Date: 20010906
Docket: IMM-2982-99
Neutral citation: 2001 FCT 997
BETWEEN:
SIVASHANKER ARUNACHALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division dated May 3, 1999, that the applicant is not a Convention refugee.
[2] The applicant is now about 37 years of age, a Tamil with family roots in Jaffna, who was born and raised in Colombo, Sri Lanka. He claims to have been arrested many times while living in Colombo before deciding to leave to come to Canada.
[3] Upon his arrival in Canada by bus on May 26, 1997, the applicant was interviewed at the border and was requested to fill in a form in English. He was not assisted by an interpreter, and he did as much as he could, leaving blanks where he could not answer the questions.
[4] Subsequently Mr. Arunachalam completed a Personal Information Form ("PIF") claiming to be a Convention refugee and that claim was initially considered for an expedited refugee determination process ("the fast-track") provided under s-s. 69.1(7.1) of the Immigration Act, R.S.C. 1985, c.I-2 as amended, (the "Act"). In this process, for cases that appear not to be complicated, a refugee hearing officer ("RCO") may recommend and a single member of the Refugee Division may determine, without a hearing, that the applicant is a Convention refugee.
[5] Rule 18 of the CRDD rules provides that the Division may direct the parties to attend a preliminary conference with a refugee hearing officer in order to provide for "a full and proper hearing and to dispose expeditiously of the claim". After such a hearing the officer shall make a report and may recommend in stipulated circumstances, for consideration of a member of the Division pursuant to Rule 19, that the claimant be determined to be a Convention refugee, without a hearing. Mr. Arunachalam and his counsel attended an interview with a refugee hearing officer. There were, in the applicant's view, serious problems of interpretation for him, speaking Tamil, through an interpreter who spoke Malaysian Tamil. From that interview, Mr. Arunachalam's claim was found not suitable for the expedited process and it was referred for consideration by a regular panel of the CRDD.
[6] When the hearing before the panel commenced, the chairperson disclosed that a record from the fast-track session, with notes presumably completed by the officer who then interviewed the applicant, was included in the file forwarded to him as chairperson in advance for purposes of the hearing. It was not provided to the other panel member or to counsel for the applicant until it was provided to them by the chairperson at the hearing.
[7] Counsel for the applicant upon receipt of the document objected to consideration of it by the panel and he invited the panel to recuse itself. He argued primarily on the principle that the panel should not have, in advance of the hearing to consider the applicant's claim and the evidence, notes from a preliminary process concerning the applicant's claim. Counsel also objected on the ground that some of the comments included in the notes could be read with prejudice to the applicant's claim.
[8] The document in question, dated 18-8-97, which is unsigned, is headed "Expedited Refugee Determination Process. Screening Checklist". (See Tribunal Record, p. 44). It includes the following information:
A. SUITABLE FOR EXPEDITED (criteria appear to be satisfied): ________
B. NOT SUITABLE FOR EXPEDITED: ü
The following criteria were NOT satisfied (indicate one or more):
1. absence of complexity: ( )
2. consistency with country info.: ( )
3. absence of credibility issues: ( ü)
4. CRDD positive rate: ( )
5. application of definition: ( )
NOTES: [in hand writing] Contradictions
1) fem plus [?] de la maison depuis 28-5-97
now rooms rented? no, wife's there
2) Police said "We're here to catch the 2 tamils"
(? mais ils on déja étaient arrêtes chez le voisin!)
3) work til depart? no, because business
fell ® wrong answer was in jail til 03-97
[9] Counsel's objection to the document's admission and to the panel continuing was not accepted by the panel which noted its authority to control its proceedings, its assessment that the document in question was relevant and its confidence that it would act impartially. However, upon request of counsel for the applicant the hearing was adjourned to give counsel, who had not been the applicant's counsel at the fast-track interview, an opportunity to consult with previous counsel. Upon resuming two weeks later counsel repeated his objections on grounds of an apprehension of bias arising from the notes provided initially only to the chairperson. He further provided an affidavit from the previous counsel affirming that at the preliminary conference there had been serious problems of translation for the applicant. Without further debate or ruling by the panel the hearing continued and was concluded on April 8, 1999. Decision was reserved by the panel and was rendered May 3, 1999.
