Mathews v. Canada (Minister of Citizenship and Immigration), 2003 FC 1387

Date: 20031126

Docket: IMM-5338-02

Citation: 2003 FC 1387

Vancouver, British Columbia, this 26^th day of November, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                    MARIE BEATRICE MATHEWS

                                                  RAYMOND EDWARD MATHEWS

                                                   RYAN NOEL RANDY MATHEWS

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Marie Beatrice Mathews claims that she was subjected to ongoing mistreatment in her native Sri Lanka, both at the hands of the Liberation Tigers of Tamil Eelam (LTTE) and the police. She fled Sri Lanka with her sons, Raymond Edward and Ryan Noel Randy, in 2000. She made her way to Canada by way of England and the United States.

[2]                 She presented a claim for refugee status to the Immigration and Refugee Board, but the Board dismissed it, primarily because it disbelieved her. Ms. Mathews argues that the Board failed to evaluate the evidence before it fairly and asks, by way of this application for judicial review, for a new hearing. Two additional issues are raised on behalf of Raymond and Randy. The first is whether the Board erred when it found that the boys were citizens of India and, therefore, had no claim against Sri Lanka. The second is whether the Board should have appointed a designated representative for them at the hearing in place of their mother.

[3]                 On all of the issues raised by the applicants, I find no basis on which to set aside the decision of the Board. Accordingly, I must dismiss this application for judicial review.

I. Issues

[4]                 1.          Did the Board fail to evaluate the evidence fairly?

2.          Did the Board err in finding that Raymond and Randy were citizens of India?

3.          Should the Board have appointed an independent representative for the boys?

1. Did the Board fail to evaluate the evidence fairly?

[5]                 There are really two issues here: (a) Were the Board's findings on credibility unreasonable? and (b) Should the Board have considered documentary evidence supporting Ms. Mathews' claim, even though it disbelieved her?

(a) Were the Board's findings on credibility unreasonable?

[6]                 The Board analyzed Ms. Mathews' evidence thoroughly. It compared her testimony at the hearing with information that she had supplied previously and noted inconsistencies, significant omissions, implausible scenarios and unsatisfactory explanations. The Board based these findings on all of the evidence before it and carefully explained its concerns. I find no basis on which the Board's fact-finding can be seriously challenged.

(b) Should the Board have considered documentary evidence supporting Ms. Mathews' claim, even though it disbelieved her?

[7]                 In light of its finding that Ms. Mathews' claim was unsupported by credible evidence, the Board declined to analyze documentary evidence describing the conditions in Sri Lanka. Ms. Mathews argues that the Board was bound to consider that evidence, even though it did not believe her account of events. She cites the case of Seevaratnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 694 (QL) (T.D.), in support of her position. In my view, that case dealt with an entirely different situation. There, the Board had failed to consider a piece of documentary evidence that supported the very essence of the applicant's claim. Justice Tremblay-Lamer rightly concluded that the Board could not dismiss the claim simply because it disbelieved the applicant's oral testimony when there was documentary evidence corroborating it. See also Tayefi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1223, [2003] F.C.J. No. 1547 (QL) (F.C.).

[8]                 Here, the documentary evidence was general. It did not corroborate any specific aspect of Ms. Mathews' claim. The Board is not obliged to consider this type of documentary evidence if it disbelieves the applicant's testimony: Amaniampong v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 443 (QL) (C.A.); Djouadou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1568 (QL) (T.D.).

2. Did the Board err in finding that Raymond and Randy were citizens of India?

[9]                 Raymond and Randy were born in Oman. Their father is a citizen of India. The Board found that they had travelled on Indian passports and concluded that they would be considered by India to be citizens of that country. Accordingly, they could not have a refugee claim against Sri Lanka even if they also had status in that country by virtue of their mother's citizenship. There was no evidence that the boys feared persecution in India. As such, the Board rejected their refugee claim.

[10]            Counsel argued that it is unclear whether the boys are citizens of India. He referred to the Indian Citizenship Act, 1955, which provides that children of Indian citizens are also citizens of India, even if they were born outside its borders. He argued, however, that citizenship is obtained only upon registration - it is not automatic. There was no evidence before the Board that the boys had been registered as Indian citizens.

[11]            I am not convinced that counsel's interpretation of the Indian statute is correct. Nevertheless, it is unnecessary for me to arrive at a definitive conclusion on that issue. The Board rested its finding (which was urged upon it by the applicants' counsel at the time) on the fact that the boys had travelled on Indian passports. A holder of a particular country's passport is presumed to be a citizen of that country: United Nations Handbook on Criteria for the Determination of Refugee Status, at para. 93. Unless contested, a passport is evidence of nationality: Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695 (QL) (T.D.). The applicants entered no evidence to rebut that presumption. Before me, counsel argued that the so-called passports were actually lesser travel documents of some kind and should not, therefore, give rise to the usual presumption. Ms. Mathews expressly stated before the Board that the boys obtained Indian passports from the Indian consulate in Muscat, on the strength of their father's Indian citizenship. The Board accepted this as good evidence of the boys' citizenship, as it was entitled to do. I can find no error in the Board's approach.

3. Should the Board have appointed an independent representative for the boys?

[12]            The Board appointed Ms. Mathews to be the designated representative of her sons at the hearing. Ms. Mathews now argues that the Board should have given her the option of appointing an independent representative for them because their situation was not identical to hers. The Board has a duty under s. 69(4) of the Immigration Act, R.S.C. 1985, c. I-2 to appoint a representative for a claimant under the age of eighteen. Often, as here, the representative is a parent. However, in some cases, it may be better for an independent third-party to represent a minor, such as where the child's interests are distinctly different from those of his or her parents. Here, no one asked the Board to appoint an independent representative for the boys. Indeed, counsel for Ms. Mathews specifically requested the Board to appoint her. She agreed to represent their interests and instruct counsel on their behalf. Further, there is no suggestion that the boys' interests were inadequately represented in any way. In these circumstances, the Board cannot be faulted: Coomaraswamy v. Canada (Minister of Citizenship and Immigration) 2002 FCA 153, [2002] F.C.J. No. 603 (QL) (C.A.).

                                                                        JUDGMENT

THE COURT'S JUDGMENT IS that:

1. This application for judicial review is dismissed;

2. Counsel may make submissions with respect to any proposed question of general importance within five business days of this judgment.

                                                                                                                           (Sgd.) "James W. O'Reilly"

                                                                                                                                                               Judge                        

                                                                            ANNEX

                                                                     FEDERAL COURT

             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-5338-02

STYLE OF CAUSE:                           MARIE BEATRICE MATHEWS et al. v. THE MINISTER OF CITIZENSHIP ANDIMMIGRATION

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       THURSDAY, SEPTEMBER 3, 2003

REASONS FOR JUDGMENT

AND JUDGMENT BY:                     THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                NOVEMBER 26, 2003

APPEARANCES BY:                        Mr. Michael Battista

FOR THE APPLICANT

Mr. Brad Gotkin

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Michael F. Battista

Wiseman Battista

1033 Bay St, Suite 308

Toronto, Ontario M5S 3A5

FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

Loi sur l'Immigration, L.R.C. 1985, ch. I-2

Représentation

69.(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause.