SIVAKUMAR SIVANANANSUNTHARAM Applicant - v. -, 2003 FCT 372

Date: 20030327 Docket: IMM-1648-02 Neutral citation: 2003 FCT 372 BETWEEN: SIVAKUMAR SIVANANANSUNTHARAM Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER O'KEEFE J. [ 1 ] This is an application for judicial review, pursuant to

section 82.1 of the Immigration Act , R.S.C. 1985, c. I-2, of the decision of the Immigration and Refugee Board, (Appeal Division) ("the Board") rendered on March 26, 2002, wherein it was determined that the applicant's appeal should be dismissed. [ 2 ] The applicant seeks an order setting aside the decision of the Board and referring the matter back to the Appeal Division before a differently constituted panel of the Board. Background [ 3 ] The applicant, Sivakumar Sivagnanasuntharam, is a citizen of Sri Lanka. He came to Canada in 1988 as a refugee claimant.

In 1992, he was granted landing as a permanent resident of Canada. Since then, the applicant has been steadily employed, other than for a few months and the time that he was incarcerated. [ 4 ] On October 2, 1993, the applicant committed a minor offence involving the improper use of a credit card. He did not receive a custodial sentence for this offence. [ 5 ] On July 29, 1994, the applicant was involved in the kidnapping of his business partner and associate, Sinniah Rajan Mamankaran (the "victim").

The applicant was instrumental in arranging a meeting between the victim and another friend, Nehruji Natkunam (the "co-accused") in the parking lot of a shopping mall. The co-accused was upset about a romantic relationship between the victim and the co-accused's 14 year old sister. The purpose of the meeting was to rough up the victim and to ensure that he did not further pursue his interest in the co-accused's sister. The victim was unaware of this purpose. [ 6 ] The applicant drove the co-accused to the meeting.

At that meeting, the victim was attacked by a group of nine men, bundled into the back of a van and driven away. The victim was severely beaten and tortured, and eventually was set on fire and left burning on the side of the road in Beamsville. The post mortem exam indicated that the victim was still alive when his body was set on fire. [ 7 ] After a lengthy investigation, the applicant and the co-accused were arrested and charged with first degree murder. The co- accused pled guilty to manslaughter and received a sentence of seven years and eight months imprisonment, plus 68 days of pre-trial custody.

The applicant pled guilty to the offence of kidnapping and was sentenced to two years imprisonment, plus 67 days of pre-trial custody. The remaining seven men involved in the incident had not been apprehended. [ 8 ] As a result of his conviction for kidnapping, the applicant was brought to an immigration inquiry. The applicant was ordered deported from Canada. The applicant appealed his deportation to the Board, on the ground that, having regard to all the circumstances of the case, he should not be removed from Canada.

The Decision of the Board [ 9 ] The Board dismissed the applicant's appeal because the applicant did not meet the burden of showing why he should not be removed from Canada. The Board placed particular emphasis on the seriousness of the offence which led to the deportation order, the terrible impact which that offence ultimately had on the victim and the applicant's lack of honesty at the hearing of the appeal.

These factors were not overcome by the factors counting in the applicant's favour, such as his good prospects for rehabilitation, the adverse impact his deportation would have on the family he was living with, the significant hardship he would suffer upon his return to Sri Lanka, the strong community support for the applicant and his good efforts to establish himself in Canada. [ 10 ] Issues

1. What is the standard of review? 2. Did the Board fetter its discretion in determining that the seriousness of the offence, including the impact on the victim along with the determination that the applicant was not forthcoming about his involvement in the crime at the appeal hearing, precluded the Board from staying the deportation? 3. Did the Board err in its assessment of the issue of foreign hardship? 4. Did the Board err in failing to mention and assess the psychological report prepared for the applicant? Relevant Statutory Provisions and Regulations [ 11 ] Subsection 70.(1) of the Immigration Act, supra states: 70.

(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, (

a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (

b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. 70.

