Date: 20001026
Docket: IMM-6215-99
BETWEEN:
JEYALUXMY MAHESWARAN
RAGAVAN MAHESWARAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A. (ex officio)
INTRODUCTION
[1] The applicants in this judicial review say that the issue is whether they were denied natural justice by not being permitted to introduce evidence in proceedings of the Refugee Division of the Immigration and Refugee Board to respond to the Minister's evidence in respect of a decision under subsection 69.3(5) of the Immigration Act.
FACTS
[2] The applicants (mother and infant child) originally came to Canada in December 1991 and claimed refugee status on the basis of a well-founded fear of persecution in Sri Lanka from January 1986 to December 1991. They made a Convention refugee claim in Canada on March 4, 1992. On May 14, 1992, they were found to be Convention refugees.
[3] In November 1998, David Henry, a hearing officer with the Immigration Appeals Office signed a declaration that he had reason to believe that the mother applicant (applicant) misled the Refugee Division of the Immigration and Refugee Board by fraudulent means, misrepresentation, suppression or concealment of material facts. The Minister (with the leave of the chairperson) then brought an application under subsection 69.2(2) to have the Refugee Division reconsider and vacate the May 14, 1992 positive determination that the applicants were Convention refugees.
[4] Subsection 69.2(2) provides:
| 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. |
69.2(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 accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers. |
[5] At the hearing of the Minister's application on September 30, 1999, counsel for the applicants stipulated that everything in the Henry declaration was true, that the applicant had left Sri Lanka in May 1988, and that nothing in the narrative in her original Personal Information Form (PIF), filed with her Convention refugee application, was true with respect to the period after May 1988. Counsel also stipulated that the Convention refugee determination had been obtained by misrepresentation:
| Now, again, to narrow the issues I am prepared to concede, pursuant to section 69(2) [sic] of the Act, that the determination was obtained by misrepresentations on the part of the respondent [applicant in this judicial review], which I believe is rather clear and obvious from the concessions that were made earlier. |
[6] Under subsection 69.3(5), the Refugee Division may exercise its discretion to reject the Minister's application to reconsider and vacate the prior positive Convention refugee determination if, notwithstanding the misrepresentations, there was other sufficient evidence on which the positive determination was or could have been based. It was the position of the applicants that there was such evidence in this case.
[7] Subsection 69.3(5) provides:
| 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. |
69.3(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. |
[8] In support of their subsection 69.3(5) argument, the applicants sought to introduce a new PIF containing truthful information. The new PIF is not part of the record before the Court. However, from the transcript of proceedings before the Refugee Division panel, it would appear that the new PIF addresses the period between May 1988 and December 1991. It is not clear whether the new PIF adds or changes anything with respect to the period prior to May 1988.
[9] The panel refused to accept the new PIF. Although the applicant was sworn in, she gave no evidence. The panel only heard argument on the subsection 69.3(5) issue.
[10] Having regard to the fact that the applicant left Sri Lanka in 1988, but made no refugee claim in Canada until March 1992, and reavailed herself of the protection of Sri Lanka on two occasions, in 1990 and 1991, the panel found that the original PIF stating that the applicant and her family were threatened and abused was not credible. On this basis, the panel concluded that there was not sufficient evidence, independent of the misrepresentations, upon which a positive Convention refugee determination was or could have been based:
| This panel considers that the remaining evidence that was before the previous panel would have been thoroughly assessed for credibility given that the claimant had made a refugee claim four years after leaving Sri Lanka. Such an assessment might reasonably have revealed to the panel that the claimants had twice reavailed themselves of the protection of Sri Lanka by returning there both in 1990 (adult claimant), and in 1991 (both claimants). The inordinate delay of four years in making a refugee claim (1988-1992) and the fact that the adult claimant twice returned to Sri Lanka combine to negate the claimants' assertion that she and her family were threatened by the army and thus had a well-founded fear of persecution. Given her reavailment of the protection of Sri Lanka, twice, we find her written testimony that she was threatened and abused not credible. We are not persuaded, therefore, that there was other sufficient evidence on which a positive determination would have been made by the previous panel on behalf of the claimants. |
ANALYSIS
[11] The applicants now say that because the panel took account of new evidence submitted by the Minister to reassess their original refugee claim, they should be given an opportunity to adduce evidence to respond to the Minister's evidence and explain why the original Convention refugee determination should be sustained.
[12] The most recent authority on the issue of whether an applicant may introduce new evidence for purposes of subsection 69.3(5) is Sayed v. The Minister of Citizenship and Immigration, [2000] F.C.J. No. 1642 (F.C.T.D.) per Dawson J. In her reasons, Dawson J. canvasses the jurisprudence of the Court on this issue. For purposes of subsection 69.3(5), an applicant is not entitled to introduce new evidence not before the panel that originally decided the Convention refugee claim. Dawson J. refers to the reasons in Guruge v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 213 (F.C.T.D.) in which the following is found at paragraphs 11 and 12:
| 11 In the present case, the evidence the applicant sought to introduce was for the purpose of convincing the panel, that based on accurate information, she should still be found to be a Convention refugee. I do not think such evidence is contemplated by subsection 69.3(5). The words of subsection 69.3(5) are quite clear and their purpose can readily be understood. The relevant words are "there was other sufficient evidence on which the determination was or could have been based". The past tense "was" indicates that the evidence in question was evidence that was before the panel that made the original determination. The rationale for such an interpretation is not obscure. Notwithstanding fraud, misrepresentation, suppression or concealment of any material fact, there may still have been other credible evidence which, independent of the fraud, suppression, concealment or misrepresentation, could sustain a Convention refugee finding. 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 evidence was sufficient to support a Convention refugee finding by the original panel. |
| 12 Subsection 69.3(5) is not a provision under which the Refugee Division is given a fresh mandate to declare an individual to be a Convention refugee. Yet, if additional evidence to support a Convention refugee determination was to be allowed, that is what subsection 69.3(5) would become. I agree with Richard J. in Bayat that the evidence referred to in subsection 69.3(5) must be evidence that was before the original panel. New evidence to support a Convention refugee determination is not contemplated by the provision. The panel did not err in this case by refusing to admit the applicant's PIF and new Convention refugee evidence. [emphasis added] |
[13] Dawson J. then refers to paragraphs 12-14 of the reasons of Tremblay-Lamer J. in Ray v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 849, (F.C.T.D.):
| [12] In the present case, the Panel found that there was no credible evidence upon which to find that despite the misrepresentations, there remained sufficient evidence upon which a favourable refugee determination was or could have been made. |
| [13] Where there is no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee. |
| [14] The Applicants' suggestion that they are entitled to a new hearing would be inconsistent with the scheme of the Act. A failed claimant who told the truth is not entitled to another hearing. Clearly the scheme of the Act is not to give more rights to a party who has misrepresented material facts. |
[14] Dawson J. concludes at paragraph 29 of her own reasons:
| I adopt and apply the analysis and conclusions articulated in the jurisprudence referred to above. Therefore, it follows that I conclude that there was no duty on the Board in the present case to afford Mr. Sayed a fresh oral hearing into his current refugee status. |
[15] The applicants in the case before me attempt to distinguish this line of authority. They say that here, evidence introduced by the Minister was utilized by the Refugee Division to reassess the original evidence put forward by the applicant. If the Minister is entitled to rely on new evidence to argue that the remaining evidence of the applicant
(other than the misrepresentations) was not credible, then fairness demands that the applicants be given an opportunity to introduce responding evidence.
[16] I think the Refugee Division erred in this case. However, the error was not in refusing to accept new evidence from the applicants. Rather, it was that the Refugee Division took into account evidence submitted by the Minister to reassess the credibility of the remaining evidence that was before the original panel of the Refugee Division.
[17] Subsection 69.3(5) is an exceptional provision of narrow application. It only comes into play once it has been established by the Minister, under subsection 69.2(2), that the previous positive Convention refugee determination was obtained by fraud, misrepresentation, suppression or concealment of any material fact. Subsection 69.3(5) recognizes that notwithstanding the fraud, misrepresentation, suppression or concealment established at the subsection 69.2(2) stage, there may be other independent evidence that could have supported the positive determination.
[18] The provision thus calls upon the Refugee Division to base its decision on evidence before the original panel that survived the subsection 69.2(2) assessment. In doing so, the subsection 69.3(5) panel must place itself in the position of the panel that made the original determination and reassess whether a positive determination was or could have been based on the untainted evidence.
[19] This provision does not call for new evidence, either from the Minister or the applicant. In other words, the Minister is not entitled to adduce new evidence as to why the remaining untainted evidence should not be believed and the applicant is not entitled to adduce new evidence to bootstrap the untainted evidence. The parties, of course, may make submissions, but based solely on what would have been before the original panel after excluding anything established under subsection 69.2(2) as being affected by fraud, misrepresentation, suppression or concealment.
[20] In the case at bar, it appears the original panel would have had the applicant's March 4, 1992 Convention refugee application including her original PIF. It may have had other documents as well. Whatever the record was before the original panel is the record on which the subsection 69.3(5) determination must be made. Anything in the PIF covering the period from May 1988 to December 1991 would have to be disregarded as it was conceded by the applicants that this information was misrepresented. The panel conducting the reassessment under subsection 69.3(5) would be left with a Convention refugee application made on March 4, 1992 with information in the PIF for the period from January 1986 to May 1988.
[21] In making reference to "the inordinate delay of four years in making a refugee claim (1988-1992)", the subsection 69.3(5) panel was quite properly having regard to information that would have been before the original panel. However, by also basing its
decision on the fact that the applicant had reavailed herself of the protection of Sri Lanka in 1990 and 1991, the subsection 69.3(5) panel took into account information that was not before the original panel, since the evidence of reavailment was introduced by the Minister in the subsection 69.2(2) proceeding. Just as misrepresented information is to be ignored, so is accurate information that was not before the original panel, whether it is the Minister or the applicant that attempts to adduce it. Whether the accurate information assists or detracts from the applicants' case is irrelevant. It is information that was not before the original panel and is inadmissible in a determination by a panel under subsection 69.3(5).
[22] I think the rationale for this approach can be explained in the following way. Under subsection 69.2(2) the Minister is entitled to introduce whatever relevant evidence she considers necessary to demonstrate that an applicant's original evidence was tainted by fraud, misrepresentation, suppression or concealment. The applicant may introduce responding evidence to defend against the Minister's case. On the basis of that evidence, the panel considering the Minister's application will decide whether the original positive Convention refugee determination was obtained by fraud, misrepresentation, suppression or concealment and in doing so, will determine what portion of the applicant's original evidence was so tainted. It is the portion of the evidence that the Minister is unable to demonstrate was tainted that will be considered in the subsection 69.3(5) proceeding.
[23] The Minister's right to call evidence is exhausted with her subsection 69.2(2) case. The Minister is not entitled to introduce new evidence or use evidence introduced in the 69.2(2) application in the subsection 69.3(5) portion of the proceedings.
[24] That being the case, there is no new evidence from the Minister to which the applicant need respond in the subsection 69.3(5) proceeding. No new evidence is adduced by either side for purposes of subsection 69.3(5). As the subsection 69.3(5) panel is restricted to that part of the record not affected by the subsection 69.2(2) decision, the issue of denial of natural justice to the applicant does not arise.
[25] There was some discussion before the panel about the "gap" in the evidence between May 1988 and the applicants' arrival in Canada in December 1991. The gap was occasioned by the applicant's misrepresentations and she must live with it. The applicant chose not to place accurate information before the original panel. The applicant does not get a second opportunity to do so under subsection 69.3(5) once her misrepresentations have been discovered. The gap may mean there will be no evidence before the panel about the delay or the reason for the delay in making the Convention refugee application. That may be fatal to an applicant in a subsection 69.3(5) determination, but as I have said, if it be so, it is occasioned by the applicant's own misrepresentations.
[26] The panel in this case did not err by refusing to accept a new PIF from the applicants. However, it did err in basing its subsection 69.3(5) decision on evidence introduced by the Minister for purposes of the subsection 69.2(2) application that was not before the original panel.
[27] A second argument made by the applicants is that notwithstanding that the subsection 69.3(5) panel found there was no credible evidence about the applicants' own circumstances, it was obliged to consider the fact that the adult applicant was a young female Tamil from the North and on that ground alone, having regard to country conditions in Sri Lanka, she should be entitled to refugee status. Applicants' counsel only told respondent's counsel that this argument would be made about one hour before the hearing. The arguments made were cursory only. As this matter is being remitted to the Refugee Division, this issue may be argued in that forum on the basis of the untainted evidence before the original panel.
DISPOSITION
[28] The judicial review is allowed and the matter is remitted to the Refugee Division for redetermination having regard solely to the record before the original panel, but excluding any information affected by fraud, misrepresentation, suppression or concealment of any material fact.
[29] The parties shall have four working days from the date of these reasons to submit questions for certification for appeal after which judgment will be entered.
"Marshall Rothstein"
J.A.
Toronto, Ontario
October 26, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6215-99 |
| STYLE OF CAUSE: JEYALUXMY MAHESWARAN |
RAGAVAN MAHESWARAN
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, OCTOBER 16, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: ROTHSTEIN J.A. |
| DATED: THURSDAY, OCTOBER 26, 2000 |
| APPEARANCES BY: Ms. Barbara Jackman |
| For the Applicants |
| Mr. James Brender |
| For the Respondent |
| SOLICITORS OF RECORD: Ms. Barabara Jackman |
Barrister & Solicitor
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
| For the Applicants |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20001026
Docket: IMM-6215-99
BETWEEN:
| JEYALUXMY MAHESWARAN |
RAGAVAN MAHESWARAN
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |