consider the question of public safety in an appeal under paragraph 70(3)(b). The application will be dismissed.
Certified question
[26] Given the absence of authority on the interpretation of paragraph 70(3)(b), counsel for both parties agreed that this is an appropriate case for a certified question. They each submitted a form of question. I agree that a question should be certified. The question is as follows:
| Did the Appeal Division of the Immigration and Refugee Board exceed its jurisdiction when it considered public safety in the appeal of a deportation order under paragraph 70(3)(b) of the Immigration Act? |
|
"Karen R. Sharlow"
Judge
Ottawa, Ontario
July 7, 1999
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