Date: 20020625
Docket: IMM-2821-01
Neutral citation: 2002 FCT 710
BETWEEN:
JOSE RICARDO SANDOVAL ALEMAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD"), dated May 11, 2001, wherein it vacated the Applicant's Convention Refugee status. The Applicant seeks an order for certiorari quashing the decision allowing the Minister's application to vacate the decision that the Applicant is a Convention refugee, and remitting the application to a differently constituted tribunal. Alternatively, he seeks a decision from this Court that he remains a Convention refugee within the meaning of section 2(1) of the Act.
FACTS
[2] The Applicant, a citizen of El Salvador, was born on November 15, 1967 and raised in a small village of El Salvador. His family was poor, and he was only able to attend school for six years.
[3] In December 1987, the Applicant became a soldier in the Salvadorian army during the country's civil war. In his sworn affidavit, he states he received basic training as a soldier that was extremely brutal and traumatic. He alleges having then received training as a radio operator, and his duties consisted of transmitting information between military bases. In November 1988, the Applicant deserted from the Salvadorian army after he failed to return to his base on time. He states he deserted because he was afraid that if he returned late he would be severely punished.
[4] The Applicant asserts that after deserting, he feared for his life in El Salvador. He knew that if he was caught by the guerrillas, he could be killed for having served in the army, and if the army found him he would be suspected of associating with the guerrillas, and possibly tortured and killed. He then decided he must leave El Salvador, for his own safety.
[5] The Applicant made his way to Canada, where he made a refugee claim on May 2, 1989. On May 18, 1989, he filed his Personal Information Form ("PIF") with the CRDD. At his hearing before the CRDD, he stated that during his military service he had been sent out "to beat people and to interfere with people". He also provided details of two incidents in which he beat and injured civilians. However, this information did not create serious problems during his refugee hearing. He was found to be a Convention refugee in a decision dated August 16, 1989.
[6] In April 1992, the Applicant made an application for permanent residence. In response to the question asking whether he had been involved in war crimes or crimes against humanity, he wrote : "Since I was a soldier in the Salvadoran army I was forced to kill civilian people. I didn't do it willingly. I felt bad about it".
[7] On October 16, 1995, the Applicant was called in for an interview with an immigration officer the purpose of which was to question him on the statement he had made on his application about killing people. At that interview, the Applicant confirmed that the statement in his application for permanent residence was true. He also stated that the following incidents occurred while he was serving in the El Salvadoran army : he participated in planting a bomb in the car of a male victim causing it to explode; he participated in shooting the tires of a car driven by a second male victim, causing the car to fall 100 to 150 metres and explode; he participated in shooting a third male victim in the victim's home; he participated in beating a male victim causing bruises; finally, he participated in beating a second male victim causing his face to bleed and a broken arm.
[8] In November 1998, the Applicant was ordered to attend an inquiry before an immigration adjudicator, for the purpose of determining whether he was inadmissible to Canada as a person described in section 19(1)(j) of the Act, that is, a person who there are reasonable grounds to believe has committed a war crime or a crime against humanity. At this inquiry, the Applicant stated he had never killed or harmed anyone, and that the information he had provided on his permanent residence application and in the interview with the immigration officer was all lies. No evidence was put forth to support these statements and the Applicant was unable to explain to the adjudicator why he had lied about these things. On January 11, 1999, the adjudicator determined that the Applicant was inadmissible to Canada as a person described in section 19(1)(j) of the Act. In his reasons, he stated that he did not believe the Applicant's evidence at the inquiry, but did believe the evidence that he had provided in his application for permanent residence as well as at the two interviews with an immigration officer.
[9] On January 11, 2000, the Respondent applied to the CRDD to reconsider and vacate the determination that the Applicant is a Convention refugee, based on the allegation that he misrepresented facts by concealing his involvement in the beatings and killings of civilians that he had described to the immigration officers.
The Respondent further alleged that had the panel initially known those facts, it would have found him to be excluded from the Convention refugee definition by applying Article 1F(a) of the Convention.
[10] Prior to the hearing of the Respondent's application, counsel for the Applicant referred him to Ms. Mary de Krasinska for a psychological assessment and report. Ms. de Krasinska's curriculum vitae and her report were both disclosed to the panel before the hearing and were entered into evidence on April 3, 2001.
[11] At the hearing of the application seeking to have his refugee status vacated ("the vacation hearing"), the Applicant denied that he was involved in any killings. He testified that he lied during the 1995 interview because of the advice he had received by an individual he met in the corridors of the offices of Citizenship and Immigration Canada before going in to make his initial claim for Convention refugee status in 1989. He alleged that the individual told him that in order for his claim to succeed, he had to say that he had done bad things while he was a soldier, or no one else would believe that he had actually been in the military. The Applicant further testified that he lied in 1992 and 1995 because he was attempting to tell a story similar to that which he had told at his refugee hearing, but he could not recall what he had said earlier because it had been six years since his first refugee hearing, and three years since he had filled out his application for permanent residence.
[12] The Applicant confirmed in his testimony at the vacation hearing that the following information provided at his original hearing was true : that he was a member of the Salvadoran army; that he deserted from the army in 1988; and that as a result of desertion he feared persecution in El Salvador from both the army and the opposition guerrillas. However, while he stated at his first refugee hearing that he was taken off a bus and conscripted into the army, he stated at the vacation hearing that he volunteered to join the army.
[13] On May 11, 2001, the CRDD vacation panel made a decision to grant the Respondent's application to vacate the Applicant's refugee status. The panel found that he had committed crimes against humanity, and that it disbelieved his testimony that he had lied when he said that he did these things.
[14] The Applicant now seeks judicial review of the decision of the CRDD on the basis that it erred in law, breached the principles of fundamental justice and exceeded its jurisdiction in making its findings.
DECISION OF THE CRDD
[15] The CRDD panel allowed the Respondent's application to vacate the Applicant's refugee status based on the following findings. First, it found it was implausible that the Applicant would have relied on the advice of a stranger whom he had just met. It found that the details of the stories related by the Applicant to immigration officers could only have been told by someone who actually took part in such activities; consequently, that the Applicant was involved in committing crimes against humanity. It also found that the Applicant joined the army voluntarily and deserted only when he became afraid for his own life due to his involvement in dangerous activities. The Applicant had many opportunities to desert from the army and could have done so had he objected to the activities by the military against innocent civilians. Finally, the vacation panel found that had the first refugee hearing panel known of the Applicant's activities, it would have found him to be excluded from the Convention refugee definition under Article 1F(a) of the Convention.
[16] The panel considered Ms. de Krasinska's evidence but decided to give it no weight. It found that Ms. de Krasinska was not an expert in post-traumatic stress syndrome as she had no professional training or extensive work experience in this area, nor publications. It dismissed the report, stating that "the panel does not find this report particularly relevant to the questions at issue in this hearing". This is the impugned decision.
ISSUES
[17] Applicant's counsel framed the issues in this application in the following terms:
1) Whether the CRDD erred in law, breached the principles of fundamental justice and exceeded its jurisdiction by relying on new evidence that was not before the original CRDD panel as the basis for its decision to vacate his refugee status;
2) Whether the CRDD erred in law in giving no weight to the evidence of an expert witness that was properly before it, and by failing to give reasons for rejecting the totality of this expert's evidence; and
3) Whether the CRDD erred in law by misinterpreting portions of the evidence that was properly before it.
[18] The Applicant contends that the panel had no jurisdiction to consider facts that were not before the panel at the refugee hearing in an application under s. 69.2(2) of the Act. He argues that the panel in the case at bar erred in determining that he was excluded from the Convention refugee definition based on the evidence he had allegedly omitted to produce at his original hearing.
[19] It is submitted that a panel considering an application under s. 69.2(2) does not have the jurisdiction to "read in" facts that were not before the panel at the original refugee hearing. The panel may only determine whether or not a misrepresentation was made, and if so, what part of the evidence that was before the original panel was misrepresented. Once that is determined, then that portion of the evidence is stripped away from the record. Section 69.3(5) of the Act then steps in, and the panel must consider the remaining evidence that was left before the original panel in order to determine whether the Applicant would still fit within the Convention refugee definition.
[20] The Applicant submits that in order to determine that he was excluded from the Convention refugee definition as a person who had committed crimes against humanity, the panel would have had to read in evidence that was not before the first panel at his refugee hearing in 1989, that is, the evidence that he provided in 1992 and 1995 interviews. It is submitted that in so doing, the panel exceeded its jurisdiction and committed a reviewable error.
[21] The Applicant submits that all that the panel in the case at bar could properly do was to remove from the record that information that he had misrepresented, and then decide whether what remained was sufficient to sustain a finding that he was a Convention refugee. It is submitted that in the Applicant's case, the remaining unchallenged evidence is that he was a member of the Salvadoran army, that he deserted from this army during the country's civil war, and that he feared being killed or tortured as a result of his desertion. It is alleged these facts alone are sufficient to sustain a positive refugee decision.
[22] Alternatively, the Applicant contends that the panel erred in giving no weight to the testimony of an expert witness, Ms. de Krasinska, regarding why he had invented that he committed acts against humanity that he did not in fact commit.
[23] Finally, the Applicant contends that with regard to the stories that he told the immigration office in 1992 and 1995, the panel stated the following at p. 9 of the Applicant's Record :
HE SAID THAT HE CREATED THE STORIES IN 1995 AT THE INTERVIEW THAT HE SHOT TIRES IN A CAR, PARTICIPATED IN A BOMBING INCIDENT AND SHOT A PERSON DEAD. WHEN ASKED WHY HE WOULD DO SUCH A THING, MR. SANDOVAL ALEMAN SAID THAT HE DID SO ON THE ADVICE OF A PERSON HE MET IN THE CORRIDORS OF THE OFFICE OF CITIZENSHIP AND IMMIGRATION WHEN HE WENT TO MAKE A CLAIM FOR CONVENTION REFUGEE STATUS IN 1989 ... THE PANEL FINDS IT IMPLAUSIBLE THAT MR. SANDOVAL WOULD PUT HIS TRUST IN THE HANDS OF A STRANGER HE HAD MET IN THE CORRIDOR.
[24] It is submitted that in reaching the above conclusion, the CRDD panel misinterpreted portions of the evidence that was before it and thus erred in law for a number of reasons.
[25] The Respondent on its part first submits that the CRDD panel clearly had jurisdiction to consider the new evidence regarding the Applicant's alleged crimes against humanity that was not before the original panel. It is only logical that additional evidence may be presented in an application made pursuant to s. 69.2(2) of the Act. The Respondent Minister otherwise never could establish that a Convention refugee determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact.
[26] In response to the Applicant's argument that all the panel could properly do in the case at bar was to disregard the misrepresented evidence and then decide whether the remaining evidence from the initial hearing was sufficient to sustain a finding that he was a Convention refugee. In reply, the Respondent submits that s. 69.2(2) of the Act allows the CRDD not only to vacate a decision but also to reconsider it with a view to changing or amending it : Bayat v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 343 (F.C.A.) at para. 22. It is submitted that in the circumstances of the present case, the panel was not required to enter into an analysis of the remaining evidence as the evidence that was misrepresented, suppressed or concealed by the Applicant, established that he would have been excluded from the Convention refugee definition from the outset. The Respondent submits that, in any event, the remaining evidence is insufficient to sustain a positive refugee claim.
[27] With respect to the second issue, the Respondent argues that the weight of any evidence is a matter for the CRDD to decide and there is no legal or factual basis to interfere with its decision. It is submitted it was open to the panel to give Ms. de Krasinska's evidence no weight based on the fact that her analysis was based on information provided to her by the Applicant; that she had no professional training nor extensive experience in PTSS. Moreover, it is submitted that Ms. de Krasinska's evidence related solely to the Applicant's credibility with respect to his refugee claim. According to the relevant jurisprudence of this Court, this was a matter for the panel to decide. Moreover, contrary to the Applicant's contention, there is no evidence that Ms. de Krasinska had been acknowledged as an expert on PTSS by the Tribunal on previous occasions. There is no evidence that she was involved in cases concerned with crimes against humanity.
[28] The Respondent submits that the Applicant's testimony as to why he allegedly lied following his refugee hearing was by no means complex and was fully understood by the CRDD. He simply stated that he could not remember what he had said at the original hearing and was attempting to tell a similar story. The Applicant's allegation that he "followed the lead of the immigration officer and said what he believed he had to say" is unsupported by the other evidence. In fact, the Applicant first mentioned the killings when he voluntarily completed an application for permanent residence in 1992. During the 1995 interview, the immigration officer questioned him with respect to information he provided.
RELEVANT STATUTORY PROVISIONS
[29] The statutory provisions directly relevant to the issue in this application for judicial review are subsections 69.2(2) and 69.3(5) of the Act. Those subsections read:
| 69.2(2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
69.3(5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.
|
|
69.2(2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la supression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers.
69.3(5) La section du statut peut rejeter toute demande bien fondée au regard de l'un des motifs visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut. |
|
|
|
|
[30] Having carefully reviewed the written submissions of the parties and the Certified Tribunal Record filed with this Court as well as the affidavit of the Applicant and the report of Ms. de Krasinska, I am of the view that the CRDD vacation panel did not commit any reviewable error which would justify the Court's intervention.
[31] Counsel for the Applicant urges the Court to follow the decision of Rothstein J.A. (ex officio) in Maheswaran v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 254 (F.C.T.D.). He argues that following that decision, the vacation panel was not entitled to consider the new evidence regarding the Applicant's alleged crimes against humanity that was not before the original panel in determining whether it would vacate his refugee status. This is a total misrepresentation of the jurisprudence.
[32] The most recent authority on the issue dealt with whether an applicant may introduce new evidence for purposes of subsection 69.3(5) of the Act is Coomaraswamy v. Canada (Minister of Citizenship of Immigration), [2002] F.C.J. No. 603 (QL) (F.C.A.). In that case, Evans J.A. finally answered the question certified by some judges of the Trial Division[1] by stating that in considering whether there was "other sufficient evidence on which a positive Convention refugee determination was or could have been based" under subsection 69.3(5), the Refugee Division can take into account evidence submitted by the Minister on an application to reconsider and vacate under subsection 69.2(2) for the purpose of identifying and discounting evidence that was tainted by the misrepresentations. However, the individual concerned may not submit evidence at a vacation hearing that was not before the Board at the determination hearing, for the purpose of establishing under subsection 69.3(5) that there was "other sufficient evidence on which a positive Convention refugee determination was or could have been based".
[33] In Coomaraswamy (supra) and in all the other decisions, Justice Rothstein set aside a Refugee Division's determination under subsection 69.3(5) of the Act because it relied on the Minister's evidence tendered for the purpose of demonstrating the previous refugee recognition had been obtained by illegal means to reassess the credibility of the remaining evidence that was before the original panel. The Court did not address the question which is at the core of the present application, that is, whether subsection 69.2(2) of the Act permits the vacation panel to take into account evidence that was not before it at the refugee determination hearing for the purposes of determining whether the Applicant fell within the protection of the exclusionary provisions of the Convention. Consequently, the decision of this Court in Maheswaran can be of no avail to the Applicant.
[34] Counsel for the Applicant contends that the vacation panel in the present case considered information that was not before the original panel and which is inadmissible in a determination by a panel under subsection 69.3(5). With respect, counsel is misguided. As stated, the principal issue appears to have been whether it was open for the vacation panel to conclude on the evidence before it that, for the purposes of Article 1F(a), the Applicant had committed crimes against humanity and was excluded from the Convention refugee definition.
[35] In its reasons, the panel did refer to the evidence submitted by the Minister for the purposes of subsection 69.2(2). Those references were to establish that the Applicant's evidence at his original hearing was tainted by misrepresentation or concealment. However, because of the misrepresentation of his role while he was in the Salvadoran army, the original panel was prevented from thoroughly assessing whether the Applicant fell within the exclusion provisions of Article 1F(a). In my view, the vacation panel clearly was entitled to consider the new evidence regarding the Applicant's alleged crimes against humanity that was not before the original panel. It could not otherwise establish whether the Applicant would have been excluded from Convention refugee status under Article 1F(a) of the Convention, had he not failed to reveal such evidence at the original hearing.
