Date: 20060809
Docket: IMM-7261-05
Citation: 2006 FC 959
Toronto, Ontario, August 09, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
GOWRI VASANTHAKUMAR
SHAKTHIPRIYA VASANTHAKUMAR
SHIESWARAN VASANTHAKUMAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
November 15, 2005 wherein the Board determined that Mrs. Gowri Vasanthakumar
(the applicant) and her children were not Convention refugees nor persons in
need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2]
The
applicant is a Hindu Tamil and a citizen of Sri Lanka. She is
married and has two minor children that are included in her claim. The
applicant’s husband fled Sri Lanka in 2000 to escape
persecution from the authorities and Tamil militants. He was accepted as a
Convention refugee in Canada.
[3]
The
applicant is seeking refugee protection based on the grounds of race.
[4]
The
applicant was interviewed in Colombo as part of her spouse’s
sponsorship application for her. She and her children were granted visas in
2005. Because of problems with documentation submitted by her husband, the
applicant was stopped at the airport and told that her husband’s paperwork was
not in order and that she was not admissible. It was then that she was
permitted to speak to her husband, who was waiting at the airport for her.
After this conversation, she requested refugee protection.
ISSUES
[5]
1. Did the
Board err in law by fettering its discretion?
2. Did the Board err by failing to assess
the risk to the applicant given her age, ethnicity and
past background based on the evidence
that it believed to be true?
ANALYSIS
1. Did the Board err in law by
fettering its discretion?
[6]
The
applicant notes that there are two cases currently pending in the Federal Court
of Appeal: Benitez v. (Minister
of Citizenship and Immigration) 2006
FC 461 and
Thamotharem v. (Minister
of Citizenship and Immigration) 2006 FC 16. These cases will be considered
by the Court in the fall of 2006. Both cases deal with reverse order
questioning. The applicant contends that Thamotharem determined that there was
an improper fettering of discretion when the Board engaged in reverse order questioning.
The applicant further contends that the Court came to the opposite conclusion
in Benitez. The applicant submits that, under the circumstances, the most
reasonable course of action would be to adjourn the application for judicial
review pending a decision in the Federal Court of Appeal.
[7]
The
applicant further notes that notwithstanding the fact that there was no
objection prior to or during the hearing to reverse order questioning, the
issue of waiver is one of the issues that is being certified in the Federal
Court. The applicant submits that the issue of whether a breach of natural
justice occurred is a live issue and as such, this case ought to be adjourned
pending Benitez in the Court of Appeal.
[8]
The
question at issue in the present matter is the same as that found in Mulliqi v.
Canada (Minister of
Citizenship and Immigration) 2006 FC 563. In the aforementioned case Justice
Judith Snider noted that the issue was whether or not an applicant, in failing
to object to the use of Guideline 7 at the hearing, waived his right to raise
the issue on judicial review. Justice Snider, at paragraphs 24 and 25, further
noted that the issue of waiver was not before the Federal Court in Thamotharem.
The
Applicant submits that, at the beginning of the second hearing, the Board
member "jumped in" and conducted a direct examination without
advising the Applicant's counsel that this would be done in accordance with
Guideline 7. The Applicant noted that this Court ruled in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 8, 2006 FC 16, and Jin v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 55, 2006 FC 57 that Guideline 7 fetters the discretion of the
Board. The Applicant concedes that he did not object to the application of
Guideline 7 at the hearing. Nor was the issue raised in the Notice of
Application or the Applicant's Record; the issue was only raised in the
Applicant's further memorandum of argument.
Even
assuming, as asserted by the Applicant, that Guideline 7 fetters the discretion
of the Board, the question raised by the facts of this application is whether,
by not objecting to the use of Guideline 7 at the hearing, the Applicant has
waived his right to raise this issue at the judicial review stage. This issue,
while not considered by the Court in Thamotharem, was before Justice Mosley in
Benitez v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 631, 2006 FC 461. In respect of the issue before me, Justice
Mosley concluded as follows, at para. 237:
The common law principle of waiver requires that an
applicant must raise an allegation of bias or a violation of natural justice
before the tribunal at the earliest practical opportunity. If counsel were of
the view that the application of Guideline 7 in a particular case would result
in a denial of their client's right to a fair hearing, the earliest practical
opportunity to raise an objection and to seek an exception from the standard
order of questioning would have been in advance of each scheduled hearing, in
accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to
object at the hearing must be taken as an implied waiver of any perceived
unfairness resulting from the application of the Guideline itself.
[9]
Considering
that the issue of waiver was not before the Court in Thamotharem, I cannot
agree with the applicant’s position that this judicial review
should be adjourned pending a decision of the Federal Court of Appeal. The applicant's failure
to raise the Guideline 7 issue at the hearing before the Board must be taken as
an implied waiver of any perceived unfairness resulting from the application of
Guideline 7. As such, I find that the Board did not err by applying Guideline
7.
2. Did the Board err by failing
to assess the risk to the applicant given her age, ethnicity and past
background based on the evidence that it believed to be true?
[10]
The
applicant asserts that the Board erred in law by failing to assess the risk to
the applicant given her age, ethnicity and past background based on the
evidence that it believed to be true. I disagree with the applicant’s argument.
The Board’s negative conclusion with respect to the applicant’s credibility was
determinative in the rejection of the latter’s claim. The Board stated the
following it its decision:
After reviewing all of the evidence
adduced, I find that the claimant has not established the central factual
elements of her claim on a balance of probabilities, with credible and
trustworthy evidence. I find that the evidence indicates that the statements
made both to the Canadian visa office in Colombo, as well as the statements
made to CIC upon the claimant’s arrival, when she initially requested refugee
protection, and during the hearing, indicate that the claimant was not facing a
serious risk of persecution, torture, cruel and unusual treatment or
punishment, or a risk to her life when she left Sri Lanka. I find that the
inconsistencies in her testimony and the different versions of events as given
to CIC seriously undermined her credibility with regard to her alleged fear,
and lead me to conclude that they were fabrication.
[11]
In Kamana
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695,
Justice Danièle Tremblay-Lamer, at paragraph 10, confirmed that a lack of
evidence going to the subjective element is a fatal flaw which in itself
warrants dismissal of the claim, since both elements -- subjective and
objective -- must be met.
[12]
The
standard of review applicable to the Board's assessment of credibility is
patent unreasonableness. The Court will not substitute its opinion for the
Board's decision unless the Board's decision is clearly wrong. (See Aguebor v.
Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De
(Da) Li Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161.)
[13]
In
the present matter, the Board rejected the applicant’s claim on the basis of
credibility issues and absence of subjective fear. As such, the alleged failure
of the Board to assess the risk to the applicant given her age, ethnicity and
past background is irrelevant given that the Board has found no justification
for the applicant's claim of fear of persecution. Furthermore, the applicant
failed to direct the Court to any evidence which would indicate that due to the
applicant’s age, ethnicity and background, there exists a reasonable chance of
persecution.
[14]
The Board
conducted an in-depth analysis of the applicant’s claim and its findings were
not patently unreasonable. The applicant lacked a subjective fear and brought
no evidence to address the Board’s negative credibility finding.
[15]
Even
if my conclusions are that the application for judicial review be dismissed, I
will nevertheless assess whether I should certify a question as was done in Thamotharem
and Benitez above.
[16]
In
referring to the affidavit of the applicant dated January 10, 2006, filed in
support of her application, the respondent suggests that there is no evidence
before the Court that the applicant suffered any unfairness as a result of the
order of questioning. Further more, the applicant’s affidavit is short and
makes no reference to the order of questioning.
[17]
The
respondent suggests that we should rely on Garcia v. Canada (Minister of
Citizenship and Immigration), 2006 FCJ 834, 2006 FC 645. In Garcia, Chief
Justice Lutfy provided at paragraphs 12, 14 and 15:
Finally, the applicant raised the issue of the
Chairperson's Guideline 7 in his further memorandum of argument on the basis of
the decision in Thamotharem v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J.
No. 8, 2006
FC 16. The applicant concedes that the order of questioning was not raised
during the refugee hearing. The first reference to the issue was in the
applicant's further memorandum of argument which was filed on April 3, 2006.
There is no other suggestion that the refugee hearing was unfair.
. . .
In my view, it was not appropriate for the applicant to
raise this issue for the first time in his further memorandum of argument.
Here, I adopt the statement of Justice Frederick E. Gibson in Arora v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J.
No. 24 (QL) (T.D.) at paragraph 9:
|
|
...the principle that the Court will deal only with the
grounds of review invoked by the applicant in the originating notice of
motion and in the supporting affidavit must, I am satisfied, govern. If, as
here, the applicant were able to invoke new grounds of review in his
memorandum of argument, the respondent would conceivably be prejudice[d]
through failure to have an opportunity to address the new ground in her
affidavit or, once again as here, to at least consider filing an affidavit to
address the new issue. In the result, I determine that the second issue
raised on behalf of the applicant is not properly before the Court.
|
|
The applicant submits that the Court should deal with
Guideline 7 on the basis of his further memorandum of argument. He also urges
that a serious question be certified regarding this issue. To do so, in my
view, would be unfair to the respondent. There would be no opportunity for the
respondent to file affidavit evidence in this Court. In the event of an appeal,
the record before the Federal Court of Appeal, as in this Court, would be
incomplete.
[18]
In
my view, our case should be distinguished from Garcia, above. In the present
matter, the issue of the order of questioning was raised by the applicant in
his application for leave. In Garcia, the applicant raised the issue only in
his further memorandum of argument.
[19]
I
will therefore certify the same question as was done in Romero v. Canada
(Minister of Citizenship and Immigration, [2006] F.C.J. No. 647, 2006 FC 506,
de la Cruz v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 657, 2006 FC 512, Wu v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 658, 2006 FC 513, and Mulliqi v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 711, 2006 FC 563:
When
must an applicant raise an objection to Guideline 7 in order to be able to
raise it upon judicial review?
JUDGMENT
1.
This
application for judicial review is dismissed;
2.
The
following question is certified:
When must an applicant raise an objection
to Guideline 7 in order to be able
to raise it upon judicial review?
“Pierre Blais”
Email this Content