Federal Court of Appeal Decisions

Date: 20020426

Docket: A-104-01

Neutral citation: 2002 FCA 153

CORAM:             ROTHSTEIN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

       RANJAN COOMARASWAMY

       ANUSHA RANJAN

       AHALYA RANJAN

UTHAYAKUMARI RANJAN

    Appellants

                 and

                THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

          Heard at Toronto, Ontario, on March 19, 2002.

         Judgment delivered at Ottawa, Ontario, on April 26, 2002.

REASONS FOR JUDGMENT BY:     EVANS J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

SEXTON J.A.

Date: 20020426

Docket: A-104-01

Neutral citation: 2002 FCA 153

CORAM:             ROTHSTEIN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

       RANJAN COOMARASWAMY

       ANUSHA RANJAN

       AHALYA RANJAN

UTHAYAKUMARI RANJAN

    Appellants

                 and

                THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

    REASONS FOR JUDGMENT

EVANS J.A.

A.             INTRODUCTION

[1]                 In October 1996, the Convention Refugee Determination Division of the Immigration and Refugee Board recognized the refugee claims of Ranjan Coomaraswamy, his wife and children. Two years later, the Minister of Citizenship and Immigration applied to the Board under subsection 69.2(2) of the Immigration Act, R.S.C. 1985, c. I-2, to reconsider and vacate its decision, on the ground that the claimants had obtained a favourable decision from the Board by making misrepresentations. The Board granted the Minister's application and their refugee status was revoked. The claimants made an application for judicial review to set aside the Board's decision. The application was dismissed: Coomaraswamy v. Minister of Citizenship and Immigration, 2001 FCT 47. The claimants have appealed from that decision.

[2]                 Subsection 69.3(5) authorizes the Board to reject an application by the Minister to vacate a positive determination of refugee status if it is satisfied that, apart from the misrepresented evidence, there was other sufficient evidence that the claimant was a refugee. The principal issue examined in the reasons of the Applications Judge was whether, in deciding whether there was sufficient evidence that the claimants were refugees, the Board could consider material that was not before it at the original determination hearing.

[3]                 Following previous decisions of the Trial Division, the Judge held that, in determining whether there was "other sufficient evidence" on which the grant of refugee status "was or could have been based", the Board could only consider evidence that had been before the Board when it had originally determined the refugee claim. The main issue in this appeal is whether the Applications Judge erred in law in so ruling.

B.        THE FACTS

[4]                 Ranjan Coomaraswamy, a citizen of Sri Lanka, arrived in Canada on May 2, 1996, and made a refugee claim. His wife, Uthayakumari Ranjan, also a citizen of Sri Lanka, had arrived in Canada on January 11, 1996, together with their two children, then eight and ten years old, to claim refugee status in Canada. The claims were joined and, on October 10, 1996, the Board determined that the claimants were refugees.

[5]                 In the personal information forms ("PIFs") submitted to the Board in support of their refugee claims, the claimants had described incidents of persecution that they said that they had experienced in Sri Lanka as Tamils in the years 1989 to 1996. They also stated that they had resided in no other country and that their children had been born in Sri Lanka, producing birth certificates as proof. However, at the vacation hearing the Minister adduced evidence that the claimants' PIFs misrepresented their history of alleged persecution. The evidence was that from 1985 until their arrival in Canada, the claimants had lived in Germany, where they had unsuccessfully sought to be recognized as refugees. The Minister also alleged that the children had been born in Germany and that their Sri Lankan birth certificates were forgeries.

[6]                 The Minister's evidence was not contradicted and counsel for the claimants conceded that the Minister had established a prima facie case. The Board concluded that the claimants had obtained a determination that they were refugees on the basis of misrepresentations and the concealment of material facts.

[7]                 In order to persuade the Board that, despite the claimants' misrepresentations, the finding that they were refugees was otherwise sustainable, counsel sought to place before the Board amended personal information forms and a letter from the German Consulate General stating that they had lost their residential status in Germany when they left. The Board declined to admit this new evidence, on the ground that it could only consider evidence that was in the record compiled for the determination hearing. It concluded that, when the misrepresented evidence was discounted, the remaining evidence was insufficient to support the finding that the claimants were refugees.

[8]                 Having dismissed the application for judicial review, the Applications Judge certified the following question pursuant to subsection 83(1) of the Act:

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), can the Refugee Division take into account evidence submitted by the Minister under an application to reconsider and vacate under subsection 69.2(2)? If so, can the Refugee Division take into account evidence which the individual whose Convention refugee status is at issue wishes to submit to respond to the Minister's evidence?

C.             LEGISLATIVE FRAMEWORK

Immigration Act, R.S.C. 1985, c. I-2

69(4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings.

69(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause.

D.             ISSUES AND ANALYSIS

Issue 1: Is new evidence admissible at a vacation hearing under subsection 69.3(5)?

[9]                 Counsel argued that subsection 69.3(5) did not prevent the Board at the vacation hearing from considering evidence that was not before the Board when it accepted the appellants' refugee claims, but which could have been made available to it. He submits that the words "there was other sufficient evidence" should be interpreted to mean that there was other sufficient material in existence when the determination hearing was held, even if it had not actually been put in evidence before the Board at the determination hearing. Counsel advanced two reasons for adopting this interpretation.

[10]            First, while the word "evidence" would seem to refer to material that had been adduced before the Board, the French text is less specific. It states simply that at the vacation hearing the Board may reject the application "si elle estime par ailleurs qu'il reste suffisamment d'éléments ...". Counsel submitted that the word "éléments" means simply "material" and not "evidence".

In response, counsel for the Minister submitted that the phrase "qu'il reste" refers to the evidence remaining, after the misrepresented evidence is discounted, and that in this context the word "éléments" refers to "éléments de preuve", or "evidence". Hence, in one respect the French text was more helpful to his position than the English and, in another, was neutral.

[11]            In my opinion, even if counsel for the appellants were correct in his submission, his argument from the word "éléments" would not take him very far. The two versions of a statutory provision must be read together in both languages and if, when read in its entirety and in context, the subsection should be interpreted as referring to the evidence that had in fact been before the Board, this interpretation will prevail, even though the French text may be less specific.

[12]            Second, counsel for the appellants submits that the words in subsection 69.3(5), "on which the determination was or could have been based", also indicate that the material to be considered at the vacation hearing is not limited to what was before the Board at the determination hearing. If this had been Parliament's intention, the subsection would simply have said, "on which the determination was based". As it is, the statutory instruction to consider hearing material on which the determination "could have been based" must mean that at the vacation hearing the Board must also consider material other than that on which the determination was in fact based. Therefore, subsection 69.3(5) includes material that was not originally before the Board. Otherwise the phrase "could have been based" would, in effect, be read out of the statute.

[13]            I am not persuaded by this argument. The words "could have been based" are capable of referring to evidence that had been before the Board, but on which the Board did not base its decision. Thus, in determining whether, leaving the misrepresentations aside, there was sufficient evidence to support the refugee claim, the Board must examine at the vacation hearing both the material on which the Board in fact had based its decision, and material that was before it on which it could have based its decision, but did not.

[14]            In my opinion, the phrase, "there was other sufficient evidence", in the English text suggests that Parliament intended to confine the Board at the vacation hearing to considering the material that had been put before the Board when it determined the refugee claim. Further, if counsel for the appellant were correct, Parliament would be using the word "evidence" in two different senses: that is, evidence adduced in the determination hearing "on which the decision was based", and material that was not adduced before the Board (and thus not evidence in the first sense), but was material "on which the decision could have been based". An interpretation that gives the same word in a statutory provision the same meaning is generally to be preferred to one that would assign different meanings, (R. Sullivan, ed. Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at 163-64), especially where, as here, the word in question, "evidence", is not actually repeated in the text. Finally, the phrase "qu'il reste" in the French text also supports the narrow interpretation of subsection 69.3(5).

[15]            Any possible doubt about the interpretation of subsection 69.3(5) is resolved by asking what legislative purpose would be served by affording to claimants who succeed in deceiving the Board an opportunity to submit additional evidence in an attempt to prove de novo at the vacation hearing that their claims were genuine. No such opportunity is available to either truthful or deceptive claimants whose claims for refugee status are dismissed. To allow a claimant who succeeded in deceiving the Board a second bite at the cherry by introducing new evidence at the vacation hearing would reward deception and remove an incentive to tell the truth.

[16]            For these reasons, subsection 69.3(5) should be interpreted as limiting the material that the Board may consider at a vacation hearing to what was before it when it allowed the refugee claim. Hence, I agree with the Applications Judge in this case and with earlier decisions of the Trial Division to similar effect, including: Guruge v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R 297; Sayed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 121; and Maheswaran v. Canada (Minister of Citizenship and Immigration), (2000), 195 F.T.R. 254.

[17]            Of course, when attempting to establish for the purpose of subsection 69.2(2) that a claimant made misrepresentations at the determination hearing, the Minister may adduce evidence at the vacation hearing that was not before the Board when it decided the refugee claim. Similarly, a claimant may adduce new evidence at the vacation hearing in an attempt to persuade the Board that she did not make the misrepresentations alleged by the Minister.

[18]            Counsel for the appellants submitted that the reasoning in the cases relied on by the Applications Judge should not be followed because it was inconsistent with the earlier decision in Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 26, aff'd. (1995) 191 N.R. 170 (F.C.A.). In that case, the appellant, a Somalian citizen, had been granted refugee status in Canada on the basis of a well-founded fear of persecution in Somalia. The Board subsequently granted the Minister's application to vacate its determination, on the ground that the claimant had not revealed that she had been granted permanent residence status in the United States and that she was therefore excluded from the definition of a refugee by Article 1E of the Convention.

[19]            The Board's decision was set aside on the ground that the evidence before the Board was that, as a result of leaving the United States, she had probably lost her right to resume her residence there, and was thus not excluded by Article 1E. The matter was returned to the Board to consider the exercise of its discretion under subsection 69.3(5). Before both the Trial and Appeal Divisions, the principal issue seems from the reasons to have been whether it was open for the Board to conclude on the evidence before it that, for the purpose of Article 1E, the claimant was still recognised by the United States as a permanent resident. Indeed, the Applications Judge stated (supra, at paragraph 10) that the Board had focussed on the claimant's exclusion from the definition by Article1E, and never turned its mind to the exercise of its discretion under subsection 69.3(5).

[20]            Nonetheless, the Applications Judge in Mahdi, supra, also said (supra, at paragraph 12) that, had it exercised its 69.3(5) jurisdiction, the Board should have determined "on the facts, as then known, whether the determination that she is a Convention refugee in Canada could still be sustained." This seems to me to mean that, in the opinion of the Applications Judge, a claimant may present evidence to support her claim at the vacation hearing that was not before the Board at the determination hearing. I would note that the Applications Judge provides no reasons explaining the basis of his view.

[21]            On the appeal in Mahdi, supra, this Court seems to have taken no issue with the fact that the Board apparently based its conclusion that the claimant was not a refugee on evidence about the claimant's status in the United States that was not before it at the determination hearing. However, the Court's reasons did not expressly address the question of whether subsection 69.3(5) permits the Board to take into account evidence that was not before it at the determination hearing. Consequently, the decision of this Court in Mahdi, supra, cannot be regarded as authority for the proposition that the appellants in the instant case were entitled to put to the Board at the vacation hearing material that was not in the determination record.

[22]            To the extent that the Applications Judge in Mahdi, supra, thought that such evidence was admissible, for the reasons that I have already given I prefer the view taken by the Applications Judge in the case at bar, and by other Trial Division Judges in the cases to which I refer in paragraph 16.   

[23]            Finally, counsel contended during oral argument that if, contrary to his submission, the Court concluded that the Board could not admit fresh evidence at the vacation hearing, then subsection 69.3(5) was invalid by virtue of section 7 of the Charter, because it denies claimants, and particularly innocent children, an opportunity to a fair hearing of their claims by the Board.

[24]            I cannot accept this argument. There is no authority for the proposition that section 7 guarantees a second de novo hearing by the Board to those who had obtained a favourable determination of their refugee claims as a result of their misrepresentations. Further, the Board's decision to vacate its earlier decision does not necessarily mean that the appellants will be deported. Accordingly, their section 7 rights are not yet engaged: Jekula v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 266, at paragraphs 31-33 (T.D.); aff'd. (2000), 266 N.R. 355 (F.C.A.). The appellants will have other opportunities to attempt to satisfy the Minister, on the basis of fresh evidence, that they should not be removed to Sri Lanka because there is a real likelihood that, if returned, they will be at risk.

[25]            The appellant children in this case may have been badly served by their parents as designated representatives when, in an attempt to substantiate their claims, they lied to the Board about their experiences of persecution. However, this is not a reason for concluding that the children were thereby denied a fair hearing of their refugee claim. The principle that clients generally cannot impeach a tribunal's decision on the ground that their lawyer made mistakes applies also to errors made by a parent, or some other person, who has been designated to act as a child's representative in refugee proceedings.

Issue 2:             Did the Board err by taking evidence into account under 69.3(5) that had been tendered by the Minister under subsection 69.2(2)?

[26]            Maheswaran, supra, held that, in deciding whether, apart from the misrepresented evidence, there was other sufficient evidence to uphold its earlier decision that a claimant was a refugee, the Board must confine itself to the evidence that was before it at the determination hearing. The Board must not reassess evidence that was not tainted by the misrepresentations in light of the evidence adduced by the Minister at the vacation hearing as proof of the claimant's misrepresentations at the determination hearing.

[27]            While I do not dispute this proposition, I also agree with the Applications Judge that, on a fair reading of its reasons, the Board did not commit this error. Thus, it referred to the fact that Ms. Ranjan had lived in Germany from 1985 to 1996 simply to demonstrate that there was no uncontradicted evidence before the Board that she had been the subject of persecution in Sri Lanka. As the Applications Judge found, the Board's purpose in referring to the Minister's evidence was to identify, not to discredit, the remaining uncontradicted evidence in the record that supported her claim for refugee status.

[28]            The Board also stated that, since the children's Sri Lankan birth certificates were forged, there would have been no evidence before the Board of their place of birth. It concluded that, if the Board had found that the children were Sri Lankan citizens by descent, there would not have been sufficient evidence before the Board at the determination hearing to support their claim for refugee status because they were too young to face a serious possibility of persecution. In so concluding, the Board confined itself to the relevant evidence.

[29]            There had been evidence at the determination hearing that, regardless of their place of birth, children of Sri Lankan citizens are automatically Sri Lankan citizens. Nonetheless, at the vacation hearing the Board went on to speculate that, if the determination Board had found that the children were stateless, it would have had to determine their claims against Germany as their former country of residence. The Board concluded that there was no evidence that the children faced persecution in Germany, and hence that there was no other sufficient evidence to support the determination that they were refugees.

[30]            Because there was no evidence before the Board at the determination hearing that the appellants had ever lived in Germany, the Board should not have considered at the vacation hearing whether the children had a claim against Germany. However, this is an immaterial error since the Board correctly considered whether the appellant children had a valid refugee claim against Sri Lanka on the basis of the uncontradicted evidence at the determination hearing.

Issue 3:             Did the Board err in law when it vacated the determination that the children were refugees without appointing a designated representative for the purpose of the vacation hearing?

[31]            Subsection 69(4) requires the Board to designate another person to represent a person under the age of 18 "who is the subject of proceedings before the Refugee Division". It is conceded that the appellant children in this case were born in 1988 and 1986, and consequently were under the age of 18 when the Board held the vacation hearing in 1999. At the vacation hearing the Board did not designate a representative for the children. Counsel for the appellants did not dispute the claim by counsel for the Minister that the parents (or, perhaps, the mother alone) should be regarded as the designated representatives (or representative) at the determination hearing, presumably by virtue of the fact that Ms. Ranjan had signed the PIF on behalf of her children.

[32]            Relying on Espinoza v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 73 (T.D.), counsel argued that the fact that he had represented all the claimants as their legal counsel before the Board did not relieve the Board of its statutory duty to designate a representative for the children for the purpose of the vacation hearing. Further, counsel's failure to raise the issue before either the Board or the Applications Judge did not preclude the children from asking this Court to allow the appeal and to set aside the Board's vacation of its decision to recognize them as refugees. Given the special responsibility that the Court has towards children, I am prepared to address the legal issue raised by counsel, despite his failure to raise it before the Applications Judge or the Board.

[33]            The role of the designated representative is explained in Child Refugee Claimants: Procedural and Evidential Issues, a Guideline which was issued by the Chairperson of the Board under subsection 65(3) of the Act and came into effect on September 30, 1996. A designated representative performs the functions of a guardian with respect to the refugee proceedings. The duties include (supra, page 2): retaining and instructing counsel; making decisions with respect to the proceedings and keeping the child informed; assisting in obtaining and providing evidence in support of the child's refugee claim; and generally acting in the best interests of the child.

[34]            The following passage (supra, page 2) from the Guideline is relevant to the facts of this case:

In cases where the child is accompanied by his or her parents, one of the parents is usually appointed as the designated representative of the child. This designation applies to all the "proceedings" of the refugee claim and not only to the hearing of the claim.

