Date: 20020618
Docket: A-536-01
Neutral citation: 2002 FCA 265
CORAM: LINDEN J.A.
BETWEEN:
SIVASHANKER ARUNACHALAM
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario on Tuesday, June 18, 2002.
Judgment delivered from the Bench at Toronto, Ontario on Tuesday, June 18, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020618
Docket: A-536-01
Neutral citation: 2002 FCA 265
CORAM: LINDEN J.A.
BETWEEN:
SIVASHANKER ARUNACHALAM
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Tuesday, June 18, 2002.)
[1] This is an appeal from a decision of MacKay J. (2001 FCT 997) dismissing an application for judicial review in which Sivashanker Arunachalam (the appellant) requested the Court to set aside the dismissal by the Convention Refugee Determination Division of the Immigration and Refugee Board of the appellant's claim to be recognized as a refugee. The appellant is a citizen of Sri Lanka; he is a Tamil who was born in Colombo, where he resided.
[2] MacKay J. certified the following question:
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 ss. 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 ?
[3] Counsel for the appellant raised three issues.
[4] First, he said that the Board's decision must be set aside on the ground of a reasonable apprehension of bias because the presiding member revealed at the hearing that he had in his file notes, apparently made by a refugee claims officer, indicating that the case was not recommended for the Expedited Process since credibility was an issue. The notes, briefly and cryptically, indicated three alleged inconsistencies in the appellant's account. The Panel disclosed these notes to counsel at the hearing who was invited to make, and in fact made, objections to their admission. Nonetheless, the Panel concluded that their presence in the file did not establish bias, that they were relevant and should be admitted.
[5] In our view, the facts of this case do not establish that, as a result of the Board's receiving the notes, a reasonable person, who was informed of the circumstances and had thought the matter through carefully and realistically, would conclude that there was a real possibility that the Board was not impartial.
[6] The fact that, prior to the hearing, the panel was made aware that credibility was likely an issue in the case cannot establish bias. Most claims by persons from refugee-producing countries, such as Sri Lanka, are heard in the regular determination process because there is a credibility issue. That a refugee claims officer may have identified three possible inconsistencies does not significantly strengthen the allegation of bias, especially since there is no indication from the transcript of the panel's hearing or its reasons for decision that the Board had prejudged the issues. Rather, the Board made detailed findings on which it based its conclusion that the appellant was not credible.
[7] Second, counsel submitted that the admission of the notes was procedurally unfair because they had not been disclosed prior to the hearing, thus depriving the appellant of an adequate opportunity to respond to them. In our opinion, since counsel made submissions at the hearing on the relevance of the notes and their admissibility, the question is whether the admission of the notes effectively prevented the appellant from telling his story or answering the material against him.
[8] Again, an examination of the transcript and the reasons of the Board indicates that there was no breach of procedural fairness in this respect. In the event, the notes played only a minor part in the Board's conclusions; indeed, the one finding of credibility that was based on the notes was found invalid by MacKay J. and is no longer an issue.
[9] In addition, we would observe that, after the first day of the hearing when the question of the notes was discussed, and the Board decided to admit them, the hearing was adjourned for 12 days. This gave counsel a further opportunity for making submissions on why the notes should not be admitted.
[10] Third, counsel submitted that MacKay J. erred in upholding the Board's credibility finding, even though he concluded that four of the eight or ten bases upon which the Board had made its finding could not rationally be supported on the evidence. In our view, MacKay J. did not commit a reviewable error when he held that, in all the circumstances of the case it was not unreasonable to conclude that the fact that Tamils, born and resident in Colombo, faced less risk of persecution than Tamils from the North, was sufficient to support the Board's finding that the appellant's evidence was not credible.
[11] For these reasons, the appeal will be dismissed. We do not find it necessary to answer the certified question in order to dispose of this appeal, and decline to do so.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-536-01
STYLE OF CAUSE: SIVASHANKER ARUNACHALAM
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JUNE 18, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: EVANS J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON TUESDAY, JUNE 18, 2002.
APPEARANCES BY: Mr. Michael Battista
For the Appellant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD:Wiseman, Battista
Barristers & Solicitors
1033 Bay Street
Suite 308
Toronto, Ontario
M5S 3A5
For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20020618
Docket: A-536-01
BETWEEN:
SIVASHANKER ARUNACHALAM
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT