Date: 20051025
Docket: IMM-10334-04
Citation: 2005 FC 1449
BETWEEN:
SAMALAVATHY AMMA ARUMUGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division ("RPD") of the Immigration and Refugee Board wherein the RPD vacated the decision of its predecessor, the Convention Refugee Determination Division, both panels of the Immigration and Refugee Board, allowing the Applicant's claim for Convention refugee status. The decision under review is dated the 24 th of November, 2004.
BACKGROUND
[2] The Applicant is a female citizen of Sri Lanka, from the north of that nation, and a Tamil. Prior to coming to Canada, and she arrived here in October of 1997, she lived for a period of time in Colombo. She applied for and obtained Convention refugee status.
[3] The Respondent came into possession of information that led him to believe that the Applicant obtained Convention refugee status "¼ as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter." In the result, the Respondent applied to the RPD, under section 109 of the Immigration and Refugee Protection Act,
for an order vacating the decision granting the Applicant Convention refugee status. Section 109 of the Immigration and Refugee Protection Act reads as follows:
| 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
|
109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile.
(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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[4] Following a hearing on the Respondent's application, at which the Applicant attended without counsel or other representative and responded to questioning both by the Respondent's representative and the presiding member, the Respondent's application was granted and the decision here under review followed.
THE DECISION UNDER REVIEW
[5] The RPD found that counsel for the Respondent met the onus on the Respondent of establishing that the Applicant had obtained her Convention refugee status as a result of directly or indirectly misrepresenting or withholding material facts relating to relevant matters. More particularly, the RPD found that the Applicant concealed the whereabouts of her husband when she signed her Personal Information Form on the 31st of January, 1998 by stating that his whereabouts were unknown when she in fact knew that he was in Toronto; that the Applicant concealed the fact that she had three sons, each of whom had made successful Convention refugee claims in Canada before her arrival; that she concealed the fact that her husband had made an unsuccessful Convention refugee claim in Canada; that she misrepresented persecution of herself and her husband and daughter in the north of Sri Lanka at times when she and her husband were resident in Colombo; and that the Applicant generally lacked credibility.
[6] In the result, the only unchallenged facts relating to the Applicant were those recited in these reasons under the heading "Background".
[7] The RPD very succinctly disposed of the application before it. It wrote:
The panel finds the Respondent [here the Applicant] to have a general lack of credibility. Accordingly, the panel finds that there is not sufficient other evidence on which to base a determination that the Respondent is a Convention refugee.
[emphasis added]
THE ISSUE
[8] Counsel for the Applicant urged that the RPD erred in a reviewable manner by failing to analyse, as he alleged the RPD is required to do by subsection 109(2) of the Immigration and Refugee Protection Act whether, after the misrepresentations and withholdings of material of fact are established, there remains "¼other sufficient evidence¼" that was considered at the time Convention refugee status was originally granted, to justify the grant of Convention refugee protection. In support of this contention, counsel relies on the reasons of Justice Evans, speaking for the Court, in Coomaraswamy v. Canada (Minister of Citizenship and Immigration) where he wrote at paragraphs [40 and 41]:
For instance, after the adults appellants' misrepresented evidence is discounted, the only evidence before the Board at the determination hearing to support their refugee claims related to general country conditions, their genders, marital status and ages and the fact that they are Tamils who had it one time lived in the north. ...
In the absence of evidence that the appellants had experienced persecution in Sri Lanka, it was open to the Board on the evidence before it to conclude that in 1996 the persecution of Tamils from the north of Sri Lanka was not so pervasive that all Tamils had a well-founded fear of persecution in all parts of Sri Lanka. It was also not unreasonable to conclude that none of the appellants fitted the profiles of Tamils who were particularly at risk in Sri Lanka at that time.
ANALYSIS
[9] All that was said by Justice Evans in the foregoing paragraphs applies directly to the Applicant at the time she was granted Convention refugee status in 1997. The only evidence that was before the Tribunal that granted her Convention refugee status, once the misrepresented and withheld evidence was discounted, related to general country conditions, the Applicant's gender, marital status and age and the fact that she was a Tamil who had at one time lived in the north. All of the evidence that the Applicant had experienced persecution in Sri Lanka in the years immediately preceding her arrival in Canada was "discounted".
[10] While it undoubtedly would have been preferable for the RPD to be more fulsome in its dealing with the evidence that remained after the misrepresented and withheld evidence that was before the original Tribunal was discounted, I am simply not satisfied that the manner in which the RPD summarily dealt with the remaining evidence resulted in reviewable error.
[11] If I am wrong in the foregoing conclusion, I am satisfied that I am nonetheless justified in rejecting this application for judicial review on the basis of the following brief quotation from the reasons of Justice Stone, speaking for the Court, in Yassine v. The Minister of Employment and Immigration :
The adverse finding of credibility having been properly made, the claim could only be rebecter. It would be pointless to return the case to the Refugee Division in these circumstances.
[12] I am satisfied that precisely the same might be said here and that it would be pointless to return this matter to the RPD for nothing more than a more fulsome analysis.
CONCLUSION
[13] In the result, this application for judicial review will be dismissed. At the close of the hearing of this matter, counsel were advised of what the result would be. When consulted, neither counsel recommended a question for certification. The Court is satisfied that no serious question of general importance arises out of this matter that would be determinative of an appeal of the decision herein. In the result, no question will be certified.
Ottawa, Ontario
October 25, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10334-04
STYLE OF CAUSE: SAMALAVATHY AMMA ARUMUGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 20, 2005
REASONS FOR ORDER: GIBSON J.
DATED: OCTOBER 25, 2005
APPEARANCES:
Krassina Kostadinov FOR THE APPLICANT
A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, ON FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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