Although the Guideline is not determinative of the interpretation of the Act, I agree with the view of subsection 69(4) on which the above passage seems to be based. The designation of children's parents as their representatives applies, not only for the hearing of their refugee claim, but also for other refugee proceedings to which they may be subject, including, as in this case, a vacation hearing. Prima facie, therefore, having designated representatives for the determination hearing, the Board was not obliged by subsection 69(4) to make another designation for the vacation proceeding.

[35]            However, counsel submits that this is an extraordinary case, in that misrepresentations made by the parents in support of their refugee claims betrayed the best interests of the children by denying them an opportunity of having their claim considered on the basis of the truth. Indeed, the Guideline specifically addresses this situation (supra, at pages 2-3):

There may be situations where the person who was designated to be the representative ceases to be an appropriate representative of the child. .... In these situations, the CRDD should remove the person as designated representative and designate another appropriate representative.

[36]            No doubt, the parents' conduct would have justified the Board in revoking their designation as the children's representatives and in designating someone else to represent the children in connection with the vacation proceeding. However, the fact is that it did not do so, nor was it asked to do so by counsel in his capacity as the children's lawyer. In these circumstances, I do not accept that, on its own initiative, the Board was legally obliged to replace the parents and designate another representative. In stating that the Board "should" remove a person who becomes unsuitable to act as a designated representative, the Guideline cannot be said to assume that removal is required in every case, especially when the designated representative is the parent whom the child is accompanying.

[37]            In any event, it is difficult to see what else a different designated representative could have done to advance the children's position at the vacation hearing. There was no obvious conflict of interest between the adults and the children at the vacation hearing and counsel representing the children failed to persuade the Board that it could admit fresh evidence. Any failure by the Board to designate a new representative could thus not be said to have prejudiced the children or to have deprived them of a fair hearing.

Issue 4:             Did the Board err in its conclusion that there was insufficient other evidence to support the determination that the appellants were refugees?

[38]            In the course of oral argument counsel submitted that the Board's determination that there was insufficient evidence to substantiate the appellants' refugee claim was made in a perverse and capricious manner or without regard for the material before the Board, and should be set aside under paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7.

[39]            Since this issue was not contained in the appellants' memorandum, counsel for the Minister had no opportunity to respond to it. Hence it would not be appropriate for the Court to decide it. However, given the reluctance of the Court to interfere with the Board's findings of fact, and in view of the material before the Board in this case, I am not satisfied that the point has any merit.

[40]            For instance, after the adult appellants' misrepresented evidence is discounted, the only evidence before the Board at the determination hearing to support their refugee claims related to general country conditions, their genders, marital status and ages and the fact that they are Tamils who had at one time lived in the north. As for the children, the remaining evidence personal to them indicated only their genders, ages, parentage and, probably, citizenship.

[41]            In the absence of evidence that the appellants had experienced persecution in Sri Lanka, it was open to the Board on the evidence before it to conclude that in 1996 the persecution of Tamils from the north of Sri Lanka was not so pervasive that all Tamils had a well founded fear of persecution in all parts of Sri Lanka. It was also not unreasonable to conclude that none of the appellants fitted the profiles of Tamils who were particularly at risk in Sri Lanka at that time.

E.             CONCLUSIONS

[42]            For these reasons, I would dismiss the appeal. The question certified by the Applications Judge was:

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), can the Refugee Division take into account evidence submitted by the Minister under an application to reconsider and vacate under subsection 69.2(2)? If so, can the Refugee Division take into account evidence which the individual whose Convention refugee status is at issue wishes to submit to respond to the Minister's evidence?

I would answer it as follows:

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. 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".                  

                "John M. Evans"             

J.A.                       

"I agree

   Marshall Rothstein J.A."

"I agree

   J. Edgar Sexton J.A."

     FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                          A-104-01

STYLE OF CAUSE:          

                      

        RANJAN COOMARASWAMY AND OTHERS v. MCI

PLACE OF HEARING:                          TORONTO, ONTARIO

DATE OF HEARING:                          MARCH 19, 2002

REASONS FOR JUDGMENT : EVANS J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

SEXTON J.A.

DATED:                          APRIL 26, 2002

APPEARANCES:

Mr. Max Berger

FOR THE APPELLANTS

Mr. David Tyndale

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Max Berger & Associates

Toronto, Ontario

FOR THE APPELLANTS

Mr. Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT