Date: 20000705
Docket: IMM-2674-99
THANALUXMY ANNALINGAM
ANNALINGAM SELLADURAI,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
MULDOON, J.
[1] This is an application for leave to review a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) dated April 29, 1999, wherein the three-member panel of the CRDD unanimously granted the Minister's application to vacate the earlier finding that Thanaluxmy Annalingam and Annalingam Selladurai were Convention refugees.
[2] The CRDD's reasons were included in the applicants' application record, filed. The pertinent IRB file numbers are: T98-07037 and T98-07039.
[3] The respondent relies on the facts set out in the reasons of the CRDD but the applicants would supplement those facts from material not before the first CRDD hearing.
PART II - THE ISSUES
[4] Did the CRDD err in law in refusing to consider the applicants' evidence of the Canadian acceptance rate of refugee claims by other similar claimants back in 1992?
[5] Did the Refugee Division err in law by misstating and misconstruing the test set out in subsection 69.3(5) of the Immigration Act as the applicants allege?
[6] Have the applicants satisfied the test for leave?
| PART III - THE LAW AND ARGUMENT |
A. Consideration of evidence
[7] It is not disputed that when making a determination under subsection 69.3(5) of the Act, the CRDD may assess only evidence which was before the previous panel of the Refugee Division. The applicant objects to the CRDD panel's refusal to consider other Refugee Division decisions regarding claimants similarly situated to the applicants.
[8] The applicants seek to characterize these other decisions as "jurisprudence" and assert that the panel may consider them in the same manner that a Federal Court judge may consider other Federal Court decisions. However, the respondent submitted that the manner in which the applicants intended to rely upon the other Refugee Division decisions was as evidence, and not as "legal jurisprudence".
[9] Furthermore, the applicants submit that the acceptance rate is probative and relevant. If the applicants be correct, then the board will have erred in excluding, pursuant to subsection 69.3(5) of the Immigration Act, the list of data as the list would not be new evidence. The respondent submits that the manner in which the applicants intend to use the data garnered from the previous CRDD cases was as factual evidence and not as jurisprudence. The respondent concludes, therefore, that the board was correct not to allow it.
[10] The applicants argue that because other claimants from the same area were found to be refugees, the applicants should also be found to be refugees. However, a finding of refugee status is based upon the particular facts before a panel. The applicants did not intend to rely upon the other CRDD decisions to support a proposition of law, but rather to argue that, because these other people were found to be refugees, so too should the applicants. When invoked in that manner, the previous decisions of the Refugee Division are in effect being employed as evidence of past acceptance in order to support a positive finding of Convention refugee status in the present case. These decisions were therefore presented as evidence, which was not admissible because they were new material not adduced before the original panel. However, the applicants chose to compile a list featuring case names, successful refugee claimants and their birth dates. It was a list which reinforces its own inadmissibility in its character of new evidence not previously adduced.
B. Interpretation and application of s. 69.3(5)
[11] Subsection 69.3(5) of the Immigration Act provides:
| 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 misrepresentations, suppression or concealment of a material fact, there was other sufficient evidence on which the determination was or could have been based. |
[12] The expression of the word "could" at the conclusion of that paragraph hardly creates a unique standard of proof which the CRDD panel is directed to employ in evaluating whether a refugee claim based on a misrepresentation should nevertheless be sustained.
[13] The use of the word "could" suggests a conditional situation. This condition is if, despite the misrepresentation, there were still sufficient evidence to support the determination.
[14] It is clear that it is the CRDD panel being asked to vacate the earlier decision which is to determine, in its discretion, whether the remaining evidence is sufficient to establish a finding of refugee status. In Bayat, the Court of Appeal examined the operations of a subsection 69.2(2) application. The Court dealt with the interaction between subsections 69.2(2) and 69.3(4), and it concluded that sections 69.2 and 69.3 must be read together. Therefore that Court found that a Minister's application under section 69.2 was to "reconsider and vacate" the original decision granting refugee status,
| "and it is this application that the Refugee Division is authorized "to approve or to reject". Thus the power of the Refugee Division was not limited to merely "vacating" that determination but also of "reconsidering" it. Given the context in which it appears, I do not think the word "reconsider" was intended to limit the power of the Refugee Division to that of dealing with a prior determination of its own. The intent appears to be that the Refugee Division should be able to take up the impugned determination for renewed consideration with a view to reversing and vacating it. In my view the power of reconsideration is in addition to that of "vacating" the determination. |
| M.C.I. v. Bayat (A-338-95, June 10, 1999, F.C.A.) |
[15] This statement by the Court of Appeal indicates that it is for the Refugee Division panel on such an application, to reconsider the original claim. There is no indication that the newly constituted panel is to consider what the original panel granting refugee status might have done had the fraudulent material not been before it.
[16] The French-language wording of subsection 69.3(5) supports the respondent's position and provides little or no support for the interpretation suggested by the applicants:
| "... si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut." |
[17] The CRDD did not err in determining that the applicants' refugee claim was not sustainable. The CRDD exercises wide discretion to review the evidence before it on a section 69.2 application. The CRDD noted that not all claims from northern Sri Lanka were granted positive refugee decisions in 1992. It was therefore reasonably open to the panel to conclude that an adult Tamil couple in their early forties would not, in 1992, have been found to be Convention refugees. (Kahin v. M.C..I. (1994), 91 F.T.R.; Mahdi v. M.C.I. (1995) 32 Imm. L.R. (2d) 1 (F.C.A.).
[18] Since the publication of the decision in Mahdi v. Canada (Minister of Citizenship and Immigration)(1994), 86 F.T.R. 307 (T.D.), it has become clear that a board must, under subsection 69.3(5) of the Immigration Act, reconsider the merits of an impugned refugee claim. As Mr. Justice Rothstein recently wrote in Guruge v. Canada (Minister of Citizenship and Immigration)(1998), 160 F.T.R. 297 (T.D.):
| Subsection 69.3(5) was clearly intended to provide the Refugee Division with discretion to reject the Minister's application under subsection 69.2(2) if such [corrected] evidence was sufficient to support a Convention refugee finding by the original panel. |
It is clear from this passage that the CRDD does not need to be convinced 100% that the evidence, purged of its deceit, supports a determination that a claimant is a convention refugee. It is also clear, however, that there must be more than a mere possibility of the claimant succeeding in his or her claim. The standard to which the impugned claimant's evidence must measure up, in essence, is that which is normally applicable in a refugee hearing.
[19] Did the board hold up the "cleansed" evidence to an artificially high standard? The applicants point to the board's use of word "would" (as opposed to the word "could") which latter is used in subsection 69.3(5) to suggest that it did impose an artificially high standard. This court cannot, however, understand the word "would" as differing substantively from the word "could". Even less feasible is the theory advanced by the applicants that the word "would", as used by the board, indicated that the board was looking at whether the applicants would have had a 100% chance of succeeding based on the cleansed evidence. As the respondent notes, to accede to the applicants' submissions would, in the words of Mr. Justice Joyal in Miranda v. Canada (Minister of Employment and Immigration)(1993), 63 F.T.R. 81 (T.D.), amount to a microscopic examination or a kind of semantic autopsy of the decisions as a whole.
[20] This court should not interfere with the findings of fact and the conclusions drawn by the Refugee Division unless the court is satisfied that the CRDD based its conclusion on irrelevant considerations, or that it ignored evidence. Furthermore, where any of the tribunal's inferences and conclusions are reasonably open to it on the record, this court should not interfere, whether or not it agrees with the inferences drawn by the CRDD, (unless they be utterly insupportable.) Miranda v. M.E.I. (92-A-6660, May 6, 1993, F.C.T.D.)
Test for Leave
[21] Therefore, the applicants have failed to meet the test for the granting of leave because the material filed by them does not raise an arguable issue of law upon which the proposed application for judicial review might succeed nor does it show that the applicants have a fairly arguable case or that there is a serious question to be determined. Bains v. M.E.I. (1990), 109 N.R. 239 (F.C.A.)
[22] As for whether the board had a premise that only young people were liable to persecution, this submission is simply without foundation. True, the board grounded its conclusion, in part, on the moderately advanced age of the applicants in 1992 but it is equally clear from the reasons that it considered other factors and, in fact, the totality of evidence. That the board did not address itself in its reasons to many discrete pieces of the evidence available to the original CRDD panel and to certain cases advanced by counsel and featuring older successful claimants cannot serve as a basis to usurp this fact. Nor does the court consider the reasoning in Mahanandan v. Canada (Minister of Employment and Immigration)(A-608-91, August 24, 1994)(F.C.A.) to require such a time-consuming and, ultimately, unmanageable approach to decision writing.
[23] The court canvassed the opinions of the parties' respective counsels on the matter of whether "a serious question of general importance is involved", as stated in section 83 of the Immigration Act. The respondent's counsel thought not. The applicants' counsel produced the following wide open question in writing:
| In applying s. 69.3(5) of the Immigration Act, how should the terms [sic] "could have been based" be interpreted and applied? |
The term is interpreted and applied herein.
[24] The applicants' counsel herein wrote, in his written representations in reply:
| 11. The Board did not exercise its discretion, pursuant to the Federal Court of Appeal's decision in Bayat, to declare that the claimants are not Convention refugees. It limited itself to vacating the previous decision, without making any pronouncement on whether the applicants are or are not Convention refugees. This is because the Court of Appeal's decision was released after the Board's reasons were issued. At the time of the hearing, and in its reasons, no consideration was given to the additional question of making a declaration that the applicants are not Convention refugees. The Board followed the Trial Division decision in Bayat, which has been overturned. Had the Board considered that it is required to decide if the applicants are Convention refugees, this may have affected how seriously the panel considered the evidence and arguments. The assumption of all the participants in the hearing was that the Board's decision could only, at worse, lead to a new CRDD hearing for the applicants. |
| 12. In reply to paragraph 16 the Respondent does not explain how the French wording of ss. 69.3(5) of the Act supports the Board's failure properly to apply the statutory test set out in the English version of the Act. The Respondent does not set out what the French version is or explain in what way it differs from the English version. The subsection's English and French versions (updated to April, 1999) as set out in the Department of Justice's internet web site) are: |
| (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. |
| (5) La section du statut peut rejeter toute demander 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. |
| The French version does not translate or restate much of what is stated in the English version, including aspects of the subsection which the Respondent relies in (such as all direct references to misrepresentation). It also uses the term "elements" which can only be translated into English as "elements". This is a much vaguer term than "evidence", as "elements" of a claim could be issues in the claim, not only evidence. The French version merely refers to elements "justifying" the acceptance ["justifiant"] - which is ambiguous as it could mean elements which could have justified the previous determination or elements which would justify a present determination. The English version clarifies - by being specific - what that means. The French version gives a test which is much more vague than the English version. That Parliament gave two versions of the subsection which are not proper translations of one another raises the question of whether the subsection is unduly imprecise, and also underlines the importance of a judicial review hearing to analyze the proper interpretation of the statutory test under this subsection. It is notable that in this case the applicants have alleged that there was enough evidence remaining to justify their acceptance, and the question is what the proper test is for that remaining evidence to be sufficient. This question has not been litigated before. Our submission is that on the question of "justifiant la reconnaissance" being different from "was or could have been based" is that the French version, being less precise about what it is referring to, can be read as consistent with and clarified by the English version. Immigration Act RSC ch. I-2, ss. 69.3(5). |
| 15. The Applicants note in particular that this application raises a serious question of general importance, which is the correct interpretation of the statutory test under s. 69.3(5) of the Immigration Act. This question is even more significant now that the Federal Court of Appeal has decided in Bayat that the CRDD can finally determine a refugee's refugee status in the context of a vacation hearing. |
[25] This application for leave is to be dismissed. The recited question posed by the applicants' counsel, if not correctly interpreted and applied herein, is however a serious one of general importance, apparently never before litigated. These findings are not at all inconsistent with the provisions of section 83 et seq. of the Act.
[26] Therefore, the applicants' substantive submissions having failed entirely, this application is dismissed. This court, however, certifies the question as above stated [paragraph 23] to be one of general importance.
Ottawa, Ontario
July 5, 2000 Judge
Date: 20000705
Docket: IMM-2674-99
Ottawa, Ontario, July 5, 2000
Present: The Honourable Mr. Justice Muldoon
Between:
THANALUXMY ANNALINGAM
ANNALINGAM SELLADURAI,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
O R D E R
UPON application by the applicants for leave to review a decision of the Convention Refugee Determination Division, dated April 29, 2999, (IRB N0s T-98-0737, T-98-07039) wherein the three-member CRDD panel granted the respondent's application to vacate the earlier finding that the applicants were Convention refugees, having come on for hearing in Toronto, on June 14, 2000, now
THIS COURT ORDERS that the applicants' said application for leave and judicial review be and it is hereby dismissed; and
THIS COURT CERTIFIES this following question as being of general importance :
| In applying s. 69.3(5) of the Immigration Act, how should the terms [sic] "could have been based" be interpreted and applied? |
Judge