Docket: IMM-2305-11
Citation: 2011 FC 1282
Toronto, Ontario, November 9,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ALAGARATNAM NAGULATHAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
In 2001, Alagaratnam Nagulathas applied for an immigrant
visa as part of the Family Class. He was sponsored by his wife, Rathy
Tharmalingam. After the couple commenced an application for mandamus in
2011, a decision was rendered in relation to the application. Mr. Nagulathas
was found to be inadmissible to Canada under paragraph 34(1)(f) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 as there were reasonable
grounds to believe that he was a member of a terrorist organization, namely the
Liberation Tigers of Tamil Eelam [LTTE].
[2]
The fact that a decision has been rendered in relation to
the visa application renders the application for mandamus moot. However,
Mr. Nagulathas seeks his costs of the mandamus application, arguing that
he should not have been forced to commence litigation in order to have a
decision rendered in relation to his application for permanent residence.
[3]
For the reasons that follow, I am not persuaded that there
are “special
reasons” justifying an award of costs in this case.
The Law Governing Costs in Immigration Proceedings
[4]
Costs
are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of
the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 provides that “[n]o costs shall be awarded to or payable by any party
in respect of an application for leave, an application for judicial review or
an appeal under these Rules unless the Court, for special reasons, so orders”.
[5]
This
Court has found undue delay in processing a claim to be a “special reason”
justifying an award of costs: see, for example, Manivannan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1392, [2008] F.C.J. No. 1754 at para.
60, and Aghdam v. Canada (Minister of Citizenship and Immigration), 2011 FC 131, [2011]
F.C.J. No. 193 at paras. 19-22. “Special reasons” have also been found to exist
where an immigration official issues a decision only after an unreasonable and
unjustified delay: see the decisions referred to in Ndugngu v. Canada (Minister of
Citizenship and Immigration) 2011 FCA 208, [2011] F.C.J. No. 933 at para.
6(vi).
Are There “Special Reasons” Entitling Mr.
Nagulathas to Costs
in this Case?
[6]
Despite
the lengthy time taken to process Mr. Nagulathas’ application for permanent residence, I am not satisfied that special reasons exist in this case
justifying an award of costs in his favour.
[7]
This is because Mr. Nagulathas does not come before this
Court with clean hands. It is now admitted that he lied on his initial
immigration application when he indicated that he had never been detained in Sri Lanka. He was in fact detained by Sri Lankan
authorities for three years between 1995 and 1998 while he was facing charges under
the Prevention of Terrorism Act.
[8]
Mr. Nagulathas was subsequently acquitted of the charges
when the trial judge “g[a]ve [him] the benefit of the doubt” and found that it
had not been established that his confession to membership in the LTTE had been
given voluntarily.
[9]
Mr. Nagulathas’ acquittal was not, however, determinative
of the question of whether there were reasonable grounds to believe that he was
a member of a terrorist organization. The fact that he had been detained and
charged under the Prevention of Terrorism Act and his concealment of
these facts were undoubtedly of real concern to Canadian immigration
authorities, and required further investigation.
[10]
While there were delays in the processing of Mr.
Nagulathas’ claim, not all of the delay can be fairly attributed to the
respondent. Some of the delay was clearly attributable to Mr. Nagulathas having
concealed highly material information in his immigration application. In the
circumstances, and in the exercise of my discretion, I decline to make an award
of costs in his favour.
[11]
I
agree with the parties that there is no serious question of general importance
for certification in this case.
[12]
On
the consent of the parties, the style of cause is amended to remove Rathy Tharmalingam as an applicant and the Minister of Public Safety and
Emergency Preparedness as a respondent.
ORDER
THIS
COURT ORDERS that:
1.
Mr. Nagulathas’ motion for costs is dismissed;
2.
The
style of cause is amended to remove Rathy Tharmalingam as an
applicant and the Minister of Public Safety and Emergency Preparedness as a
respondent; and
3.
No
serious question of general importance is certified.
“Anne
Mactavish”
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