[36] The fact of this case are very similar to those in Thambipillai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1166 (QL) (F.C.T.D.), a case dealing with the interplay between paragraph 69.3(5) of the Act and Article 1F(a) of the Convention, where McKeown J. stated the following :
¶ 15 The Board may not allow an application made under s. 69.2(2) of the Act without first turning its mind to s. 69.3(5) and determining whether it ought, in the circumstances, to exercise the discretion conferred by that provision.
¶ 16 In reaching its conclusion that the applicant had based his original refugee claim on a material misrepresentation, the Board found that the applicant had not told the truth at the original hearing concerning his involvement with torture in the IPKF camps. The applicant misrepresented his role as a mere interpreter for the IPKF as he was involved in the torture of prisoners.
¶ 17 The Board therefore correctly concluded that the evidence established misrepresentation according to the Act.
¶ 18 Due to the misrepresentation of the role of the applicant in the IPKF camps, the original Board was foreclosed from thoroughly assessing whether the applicant fell within the exclusion provisions.
¶ 19 The Board looked at the evidence and determined, within its discretion, that in its opinion, there were serious reasons for considering that the applicant had committed a crime against humanity pursuant to Article 1F(a). Since the application of Article 1F(a) took the applicant outside the realm of possible Convention refugee status, s. 69.3(5) was inapplicable to his case; but for his material misrepresentation, he would have been excluded from Convention refugee status. Thus the vacating panel was not required to engage in an assessment of the evidence as it applied to the inclusionary aspects of the Convention refugee definition. Accordingly, the Board did not require the full record of the original hearing, and it is highly doubtful that a full record is required in any event.
¶ 20 In Mahdi v. Canada (1995), 191 N.R. 170 (F.C.A.), the Board did not engage in the analysis of s. 69.3(5) because the panel was satisfied that the applicant was excluded on the basis of Article 1E. Both the Trial Division and the Court of Appeal judges found that the panel erred because of a lack of evidence that the applicant was described in Article 1E. The Courts did not object to the panel engaging in an analysis of the exclusion clause per se. As I stated earlier, an analysis of the application of the exclusion provisions is inherent in an application to vacate Convention refugee status. There was no denial of natural justice to the applicant in the manner in which the exclusion issue was addressed at the hearing of the present case. The Board's inferences and conclusions are reasonably open to it on the record and accordingly, whatever my opinion, it is not up to me to interfere with its inferences: See Miranda v. M.E.I. (92-A-6660, May 6, 1993, F.C.T.D.)
(Emphasis added)
[37] I agree with McKeown J.'s reasoning that an analysis of the application of the exclusion provisions is inherent in an application to vacate Convention refugee status. In the present case, the vacation panel focussed its analysis exclusively on the Applicant's exclusion from the Convention refugee definition and never turned its mind to the exercise of its discretion under subsection 69.3(5) of the Act. Since the application of Article 1F(a) took the Applicant outside the realm of possible Convention refugee status, subsection 69.3(5) was inapplicable to his case. Thus the vacating panel was not required to and in fact did not engage in an assessment of the evidence as it applied to the inclusionary aspects of the Convention refugee definition.
[38] Having determined that the vacation panel was clearly entitled to consider the new evidence regarding the Applicant's alleged crimes against humanity that was not before the original panel to determine whether to vacate his refugee status, I now turn to the second issue raised by Applicant's counsel.
[39] It is argued that the vacation panel erred in law in giving no weight to the evidence of Ms. de Krasinska that was properly before it, and by failing to give reasons for rejecting the totality of this expert's evidence. My examination of the Certified Tribunal Record, however, does not support Applicant's counsel argument.