[10] The panel's hearings may have been unusual in that there was no RCO present and no one representing the Minister. Counsel for the applicant questioned his client in direct examination, and cross-examination of Mr. Arunachalam was then carried on by the chairperson and the second panel member. Included in their questions were some arising from the document completed by the applicant at the port of entry on his arrival, when he did not have assistance of an interpreter, and at least one question arising from the notes originating in the preliminary conference which had led to the full hearing by the panel.
[11] The CRDD panel determined that the applicant was not a Convention refugee because it found he was not credible. It held there was no credible evidence that he had been arrested by the police as he alleged or that he would be at risk of persecution if he returned to Sri Lanka.
Issues
[12] When this matter was heard the applicant raised two issues. First, is it urged that the process was unfair in that the panel chair was provided with the RCO's notes from the fast-track process, raising an apprehension of bias on the part of the panel and a denial of fair process, since it appeared the panel started with the view the applicant was not credible. Secondly, the applicant disputes the credibility findings of the panel in this case. I deal with these issues in turn.
Evidence concerning consideration of claim prior to referral to CRDD panel
[13] In its decision the panel commented, in part, as follows:
...
1. Counsel for the claimant presented several objections to the inclusion in the file of the Refugee Claim officer's (RCO) notes taken during the fast track process. Counsel also asked this panel to desist from hearing this claim, having possibly been influenced by conclusions reached by the RCO.
The panel, finding the notes relevant and finding itself impervious to any assessment which could have been previously made, overruled the counsel's objections, deciding to question the claimant on his answers to the RCO and remaining seized with the claim.
...
10. The panel looked at the notes written by the RCO at the fast track process and the claimant was asked why he had told the RCO that the police had said "We're here to catch the two Tamils" since that would be inconsistent with his narrative. The claimant answered that he did not remember exactly what he told the RCO. He added that he had difficulty understanding the Malaysian Tamil interpreter. While counsel presented an affidavit from Me Harbec, the counsel present with the claimant at the fast track hearing, showing that there were objections to the translation, the panel accepts that Malaysian Tamil and Sri Lanka Tamil may have their own local variations, but simple sentences should not give rise to radically different interpretations. Moreover, the claimant already having forgotten a crucial response which deals with the centrality of his alleged persecution leads the panel to believe that the translator had interpreted the issue correctly. The problem lies with the claimant who gave an answer inconsistent with his narrative.
...
[14] For the applicant it is submitted that production of the RCO's notes from the preliminary expedited process violated basic principles of fairness and permitted the panel, or at least its chairperson, to commence the hearing with preconceived ideas about the applicant and his credibility. It is urged that the expedited process is comparable to a pre-trial hearing in a civil cause, and as under Court rules relating to such processes, unless matters arising from that preliminary process are agreed to be submitted to a trial judge, in a civil case those matters, or reports upon them, are not to be presented to the decision-maker. The Federal Court Rules, 1998 are referred to as an example preventing production of materials arising at pre-trial proceedings, unless the parties agree to its production or filing.
[15] In Zheng v. Canada (Minister of Employment and Immigration), (1994) 28 Imm. L.R. (2d) 191 at 192 (F.C.T.D.), then Associate Chief Justice Jerome commented:
The concept of natural justice by which tribunals such as the Convention Refugee Determination Division are bound includes the fundamental right to a fair hearing. In order for a hearing to be considered fair, there cannot exist even the appearance of prejudice to the right of a claimant to make full presentation before an unbiased board. A claimant is entitled to have his case decided by a board whose collective mind is free from bias and which is independent and impartial. The mere suggestion that a claimant has been denied his basic right to a fair hearing is justification for an order setting aside the tribunal's decision and returning the matter for rehearing and redetermination.
In that case Jerome A.C.J. found the panel's extensive direct questioning of the applicant, at considerable length, longer than the applicant's counsel and the RCO, created a reasonable apprehension of bias.
[16] In this case the transcript of the hearing makes clear that counsel's concern extended beyond the principle that such notes ought not to be available to the panel, and included objections to certain comments in the notes. He had no objection, apparently, if the notes were available to an RCO at the panel hearing who then made use of them for purposes of his questioning at the hearing, or for purposes of admission then of the notes themselves as evidence when their admissibility and weight could be argued. In this case, however, as earlier noted there was no RCO in attendance at the panel's hearing, and the notes were provided to the chairperson without prior notice and opportunity to object by the applicant.
[17] In my view, this issue raised by counsel is an important matter of practice. Clearly it would be preferable if notes made at a preliminary processing of the applicant's claim were dealt with, not as a matter of record in his or her immigration file, but as a matter of evidence to be formally introduced to the panel as any other item of evidence, whether presented on behalf of the Minister or of the applicant, through one of the parties or their counsel or by the RCO, at the time of the hearing. This is the normal process for introducing all evidence. Even the PIF, completed as the applicant's claim, is formally evidence before the panel because it is introduced, or perceived to be so, by one of the parties. (Aquino v. Canada (Minister of Employment & Immigration), (1992) 144 N.R. 315 (F.C.A.).) Even public information in the form of press clippings or country reports are introduced in this way by or on behalf of one or other of the parties to the hearing.
[18] That said, I am not persuaded that the circumstances here warrant intervention of the Court. The work of the panel is, in some respects, judicial, and it is subject to review on issues of fairness and of law. But it is not a Court bound by rules of evidence. Indeed, s. 68 of the Immigration Act, R.S.C. 1985, c.I-2, as amended, concerning the processes of the Refugee Division provides:
68. (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
[19] It is clear that a panel of the CRDD considering a refugee claim is not bound by the rules of evidence. In this case the document in question was perceived as introduced on behalf of the Minister, as were all other documents not submitted by the applicant, in the absence of an RCO or any other representative of the Minister, at the hearing before the panel. The chairperson disclosed the document, then in his file with other documents provided on behalf of the Minister, and it was produced, for the first time, to counsel for the applicant. After considering the objection of the applicant, the panel determined the document was relevant and would be considered in evidence. Further, the panel declined to recuse itself from the case.
[20] Counsel had opportunity to object in principle and in respect of the contents of the notes at the commencement of the hearing and the panel's reference to the notes at the hearing and in its decision was made with an opportunity for Mr.Arunachalam and his counsel to respond. The rules of the CRDD do not expressly exclude admission of documents from the preliminary process as the rules of this Court do in relation to proceedings from pre-trial or case management proceedings. In the circumstances, considering the authority of the panel to "receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy", the admission of the questioned document in this case, in my opinion, did not constitute unfairness in the process of the panel that would warrant setting aside its decision.
Issues of credibility
[21] While the applicant acknowledges that findings of credibility are primarily for the panel to assess, it is urged that the reasons expressed for finding a lack of credibility must stand up to scrutiny, particularly where they concern implausibilities. In this case, it is urged that of eight reasons expressed by the panel for finding the applicant not credible, seven either ignored rational explanations or were not supported by the evidence.
[22] I am persuaded that on some four of these issues the basis of the panel's conclusion is patently unreasonable, or, to paraphrase the words of s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c.F-7, as amended, is perverse or capricious without foundation in the evidence. Thus, the panel expressed surprise that in his testimony, given through an interpreter, the applicant initially referred to his first encounter occurring in 1997, apparently contradicting his later testimony and his narrative included in his PIF that his difficulties had started much earlier in the 1990's. I accept the applicant's submission that this places too much emphasis on the manner of expression used by the applicant, through his interpreter, in response to one of the first questions asked of him at the hearing, and that if the panel was surprised by his answer at the hearing they had an obligation to so note and provide an opportunity for explanation.
[23] Further, the panel found his explanation not to be credible for renting a room, as he claimed, to two young Tamils he had come to know through business contacts over a year, essentially because in the panel's view renting accommodation to the two young men was illogical, since that would bring attention of the authorities to the applicant and to the two young men. To refuse to accept the applicant's explanation, that he rented a room to two friends who faced difficulties in continuing to live in hostels, for a brief period while they were studying, simply because the panel considered that illogical, without further reasoning, is not in my opinion, a basis for finding the applicant's explanation not to be credible.
[24] The panel also concluded that it did not believe he had difficulties with the Tigers in the north in the Jaffna area, because he provided a permanent address in Jaffna in the information the applicant completed in the Port of Entry notes, without assistance of an interpreter, while his PIF, which he swore to be true, claimed that address as Colombo, and because of some inconsistency in his testimony about his visits to Jaffna. His testimony may not have been consistent, and the Port of Entry notes may not have correctly stated his permanent address, but for purposes of his claim the applicant was not concerned with his relationship with the Tiger revolutionaries, his claim was that he feared persecution from the authorities in Colombo where he lived. In my opinion, the panel's failure to accept that he had trouble with the Tigers, sets up a "straw man", a claim not made by the applicant, which when not accepted is considered a negative factor in assessing his credibility. There simply was not evidence before the panel that his claim of concern with the authorities in Colombo was related in any way to a claim by the applicant of difficulties with the Tigers in the north.
[25] Finally, as noted in the quotation above of paragraph 10 of its decision, the panel found the applicant's explanation of an answer recorded in the RCO's notes from the preliminary expedited process not to be credible. In so doing it declined to accept the explanation that the applicant had difficulties on the earlier occasion with the interpreter, despite the testimony of the applicant and the affidavit in support from his then counsel, because in the panel's view, without any evidence to support it, despite possible local variations in Malaysian Tamil and Sri Lanka Tamil "simple sentences should not give rise to radically different interpretations". In my opinion, it was perverse, without evidentiary support, and thus patently unreasonable for the board to base its conclusion of a lack of credibility of the applicant on this assessment.
[26] Having accepted that the panel did err in part in its decision by relying upon patently unreasonable findings, I am not persuaded that this can be said of the decision as a whole. In my opinion, there was evidence in the record, including the Port of Entry notes, the applicant's PIF and his testimony, that some important elements of the applicant's claim were excluded from the narrative in his PIF, there was inconsistency in his testimony about the two young Tamils and their or their father's business in Jaffna, about his permanent address, his visits to Jaffna, the applicant's ability to comprehend English, and his responses to questions concerning his imprisonment or detention.
[27] Finally, a key factor in the panel's assessment based on its reading of documentary evidence admittedly of only one or two documents, was its conclusion that it was implausible that Tamil people, born and living their lives in Colombo, as was Mr.Arunachalam, tend to face more harassment and difficulties from the authorities than young Tamils arriving in Colombo from the north and east of Sri Lanka. It is urged for the applicant that the evidence referred to was a single document, duplicated, that it was out of date, and that by so interpreting the documentary evidence and stating that it was implausible that the applicant would have faced numerous arrests and brutal questioning, the panel placed a higher degree of proof on establishing an objective basis of fear.
[28] In my opinion, this finding of implausibility, stated with regard to the applicant's claim to persecution by the authorities in Colombo, was based not only on the documentary evidence referred to by the panel, but also on the other findings of the panel that aspects of Mr. Arunachalam's evidence were not credible. I am not persuaded that on all aspects of the evidence referred to by the panel, its determinations can be said to be unreasonable or patently so. Admittedly, I find that some determinations were not supportable, but on balance those do not outweigh the determinations, particularly the ultimate determination, of a lack of credibility found by the panel.
Conclusion
[29] On balance, while I conclude
a) that the panel's admission and reference to the notes of the RCO from a preliminary conference that resulted in a recommendation that there be no expedited process for considering the applicant's claim, without prior disclosure to the applicant and despite his objection at the panel's hearing, did not constitute unfairness warranting setting aside the panel's decision;
b) that some findings and assessments of the panel appear to be patently unreasonable; and
c) that more findings and assessments of the panel are not patently unreasonable, in particular that it was implausible that the applicant, born and living his life in Colombo, even if he were of Tamil ancestry, would have faced the numerous arrests and mistreatment he claimed, over many years.
I am not persuaded that, considering the decision as a whole, the Court should intervene to set aside the ultimate determination of the CRDD panel.
[30] Thus an Order goes dismissing this application for judicial review.
Certified question
[31] Counsel for both parties agreed that a serious question of general importance is raised by this case. I agree and the Order now issued includes the following question, based on a question as proposed by counsel for the respondent:
May a CRDD panel, in considering a refugee claim, consider as evidence, despite objection by the claimant, information recorded by a refugee hearing officer at a CRDD Rule 18 preliminary conference that does not result in expedited processing of the claim pursuant to s-s. 69(7.1) of the Immigration Act, when the information is provided to the panel, but not to the refugee claimant, in advance of the panel's hearing?
(signed) W. Andrew MacKay
_________________________
JUDGE
OTTAWA, Ontario
September 6, 2001.