Posted ByMax Berger
New Hope: Thillaiampalam Kanthasamy seeks permanent residency.
Federal court has set aside an immigration department decision to deny a Sri Lankan man Canadian residency on humanitarian grounds, citing “perverse” judgment by the officer in charge of his case.
The unusual ruling, handed down in Ottawa Sept. 15 by Mr. Justice Frederick Gibson, doesn’t mean for certain Thillaiampalam Kanthasamy of Downsview can stay in Canada with his son, Thushyanthan, 14.
But it does open up a new avenue of hope for the father of three, who has not seen his wife and two daughters since he left Sri Lanka in 1990.
Gibson was sharply critical of the immigration officer – Mississauga-based Denise de Costa – who handled Kanthasamy’s application to stay in Canada.
Her decision was “either, on its face, perverse, or there were facts before the officer which manifestly required a different result,” Gibson wrote.
“In the absence of reasons which might have explained how the (decision) was indeed rational or how certain factors were taken into account but rejected, I conclude that I must set aside the decision of the officer for failure to consider relevant factors.”
De Costa erred in determining Kanthasamy had been dependent on welfare since 1994 and did not know English, Gibson noted.
Kanthasamy may also have been “seriously prejudiced” by the failure of a previous lawyer to meet the application deadline for a program under which he might well have qualified for residency status.
De Costa’s conclusions about Kanthasamy were “outrageous,” said his current lawyer, Max Berger.
The Kanthasamys are Tamils from northern Sri Lanka, where civil war between the rebel group Tamil Tigers and Sinhalese majority has been raging for more than a decade.
Thillaiampalam Kanthasamy, a former police officer, applied for refugee status in Canada in 1990, but his application for permanent residency and subsequent appeals have all been turned down.
Finally in April, 1996, he began the process of appealing for residency on the grounds that his son should not be left fatherless in Canada.
Immigration department spokesperson Kevin Sack said Gibson’s ruling does not quash the outstanding removal order.
Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.
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