Date: 20000110
Docket:IMM-2784-98
BETWEEN:
HIROSH NALIN IRRIPUGGE (A.K.A. IRRIPUGE
HIROSH NALIN GIMHANA FERNANDO)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-2969-98
BETWEEN:
NELUM BALAPUWADUGE MENDIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-2089-98
BETWEEN:
SUNTHARESAN KANAPATHIPILLAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-2166-98
BETWEEN:
MAO CHUN QIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] These four applications for judicial review were heard together because they have in common one issue relating to the procedure adopted by the Convention Refugee Determination Division (CRDD) in rendering negative refugee decisions. In each of these cases, the negative decision and reasons were rendered orally at the conclusion of the hearing. The oral reasons were later transcribed and sent to the refugee claimants with the written notice of the decision.
[2] It was argued initially that this procedure does not meet the requirements of paragraph 69.1(11)(a) of the Immigration Act. That argument was rejected by the Federal Court of Appeal in Isiaku v. Canada (Minister of Citizenship and Immigration) (20 September 1999), A-403-98 (F.C.A.); [1999] F.C.J. No. 1452 (QL), affirming the decision of Wetston J.,150 F.T.R. 143; 46 Imm.L.R. (2d) 79. (See also the decision of Blais J. in Eslami v. Canada (Minister of Citizenship and Immigration) (15 June 1999), IMM-2090-98 (F.C.T.D.); [1997] F.C.J. No. 1007 (QL)). However, a number of new issues are raised in these applications with respect to oral negative decisions.
[3] The target of this renewed attack on oral negative decisions is a document entitled "CRDD Regional Performance Expectations arising out of the Action Plan from the CRDD Joint National Meeting, October 27, 28 and 29, 1997". That document is sometimes referred to as the "Expectation Agreement" and I will use that name for convenience.
[4] The Expectation Agreement indicates that in the fall of 1997, certain senior officials of the CRDD agreed with each other, in principle, to adopt certain priorities relating to the handling of the workload of the CRDD.
[5] The matters covered by the Expectation Agreement include several items that may be loosely referred to as production targets, including processing priorities, processing times, work assignments, advance disclosures and adjournments. The section in issue in these applications is entitled "Oral Decisions" and reads as follows:
| As a target in cases determined after a hearing, reasons for decision on the merits of the claim will be rendered orally in 60% of cases by 30 June 1998, 75% by 30 September 1998 and 90% of cases by 31 March 1999. |
[6] The Expectation Agreement closes with these words:
| By their signatures the undernoted individuals agree/commit to the implementation of the above expectations. |
[7] The Expectation Agreement is signed by the Deputy Chairperson of the CRDD (Mr. John Frecker), two Assistant Deputy Chairpersons of the CRDD, the Executive Director of the Immigration and Refugee Board, and the Regional Director of the Toronto Region.
[8] Of the signatories to the Expectation Agreement, only the Chairperson and the two Assistant Deputy Chairpersons are CRDD members. The others are administrators who are subject to the supervision of the Chairperson of the Immigration and Refugee Board.
[9] The CRDD is one of three divisions of the Immigration and Refugee Board. The Chairperson is a member of all three divisions and, according to subsection 58(3) of the Immigration Act, is "the chief executive officer of the Board and has supervision over and direction of the work and staff of the Board". The Executive Director is appointed by the Governor in Council, and is required to exercise the administrative powers, duties or functions prescribed by rules made under subsection 65(1) and assigned by the Chairperson (subsection 64(2)). The Chairperson has the authority to make rules governing the practice and procedure of the three divisions (subsection 65(1)) and to issue guidelines for the assistance of members (subsection 65(3)).
[10] The 1990 version of the handbook for members of the CRDD appears to contain guidelines as contemplated by subsection 65(3). It advised against oral negative decisions and says, among other things, that giving an oral negative decision does not enhance the efficiency of the process. At the time of the hearing of these applications, the handbook had not been amended to reflect the new policy encouraging oral decisions. The existence of the new policy is not disclosed in any other public document. However, counsel for the applicants was unable to suggest how the lack of publicity, by itself, might have affected the rights of any refugee claimant.
[11] The change in the CRDD"s policy with respect to oral decisions was explained by Mr. Frecker in cross-examination. Mr. Frecker, in his capacity as Deputy Chairperson of the CRDD, was responsible for developing the new policy and for implementing the Expectation Agreement. He said that the 1990 policy of discouraging oral negative decisions was put in place early in the CRDD"s existence. At that time, there was limited experience with what were then new immigration regulations, the training program for CRDD members was not well developed, and the practice of the CRDD did not permit members time to prepare in advance of hearings.
[12] The 1990 policy produced a situation where members were reserving their decisions for what Mr. Frecker characterized as an exceptionally long time. The new policy was adopted to encourage better timeliness. Members were offered training to develop the skill of rendering oral decisions, and better prehearing disclosure rules were adopted to enable members to prepare for hearings ahead of time.
[13] At the time of the cross-examination of Mr. Frecker, January of 1999, the targets for oral decisions as set out in the Expectation Agreement had not been met. Oral decisions were being rendered in approximately 50% of cases. Mr. Frecker suggested three possible causes for this. First, the CRDD has been unable to provide transcripts quickly, so members who can produce written decisions quickly still do so. Second, some members require additional training. Third, the prehearing disclosure rules have not proved to be as effective as might have been wished. Mr. Frecker"s analysis is consistent with the view that the 90% target for oral decisions was nothing more than a tool that was adopted in conjunction with a number of changes in the internal processes of the CRDD and was intended to enhance and encourage timeliness of decision making.
[14] It was not suggested in argument that the objective of the Expectation Agreement was improper or unlawful, or that it was beyond the scope of the authority of Mr. Frecker or that of the Chairperson whose delegated powers he was apparently exercising. Clearly, a policy aimed at improving the timeliness of decisions is within the scope of the management powers vested in the Chairperson or her delegates. It would also be consistent with subsection 69.1(9) of the Immigration Act, which requires decisions to be rendered "as soon as possible after the hearing". Counsel for the applicants properly conceded as much.
[15] However, counsel for the applicants took issue with the imposition of what she characterized as the 90% "quota". The expectation that 90% of decisions are to be rendered orally, in her submission, derogates from the right and duty of CRDD members to exercise their discretion in each particular case as to whether or not to reserve their decision. She argued that the decisions under review are fatally flawed because the 90% quota amounts to an unlawful fettering of the CRDD members' discretion, and breaches the Charter rights of refugee claimants and their right to procedural fairness by impairing the judicial independence of CRDD members.
[16] I do not accept any of these arguments. They are all based on a fundamental misunderstanding of the content and purpose of the Expectation Agreement. I agree with counsel for the Minister, who argued that the Expectation Agreement does not and is not intended to interfere with the adjudicative function of CRDD members.
[17] Simply put, there is no rule that obliges a CRDD member to render an oral decision in any particular case, or in 90% of all cases. There is no evidence that the Expectation Agreement, or its underlying policy, have deprived CRDD members of their discretion to reserve decisions, or that CRDD members believe or have reason to believe that they have been deprived of that discretion.
[18] The Expectation Agreement merely states the proportion of oral decisions, both positive and negative, that in the opinion of those officials charged with the management of the CRDD workload is desirable for the CRDD. According to Mr. Frecker"s evidence, the 90% figure was based on his own view that any member of the CRDD should be, or with training should become, capable of rendering an oral decision in a relatively simple case involving, for example, the assessment of a claimant's credibility. His estimate, based on his own experience, was that such cases represent approximately 90% of the CRDD"s caseload.
[19] There is no evidence that the Expectation Agreement was ever seen by any CRDD member, except those who signed it as Deputy Chairperson or Assistant Deputy Chairperson. Mr. Frecker indicated that the new policy of encouraging oral decisions was communicated to members of the CRDD by the managers in their respective regional offices. In his own discussions with members relating to the new policy, the discretion to reserve was expressly acknowledged and was not overridden by the general desire to increase the proportion of oral to reserved decisions.
[20] There is no evidence that CRDD members might reasonably have felt that a deviation from the oral decision targets would result in negative consequences, such as a negative performance evaluation, which could be a matter of importance to CRDD members because they are appointed for a fixed term. The evidence of Mr. Frecker indicates the contrary. He said that performance evaluations are based on a number of factors, of which the willingness and ability to render oral decisions is only one. Even then, according to Mr. Frecker, performance evaluations are focused on the rationality, clarity and timeliness of decisions, not simply the method of rendering them. He noted, for example, that the objective of timeliness has been satisfactorily met by a member who does not adhere to the new policy on oral decisions because he can and habitually does render written decisions within a few days of the hearing.
[21] I conclude that none of the four decisions under review should be quashed solely on the basis that they were rendered orally after the implementation of the Expectation Agreement. I will go on to consider the other arguments in each application.
Hirosh Nalin Irrippuge (IMM-2784-98)
[22] Mr. Irrippuge is described in the CRDD decision as a 24 year old Sinhalese citizen of Sri Lanka. He claimed a well founded fear of persecution by the Sri Lankan government and its agents on the basis of his political opinions and his membership in a particular social group, namely Sinhalese suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE) by virtue of their association with Tamils. The CRDD rejected Mr. Irrippuge"s claim because they found his story implausible.
[23] I summarize Mr. Irrippuge"s story as follows. He had been a karate instructor since 1994. Some of his students were Tamils. Mr. Irrippuge had no knowledge of his Tamil students other than their names and had no relationship or connection with them except as their karate instructor. On June 8, 1997, several Sri Lankan army officers came to the hall where he was giving karate instruction. One Tamil youth ran out of the hall and has not been seen by Mr. Irrippuge since. The officers cordoned off the class and questioned the Sinhalese and Muslim students regarding the Tamil students in the class. Mr. Irrippuge and the two remaining Tamil students were arrested and taken to an air force camp. Mr. Irrippuge was questioned in the hall and at the camp. He was also beaten and tortured, but did not provide any information to the officers. He was not visited by the International Committee for the Red Cross while in the camp. Mr. Irrippuge"s father tried to retain a lawyer to represent him, but was unable to find a lawyer who was willing to do so. His father then arranged for his release upon payment of a bribe, but Mr. Irrippuge was required to report to the camp once per week. He reported on July 9, 1997 and at that time was questioned but not detained. He reported on July 16, 1997 and was detained for six days, during which he was beaten and questioned.
[24] The CRDD found this story implausible and gave several reasons. Counsel for Mr. Irrippuge argued that in certain respects, the reasons display logic that is so flawed as to render the conclusion patently unreasonable. There are examples of flawed logic in the CRDD"s reasons. One is found in this paragraph:
| The panel finds it implausible and inconsistent that the Sri Lankan air force would select only the claimant as a suspect and not the other members of the class who were Sinhalese and Muslim. According to the claimant, the other students in the class had more contact with the three Tamils than did the claimant. In addition, the other students in the karate class who were Sinhalese and Muslim could attest to the fact that the claimant had little experience with the three Tamil youths. |
[25] This statement is illogical. Mr. Irrippuge does not claim to be a Tamil sympathizer. He claims only that the authorities believe he is a Tamil sympathizer. His claim may be false, but at least it must be seen as consistent with an unjustified arrest, as Mr. Irrippuge described.
[26] Another example is found in the conclusion of the CRDD that it was implausible that Mr. Irrippuge was not visited by the Red Cross while he was at the camp. This conclusion is based on documentary evidence that the Red Cross visits all detention facilities. Counsel for the Minister was unable to find any such reference in the record. But even if that documentary evidence exists, it is difficult to see how the fact that the Red Cross generally visits all facilities is inconsistent with the fact that Mr. Irrippuge was not visited.
[27] Finally, I would note that the CRDD concluded that there is no reasonable possibility of future persecution of Mr. Irrippuge because he is Sinhalese and is not in fact a Tamil sympathizer. This conclusion is based on documentary evidence that there are only rare instances of persecution of Sinhalese persons by the Sri Lankan government or its agents. However, that same documentary evidence indicates that Tamil sympathizers may be the targets of persecution. Thus, if Mr. Irrippuge is perceived as a Tamil sympathizer, then even if the perception is wrong, the inescapable conclusion is that he is one of those rare Sinhalese persons who may well be at risk.
[28] On balance, I must conclude that the logic underlying the CRDD"s decision in this case is so flawed that the decision is patently unreasonable. For that reason, the decision will be quashed and referred for reconsideration by a different panel.
Nelum Balapuwaduge Mendis (IMM-2969-98)
[29] Ms. Mendis is described in the CRDD decision as a 32 year old Sinhalese citizen of Sri Lanka. She claimed a well founded fear of persecution by the LTTE and the Sri Lankan government and its agents on the basis of her political opinions and her membership in a particular social group, namely Sinhalese suspected of providing financial support to Tamils. The CRDD rejected Ms. Mendis" claim because they found her story implausible, and also because they found her fear of persecution lacked an objective basis.
[30] In certain respects this decision bears some of the same flaws as the previous one. Ms. Mendis claimed that in 1995 she and her husband rented some property to a Tamil family. In 1997, ten members of the Sri Lankan armed forces invaded their home and accused Ms. Mendis and her husband of allowing LTTE meetings to take place in the rented premises. They were told that the Tamil tenants had been arrested. Ms. Mendis and her husband were blindfolded and taken separately into custody. Ms. Mendis was taken to a room with a bed, where she was raped by three officers. She was then taken to a police station and photographed, fingerprinted, and then questioned under torture about her support for the LTTE. I need not recount the remainder of the story in any detail. It is sufficient to say that she was able to leave the country. Her father and father-in-law are still trying to locate her husband.
[31] In this case, like the case of Mr. Irrippuge, the CRDD concluded that there is no reasonable possibility of future persecution of Ms. Mendis because she is Sinhalese and is not in fact a Tamil sympathizer. This conclusion is based on the same documentary evidence that was considered in Mr. Irrippuge"s case. It bears repeating that the documentary evidence indicates that Tamil sympathizers may be the targets of persecution. Thus, if Ms. Mendis is perceived as a Tamil sympathizer, she may be one of those rare Sinhalese persons who may well be at risk, whether the perception of her political opinion is correct or incorrect.
[32] The CRDD"s reasons for finding Ms. Mendis' story implausible are flawed in several respects. For example, they found it implausible that Ms. Mendis and her husband would be wrongly accused of supporting the Tamils, because they were not in fact Tamil supporters and they had notified the authorities of the fact that they had Tamil tenants. This makes no sense. It is not logical to use the fact of their innocence as the basis for finding it improbable that they were falsely accused.
[33] The CRDD also made much of the fact that Ms. Mendis claimed at one point that she had been threatened with reprisals if she reported the rape, but at another point was threatened with reprisals if she reported her arrest and ill-treatment. In the context of Ms. Mendis" claim and her oral evidence, this is not a contradiction that can logically form a foundation for a finding of implausibility.
[34] I must conclude that the CRDD"s decision in this case was patently unreasonable. For that reason, the decision will be quashed and referred for reconsideration by a different panel.
Suntharesan Kanapathipillai (IMM-2089-98)
[35] Mr. Kanapathipillai is described in the decision of the CRDD as a 40 year old Tamil citizen of Sri Lanka who claims a well founded fear of persecution by the LTTE, the Sri Lankan government and the People"s Liberation Army of Tamil Eelam (PLOTE). His claim was denied primarily on the basis of his credibility.
[36] I summarize the relevant portions of Mr. Kanapathipillai"s story as follows. He and his wife and children fled Puthur in October of 1995, moving to Vanni. When the fighting between the LTTE and the Sri Lankan forces made it too dangerous for him to remain there, he fled to Vavuniya. There he was arrested by the PLOTE and held for six days, during which time he was tortured and questioned about his association with the LTTE. He was released subject to certain reporting conditions. Fearing for his life, he decided to leave Vavuniya and Sri Lanka. In April of 1997 he made it to Colombo with the assistance of an agent. There he was taken into custody for six days, and beaten and questioned about the LTTE. On April 17, 1997, the agent arranged for his release upon payment of a bribe.