(1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la

section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:

a) question de droit, de fait ou mixte;

b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. Reasons [ 12 ] Issue 1 What is the standard of review? The appropriate standard of review for decisions such as the present decision was set out by MacKay J. in Mohammed v. Canada (Minister of Citizenship and Immigration) , 1997 CanLII 16384 (FC) , [1997] 3 F.C. 299 (T.D.) at paragraph 75 : The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(

b) of the Act which empowers the Appeal Division to determine, "having regard to all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.

I would adopt this standard. [ 13 ] Issue 2 Did the Board fetter its discretion in determining that the seriousness of the offence, including the impact on the victim along with the determination that the applicant was not forthcoming about his involvement in the crime at the appeal hearing, precluded the Board from staying the deportation? Applicant's Submissions The applicant submits that the Board misused and fettered its discretion under paragraph 70.(1)(

b) of the Immigration Act, supra by determining that only evidence of detention and torture could overcome the seriousness of the offence in this case. In so doing, it is submitted that the Board created too high a burden on the applicant, particularly since the Board had already determined that there was a significant risk of hardship upon return to Sri Lanka. Respondent's Submissions The respondent submits that the Board properly set out the relevant factors and then proceeded to consider those factors in relation to the applicant's circumstances.

It is submitted that while the applicant may disagree with the weighting of the factors considered by the Board, the weighting of those factors is precisely the exercise the Board is mandated to conduct pursuant to paragraph 70.(1)(

b) of the Immigration Act, supra . Analysis of Issue 2 [ 14 ] In reaching its decision, the Board assessed the following factors: the seriousness of the offence, the possibility of rehabilitation, the impact of the crime on the victim, the remorsefulness of the applicant, the length of time spent in Canada, the degree to which the applicant is established in Canada, whether the applicant has family in Canada, the support available to the applicant in Canada, and the degree of hardship that would be caused to the applicant if he were returned to Sri Lanka.

[ 15 ] I have reviewed the decision of the Board and am of the view that the Board considered the factors it was required to in assessing the applicant's application and attached weight to each factor which is what it is supposed to do. [ 16 ] The Board did not state that the seriousness of the offence prevented it from staying the applicant's deportation. Rather, the Board stated: . . .

In my view the extremely serious nature of the offence counts heavily against exercising in the appellant's favour the discretion provided for in section 70(1)(b). [ 17 ] Further, the Board did not state that only evidence of detention and torture could overcome the seriousness of the offence. Rather, the Board stated: If the evidence established that there was a credible risk that the appellant would be detained and tortured upon return to Sri Lanka then I would regard that as determinative of the question on appeal and I would find that he should not be returned to that country.

However, it is my view that the evidence does not support that contention. [ 18 ] After carrying out this assessment, the Board found: Assessing all of the factors in this case I have come to the conclusion that the appellant has not met the burden of showing why he should not be removed from Canada. In coming to this conclusion I have placed particular emphasis on the seriousness of the offence which led to the deportation order, the terrible impact which that offence ultimately had on the victim, and the appellant's lack of honesty at the hearing of this appeal.

While the factors such as the good prospects for rehabilitation, as well as the other factors which count in the appellant's favour do temper the considerations which count against him, they are not sufficient, in my view, to overcome them. I find that having regard to all the circumstances of this case, the appellant has not shown that he should not be removed from Canada. Accordingly, the appeal will be dismissed. What the Board did was to assign different weight to each of the factors in order to come to a decision. This is the task of the Board. [ 19 ] Pelletier J. (as he then was) in Olaso v.

Canada (Minister of Citizenship and Immigration) , [2000] F.C.J. No. 1265 (QL) (T.D.) at paragraph 17 stated: . . . On its face, the decision considers various factors in relation to the applicant and his circumstances. It identifies the positive as well as the negative. It chooses to give more weight to the risk of re-offending than to the dislocation to be caused to the applicant and his family. While others may have come to a different conclusion, there is no credible argument that the decision bears no rational relationship to the evidence or the criteria to be applied to it.

The applicant's argument is that the IAD's reliance on the likelihood of re- offending to justify its decision means that this factor was the only one considered. This confuses considering all the factors with giving them all equal weight. It is for the IAD to assign weights to the various factors based upon the case which is before it. There is no credible argument that it was unreasonable for it to do as it did. Others may have a different view but that is not evidence of unreasonableness.

In my opinion, the decision of the Board was reasonable and no reviewable error was made in this respect. [ 20 ] Issue 3 Did the Board err in its assessment of the issue of foreign hardship? Applicant's Submissions The applicant submits that the Board erred in failing to provide a proper basis for the rejection of the applicant's detention in Colombo in 1992. It is submitted that while the Board did make a negative credibility finding, this finding related specifically to the degree of the applicant's involvement in the crime and did not entitle the Board to reject the applicant's 1992 experiences in Colombo.

The applicant submits that the Board improperly inferred that the 1992 detention in Sri Lanka was implausible because the applicant himself did not expect to come across danger when he returned to Sri Lanka in 1992. The applicant submits that this reasoning is improper as the credibility of what the applicant encountered cannot be judged by the risk he might have assumed. [ 21 ] The applicant also submits that without submissions from either party regarding improved conditions in Sri Lanka and without any evidence on that issue, other than a single sentence in the U.S.

Department of State Report, the Board was not entitled to make a finding that there were any changes in Sri Lanka that would affect the applicant's situation. [ 22 ] The applicant also submits that the Board erred in speculating that the applicant would be issued an identity document for travel purposes, without having any evidence before it of such a document existing or potentially being issued.

It is submitted that the Board also erred in failing to take into consideration the ill-treatment associated with interrogation in Sri Lanka. [ 23 ] The applicant submits that it was perverse for the Board to determine that the applicant could show the Sri Lankan officials the reasons for sentencing and expect to convince those officials that he should be set free without problems as his conviction in Canada was unrelated to Liberation Tigers of Tamil Eelam (LTTE) activities.

It is submitted that this determination is particularly perverse considering that the Board accepted that the applicant could be interrogated upon return and that Sri Lankan authorities have a poor human rights record. [ 24 ] Respondent's Submissions

The respondent submits that the Board thoroughly considered the factor of foreign hardship in its assessment of all the circumstances. It is submitted that the Board reasonably rejected the applicant's account of alleged mistreatment at the hands of Sri Lankan authorities in 1992 because it found the applicant generally lacking in credibility. [ 25 ] The respondent submits that the Board properly considered information in the U.S. Department of State Country Report for 2001.

It is submitted that whether submissions were made by either party on this particular issue is irrelevant since the applicant alleged foreign hardship as one aspect of his appeal. The current country conditions of Sri Lanka are relevant in assessing foreign hardship. [ 26 ] The respondent submits that the Board reasonably determined that while returnees without identity documents might face detention or interrogation by Sri Lankan authorities, the applicant was not likely to face such treatment as he would be in possession of his Sri Lankan passport and a travel document.

It is submitted that it is reasonable that an official document issued by the Sri Lankan government, even if no longer valid for travel, would suffice for simple identification purposes, particularly where the authorities to whom it is being tendered were the very issuers of the passport.

In addition, the basic proposition that a travel document is required for travel was properly the subject of judicial notice. [ 27 ] The respondent submits that the Board reasonably rejected the applicant's suggestion that he would be automatically perceived as an LTTE affiliate given that his deportation from Canada arose from a criminal conviction. It is submitted that the applicant had documents in his possession to show the basis of his deportation, and it is reasonable to assume that Sri Lankan authorities would be capable of making their own inquiries on this issue.

Analysis of Issue 3 [ 28 ] The Board stated in its decision at page 13: . . . I do not accept the appellant's assertion that he was detained and beaten up by police during his trip to Sri Lanka in 1992. I have already indicated that I am of the view that the appellant was not a credible witness at the hearing of this appeal and that he lied in some portions of his testimony. The Board clearly stated it did not accept the applicant's evidence on this point.

The reason for non-acceptance of this evidence was simply that the Board did not believe him because he had already lied in some portions of his testimony, which the Board listed in its decision at pages 7 to 10. The Board then uses these incidents to not believe the story about his arrest, beating and detention when he returned to Sri Lanka. By doing so, the Board did not make a reviewable error. [ 29 ] The Board referred to the U.S. Department of State Country Report for 2001 in its decision at pages 13 to 14: . . . Further there is now evidence that the situation in Sri Lanka has improved.

At the end of last year both the government of Sri Lanka and the Tamil Tigers, who have been involved in a violent conflict for 18 years, each announced a unilateral cease fire. This evidence is only a part of the evidence used by the Board to determine what hardship the applicant would face if he was returned to Sri Lanka. I am of the view that the Board did not make a reviewable error in considering this evidence. [ 30 ] At page 14 of its decision, the Board recognized that there have been reports of people being ill-treated while detained in order for security forces to check their identity.

Since there was evidence to suggest that the applicant would have identity documents upon return to Sri Lanka, the Board did not err in giving these reports less weight in its determination of the foreign hardship issue. [ 31 ] The applicant takes issue with the Board's conclusion that the applicant could show the reasons for sentencing to the Sri Lankan officials to persuade them he was not deported due to LTTE activity.

The Board stated in its decision at pages 15 to 16: Further I reject the appellant's claim that as deportee, Sri Lankan officials will inevitably assume that he was deported from Canada as a result of pro-Tamil activities in this country. I agree with the contention of counsel for the respondent that there is no reason that the appellant would not be able to establish that his removal from Canada was the result of criminality unrelated to Tamil liberation causes. The record of what lead to the appellant's criminal conviction and the ensuing deportation order is clearly documented.

It resulted from a crime related to a personal vendetta involving an associate's romantic involvement with a young girl, and that is all clearly a matter of record. I do not agree with the applicant that this determination of the Board was perverse. In fact, the reasons for sentencing show precisely the trouble that the applicant was involved in.

None of the documents make reference to the LTTE or that his conviction was related to LTTE activities. [ 32 ] In conclusion on this issue, the Board did not make a reviewable error. [ 33 ] Issue 4 Did the Board err in failing to mention and assess the psychological report prepared for the applicant? There is no evidence that the Board considered the psychological report prepared for the applicant. The jurisprudence is clear that a Board is not required to mention every piece of evidence that it considered in its decision.

However, the more important the evidence is to the decision, the more likely the failure to mention the evidence in the decision may lead a Court to conclude that the Board made an erroneous finding of fact without regard to the evidence. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) , 1998 CanLII 8667 (FC) , [1998] F.C.J. No. 1425 (QL) (T.D.), Evans J. (as he then was) stated at paragraph 17:

However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (F.C.T.D.) . [ 34 ] I have reviewed the psychologist's report and I am of the view that what is contained in the report was, for the most part, already before the Board.

The report primarily repeats facts which were provided by others and these facts such as the applicant's education, time in Canada, risk of recidivism, family support, and participation in a cognitive skills program are evident in the Board's decision. The report states in

part in its conclusion: It is my clinical opinion that Mr. Sivagnanasuntharum [sic] is currently experiencing distress associated with the possibility of returning to Sri Lanka. This distress is further compounded by the fear of persecution or death if he is ordered to return to Sri Lanka. . . . I believe that Mr. Sivgnanasuntharum [sic] is preoccupied and worried with the possibility of being returned to Sri Lanka.

He is particularly distressed by what he perceives to be a profound loss of safety and protection if he is denied to stay in Canada. (Application record page 107) In my view on the facts of this case, the failure to mention the report in the decision was not a reviewable error. [ 35 ] The application for judicial review is dismissed. [ 36 ] The parties shall have one week from the date of this decision to propose any serious question of general importance for my consideration and one week for any reply. "John A. O'Keefe" J.F.C.C.

Ottawa, Ontario March 27, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-1648-02 STYLE OF CAUSE: SIVAKUMAR SIVANANANSUNTHARAM - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: Tuesday, November 19, 2002 REASONS FOR ORDER OF O'KEEFE J. DATED: Thursday, March 27, 2003 APPEARANCES : Maureen Silcoff FOR APPLICANT Marcel Larouche FOR RESPONDENT SOLICITORS OF RECORD : Maureen Silcoff

281 Eglinton Avenue East Toronto, Ontario M4P 1L3 FOR APPLICANT Morris Rosenberg, Q.C. Deputy Attorney General of Canada FOR RESPONDENT