Date: 20030908
Docket: IMM-6323-02
Citation: 2003 FC 1040
Ottawa, Ontario, September 8, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
INDIRAWATHI RADHA
SHAKILAN RADHA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Sajjad Randhawa (the panel) of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated November 14, 2002, in which it was decided that Indirawathi Radha (the female applicant) and her son, Shakilan Radha (collectively the applicants) are not Convention Refugees under section 96 of the Immigration and Refugee Protection Act (the Act) or persons in need of protection under section 97 of the Act.
ALLEGED FACTS
[2] The applicants are Tamils, practicing Hindus and citizens of Sri Lanka.
[3] The female applicant was born on May 6, 1954, in Inuvil in northern Sri Lanka, but grew up in Kalviankadu, located on the Jaffna Peninsula.
[4] In November, 1995, when circumstances were deteriorating in Jaffna, the applicant and her family decided to flee the city with other civilians. As they were all running in different directions, the applicant lost track of her husband. She has not heard from him since.
[5] After journeying around the country, the applicant finally arrived in Colombo, where she rented a hotel room with her son. In this city, the applicant was gripped by fear whenever a serious incident occurred because the police would come to the hotel to interrogate her. She alleges this happened on at least 20 occasions.
[6] The applicant's son also had problems with the police in Colombo. He was harassed by them on many occasions on his way to school.
[7] On December 11, 2001, the son and another student were arrested by the police and brought to the police station. They were suspected of being members of the LTTE.
[8] During his detention, the son was questioned and beaten. At the time of the arrest, the police searched the hotel as well as attacking him physically and verbally. The son was released afer one day with the help of his school principal.
[9] After her son's release and fearing for their lives, the applicant decided to leave Sri Lanka.
[10] On January 15, 2002, the applicants left Sri Lanka for Thailand. They stayed there for about two months before they finally arrived in Canada on March 16, 2002, and claimed refugee status.
[11] On November 14, 2002, the panel dismissed the applicants'claim.
[12] This decision is the subject of this application for judicial review.
ANALYSIS
[13] On the morning of the hearing, the applicants asked the Court for leave to raise an argument that had not been included in their memorandum, i.e. the absence of a transcript of the applicants'testimony.
[14] The record indicates that the parties received the Court file on May 5, 2003, and only became aware of the absence of any transcript of testimony as a result of technical problems during the hearing.
[15] Until May 15, 2003, the applicant had the opportunity to file a supplementary affidavit and to file a supplementary memorandum until June 13, 2003. She elected not to raise this issue of the absence of a transcript.
[16] In Sandu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 902, Décary J.A. of the Federal Court of Appeal states:
[3] Additionally, relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, counsel for the appellant sought in his oral submission to raise arguments which did not appear in his memorandum of fact and law, and which moreover did not relate to the question certified.
[4] Baker undoubtedly broadened the scope of appeal when there is a certified question, but surely not to the point of overturning the elementary rules of pleadings on appeal, which require that counsel not raise at the hearing arguments which he did not raise in his memorandum of fact and law. [Emphasis added]
[17] In Lanlehin v. Canada (Minister of Employment and Immigration) (FCA), [1993] F.C.J. No. 207, Décary J.A. states:
These questions were not, however, raised by the appellant in his memorandum, and it may be that, had the respondent known in time, she would have been able to explain the contradictions that are apparent on the record. At this point, we cannot assume that the decision is invalid and we are of the opinion, in the circumstances, that the appeal should be dismissed.
[18] The respondent, referring to established jurisprudence, clearly demonstrated that new arguments cannot be raised at the hearing if they were not raised in the written proceedings.
[19] The respondent's objection was therefore sustained.
[20] The applicant then maintained that the panel had not considered the evidence submitted to it. However, it is clear from the record that the applicants were not personally singled out by the measures from which they had suffered and the panel found, particularly, that the applicants were not credible. Many inconsistencies were noted by the panel between the applicants' statements at the port of entry and their subsequent written statements. These discrepancies were not explained to the panel's satisfaction at the hearing.
[21] It seems clear from the decision that the key issue is the applicants' credibility.
[22] This Court has consistently held that it must exercise great restraint before intervening in a case where the panel, with the advantage of having seen and heard the applicants, has found a lack of credibility.
[23] The applicants have failed to satisfy me that the panel made an error warranting the intervention of this Court.
ORDER
[1] Consequently, this application for judicial review is dismissed.
[2] The parties did not raise any serious question for certification.
"Pierre Blais"
Judge
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6323-02
STYLE OF CAUSE: INDIRAWATHI RADHA ET AL. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 19, 2003
REASONS FOR ORDER AND ORDER : Blais J.
DATE OF REASONS : September 8, 2003
APPEARANCES:
Myriam Harbec FOR THE APPLICANTS
Patricia Deslauriers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Myriam Harbec FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada