Date: 19980417
Docket: IMM-2357-97
Between :
SITHA SIVAGNANAM
GANDEEPAN SIVAGNANAM
PARDIPAN SIVAGNANAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants, Sitha Sivagnanam and her two minor sons Gandeepan Sivagnanam and Pardipan Sivagnanam, seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 7, 1997, wherein Frederick G. Clark determined they were not Convention refugees as defined in subsection 2(1) of the Immigration Act. The Board member determined that there was not a reasonable chance that the applicants would be persecuted if they were to return to Sri Lanka.
[2] He concluded that the applicants' evidence could not be relied upon, and that "on a balance of probabilities, the claimants were most likely not even in Sri Lanka during the alleged events subsequent to November 1987 testified to by the principal claimant and her eldest son". The Board member relied on electronic communication provided by Immigration Canada to the effect that German authorities have a record that the subject entered Germany on November 5, 1987, and claimed refugee status which was refused on May 24, 1990. An Immigration Canada memo had also ventured that the youngest son was likely born in Germany, given that his birth date fell during the time the applicant was in Germany.
[3] He did not accept counsel for the applicants' suggestion that it must be some other individual with the same name, nor the insistence that the birth dates differ (March 3, 1950 in the German records and June 6, 19501 on the applicant's national identity card), that the names differ (Seetha and Sitha), and that the German records make no reference to the children. He felt that these were not significant differences, which could be explained by clerical error, translation, phonetic approximation, and the like. With respect to the lack of mention concerning the children, the Board member noted that this was likely because the response from Germany was with respect to the principal applicant. He added that further inquiry by way of instituting an Acquisition of Information Form as to additional information to be obtained from German authorities had resulted in no further information in the ensuing two months.
[4] Given that he believed that the youngest claimant was probably born in Germany but had no persuasive evidence that he enjoys citizenship in that country, the Board member assumed that all applicants had the right to return to Sri Lanka.
[5] The Board member conceded that Tamils are generally arrested and detained for security checks, however he noted that detainees are typically young men from LTTE-controlled territory who have difficulty establishing their identity. In addition, 90 percent of those taken into police custody are released within 48 hours. Furthermore, the applicant and her sons would likely not encounter any problems, given that she has a national identity card. Also, the Sri Lankan security authorities would likely not suspect them of LTTE association, given that they have been absent from the country for several years.
[6] With respect to the feasibility of the applicants settling in Sri Lanka, he reasoned that:
| . . . Sri Lanka is a country in which Tamils are beset by many problems, but they represent a substantial minority of the population and instances of abuse are isolated and not systematic [footnote omitted]. The evidence has not established that it would be unreasonable for them to settle within the large Tamil population in Colombo among those of their own language and ethnic background. A careful examination of the considerable volume of documentary evidence with respect to conditions for Tamils in that city suggests that they could do so without facing more than a mere possibility of treatment of a persecutory nature. |
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[7] It is the applicants' contention that the Board member had agreed during the course of the hearing that the information contained in the electronic mail message received from German officials (the "German document") was insufficient, which is why he completed an Acquisition of Information Form (AIF). The applicants note that the Board member made the following comments during the hearing, found at page 26 of the transcript:
| . . . If anything comes as a result of any inquiry made that might prove or suggest that you should be given the opportunity to respond further, Counsel, it would be open. |
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| If however, nothing useful comes out beyond what we have, certainly M-1 in itself does no more in its current statement than cast that shadow I mentioned about, and the claimant has sworn to tell us the truth, as you so correctly put it earlier. |
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And again at page 29:
| So, for our purposes here today, Mrs. Sivagnanam, we have for all practical purposes concluded your hearing, there will be no further questions asked of you. Mr. McCuaig has been instructed, as you just heard, to make further inquiry to Germany, which in my view is necessitated by the information before us which, to be fair, is unclear. You've heard me use the word, "cast a shadow" over your testimony. |
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| I want you to understand, however, that I am very much aware, as counsel has pointed out, that you have sworn to tell the truth today, as has your son. And we are cognizant of that when we make this request. |
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[8] Given that no further evidence was received before the Board rendered its decision, the applicants submit that the Board breached the principles of fundamental justice by basing its decision on evidence which it had previously determined to be "unclear" and "insufficient".
[9] I find that the Court of Appeal's comments in Shairp v. M.N.R., [1989] 1 F.C. 562, at pages 566-567, apply to the present case:
| I would prefer to approach this question of whether the judge could reverse in the afternoon the conclusion he had announced in the morning on the basis of the following propositions. Firstly, we are concerned exclusively with a matter of jurisdiction. Secondly, the only possible reason why the judge could have been without jurisdiction to change his conclusion is that his morning pronouncement had rendered him functus officio, his connection with the case from then on being limited to correcting incidental errors. Thirdly, the morning pronouncement could only have rendered the judge functus officio if, as such, it had had the effect of finally disposing of the appeal. |
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| If I think that the Tax Court Judge could do what he did, it is because I do not see how his morning pronouncement could be seen as having disposed of the appeal before him. In my view, in the absence of any specific provision empowering him to deliver judgment orally in open court, such as Rule 337(1) of the general rules of this Court, [footnote omitted] a judge of a court of record can only dispose finally, on behalf of the court, of a matter he has been seized of by filing and entering a written decision. There is no such provision to that effect in the rules of practice of the Tax Court of Canada and I even doubt such a provision could accord with the above cited section 17 of its enabling statute, which, by contemplating only the possibility of oral reasons, seems to exclude in any event oral decrees. It follows, in my view, that until judgment is filed the pronouncement of a judge, even made in open court and in the presence of a registrar, is merely an expression of opinion and a declaration of intention, which in law have no decisive effect and therefore remain subject to reconsideration. One would certainly assume that only in extraordinary circumstances would a judge, who sees fit, at the end of a hearing, to publicly pronounce his reasoned opinion and express his intention as to how he will dispose of the case, would later present differing reasons and a completely different judgment. But his jurisdiction to do so would seem to me to be unfettered if he continues to be seized of the matter as obviously he does. |
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[10] I am of the opinion that in this instance, the Board member did nothing more than express an opinion, which he had the right to change once he had time to fully consider the evidence. Furthermore, the Board member did not express a clear intention, given that he commented on more than one occasion that the German document "cast a shadow" on the principal applicant's credibility.
[11] In my view, the applicants cannot rely on the Federal Court of Appeal decision in Velauthar v. Canada (M.E.I.) (1992), 141 N.R. 239, since it stands for the principle that it is a gross breach of natural justice for applicants to be "denied the opportunity to know and answer the case against them". In this instance, the applicants' counsel received a copy of the German document prior to the hearing and had full opportunity to make submissions with respect to this evidence at the hearing, which he in fact did. The applicants therefore had the opportunity to know and answer the case against them, and the Board member did not commit a breach of natural justice when he changed his mind after all of the evidence and testimony had been presented.
[12] I also cannot accept that the Board member's finding that the individual identified in the German document and the principal applicant are one and the same person should be disturbed, as it does not strike me as a completely unreasonable conclusion. It must be remembered that the standard of review for a finding of credibility is a high one, even where the issue of credibility can be viewed on the face of the record, as expressed by the Court of Appeal in Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315, at page 316:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
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[13] With respect to the principal applicant's contention that the Board member had no evidence upon which to base his finding that her youngest son had the right to return to Sri Lanka, I accept the respondent's argument that the principal applicant cannot both claim that her son was not born in Germany (hence of Sri Lankan nationality) and that he is unable to return to Sri Lanka (because he is not of Sri Lankan nationality).
[14] As to the Board member's reliance on the documentary evidence to conclude that the applicants could return to Sri Lanka "without facing more than a mere possibility of treatment of a persecutory nature", it has often been said that the Board is entitled to prefer the documentary evidence (see: Canada (M.E.I.) v. Zhou (July 18, 1994), A-492-91; Victorov v. Canada (M.C.I.) (June 14, 1995), IMM-5170-94; and Andrade et al. v. Canada (M.C.I.) (May 5, 1997), IMM-2361-96). In this instance, it was open to the Board member to conclude that the applicants would not be at risk of persecution, given that the Sri Lankan authorities would not suspect them of being members of the LTTE, as they had been out of the country for over ten years.
[15] Moreover, the applicants were found not to be credible, given that the Board member concluded that they had been out of Sri Lanka as of November 1987. Hence there was no credible evidence of personal circumstances of the applicants before the Board member which could reflect past persecution, nor which could suggest the risk of persecution into the future.
[16] For the above reasons, the application for judicial review is dismissed. The case raises no serious question of general importance.
JUDGE
OTTAWA, ONTARIO
April 17, 1998
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1 Actually, the applicant's national identity card and its translation show her birth date as June 3, 1950 (Certified Record, pages 71-72), as does her PIF (Certified Record, page 14).
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