[40] At the vacation hearing, the panel considered the psychological report provided by Applicant's counsel wherein she tried to explain her client's state of mind and why he allegedly fabricated the story of his involvement in killing of civilians. Ms. de Krasinska, who prepared the report, also gave lengthy testimony at the hearing, expanding upon the information in her report. Her evidence was that based on her 14 hours of interviews with the Applicant, she found him to be credible when he stated that he had never killed or harmed anyone, and when he said he had lied about having done these things. Her testimony was that she has a great deal of experience in assessing whether or not people are telling the truth, based on her observations of their physical and emotional reaction to questions. She stated that, in her opinion, if the Applicant had been lying to her she would have seen some sign of it, but she did not. She also stated that, using the same criteria for assessment, she believed the Applicant when he stated that he had been telling the truth when he stated that he had been in the Salvadoran army and had deserted, and subsequently feared for his life.
[41] When asked why he allegedly lied at the refugee hearing, the Applicant explained he had relied on the bad advice given by a person he had met in the immigration office prior to making his refugee claim. When asked why he allegedly continued to lie following his refugee hearing, the Applicant stated that he could not remember what he had said at the original hearing and was attempting to tell a similar story. The panel noted that the Applicant clearly remembered the fact that he served in the Salvadoran army and that he trained as a radio operator, but that he had memory losses when it came to explain to the immigration officers his precise role and actions while he was in the army. The panel found it was implausible that the Applicant would place his future into the hands of a stranger whom he had just met. It also found that the details of the stories related by the Applicant could only have been told by someone who actually took part in such activities and, consequently, that the Applicant was involved in committing crimes against humanity. Finally, according to what the Applicant stated at the vacation hearing, the panel found that the latter joined the army voluntarily and deserted only when he became afraid for his own life due to his involvement in dangerous activities.
[42] In my view, those findings regarding the credibility of the Applicant were entirely reasonable for the vacation panel to make in the circumstances. They should not be set aside unless they were made in a perverse or capricious manner, which is clearly not the case.
[43] Ms. de Krasinska also testified as to the reasons that she believed the Applicant had made up the stories he told on his application for permanent residence and to the immigration officer. She relates his impoverished background and lack of education, his childhood in an authoritarian household, his personality, his cultural background as a Latin American in general and a Salvadoran specifically; his fear of authority, the manner in which he was questioned by the immigration officer, and the fact that he appeared to have suffered PTSS from his experiences during his military training and service.
[44] The vacation panel's finding that the testimony of the Applicant at the vacation hearing was not credible was fundamental to its decision. If the panel had believed the Applicant's evidence that he had lied at the original hearing and subsequently in 1992 and 1995 and that he had never killed or harmed anyone, it could not have found he was guilty of misrepresentation or concealment.
[45] Findings of credibility are, of course, at the heartland of the specialized fact-finding jurisdiction of the CRDD, and only in the most unusual circumstances will they be impugned by a reviewing court. It is also trite law that the fact that written reasons do not mention all of the evidence introduced before a tribunal does not of itself constitute a reviewable error of law.
[46] In the case at bar, I am satisfied that in making its finding to give no weight to the expert report of Ms. Krasinska, the vacation panel did come to grips in its reasons with the content of that report and explained why it dismissed it. The panel found that Ms. de Krasinska holds a Bachelor of Arts Degree in Psychology and a Masters Degree in Social Work which did not qualify her as an expert in PTSS. She had no professional training, extensive experience nor publications in PTSS. In my view, there is no reason to interfere with these credibility findings.
[47] The Applicant also takes issue with the fact that the vacation panel failed to acknowledge that Ms. de Krasinska had previously been acknowledged by the same tribunal as an expert witness, and had been invited by the tribunal to give a presentation on the issue of the effects of trauma. I agree with the Respondent that there is no evidence in the Record that Ms. de Krasinska had been previously acknowledge as an expert on PTSS. The fact that she was invited to give a presentation on the issue of the effects of trauma does not necessarily qualify her as an expert witness on that topic in the context of a refugee determination hearing.
[48] In my view, the fact that the Applicant in the present case had an impoverished background and lack of education, a childhood in an authoritarian household, a frail personality, a cultural background as a Latin American and a fear for authority has nothing to do with whether he is telling the truth about what he did while he was enrolled in the Salvadoran army. More so, the evidence does not point to any evasiveness, forgetfulness, confusion or inconsistency in the testimony of the Applicant which could have been caused by the passage of time, minimal educational standards and any post-traumatic stress symptoms he may have suffered from his military training and service.
[49] Here, the Applicant chose not to provide accurate information about crimes against humanity he had committed before the original panel; nevertheless stated that during his military service he had been sent out "to beat people and to interfere with people". He also provided details of two incidents in which he beat and injured civilians. However this information did not cause him any prejudice during his refugee hearing, and he was found to be a Convention refugee. The Applicant does not now get an opportunity of having a re-hearing of the Respondent's vacation claim by adducing an expert report and by invoking that what he had originally stated about having mistreated some people while he was a soldier was a lie and was based solely on the "bad advice" he alleges he was given prior to making his refugee claim by a person he had never met before in his life. Clearly, the scheme of the Act does not contemplate providing more rights to a party who has misrepresented material facts to obtain Convention refugee status.
[50] A review of the Certified Tribunal Record reveals that the purpose of the interviews was manifestly to elicit information that either supported or negated the Applicant's statement he had made on his application for permanent residence. The informality of the process did not, however, absolve the Applicant from the obligation to tell the truth at his interviews. If the allegations of killing and harming people were in fact lies, the Applicant must explain the reasons to the immigration officer during interviews. This ended up being fatal at the vacation hearing, but as I have said, if it be so, it is solely occasioned by the Applicant's persistence to misrepresent crucial facts and deceive the immigration officers who interviewed him.
[51] Finally, with respect to the issue of misrepresentation of the evidence, I entirely agree with the Respondent's submissions that the Applicant counsel's argument is void of merit.
[52] I thus conclude that the vacation panel's decision to disbelieve the Applicant's testimony that he had lied when he said that he killed and harmed civilians, and to determine that he had in fact committed crimes against humanity, was reasonably open to it in light of the evidence before it.
[53] Considering the decision I have reached, the vacation panel was not required to determine whether it ought to exercise the discretion conferred by subsection 69.3(5) of the Act. Accordingly, I need not determine whether after removing from the record the tainted information what remained was sufficient to sustain a finding that the Applicant in the present case was a Convention refugee.
[54] For all these reasons, this application for judicial review is dismissed.
[55] At the termination of this hearing it was suggested that perhaps questions of general importance should be submitted for certification and I assume them to be the following:
1) once a vacation panel has determined that one is excluded under 1F(a), is there an obligation to refer to the evidence of first panel to see if there is sufficient remaining grounds to support a finding of Convention Refugee;
2) may the vacation panel entertain new evidence brought by the Crown to show the misrepresentation before the CRDD.
[56] As I see it, question number 1 was canvassed and answered by McKeown J. in Thambipillai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1166 (QL) (F.C.T.D.).
[57] With respect to question number 2, there is no doubt that question was answered by Evans J. in Coomaraswamy v. Canada (Minister of Citizenship of Immigration), [2002] F.C.J. No. 603 (QL) (F.C.A.).
[58] Accordingly, I see no need to submit these questions.
JUDGE
OTTAWA, Ontario
June 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2821-01
STYLE OF CAUSE: Jose Ricardo Sandoval Aleman v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROULEAU
APPEARANCES:
Mrs. Lorna K. Gladman FOR THE APPLICANT
Mr. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Lorna K. Gladman FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
[1] See Guruge v. Canada (Minister of Citizenship and Immigration) (1998) , 160 F.T.R. 297 (F.C.T.D.); Sayed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 121 (F.C.T.D.); Osei v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 410 (QL) (F.C.T.D.); Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 183 (QL) (F.C.T.D.). In both Guruge and Sayed, the appeal to the Federal Court of Appeal was discontinued. The reasons of the Federal Court of Appeal in Coomaraswamy, supra, were released a month after the release of the reasons of the Federal Court - Trial Division in Osei. The appeal in the latter case is yet to be heard.