[37] The CRDD noted several inconsistencies and contradictions in Mr. Kanapathipillai"s evidence, concluding as a result that evidence was unclear as to whether he had arrived in Vavuniya when he claimed, which in turn cast doubt on the truth of his story about being arrested by the PLOTE and thus the availability of an internal flight alternative in Colombo or Vavuniya.
[38] There are certain respects in which the reasons given by the CRDD are difficult to follow. For example, the CRDD appears to have expected Mr. Kanapathipillai to explain why a letter from the Sri Lankan Red Cross, which was obtained to verify the dates of his presence in Vavuniya, does not mention certain particulars about his ill-treatment. When he could not explain the apparent omission, the CRDD relied on documentary evidence relating to the involvement of the International Committee of the Red Cross in monitoring detention centres. The logical connection is far from clear.
[39] However, after a careful review of the transcript, the evidence and the reasons, I have concluded that the CRDD"s negative assessment of Mr. Kanapathipillai"s credibility was not unreasonable. There were several inconsistencies in his evidence that were not satisfactorily explained. I refer in particular to the date of his arrival in Vavuniya and the particulars of his arrest and detention by the PLOTE. In addition, he referred to a bombing incident of which no reference could be found in the voluminous country documentation. I cannot find that the CRDD acted unreasonably in rejecting his explanations for these inconsistencies or the questionable documentation he offered by way of corroboration.
[40] I conclude that there is no basis for quashing this decision. This application for judicial review will be dismissed.
Mao Chun Qiu (IMM-2166-98)
[41] Mr. Mao Chun Qiu is a citizen of China. He claims a well founded fear of persecution by the government of China based on his religion and his violation of China"s family planning policy.
[42] Before dealing with the merits of the decision, it is necessary to deal with a preliminary matter. At the conclusion of the hearing of Mr. Qiu"s refugee claim, the panel indicated that it was about to render an oral negative decision. Counsel for Mr. Qiu then moved for a ruling that the CRDD could not lawfully render an oral negative decision. The CRDD proceeded to render the oral negative decision without formally ruling on the motion. This omission is argued as one ground for review of the decision.
[43] The transcript makes it clear that the motion was not ignored. In effect, it was denied when the panel continued, in the face of the motion, to render the oral negative decision. But even if the absence of an explicit ruling indicates that the motion was ignored, the decision of the Federal Court of Appeal in Isiaku, supra, has since determined that the CRDD may lawfully render an oral negative decision. A number of issues that were not argued in that case have been fully canvassed and rejected in this application. Thus, even if the CRDD was wrong not to rule formally on the motion (a point I do not need to decide), it would make no sense to quash the decision on that basis.
[44] According to Mr. Qiu"s personal information form, his refugee claim is based on two grounds. First, he fears returning to China because he risks being forcibly sterilized because he and his wife now have two children, the second of which was unauthorized by the authorities. Second, he is a Roman Catholic and is not able to practice his religion freely in China.
[45] Mr. Qiu"s claim, in so far as it was based on China"s forced sterilization policy, failed because the evidence of Mr. Qiu as to his experiences in China was confusing and contradictory. I can find no fault with the decision of the CRDD to reject his evidence on this point as not being credible.
[46] With respect to Mr. Qiu"s religion, he testified that he is a Roman Catholic and that he and other family members worshipped secretly every Sunday at his parents" home. He was never arrested because of his religious beliefs, apparently because his religious practices never came to the notice of the authorities. This evidence was not contradicted, and the CRDD apparently accepted it as truthful.
[47] The documentary evidence indicates that in China, the practice of any religion is highly restricted. Certainly the manner in which Mr. Qiu claimed to practice his religion, in secret and in a manner that was not authorized by local officials, was forbidden. The inference is that Mr. Qiu risked arrest if his religious practices had come to the attention of the authorities.
[48] On the question of Mr. Qiu"s claim of religious persecution, the CRDD"s conclusion was this:
| It is clear ... that the claimant was not persecuted for practising his religion in China. And his situation we can characterize as discrimination, but never persecution. |
[49] This is a statement of a conclusion, but it is unclear as to whether it is intended to be a statement of principle or a finding of fact. Counsel for Mr. Qiu interprets it as a statement of principle, which she argues is incorrect. Counsel for the Minister interprets it as a finding of fact, that the risk of arrest did not affect any decision made by Mr. Qiu as to how he would practice his religion while in China. I am inclined to the view that the CRDD was stating a factual conclusion. However, in order to address the arguments of counsel, I will deal with both possibilities.
[50] Counsel for Mr. Qiu interprets the CRDD"s statement as an expression of a general principle that a person who is forced to worship in secret or risk arrest is not subject to persecution on the basis of religion. She argues that this principle is wrong, relying on Fosu v. Canada (Minister of Employment and Immigration) (1994), 90 F.T.R. 182. In that case, a refugee claimant had been arrested by Ghanaian authorities under a law that prohibited the public activities of Jehovah"s Witnesses. The CRDD said that merely restricting the activities of one religious group without prohibiting praying to God or studying the Gospel was not persecution. Denault J. said this (at paragraph 5, footnote omitted):
| [...] the Refugee Division unduly limited the concept of religious practice, confining it to "praying to God or studying the Bible." The fact is that the right to freedom of religion also includes the freedom to demonstrate one"s religion or belief in public or private by teaching, practice, worship and the performance of rites. As a corollary to this statement, it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or the implementation of serious discriminatory policies against persons on account of the practice of their religion. |
[51] I agree with this statement. It follows that, if I were to assume that the CRDD intended the statement quoted above to be a statement of principle rather than a finding of fact, the principle is wrong and the decision cannot stand.
[52] Counsel for the Crown argued that Mr. Qiu"s evidence did not establish, as a matter of fact, that his right to practice his religion had been interfered with. He notes that Mr. Qiu had never been arrested or even threatened with arrest, and that Mr. Qiu did not indicate expressly that he was not content to worship in secret with his family.
[53] That is an incomplete description of Mr. Qiu"s evidence. Mr. Qiu said that he has not been arrested because the authorities are unaware of his religious practices, and that he and his family have adopted the practice of worshipping in secret in order to avoid arrest. Mr. Qiu was not asked directly whether he would have worshipped publicly if he could, but he said that in Canada, he has attended church. I quote from part of his testimony (page 752 of the tribunal record):
| RCO So, what I was asking you before is, in what way does the government prevent you from doing what you want to do religiously? |
| CLAIMANT How did the government stop us believing? The government did not allow any religion. |
| RCO Okay. Did you and your family take any measures to ensure that your activities, your Sunday worships were kept secret from officials? |
| CLAIMANT We practised at home discreetly. |
| RCO Did you ever attend church? |
| CLAIMANT No. |
| RCO Were your services ever interrupted or prevented by any officials? |
| CLAIMANT The government didn"t know that - didn"t know we were practising at home. |
| RCO And do you attend church in Canada? |
| CLAIMANT Yes I did. |
| RCO Do you regularly attend Church? |
| CLAIMANT Yes, every Sunday. |
[54] If the CRDD intended its statement to be a finding of fact as argued by counsel for the Minister, it cannot be supported on the uncontradicted and apparently credible evidence of Mr. Qiu and therefore is patently unreasonable.
[55] On either interpretation of the CRDD"s statement on the issue of religious persecution, I conclude that the decision cannot stand. It will be quashed and Mr. Qiu"s refugee claim will be referred for reconsideration by a different panel.
Conclusion
[56] The application for judicial review of Suntharesan Kanapathipillai (IMM-2089-98) will be dismissed.
[57] The applications for judicial review of Nirosh Nalin Irrippuge (Imm-2784-98), Nelum Balapuwaduge Mendis (IMM-2969-98) and Mao Chun Qiu (Imm-2166-98) will be allowed, and their refugee claims will be referred to the CRDD for reconsideration by a different panel.
[58] I will defer the issuance of formal orders in all four cases to permit time for submissions on certified questions. A written submission by counsel for the applicant is to be served and filed on or before January 19, 2000. A written submission by counsel for the Minister in reply, or proposing different certified questions, is to be served and filed on or before January 26, 2000. Any reply by counsel for the applicants is to be served and filed on or before January 31, 2000.
Judge
Ottawa, Ontario
January 10, 2000