IMMIGRATION AND REFUGEE BOARD COMMISSION DE L’IMMIGRATION

(IMMIGRATION APPEAL DIVISION) ET DU STATUT DE RÉFUGIÉ

(SECTION D’APPEL DE L’IMMIGRATION)

IAD File No./Dossier : TA1-22360

Reasons and Decision - Motifs et décision

REMOVAL ORDER

Appellant(s) Appelant(s)
SANJEEV KUHENDRARAJAH

Respondent Intimé
The Minister of Citizenship and Immigration
Le Ministre de la Citoyenneté et de l’Immigration

Date(s) and Place Date(s) et Lieu de

of Hearing l’audience
August 27, 2002
September 19, 2002
Toronto, Ontario

Date of Decision Date de la Décision

November 12, 2002

Panel Tribunal
Egya Sangmuah

Appellant’s Counsel Conseil de l’appelant(s)

David Orman
Barrister and Solicitor
Minister’s Counsel Conseil de l’intimé
Derek Taylor
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2

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peut vous procurer les présents motifs de décision dans l’autre
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e 
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You can obtain the translation of these reasons for decision in
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 IAD File No. /Dossier : TA1-22360
1

Reasons for Decision

[1] These are the reasons for the order of the Immigration Appeal Division (IAD)

dismissing the appeal of Sanjeev KUHENDRARAJAH (the “appellant”), from a removal

order, dated October 19, 2001, issued against him by adjudicator L. Lasowski pursuant

to section 27(1)(d) of the Immigration Act (the Act).1

[2] The appeal was heard on August 27, 2002 and September 19, 2002, after which the panel
reserved its decision. The panel issued the order dismissing the appeal on November 12, 2002.
The IAD received a request for written reasons from the appellant on November 21, 2002.

Evidentiary Issues

[3] At the commencement of the hearing, counsel for the appellant, Mr. Orman,

objected to the inclusion in evidence of portions of the transcript of sentencing

proceedings before the Honourable Justice G. Dobney, on February 22, 2001. 2 During

those proceedings the appellant was sentenced for the offences that gave rise to the

removal order, possession of an unregistered restricted weapon and uttering threats.

Mr. Orman contended that portions of the transcript made references to the youth

record of the appellant, which the panel is required by law to disregard in deciding

1
R.S.C. 1985, c. I-2.
2
Exhibit R-2.
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2

this appeal. The panel sustained the objection and struck the offending portions of

the transcript from the record.3

[4] Counsel for the appellant submitted new evidence and made further submissions

after the matter was reserved and counsel for the Minister was given the opportunity

to respond to the new material, 4 as well as the additional submissions by the

appellant’s counsel. Given the panel’s view that the new information could not have

been obtained prior to September 19, 2002 and the fact that the panel had not come

to a decision before the new information was received, the new information and

submissions were considered and assessed by the panel in reaching its determination.

The merits of the case

[5] The appeal was based on section 70 of the Act. The appellant did not

challenge the validity of the removal order and the panel finds nothing in evidence that

would render the order legally invalid. Accordingly, the panel finds that the removal

order is valid in law. Consequently, the appeal is based on the discretionary

jurisdiction of the IAD under section 70(1)(b) of the Act. The appellant has the

3
Ibid, portions of pp. 7 and 8.
4
Exhibit A-5.
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3

burden of satisfying the panel that, having regard to all the circumstances of the case,

he should not be removed from Canada.

[6] For the reasons set out below, the panel is of the view that, having regard to

all the circumstances of the case, the appellant has not established that he should not

be removed from Canada.

[7] The panel is guided in the exercise of its discretion by the factors outlined in

Ribic,5 approved by the Supreme Court of Canada decision in Chieu.6 These factors,

which are not exhaustive, are:

a) the seriousness of the offences leading to the deportation

order:

b) the possibility of rehabilitation;

c) the length of time spent in Canada and the degree to

which the appellant is established here;

d) the family in Canada and the dislocation to the family

that deportation would cause;

e) support available to the appellant, within the family and

within the community; and

5
Ribic, Marida v. M.E.I (IAB 84-9623), D.Davey, Benedetti, Petryshyn, August 20, 1985.
6
Chieu v. Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 3.
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4

f) potential foreign hardship the appellant will face in the

likely country of removal.

[8] The panel is also guided by section 3(i) of the Act, which states that:

It is hereby declared that Canadian immigration policy and

the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote
the domestic and international interests of Canada
recognizing the need…

(i) to maintain and protect the health, safety

and good order of Canadian society ….

[9] Finally, the panel is “alert, alive and sensitive” to the best interests of any child

who is likely to be adversely affected by the removal of the appellant.7

[10] The appellant was born in Sri Lanka on January 6, 1982. He came to

Canada at the age of five to live with his maternal grandparents. The appellant was

granted landing on July 31, 1991, through a backlog program. By the age of 12 the

appellant was having problems at home and at school, as he was not amenable to

7
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 1 Imm. L.R. (3d)
1 (S.C.C.)
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parental control and was skipping school. He received counselling for problems with

anger. Ultimately, the Children’s Aid Society became involved. Between ages 12 to 16

the appellant lived in foster homes, but was allowed to see his mother. He returned

to his mother after he turned 16, but his mother did not approve of his behaviour.

At times he would come home drunk and high on marijuana. The resulting conflict

ended in another separation in a couple of months. 8 The appellant’s mother moved to

British Columbia in May 1998. Since then, except for a couple of months, when the

appellant lived with his brother, he resided with a group of friends in the basement of

18 Camlac Place in Scarborough.

[11] On September 28, 2000, the appellant was arrested and charged with a number

of offences, including possession of an unregistered restricted weapon and uttering

threats. He pleaded guilty to these two charges and the others were withdrawn. The

appellant was sentenced to time served (five months), a year in prison and two years

probation. The agreed statement of facts presented at his sentencing hearing provides

the circumstances of the offence.9 The facts are essentially those contained in the

synopses of the incidents prepared by the police. 10 Concerning the uttering threat

conviction, the appellant and a group of Tamil males approached the victim, who at

that time was a student of R.H. King Academy, near a Coffee Time Donut Shop.

The victim was on his lunch hour with friends. The victim knew the appellant’s

8
Exhibit R-2, pp. 5-6.
9
Exhibit R-2, pp. 1-3.
10
Exhibit R-1, pp. 4-6.
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friends to be members of the A.K. Kannan gang. The appellant approached the victim

and stated: “You are Gilder,11 right? If you talk to them, I am going to shoot you.”

The appellant then raised his shirt and showed the handle of a firearm tucked in his

waistband to the victim. The appellant and his friends then left in a car. Three days

later the police investigated the area of Tuxedo Court and observed four males who

were known to them as members or associates of the A.K. Kannan gang. The police

spoke to them in connection with threats to males at high schools. The appellant was

one of those males approached by police. From his physical reaction the police

suspected that he was armed, so he was apprehended. The appellant had in his

possession a sawed off .22 calibre high standard semi-automatic handgun loaded with

seven rounds of ammunition, but with a capacity for more ammunition. The firearm

involved in the two incidents was the same.

[12] The appellant testified that a group of Sri Lankan males ran over one of his

friends by a car and that he was really upset because he believed the victim of his

death threat was involved in that incident. The appellant claimed he had no intention

of carrying out his threat. Concerning his arrest for possession of an unregistered

restricted firearm, the appellant testified that, at the time of the arrest, he was on his

way to buy some marijuana and that he carried a gun because he thought it was

“cool” and that it made him feel tougher.

11
A rival Tamil gang associated with the VVT gang.
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[13] As the sentencing judge noted,12 the appellant was convicted of very serious

offences. The panel finds that the risk of death to the victim or innocent

bystanders was high, given the appellant’s temperament and the fact that the gun was

loaded.

[14] The seriousness of the appellant’s offence is highlighted by the fact that the

panel finds that the appellant was part of a criminal gang, the A.K. Kannan gang.

The Minister called a police constable from the Toronto Police’s Gang Task Force to

testify about Tamil gangs in Toronto in general and to give his opinion as to whether

the appellant is a gang member. Constable Fernandes has 25 years experience, has

worked in Scarborough and has been assigned to special units dealing with gangs

since 1995. He testified that the two main Tamil criminal gangs are the VVT and the

A.K. Kannan. They are rivals of each other. There are splinter groups within these

gangs, such as, the Silver Spring Boys, Tuxedo Boys, Rough Riders, Urippidi, the

Gilder Boys, One Lanka Nation and the Kipling VVT. Members of the Gilder Boys

are part of the VVT.

[15] Constable Fernandes defined a gang as a group of people engaged in criminal

and anti-social activity and who create fear and intimidation in the community. He

testified that the police look at several indicia in determining whether someone is a

member of a criminal gang. The person must be directly or indirectly involved in a

12
Exhibit R-2, pp. 7-8.
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serious criminal incident, such as a shooting or serious assault. The person may also

acknowledge that he or she belongs to a gang. Most gang members, however, claim

that they are just friends. Another criterion used by the police is identification by

reliable source information. For example, tips from the community would be confirmed

by police investigation of strip plazas, for example, and of fights. Police information

from arrests and other incidents, particularly information on those involved in the

incidents, is also used to identify gang members. Other criteria are findings of courts,

physical evidence such as clothing, tattoos and pendants, and symbolic identifiers.

[16] In Constable Fernandes’ opinion, the appellant meets the criteria of a gang

member and is a member of the A.K. Kannan gang. He was living and “hanging out”

with members of the gang. On a number of occasions the police visited the

basement of 18 Camlac Place to investigate shooting incidents in the area that the

police believed were encounters between the A.K. Kannan and VVT gangs, or to arrest

the appellant’s friends on charges (i.e. kidnapping, serious assault). The appellant’s

friends vacated 18 Camlac Place after the appellant’s arrest, leaving marks from

shotgun blasts on the walls of the basement (about 20 buckshots were removed) and

deliberate and serious damage to the flooring and plumbing of the apartment. Apart

from living in the basement of 18 Camlac Place with members of the gang, he was

the person in the group to carry a firearm in the incident that led to his arrest.

Thus, the group trusted the appellant. The police also observed the appellant at

particular coffee shops and plazas with other A.K. Kannan members. These locations
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9

are close to high schools. Members of the gang would harass female students and

assault some students. Constable Fernandes testified that other A.K. Kannan members

told him on more than one occasion that the appellant is a member of the gang.

[17] While Constable Fernandes’ recollection of events was not always precise, 13 the

panel found his testimony to be credible. His account of the appellant’s activities is

consistent with the circumstances of the appellant’s offences as contained in the

occurrence reports,14 for example, location, accomplices, and the appellant’s identification

with members of the A.K. Kannan gang.

[18] The appellant denied that he was member of the A.K. Kannan gang. He

admitted having some friends who are members of the A.K. Kannan gang and that he

hung around with them, but testified that he did not think his apartment mates were

members of the gang. He alleged that he had never participated in any serious

crimes, but had only engaged in petty crimes with friends and been involved in

unrelated spontaneous fights in bars, for example.

[19] The appellant was simply not credible on the issue of his gang ties. Apart

from the indicia of his gang ties mentioned by Constable Fernandes, the circumstances

of the appellant’s offences clearly establish his membership in the A.K. Kannan gang.

13
He testified without his notes.
14
Exhibit R-1, pp. 4-6.
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The appellant’s friend and member of the A.K. Kannan gang, Kandipan Poopolasingam,

was run over in the parking lot of a theatre by members of the VVT gang. The

culprits placed him on a curb and drove the car over the middle of his body. The

police arrested two males in connection with this incident, but the charges were

withdrawn because the victim, who was hospitalized for two months, and the witnesses

were uncooperative. The appellant identified so strongly with this attack on an A.K.

Kannan member that he threatened someone he believed to be a member of the rival

group responsible for the incident. He was in the company of other members of the

A.K. Kannan gang, but he was the one who he issued the threat. The threat was

gang related. The victim was specifically threatened for associating with the Gilder

Boys, a splinter group of the rival VVT gang. The appellant’s actions confirm his

degree of involvement and identification with the A.K. Kannan gang. The panel

concludes that he was a member, but not a leader of the gang.

[20] Thus, an aggravating circumstance of the appellant’s offences is that they were

linked to gang activity, criminal activity that is often accompanied by violence and

intimidation. The panel weighs this heavily against the appellant. His membership in

the A.K. Kannan gang is significant for a number of reasons. One feature of gang-

related criminal activity that creates serious difficulty for law enforcement authorities is

that victims and witnesses alike do not co-operate with the police out of fear and

intimidation.15 Lawlessness then prevails. As well, the activities of gangs, particularly

15
Exhibit R-1, pp. 29-30, 32, and 35.
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public gunfights and assassination attempts endanger the public and have resulted in

the deaths of innocent bystanders.16 An objective of the Immigration Act is to protect

the safety and good order of Canadian society. The removal of the persons involved

in criminal gang activity from Canada would contribute to achieving that objective.

[21] With respect to the possibility of rehabilitation, the panel is not persuaded that

the appellant’s prospects are good or even fair. On the positive side, two counsellors

who dealt with the appellant during his incarceration were optimistic. After two months

of weekly sessions, Dr. Cleidemar Teani, a psychometrist at the Millbrook Correctional

Centre wrote:

In short, the inmate has had the chance to develop

psychological tools that could help him to grow, mature, and
choose a more positive and independent lifestyle. In view
of these, there is a good prognosis regarding his
rehabilitation, even though it is hard to predict an inmate’s
future behaviour when he goes back into society, because
of the different influences he will be exposed to.17

[22] Father Joseph Francis Xavier believes that the appellant’s prospects for

rehabilitation are good. Father Xavier is an Anglican priest who is also a trained

psychotherapist. He has experience in counselling Tamil youth. Father Xavier had

16
Ibid., pp. 30-40.
17
Exhibit A-1, p. 2, memo dated July 12, 2002.
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eight counselling sessions with the appellant between December 2001 and March 2002

and has spoken to him a number of times by telephone. Father Xavier testified that

the appellant has a 75-80 per cent chance of achieving rehabilitation. He needs a

loving environment, particularly one that includes his mother and siblings, and the

services of a professional psychotherapist. Father Xavier stated that the appellant could

be very violent, but ventured that he has a 5 per cent chance of re-offending violently.

Father Xavier suggested that the appellant could move to British Columbia with his

mother and receive counselling there, or live with relatives in Toronto and continue

counselling with him. Lastly, under cross-examination Constable Fernandes stated the

appellant is not the worst kind of gang member and that he has “some potential” if

he stays away from his old friends.

[23] As noted above, the panel is not persuaded, on a balance of probabilities, that

the appellant is unlikely to re-offend or that the rehabilitation plans proposed by Father

Xavier would succeed. In the first place, the appellant’s attempts at rehabilitation

came very late. He has had a longstanding problem with anger and disregarded

authority figures at home and school. The appellant admitted that, while incarcerated,

he has been punished for several incidents of misconduct. In November 2001, he

exhibited his capacity to act in anger by berating an adjudicator who on the facts

concluded that his continued detention was appropriate. 18 The appellant had been

taking Bible lessons by correspondence over the summer of 2001, but chose to use

18
Exibit R-1, pp. 11-24.
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the scriptures to intimidate the adjudicator. He commenced counselling with Dr. Tieni

and Father Xavier after this incident. Along with his positive comments, Father Xavier

also testified that the appellant is a very angry and disturbed person, acting out of

hurt from childhood. He has a love-hate relationship with his mother. The sad reality

is that the appellant’s judgement is so warped that he believed it was cool to carry a

loaded gun around and to threaten someone with it. His poor judgement and his

explosive temperament leave little assurance with respect to his future conduct.

[24] As well, Father Xavier’s assessment of the appellant’s prospects for rehabilitation

was overly optimistic and in the view of the panel, misinformed. Father Xavier

testified that his “gut feeling” was that the appellant is not incorrigible. His assessment

did not take into account the appellant’s gang-related activities because he did not

delve into it. The appellant did not disclose his gang ties, except to say that his

uncle (mother’s sister’s husband) is a leader of the A.K. Kannan gang and that he felt

he might be forced to engage in gang activity, but his uncle did not ask him to do

anything wrong. The appellant’s uncle is currently incarcerated. Father Xavier did not

think the appellant was a gang-member, yet on the evidence before the panel it

concluded otherwise. Finally, the history of the appellant’s relationship with his mother

is such that any rehabilitation plan that involves the appellant living with his mother is

doomed to fail. He has never been able to follow any rules. With respect to living

in Toronto and pursuing counselling with Father Xavier, the appellant is unlikely to

avoid his A.K. Kannan friends. His uncle in Toronto is also a leader of the gang
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and although incarcerated, it is unclear whether he would remain incarcerated for the

foreseeable future.

[25] The appellant came to Canada at the age of five and was granted landing ten

years ago. He is a long-term resident of Canada and that weighs in his favour. The

appellant did not finish high school. He completed grade 10. The appellant has a

spotty employment record. He testified that he worked on and off in different fields of

employment. He would quit or be fired in a month or so. With the exception of the

appellant’s father, who lives in England, his immediate family lives in Canada. His

mother lives in British Columbia with his three siblings. The appellant’s aunt and

grandmother live in Toronto. The appellant has a daughter who was born two weeks

before he committed the offences giving rise to the removal order. Considering both

economic and social factors, the appellant’s establishment in Canada is limited.

[26] The appellant has the support of his family and some friends in the community.

While he has been estranged from his mother since the age of 12, the appellant

contacted her from prison and she offered her support. She flew in from British

Columbia and testified on his behalf. She confirmed that she is prepared to give him

shelter, should he be allowed to remain in Canada. There were other family members

present at the hearing as observers. This show of family support must be balanced

against the appellant’s troubled relationship with his mother and gang connections in
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15

his extended family. In short, family support has not helped the appellant avoid

criminality in the past and is unlikely to prevent the appellant from re-offending.

[27] The removal of the appellant from Canada would not cause significant

dislocation to his family. He has rejected family help in the past. Members of his

family are not dependent on him for financial or other forms of support. At best, his

mother might be emotionally upset should he be removed from Canada.

[28] The panel gave serious consideration to the best interests of the appellant’s

daughter.19 Very little evidence was led as to the circumstances of the appellant’s

daughter. The child’s mother did not attend the hearing or provide a letter stating the

impact the appellant’s removal would have on her daughter. Under cross-examination

the appellant testified that his daughter lives with her mother in Ajax. Given that the

appellant’s daughter was a few weeks old when he was arrested and that the

appellant has been incarcerated since then, he has not had the opportunity to bond

with or support his daughter. There is no evidence before the panel that the

appellant’s daughter is not being cared for properly by her mother and grandparents.

The interest of the child insofar as contact with her biological father is concerned is

outweighed by the need to protect Canadian society.20

19
Supra, footnote 7.
20
M.C.I. v. Legault, Alexander Henri (F.C.A., no. A-255-01), Richard, Decary, Noel, March 28, 2002;
2002 FCA 125.
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[29] Concerning potential foreign hardship, the appellant submitted that the likely

country of removal is Sri Lanka. He has no other country of nationality or right to

permanent residence in any other country. Counsel for the Minister did not seriously

dispute that the likely country of removal would be Sri Lanka, even though he

suggested that the appellant might be able to join his father in England.

[30] The appellant argued that the security forces of Sri Lanka commit serious

human rights abuses after attacks by the Liberation Tigers of Tamil Eelam (LTTE).

The security forces arrest young Tamils after such attacks. Furthermore, there is

evidence of torture and maltreatment of detainees on the part of the security forces. 21

According to the appellant, the economic situation in Sri Lanka is also bleak 22, hence

he would face serious hardship if he were removed to Sri Lanka. However, counsel

for the Minister contended that most of those detained for questioning after LTTE

incidents are released within a matter of hours. 23 He also argued and that the

situation in Sri Lanka has improved as a result of the current cease-fire agreement

between the Government of Sri Lanka and the LTTE.24

[31] The panel finds that the appellant has not established that there is real

possibility that he would be tortured. This is the case even if the current cease-fire

21
Exhibit A-1, pp. 9-40, 41, 44-46, 79, and 81.
22
Exhibit A-1., pp. 36-38.
23
Ibid., pp. 46.
24
Exhibit R-3.
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does not hold. As a Tamil who grew up in Canada and has no documented or

alleged ties to the LTTE, it is unlikely that he would be tortured because of suspected

links to the LTTE. The hardship the appellant is likely to experience would be

economic. The appellant may find it difficult to find employment, but his family in

Canada could alleviate any hardship by sending him money. Socially, the appellant

should be able to adjust over time, as there are many Tamils in Colombo and other

parts of Sri Lanka. In Canada he has had many Tamil friends and has been part of

the Tamil community in Toronto.

[32] In conclusion, the appellant has not established that on all the circumstances of

the case he should not be removed from Canada. The panel gave considerable

weight to the seriousness of the offences, the likelihood that the appellant would re-

offend, and the need to protect Canadian society. While the panel weighed the best

interests of the appellant’s child and the length of his residence in Canada in his

favour, these positive factors were outweighed by the negative factors in this case. In

light of these considerations, particularly the need to protect a Canadian society, and

the panel’s view that the appellant’s plans for rehabilitation are not viable, this is not

an appropriate case for a stay of the execution of the removal order.

[33] Accordingly, the panel dismissed the appeal in law and on all the circumstances

of the case.
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“Egya Sangmuah”
Egya Sangmuah

___________February 20, 2003_____________

Date

Judicial review – Under section 72 of the Immigration and Refugee Protection Act, you may make an
application to the Federal Court for judicial review of this decision, with leave of that Court. You may
wish to get advice from a lawyer as soon as possible, since there are time limits for this application.