Date: 20010312
Docket: DES-3-95
Neutral Citation: 2001 FCT 176
BETWEEN:
MANICKAVASAGAM SURESH
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL FOR CANADA
Respondent
[1] This is an application by the Applicant, Manickavasagam Suresh (hereinafter referred to as "Suresh", "in writing and without personal appearance, for an Order varying the terms of the Applicant's release from detention pursuant to section 40.1 (8) and (9) of the Immigration Act, 1985".
[2] Suresh was detained under section 40.1 of the Immigration Act. I released Suresh from detention pursuant to an Order dated March 23, 1998. His release from detention was subject to certain specific conditions.
(e) One of the conditions of release is that Mr. Suresh reside at the residence of Xavier Noble Arasaratnam at 6136 Silken Laumann Way, Mississauga. Mr. Suresh resides at this address, but is seeking a variation of the order to permit him to reside at the home of his fiancee, Ramalashmy Garam Sivasway, at 5 Greystone Wall, Apartment 1711, Toronto.
(6) Another condition is that Mr. Suresh report once a week to the Immigration Reporting Centre. Mr. Suresh is seeking a variation of the order to permit him to report once a month in person, and if once a week continues to be required, that this be by phone on one day a week during the other weeks each month.
(7) Another condition is that Mr. Suresh remain within a 50 Kilometre radius of the Toronto City Limits, Mr. Suresh is seeking a variation of the order to permit him to travel to Ottawa for the hearing of his appeal at the Supreme Court of Canada, to commence on the day before the appeal is to be heard and to end the day after the hearing of the appeal is completed, in the event that the hearing before the Supreme Court falls on one of the dates when he is supposed to report in person in Toronto.
[3] In the written submission of the Respondent, (paragraph 11) the Respondent states
it "is in agreement with the Applicant's proposed variations to conditions 4, 5, 6 and 8, as suggested by the Applicant at paragraph 18 of his submissions".
[4] Condition No. 6 has been deleted.
[5] The proposed variations that the Respondent agrees to are:
Condition 4: Suresh shall reside at the residence of his fiancee, Ramalashmy Jayaraman Sivaswamy at her home at 5 Greystone Walk, Apartment 1711, Toronto.
Condition 5: In the event that Ms. Sivaswamy should, for whatever reason, change her address, Suresh must advise the CIC in advance and obtain the Respondent's permission to change his residence.
Condition 6: Delete
Condition 8: Suresh shall remain within fifty (50) kilometres of the Toronto City Limits and cannot go outside this area without permission of the CIC, except that Suresh may travel to Ottawa on the day before the scheduled hearing of his appeal in the Supreme Court of Canada, remain in Ottawa during that time, and return to Toronto on the day following the completion of hearing of his appeal in that Court. Suresh shall advise the Respondent's representatives of the address where he will stay while in Ottawa, and is not required to report in person in Toronto, should the within days conflict with a date on which he must report in person in Toronto.
[6] The only "condition" of release that the Respondent objects to is that Suresh, "while out of detention report once a month to the Immigration Reporting Centre at 60 Richmond Street East, Toronto, Ontario, on a day and at a time as determined by a representative of the Respondent (also possibly, Suresh shall report once a week by phone to a phone number and at a time and day as determined by a representative of the Respondent, but for the week during which he reports in person).
[7] In that the Respondent consents to the variation of the conditions in Condition 4, 5 and 8 of my Order dated March 23, 1998 for Suresh's release from detention, I see no reason to refuse that part of the present Application for Variation.
[8] As grounds for the request by Suresh to vary the terms of his reporting weekly to the Immigration Authorities, Suresh states, in paragraphs 10, 11, 12 and 13 of his written submissions.
10. Mr. Suresh has been reporting weekly since his release in March, 1998, almost three years. The weekly reporting has made it difficult for him to find full time paid employment. He has completed studies in the Microsoft Certified System Engineer program and did very well, passing with an average of 90%. He believes that if he were not hampered by the weekly day time reporting, he would have a better chance of being able to use the skills that he has acquired, in paid employment.
11. The concern of the Respondents with reporting is to ensure that Mr. Suresh's whereabouts are known and not to penalize him. It would appear that after three years of weekly reporting, continued reporting on such a frequent basis is neither necessary nor fair. It is, in fact onerous. It has inhibited Mr. Suresh in being able to contribute to his own support. Having completed studies, it would be in the interests of Mr. Suresh and Canadian society that he be able to be productively employed during the time that he is in Canada.
12. Mr. Suresh is amenable to continuing to let immigration officials know where he is, but this does not need to be done in person on a weekly basis. He could report by phone, and certainly once a month in person would appear to be more reasonable.
13. Mr. Suresh's appeal has not yet been scheduled for a hearing date, but one can be expected to be scheduled in the spring session. Once argued, the Court is likely to reserve judgment given its normal practice to do so in cases which raise complex legal and constitutional issues. Mr. Suresh can therefore expect to continue to remain in Canada for an extended indefinite further period of time.
[9] The reasons why the Respondent opposes any variation to the weekly reporting of Suresh can be found at paragraph 14 to 20 of the Respondent's written submissions dated February 9, 2001.
[10] I do not believe it necessary to repeat, in this decision, all of the above.
[11] I am satisfied that there should be no variation of the weekly reporting by Suresh to the Immigration Authorities.
[12] In my decision releasing Suresh from detention, I stated that I was satisfied that there were reasonable grounds to believe that Suresh was and is a member of the LTTE. I have no evidence to indicate that this fact has changed.
[13] I also stated that I was satisfied that Suresh had been a dedicated and trusted member in a leadership position with the LTTE.
[14] I have no evidence to indicate that this finding is no longer correct.
[15] I also concluded that there were reasonable grounds to believe that the LTTE had committed terrorist acts.
[16] I have no evidence to indicate that this finding is or was incorrect.
[17] I have also, previously, found that Suresh lacked total credibility.
[18] The fact that Suresh, for a period of three years, has been reporting on a weekly basis is no reason to vary this condition. He was, obviously able to do so and complete studies "in the Microsoft Certified System Engineer program and did very well..." I see no reason why he would have a better chance of being able to use the skills he acquired, in paid employment if he continued to report, in person, on a weekly basis.
[19] Therefore, the application to vary the terms of Suresh's release from detention, based on the Respondent's consent, is allowed.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
March 12, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010312
Docket: DES-3-95
BETWEEN:
MANICKAVASAGAM SURESH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
and SOLICITOR GENERAL
FOR CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-3-95
STYLE OF CAUSE: MANICKAVASAGAM SURESH
v. THE MINISTER OF CITIZENSHIP
& IMMIGRATION
DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF TEITELBAUM, J.
WRITTEN SUBMISSIONS BY:
Ms. Barbara Jackman for the Applicant
Mr. Normand Vaillancourt for the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
TORONTO, Ontario for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
OTTAWA, Ontario for the Respondent