Jeganathan v. Canada

Appearances:

M. Berger, for the appellant.
J. Buchanan, for the respondent.

1. These are the reasons for the decision in the appeal of Vathsala JEGANATHAN (a.k.a. Vatsala SATKUNARAJAH, Vathsala Satkunarajah and Satkunarajah Vathsala) (the “appellant”) pursuant to section 77 of the Immigration Act [See Note 1 below] (the “Act”) from the refusal to approve the sponsored application for permanent residence of her husband, Jeganathan Sinnathurai (the “applicant”) from Switzerland.

Note 1: R.S.C. 1985, c.I-2.

2. The appellant, who was represented by Mr. Max Berger, Barrister and Solicitor, testified on her own behalf and tendered a package of documents into evidence. The Minister of Citizenship and Immigration (the “respondent”) was represented by an Appeals Officer, Mr. John Buchanan.
3. The applicant filed an application for permanent residence in Canada on 15 November 1994 after having been sponsored by the appellant on 28 September 1994. The reasons for refusal are contained in a letter dated 22 August 1995 to Mr. Sinnathurai from Céline Beaudoin of the Canadian Embassy in Paris, France. The letter reads in part as follows:

After careful review of your application, I must inform you that you come within an inadmissible class of persons described in paragraph 19.(1)(c.1): “No person shall be granted admission who is a member of any of the following classes: persons who there are reasonable grounds to believe (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be.”

At the interview which took place in March at our office in Berne, you admitted to me you used a false passport in October 1988. You were then leaving Madras for Italy via Alitalia with the help of a smuggler. You also admitted leaving this false passport to another smuggler when you landed in Rome, where you then left for Switzerland to claim refugee status.

According to article 57.(1) of the Canadian Criminal Code: “Every one who, while in or out of Canada, (b) knowing that a passport is forged (i) uses it is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”

Since you come within an inadmissible class of persons as per paragraph 19.(2)(d) of the Immigration Act, I have to refuse your application. [See Note 2 below]

Note 2: Record, pp. 3-4.

(Typed as per original document with errors and/or omissions)

4. The appellant is a 31-year-old Canadian citizen. The particulars relating to the applicant are succinctly outlined by the visa officer in her interview notes:

NOTES INTERVIEW 13 MAR 95

LEFT SRI LANKA IN OCT 88 FOR INDIA BY SEA ARRIVED IN MADRAS. TWO DAYS ONLY IN MADRAS WITH SMUGGLER WHOM HE HAD MET THROUGH A FRIEND IN SRI LANKA. FIRST MEETING WITH SMUGGLER IN MADRAS.FROM THERE TO ITALY THROUGH SMUGGLER AND FALSE PASSPORT VIA ALITALIA, PASSPORT WHICH HE LEFT WITH ANOTHER SMUGGLER, THE LATTER PROB. ITALIAN.ARRIVED IN ROME. THEN TO SWITZERLAND BY CAR TO A CHURCH. CLAIMED ASYLUM IN THE CHURCH ITSELF.ASYLUM CLAIM STILL PENDING.STUDIES IN SRI LANKA: 10 YEARS.APPARENTLY LEFT SRI LANKA BECAUSE THE LTTE WANTED TO
FORCIBLY ENROL HIM. AND BECAUSE HE WAS ARRESTED BY THE INDIAN ARMY. THEN RELEASED. THIS WAS IN 1988.HIS BELIEFS: SUPPORTS THE CAUSE OF THE LIBERATION OF THE TAMILS IN SRI LANKA, BUT THROUGH NEGOTIATIONS. NOT THROUGH MOUV. LIKE LTTE OR EPRLF. THE LATTER IN PARTICULAR HE BELIEVES IS PARTICULARLY BAD FOR TAMILS BECAUSE OF THEIR RELATIONSHIP WITH GUARANTOR:
HAD MET HER IN SRI LANKA, SHE LIVED IN A NEIGHBORING VILLAGE. HE WAS A FARMER.SHE WAS NOT AWARE THAT HE HAD LEFT SRI LANKA.CONTACT WAS LATER MADE BY THEIR RESPECTIVE FAMILIES WHO TOLD EACH OF THEM WHERE THE OTHER WAS STAYING. [See Note 3 below]

Note 3: Record, p. 14.

(Typed as per original document with errors and/or omissions)

5. Evidence indicates that the applicant ultimately was recognized as being a Convention refugee by Swiss authorities. The applicant has lived in Switzerland since his arrival and has maintained steady employment there. The appellant testified that after having known the applicant for many years in Sri Lanka, they were married in Switzerland on 27 May 1994. The appellant has travelled to Switzerland to be with her husband in 1994, 1995 and lastly in 1997. The appellant testified that “she is not in a position to live without him” and is desperate to have him with her in Canada.
6. The appellant argues that the refusal is invalid in law and cites the Federal Court-Trial Division decision in Vijayakumar [See Note 4 below] as the authority which binds me.

 Note 4: Vijayakumar v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 176 (F.C.T.D.).

7. Failing a finding that the refusal is invalid in law, the appellant argues that there are substantial humanitarian or compassionate grounds that warrant the granting of special relief. The respondent argues that Vijayakumar is distinguishable from this case and thus not binding on me. Furthermore, he argues that there exist no reasons to grant discretion on humanitarian or compassionate grounds and therefore this appeal should be dismissed.
8. The appellant does not deny that her husband travelled on a false passport from India to Italy on his way to seek Convention refugee status in Switzerland. The appellant maintains that refugees travelling on false documents in order to escape persecution from their country of origin is a common occurrence. Furthermore, the appellant argues that the fact that a refugee may have no other option but to travel on false documents is understood, appreciated and accommodated by the Canadian government. This accommodation takes the form of section 95.1 of the Act which reads:

95.1. (1) No person who claims to be a Convention refugee and has notified an immigration officer of the claim shall, pending disposition of the claim, be charged with or convicted of

1. an offence under paragraph 94(1)(a), (b), (k) or (l), (b) an offence under paragraph 94(1)(f), (g) or (h) in relation to an examination of that person under this Act, (c) an offence under section 95 or 98 in relation to the coming into Canada of that person or an examination of that person under this Act, or (d) an offence under section 57, paragraph 340(c) or any of sections 354, 366, 368, 374 or 403 of the Criminal Code in relation to the coming into Canada of the person,

if that person came to Canada directly from the country that the person left, or outside of which the person remains, by reason of fear of persecution.

[…]

9. The appellant stated the visa officer was obligated to consider and apply section 95.1 of the Act in this case and, as she did not do so, the refusal is not valid in law. The appellant points to Vijayakumar, where Jerome J stated:

The Appeal Division committed a reviewable error when it misapplied the law with respect to the offence of uttering a false passport…

[…]

The sections of the Criminal Code referred to deal with the use of false passports. Thus, the applicant’s husband did not commit an offence as contemplated by paragraph 19(c.1)(ii) of the Immigration Act. [See Note 5 below]

Note 5: Supra, footnote 4.

(Typed as per original document with errors and/or omissions)

10. The respondent stated that section 95.1 of the Act is not meant to give blanket exemption for those seeking to come to Canada but provides for a deferral of prosecution for certain offences for persons claiming to be a Convention refugee. I agree with the respondent.
11. The respondent then argued that, unlike the Vijayakumar case, the applicant: was not on his way to Canada to claim Convention refugee status; did not travel from home country to host country directly to claim Convention refugee status, but stopped off in a third country, Italy, before travelling to Switzerland and, the applicant has never been found to be a Convention refugee with respect to Canada. As I understand the respondent’s argument, in order for section 95.1 of the Act to be applicable here, the applicant would have had to claim refugee status in the country where he first landed, which, in this case, is Italy, not Switzerland, and had to have a “connection” with Canada either in the form of Canada being his final destination or being recognized by Canada as a Convention refugee.
12. I find the respondent’s arguments confusing. First, it is not clear to me why the route the applicant took should be fatal to his application for permanent residence to Canada. Evidence indicates that the applicant’s stopover in Italy was not lengthy but merely transitory in nature. The applicant’s goal was to leave Sri Lanka for Switzerland to claim Convention refugee status there. The applicant achieved his goal. There is no evidence to indicate that he did not do this expeditiously or in an otherwise circuitous way. I note that in Vijayakumar the applicant’s husband also stopped off in a third country (the United States) and also did not claim refugee status there, yet this was not adversely viewed by Jerome J.
13. Second, following Vijayakumar, nowhere in section 95.1 of the Act do I see a requirement that the applicant must be specifically recognized as a Convention refugee with respect to Canada in order to avail himself of the protection from prosecution offered by that section. Lastly, I also do not see section 95.1 of the Act as exclusively requiring the applicant to have Canada as a direct destination upon leaving Sri Lanka.
14. I find that that the applicant falls squarely within the ambit of section 95.1 of the Act, as contemplated by Jerome J. in Vijayakumar. The evidence indicates that the applicant used false travel documents to escape Sri Lanka from persecution. He travelled to his intended destination of Switzerland to claim Convention refugee status and was subsequently granted such status. On 1 February 1995 the applicant notified a Canadian immigration officer of his claim. According to evidence on file, the applicant remains outside of Sri Lanka by reason of fear of persecution.
15. I therefore conclude that Jeganathan Sinnathurai did not commit an offence as contemplated by section 19(1)(c.1) of the Act. Furthermore, in the circumstances of this case, there are sufficient considerations to warrant special relief on humanitarian and compassionate grounds.
16. The appeal made pursuant to sections 77(3)(a) and (b) of the Act is therefore allowed.

“D.A. D’Ignazio”

DATED at Toronto this 5th day of December, 1997.

QL Update: 980311
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