Date: 19990827
Docket: IMM-1293-99
BETWEEN:
PAVANI SABESAN and
BIRUNTHABAN SABESAN,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicants were accorded Convention refugee status by the Convention Refugee Determination Division, according to the principal applicant's affidavit sworn in Montréal, on April 9, 1999, but that did not terminate this matter. The respondent, having requested leave, under subsection 69.2(3) of the Immigration Act, to apply to the Division to reconsider and vacate its determination that they are not Convention refugees, obtained such leave pursuant to subsection 69.2(2) of said Act. Therefore, the matter came on a second time before the CRDD, with the Minister as applicant; and the present two applicants now seek leave to appeal and judicial review of that second determination.
[2] The present applicants, mother and minor son, wish to reverse the earlier negative determination which declared that they were not Convention refugees. The reasons for that determination, rendered by a panel of 3 members of the CRDD on February 18, 1999, were certified by the board's registrar on February 25, 1999. The CRDD registration numbers were M97-05784 and M97-05847. The second time the matter was heard, on the above noted times, the board approved the Minister's application. That causes mother and son to become the present applicants.
[3] On p. 10 of their reasons, the CRDD noted this salient fact:
| Ms. Sabesan conceded to concealing and misrepresenting information concerning her stay with her minor child in England between 1991-1994, and that she and her minor child made "Convention refugee" claim in Britain during this period. Respondent acknowledged that she provided false information to questions #15, 18, 22, 23, 31, 35, and part of the answer to question 37 of the PIF. Counsel noted that the concealment was limited to the claim in Britain; however, to conceal this information, other information was also concealed. |
| (applicants' record, p. 10) |
On p. 22, paragraph 100 of her affidavit the principal applicant swore this to be true:
| 100. It is true that I concealed and misrepresented elements to the Refugee Division; |
| 101. This arose from the fears I had, the violence I and my son had suffered at the hands of my husband in Sri Lanka and the United Kingdom; |
| 102. It arose from the terror I had about being sent back to Sri Lanka; |
| 103. It arose from the fact that I erroneously followed advice from the agent who brought me, the attorney's interpreter while receiving no support to help me at such critical time; |
| 104. However, I believe that I was at risk when I fled from Sri Lanka in 1991; |
| 105. When I made my claim to refugee status in 1994, I feared persecution in Sri Lanka on my own account and that of my son; |
| 106. On the uncontradicted evidence before the panel which it accepted, I truly feel submit [sic] that the positive determination of the Refugee Division should not have been vacated; |
| (applicants' record, pp. 22-23) |
[4] It is clear that the applicants were most ready to lie and misrepresent in order to become Convention refugees in Canada. Parliament foresaw such misconduct when it enacted sections 69.2(2), (3) and (5). They are in this form:
| 69.2(2) The Minister may, with the leave of the Chairperson, make 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. |
| 69.2(3) The Chairperson may grant that leave if the Chairperson is satisfied that evidence exists that, if it had been known to the Refugee Division, could have resulted in a different determination. |
| 69.2(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 misrepresentations, suppression or concealment of a material fact, there was other sufficient evidence in which the determination was or could have been based. |
| (applicants' record, pp. 10-11) |
[5] The CRDD analysed the application and came to these conclusions:
| In the application before us, we find that the Respondents concealed material facts when they appeared before the CRDD on March 20, 1995 - namely, that the Respondents had lived in Britain between July 3, 1991, and May 1994, and they made "Convention refugee" claims during this period. |
| A review of the Respondent's answer to question #37 of her PIF indicates that the Respondent's house was damaged in June 1990, as part of the Sri Lankan government's shelling of the northern province. * * * The remainder of the Respondent's answer to question #37 narrates events which occurred after she was already in Britain. The panel notes that the Respondent's alleged fear of persecution in Sri Lanka was limited to her husband's one week of forced labour to construct bunkers. She also narrated two other incidents of indiscriminate attack by the military against Tamil civilians. The remainder of the Respondent's story is false, as the events she narrated took place after she left to Britain. |
| Ms. Sabesan conceded to misleading the CRDD about her making a "Convention refugee" claim in Britain. * * * |
| *** *** *** |
| The panel does not believe the Respondent's explanation that she acted upon the advice of the interpreter of her previous lawyer. Exhibit M-1 is the Respondent's Port-of-Entry document, including the transcript of the Respondent's answers to Immigration Officer at the Lester B. Pearson airport. Transcript of the interview - clearly shows the Respondent's deliberate attempt to mislead the Immigration officer, by denying her stay in Britain ("I never lived in England"). She provided a calculated, elaborate story concerning her persecution in Sri Lanka, and her alleged reason for coming to Canada. The panel is of the opinion that the Respondent came to Canada with the full intention of concealing the information about her stay in Britain, and her making a "Convention refugee" claim in that country. |
| When all that was concealed and misrepresented in the Respondent's evidence is considered together, the panel is of the opinion that the misrepresentation and concealment was material and that her determination was obtained by fraudulent means. The panel concludes that there was not sufficient credible evidence before the Refugee Division on which the determination was or could have been based. |
| In her arguments, Counsel stated that the minor Respondent was not party to the concealed information. Panel rejects this argument, as the child's mother was designated as the child's representative at the hearing of March 20, 1995, as well as at the hearing concerning the Application to Vacate. |
| (applicants' record, pp. 11 to 13) |
[6] As is not unjust, this case can be decided on credibility, for the applicants are evincing none. Their plight is quite apparent, and is indeed confessed. The CRDD would be fools to accept this potage of falsehoods. The claimants also complained that the CRDD evinced bias against them. What bias was that? No example of it is quoted from the transcript. If bias is to be proved it must be visible and condemned by the complaining litigant when it manifests itself in the proceedings: Canada v. Taylor [1990] 3 S.C.R. 892; and Kostyshyn v. West Region Tribal Council (unreported, April 7, 1992, Case No. T-493-92, F.C.T.D.). Here the applicant and her counsel failed to complain at their first opportunity at the hearing itself.
[7] There is only one just disposition of this case - it must be dismissed. Leave is not granted: the application is dismissed. The CRDD's decision herein rendered on February 18, 1999, is affirmed.
Judge
Ottawa, Ontario
August 27, 1999