Federal Court of Appeal Decisions

Date: 19971205

Docket: A-223-95

CORAM:      STONE J.A.

         LINDEN J.A.

         GRAY D.J.

BETWEEN:

     MINISTER OF EMPLOYMENT AND IMMIGRATION

     Appellant

     - and -

     SRIRANJAN MATHIYABARANAM

     Respondent

Heard at Toronto, Ontario on Tuesday, November 4, 1997.

Judgment delivered at Ottawa, Ontario on Friday, December 5, 1997.

REASONS FOR JUDGMENT BY:      LINDEN J.A.

CONCURRED IN BY:      STONE J.A.

     GRAY D.J.

Date: 19971205

Docket: A-223-95

CORAM:      STONE J.A.

         LINDEN J.A.

         GRAY D.J.

BETWEEN:

     MINISTER OF EMPLOYMENT AND IMMIGRATION

     Appellant

     - and -

     SRIRANJAN MATHIYABARANAM

     Respondent

     REASONS FOR JUDGMENT

LINDEN J.A.

[1]      This is an appeal pursuant to subsection 83(l) of the Immigration Act¹ from a decision of the Trial Division of the Federal Court of Canada dated March 27, 1995, in which the Trial Judge certified the following question of general importance:

Does section 69.l(9.l) of the Immigration Act require a Board to give notice that it is considering making a finding of no credible basis or does the section read otherwise?

[2]      Subsection 69(9.l) of the Act states:

69 (9.l) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.

The effect of a finding of no credible basis by the Refugee Division is that a claimant is not eligible for inclusion in the Post-Determination Refugee Claimants in Canada class (PDRCC). Those who are eligible to be included in this class, even though not convention refugees, are entitled to a type of quasi-appeal if they would be subject to an objective identifiable risk if removed from Canada.² A person against whom a finding of no credible basis is made is not eligible for this class and, hence, is afforded only a seven day stay of removal from Canada.³ If a no credible basis finding is not made, a stay of removal is automatically in effect until the refugee claimant has exhausted all legal appeals. This determination of no credible basis, therefore, has considerable importance to refugee claimants.

[3]      The respondent in this proceeding is a Tamil male of the Hindu faith and a citizen of Sri Lanka. He was found by the Refugee Division (the Board) not to be a Convention Refugee by a decision dated February 7, 1994. At the same time, the Board also found that there was no credible basis to his claim. On appeal to the Trial Division, the Trial Judge found that there was no basis to disturb the Board's findings on the merits, but he nevertheless set aside its decision that there was no credible basis to the claim. He did this on the ground that there was a denial of natural justice because the claimant was never specifically informed that the Board was considering the matter of a no credible basis finding at the hearing. The Trial Judge explained his decision in this way:

In my view, given the serious consequences of a finding of no credible basis, the Board should give an indication to the applicant at any time before or during a hearing, or even after submissions, that it is considering issuing an order under section 69.l(9.l) of the Immigration Act. At that stage, the applicant could make further submissions with respect to the credible basis finding.4

The Trial Judge, therefore, having found that the lack of notice constituted a breach of natural justice, certified the above question.

[4]      The appellant submits that, unlike the situation where the Internal Flight Alternative (IFA) is in issue and where the Board is required to give notice⁵, no new issue is involved in a finding of no credible basis. The claimant is already on notice impliedly that, in order to succeed, he or she must establish on credible evidence that the claim is well-founded⁶. Therefore, since notice does not serve any purpose, a failure to give notice is not a breach of natural justice.

[5]      The respondent submits that the legal test for finding that a claim has no credible basis is peculiar to the finding itself and that the claimant, unless notified, will not make submissions on the point. There is an established practice in refugee law, it is said, that notice is given on a variety of matters, e.g., IFA, the claimant's identification, or exclusion of the claimant by virtue of the provisions of the U.N. Convention⁷. The extension of that practice to no credible basis findings, it is urged, is consistent with the practice and is also logical. This is especially true given the serious consequences of a finding of no credible basis. Furthermore, though this is not in issue before us, the respondent argues that the vary fact that the claimant in this case is a young Tamil male from Sri Lanka by itself constitutes a credible basis for his claim.

[6]      The genesis of the no credible basis finding in issue here is the former subsection 46(l) of the Act⁸. Before its repeal, that section established a two-stage hearing process. The first stage was a "credible basis" hearing, where the claimant had to establish that there was some credible or trustworthy evidence upon which the Refugee Division could find that he or she was a Convention refugee. If the finding was a positive one, then the claimant was entitled to a full hearing before the Board at the second stage.

[7]      The purpose of this two-stage process was to filter out obviously unfounded claims in an effort to allocate scarce resources only to those claims that had some chance of success. The preliminary credible basis hearing was eventually abandoned, however, in part because the vast majority of claimants were able to satisfy the low threshold imposed on them, so that very few cases were in fact filtered out of the system. Instead of conserving scarce resources, resources were thought to have been squandered on superfluous proceedings.

[8]      The core of the purpose contained in the old "credible basis" stage has been preserved in the new Act by way of subsection 69.l(9.). This provision limits access to further judicial and administrative resources to those claimants whose claims have some credibility, even though they have been rejected. The main distinction is that in the new procedure, unlike the old one, claimants have already had the benefit of a full hearing. By the terms of subsection 69.l(9.l), a finding of no credible basis can only be made after each member of the Refugee Division hearing the claim determines that the claimant is not a Convention refugee.

[9]      The question to be decided, then, is whether specific notice must be given to a claimant before the Board may make a finding of no credible basis at the end of the hearing to decide Convention refugee status. There is no express statutory requirement to give any extra notice of this matter. Any such requirement to give notice, therefore, must be based on the natural justice right that a person has to know the case to be met⁹ in an administrative proceeding affecting his or her interests. In my view, as I shall explain, there is no right to receive any extra notice about the possibility of a finding of no credible basis. Hence, there has been no violation of natural justice in this situation.

[10]      Any claimant is aware or should be aware of the risk of a no credible basis finding even without any additional notice being given about this potential outcome. A refugee claimant must realize that he or she must establish, as part of his or her claim, a credible basis for his or her claim. You cannot establish a claim for refugee status without first establishing a credible basis for that claim; the one is totally dependant upon and included in the other. I cannot imagine what a claimant, if given special notice, could possibly add to his or her case. All of the available evidence should already have been placed before the Board as part of the claim for refugee status.

[11]      I am not persuaded that the issue of a credible basis finding is analogous to the issue of IFA, for which notice has been held to be required. The existence of an internal flight alternative is considered separate from the question of a well-founded fear of persecution (which is central to the definition of Convention refugee¹⁰). One might establish a well-founded fear of persecution in one part of a country and still be denied status because of an internal flight alternative. Answering the questions normally posed by the Convention refugee definition does not dispose of this particular and separate matter if it becomes relevant during the proceedings. Hence, some form of notice is required to meet the demands of natural justice. However, a credible basis determination is inherent in the definition of Convention refugee. It does not place upon the claimant an evidentiary burden separate from or additional to the primary one imposed by the definition itself. The other issues requiring additional notice are likewise different than the credible basis issue.

[12]      Establishing a notice requirement before a no credible basis decision can be made would establish a de facto two-stage hearing process, something Parliament sought to stop by enacting these new provisions. If notice were required, when would it be given? It would usually only be after the commencement of the hearing, or even after the hearing were completed that a panel of the Refugee Division would realize that a notice might be necessary. In many cases the deciding factor in a refugee claim is the credibility of the claimant. Only after hearing the claimant testify would the panel be in a position to make a no credible basis finding so that the notice requirement would only be triggered at that time. While credible basis and credibility are not identical, they are clearly connected. This Court considered this question with respect to former credible basis hearing in Sheikh v. Canada (M.E.I.)¹¹ where MacGuigan J.A. states:

The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.12

[13]      Where a special notice is not given until during or after the hearing, a further time for the introduction of more evidence may become necessary, often involving adjournments and extra hearing dates. This will have the effect not only of providing a partial rehearing but of extending the time required to hear a claim, thus shifting resources from meritorious claimants to those that have no credible basis. Such a two-stage process has been discarded by Parliament and it is not for this Court to re-enact it.

[14]      Finally, if a general or generic notice were given prior to a hearing in every case, it would be largely useless because it would be pro forma and would not alert the claimant to the specific problem he or she may face. Moreover, if a specific notice were given in advance, it might invite a charge of bias on the basis that the panel demonstrated preconceived ideas about the lack of credibility of the claimant's case.

[15]      Hence, in my view, there is no denial of natural justice to fail to give special notice of the risk of a no credible basis finding, for it is implied in the notice of the hearing itself. If a further notice is thought to be desirable, it is best to leave it to Parliament to require it and not to establish it judicially.

[16]      I would allow the appeal and answer the certified question in the negative. The decision of the Board, therefore, will be affirmed.

     "A.M. Linden"

                                             J.A.

"I agree

A.J. Stone J.A."

"I agree

W. Gibson Gray D.J."

__________________

     ¹      R.S.C. 1985, c.I-2. (the Act).

     ²      Immigration Regulations, 1978, ss. 2, 11.4.

     ³      Act, paragraph 49(l)(f).

     ⁴      Reasons, at p.3.

     ⁵      See Thirunavukkarasu v. Canada (M.E.I.), [1994] l F.C. 589 (F.C.A.) at 596.

     ⁶      See Immigration Act , R.S.C. 1985, c.I-2, ss.69.l(a).

     ⁷      The United Nations Convention Relating to the Status of Refugees, July 28, 195l, Article l, ss. E and F; Act, ss. 2(l).

     ⁸      Repealed S.C. 1992, c.49, s.35.

     ⁹      See Kane v. Board of Governors of the University of British Columbia, [1980] l S.C.R. 1105 AT 1114.

     ¹⁰      Immigration Act, R.S.C. 1985, c. I-2, ss.2(l).

     ¹¹      [1990] 3 F.C. 238 (F.C.A.).

     ¹²      Ibid., at 244.