Date: 20010209
Docket: IMM-2932-99
Citation: 2001 FCT 47
BETWEEN:
RANJAN COOMARASWAMY
ANUSHA RANJAN
AHALYA RANJAN
UTHAYAKUMARI RANJAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY J.:
[1] This is an application for judicial review of a decision of a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("vacation panel"), dated May 17, 1999, approving an application by the Minister of Citizenship and Immigration ("Minister") to have the applicants' positive Convention refugee determinations vacated under subsection 69.2(2) of the Immigration Act, R.S.C. 1985, c. I-2 [the "Act"].
[2] The principal applicant, Ranjan Coomaraswamy arrived in Canada on May 2, 1996. His wife, Uthayakumari Ranjan, and their two children Anusha Ranjan and Ahalya Ranjan arrived in Canada on January 11, 1996. The principal applicant and his wife are both citizens of Sri Lanka.
[3] On October 10, 1996, the applicants were determined to be Convention Refugees. On October 2, 1998, the Minister brought an application under subsection 69.2(2) of the Act to have the Refugee Division reconsider and vacate the 1996 positive determinations that the applicants were convention refugees. Subsection 69.2(2) provides:
|
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. |
[4] The Minister alleged that in their original Personal Information Forms ("original PIFs"), the applicants misrepresented the history of persecution which they had allegedly suffered while living in Sri Lanka. In addition, the Minister alleged that the applicants did not disclose that immediately prior to their arrival in Canada, they had resided in Germany for 7 years, that they had made an unsuccessful asylum claim in Germany, and that their two children were born in Germany.
[5] In his original PIF, dated June 28, 1996, and in her original PIF, dated February 27, 1996, the principal applicant and his wife respectively stated that they had suffered persecution in Sri Lanka from 1989 until 1996 when they independently fled Sri Lanka and travelled to Canada. They further stated that they had never resided in another country, nor had they made any other claim for asylum. The principal applicant's wife also signed PIFs for their two children, stating on each form that the child had been born in Sri Lanka.
[6] A communication from the Canadian Embassy in Bonn, Germany, dated April 5, 1998, reported that the applicants entered Germany in February 1985, and there made an asylum claim which was rejected. However, the principal applicant was granted unlimited residence in Germany while his wife received only a limited residence permit which expired on August 27, 1997. There was also evidence that the children's Sri Lankan birth certificates were fabricated.
[7] Under subsection 69.3(5) of the Act, a panel has the discretion to reject the Minister's application to vacate a previous positive refugee determination if, notwithstanding that determination was made on the basis of misrepresentations or concealment of any material fact, the remaining evidence was sufficient for a positive determination. Subsection 69.3(5) provides:
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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] At the vacation hearing, the applicants conceded the misrepresentations which they had made in their original PIFs. They then sought to introduce as evidence amended Personal Information Forms ("amended PIFs") and a letter from the Consulate General of the Federal Republic of Germany, dated February 5, 1999 ("Letter"), stating that as a result of leaving Germany, they had lost their residential status there.
[9] The main issue before the panel was whether under subsection 69.3(5) of the Act, it should reject the Minster's application on the ground that there was other sufficient evidence on which the 1996 Convention refugee determinations were or could have been based.
[10] In its decision dated May 19, 1999, the panel approved the Minister's application. The panel found that the applicants obtained their determinations by fraudulent means, misrepresentation, suppression and concealment of material facts. The panel concluded that "...[t]heir residence and alleged experiences in Sri Lanka since February 1985, on which their claims were based, are a fabrication."
[11] At the hearing, the panel had refused to admit into evidence both the amended PIFs and the Letter which the applicants sought to introduce. In its reasons, the panel wrote that it
| ...has an obligation to consider evidence which was or could have been available at the time of the previous hearing. The new PIFs which counsel submitted were, therefore, also considered to be inadmissible because 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. |
| The panel has to consider whether the remaining uncontradicted evidence in the respondents' original PIFs and testimony at the hearing of their claims in October 1996, as well as the documentary evidence concerning country conditions filed at that hearing are sufficient to support the original positive determinations.1 |
In addition, the panel found the Letter to be irrelevant to the panel's determination. Ultimately, it found that for each of the applicants, the evidence remaining before the original panel, after excluding that which was misrepresented, did not support acceptance of the claim to refugee status.
[12] In this application for judicial review, counsel for the applicants contended that, apart from any misrepresentations, there are three standards on which evidence could be considered at a vacation hearing under subsection 69.3(5) of the Act. Under the most strict standard, subsection 69.3(5) would only allow for considerations of evidence which was before the panel hearing the original refugee claim. Under a more relaxed standard, evidence which would have been before the original panel if the applicants had been truthful at their original refugee hearing would be admissible at a vacation hearing. Finally, the broadest standard would allow for up to date, new evidence to be admitted at a vacation hearing.
[13] Counsel for the applicants urged that this Court ought to follow the decision of Mr. Justice Gibson in Mahdi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1691 (T.D.). In my opinion, the Mahdi case differs significantly from the case at bar. The issue in that case was whether the applicant fell within the protection of Article 1E of the United Nations Convention relating to the status of refugees. In addition, in Mahdi, the applicant had left the United States, the country in which she was granted permanent residence status, and returned to Somalia, her country of origin, from which she was seeking refuge when she later claimed refugee status in Canada.
[14] In this case, counsel for the applicants urged that significant prejudice to his clients would result if they are deprived of their refugee status without being entitled to adduce further evidence. In the alternative, counsel contended that the panel's findings of fact, based on the country conditions materials, were not supported by evidence and were made capriciously.
[15] Counsel for the Minister argued that the panel did not err in excluding evidence which was not before the panel that made the original positive refugee determinations, nor did the vacation panel base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it. It was urged that a vacation panel must determine whether there was sufficient evidence before the original panel, other than the facts misrepresented, on which to base a positive determination. In support of this proposition, the Minister relied on the decision in Guruge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1821 (T.D.).
[16] The most recent authority on the issue of whether an applicant may introduce new evidence for purposes of subsection 69.3(5) is Maheswaran v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1768 (T.D.). In that case, Rothstein J. made extensive reference to the decision of Madame Justice Dawson in Sayed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1642 (T.D.), in which she concluded that for purposes of subsection 69.3(5), an applicant is not entitled to introduce new evidence which was not before the panel that originally decided the Convention refugee claim.
[17] In Maheswaran, Rothstein, J.A. elaborated, in part, as follows:
| 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. |
| 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. |
| 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.2 |
[18] Reasons in Maheswaran were released after the hearing of this judicial review application. In supplementary written submissions, counsel for the applicants argues that the error committed by the vacation panel in Maheswaran was also committed by the vacation panel in the case at bar. The respondent made no written submissions in reply, despite an opportunity to do so.
[19] I do not accept the applicant's argument. In my respectful view, the facts of Maheswaran can be distinguished from the case at bar. In Maheswaran, in reaching its conclusions, the vacation panel, in considering whether there was sufficient remaining evidence before the original panel to maintain the determination of refugee status, relied on evidence submitted by the Minister in her application to vacate the original determination. The applicants argued in that case that if the Minister was entitled to rely on new evidence to argue that the remaining evidence for the applicant was not credible or did not support the positive determination, then fairness demanded that the applicants be given an opportunity to introduce responding evidence.
[20] Here, in my opinion, the panel did not rely upon the Minister's evidence, used for purposes of subsection 69.2(2) to establish misrepresentation by the applicants, when it determined that there was insufficient evidence, apart from that misrepresented, to warrant the original determination of refugee status. In its reasons, the panel did refer to the evidence submitted by the Minister for purposes of subsection 69.2(2). Those references are to the facts misrepresented in evidence provided by the applicants at their original hearing. I quote at some length from the decision of the vacation panel (pages 9-10), underlining references to the facts previously misrepresented:
| The panel has to consider whether the remaining uncontradicted evidence in the respondents' original PIFs and testimony at the hearing of their claims in October 1996, as well as the documentary evidence concerning country conditions filed at that hearing are sufficient to support the original positive determinations. |
| The panel has considered the circumstances of the male adult respondent at the time of the hearing in October 1996. He was 46 years old, married and a citizen of Sri Lanka. However, given that the respondent provided false information in his PIF narrative concerning his alleged experiences of persecution in Sri Lanka after 1985 and up to the time of his arrival in Canada in May 1996, there was little left in his story on which to base a well-founded fear of persecution. The panel examined the documentary evidence in order to make a determination on his claim for refugee status. It notes that the security forces continued to conduct mass arrests of young Tamils, both male and female. The panel does not consider the male respondent to be a young Tamil. Indeed, the individuals vulnerable to recruitment, harassment and persecution by the Liberation Tigers of Tamils Eelam (LTTE) are young, unmarried males and females. Clearly, a 46 year-old married male falls outside the population group of those targeted or most at risk of persecution at the hands of the LTTE. Similarly, the Sri Lankan security forces are more likely to suspect young males as being members of the Tiger movement and, therefore, target them and indeed often persecute them. The respondent would not face more than a mere possibility of being persecuted. The panel, therefore, finds that there was insufficient remaining uncontradicted evidence or documentary evidence before the Refugee Division in 1996 for it to have made a positive decision based simply on the respondent's profile. |
| The situation for the adult female respondent is similar to that of the male respondent. She was 37 years old, married and a Sri Lankan citizen at the time of the hearing in 1996. She had lived in Germany from February 1985 until December 1995 when she requested refugee status in Canada. Based on her age and marital status, the panel does not accept her claim for a well-founded fear of persecution. The panel, therefore, finds that there was insufficient remaining uncontradicted evidence or documentary evidence before the Refugee Division in 1996 for it to have made a positive decision in 1996. |
| With respect to the children, there are no trustworthy documents to establish their citizenship, given that fraudulent Sri Lankan birth certificates were presented at the hearing in 1996. The previous panel would have been faced with one of two possibilities. The children were either Sri Lankan citizens, as of right, in which case at their ages of ten and eight, they would not have faced a serious risk of persecution, being too young, or they were stateless, in which case, their claims would have to be assessed against Germany as their country of former habitual residence. There was no evidence before the previous panel that these minors faced a serious possibility of persecution in Germany. Accordingly, there was insufficient remaining uncontradicted evidence before the Refugee Division in 1996 for it to have made a positive decision on their claims. |
| The panel has elected not to exercise its discretionary jurisdiction under subsection 69.3(5) of the Immigration Act. [emphasis added] |
[21] In my opinion, the references to earlier misrepresentations, or the effects of those, underlined in the vacation panel's decision (above), were to identify the evidence before the original panel which the Minister's later evidence, conceded by the applicants, identified, and to clarify the balance of evidence submitted to the original panel for consideration under subsection 69.3(5). In other words, the references make clear the evidence originally misrepresented, in order to identify the evidence submitted to the original panel that remained to be considered. That remaining evidence, in the case of the adult male applicant was principally his age, marital status and citizenship, in the case of his wife, her age, marital status and citizenship, and in the cases of their children, their ages and possible citizenship.
[22] In my view, the vacation panel stated the correct standard and properly applied it in reaching its conclusion. The panel stated clearly in its reasons that the remaining evidence of that originally provided, after eliminating that which had been misrepresented, was insufficient for a positive determination of the applicants' claim to be refugees. The panel did not err in excluding the evidence the applicants sought to adduce by new PIFs and the Letter concerning their status in Germany.
[23] In Maheswaran, Rothstein J. certified the following question for consideration by the Court of Appeal and suggested that any appeal be heard at the same time as any appeal in Sayed, where a similar question was certified:
| In considering whether there was "other sufficient evidence on which (a positive Convention refugee determination) was or could have been based" under subsection 69.3(5), can the Refugee Division take into account evidence submitted by the Minister under an application to reconsider and vacate under subsection 69.2(2)? If so, can the Refugee Division take into account evidence which the individual whose Convention refugee status is at issue wishes to submit to respond to the Minister's evidence? |
[24] In my opinion, that question is one of general importance the answer to which has significance for this case. Consequently, I certify a similar question, under subsection 83(1) of the Act. I also recommend that any appeal in this case be heard and considered with any appeal in Maheswaran or in Sayed.
"W. Andrew MacKay"
Judge
Ottawa, Ontario
February 9, 2001
__________________1 Vacation Panel's reasons, Application Record, at pages 8-9.