Date: 19981201
Docket: IMM-5407-97
BETWEEN:
RAJANAYAGAM VAIRAMUTHU
RAJANAYAGAM NAVAMANI
Applicants
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON, J.
[1] The Applicants seek to set aside a decision of the Immigration and Refugee Board (the "Board"), dated November 12, 1997 which dismissed their claims to Convention Refugee status in Canada.
[2] The Applicants are elderly Sri Lankans, Vairamuthu age 65 (husband) and Navamani age 55 (wife), who claim Convention Refugee status on the basis of a well-founded fear of persecution by reason of their political opinion and membership in a particular social group, namely, that of elderly Tamils from the North having lived and worked outside Sri Lanka.
[3] The following are the relevant facts as alleged by the Applicants: they left Sri Lanka in 1981 and lived in Nigeria until 1994. On one visit to Jaffna to visit the husband's mother in 1989, the Applicants were kidnapped by the "EPDP" and 50,000 rupees had to be paid to obtain their release. Then, on August 25, 1994 in Colombo, 5 persons who identified themselves as "EPDP" members tried to extort money from the Applicants saying that, as foreign returnees, they believed that the Applicants would have alot of money. The Applicants did not report this incident to the authorities. On September 1, 1994, the Applicants were faced with more extortion by another group of "EPDP". On October 5, 1994, the Applicants fled to Canada and made refugee claims. After receiving a negative decision and then a refusal for leave for judicial review, in July 1996, the Applicants went to the United States where they remained for at least four months. On their return to Canada, the Applicants made new refugee claims in November 1996. On November 12, 1997, the Board denied their claims.
[4] The first issue that arises is whether the Board lost its jurisdiction to make a disposition of this matter after the illness of one of the Board members rendered it impossible for her to continue.
[5] The hearing of the Applicants" refugee claims took place on May 20, 1997 before Board members Ms. Eva Allmen and Ms. Julie Taub. The Board"s decision was rendered on November 12, 1997 by Board member Ms. Taub alone. In her decision, Ms. Taub points out that Ms. Allmen became seriously ill on June 3, 1997 and would not be able to return to work. As a result, pursuant to section 63(2) of the Immigration Act (the "Act"), Ms. Taub rendered the Board"s decision. Section 63 reads:
| (1) Any person who has resigned or otherwise ceased to hold office as a member of the Refugee Division, Adjudication Division or Appeal Division may, at the request of the Chairperson, at any time within eight weeks after that event, make, or take part in, the disposition of any matter previously heard by that person and, for that purpose, the person shall be deemed to be such a member. |
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| (2) Where a person to whom subsection (1) applies or any other member by whom a matter has been heard is unable to take part in the disposition thereof or has died, the remaining members, if any, who heard the matter may make the disposition and, for that purpose, shall be deemed to constitute the Refugee Division or the Appeal Division, as the case may be. |
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A plain reading of the provision specifically contemplates a one-member panel decision without the consent of the claimant where one member is unable to take part in the disposition of the matter. A serious illness of a member clearly qualifies as rendering her unable to dispose of the matter.
[6] In Weerasinge v. Canada (M.E.I), [1994] 1 F.C. 330, the Federal Court of Appeal determined that a decision by a single member was not valid because there was nothing on the record documenting why recourse to subsection 63(2) was necessary. Mr. Justice Mahoney stated, at p. 331, that:
| "Recourse to subsection 63(2) is a serious matter which denies a claimant a right accorded by the Act. A decision made by a single member is prima facie made without jurisdiction. When a claimant consents to or requests a hearing by a single member, that must be clearly put on the record. It should be likewise when recourse has been had to subsection 63(2).". |
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In Odameh v. Canada (M.E.I.) (1995), 185 N.R. 9, the Federal Court of Appeal determined that the requirement that an explanation for resort to subsection 63(2) be put on the record was met by the remaining member simply stating that the other member had ceased to hold office as a member of the Board. In my view, Ms. Taub's statement that Ms. Allmen would not be able to return to work because of illness satisfies the requirement laid down in Weerasinge (supra).
[7] The Applicants submit that because Ms. Allmen became ill on June 3, 1997, she was unable to consider their post-hearing submissions and the additional documentary evidence which they submitted in July 1997. As a result, the Applicants argue that Ms. Allmen did not "hear the matter" as contemplated in subsection 63(2) of the Act.
[8] In my view, this argument is without merit. Ms. Allmen did hear the matter that was before the Board. Unfortunately, after June 3, 1997 she could not take part in the disposition of the matter which she had heard with Ms. Taub. In M.C.I. v. Singh, [1998] 3 F.C. 127, Stone, J.A., for the Federal Court of Appeal, stated, at p. 137, that:
| "In my view, the objective of section 63 is to permit the Board to retain jurisdiction over a claim in cases where one of the Board members who participated in the hearing is unable to take part in the decision. This provision is intended to free the Board from having to reopen the claim and conducting a new hearing in the event that one of the members who heard the matter resigns or otherwise ceases to hold office, dies or is unable to take part or is unable to partake in its final disposition.". |
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[9] The Applicants suggest that only if Ms. Taub had read the post-hearing submissions and considered the additional documentary evidence would she have heard the matter. That argument cannot be right. As Mr. Justice Stone says in Singh, the purpose of subsection 63(2) is to avoid having to reopen the claim and conduct a new hearing where one member is unable to participate in the rendering of the decision. If I were to accept the Applicants' argument, the purpose of subsection 63(2), in the circumstances of this case, would, without doubt, be defeated. I am therefore of the view that the Board did not exceed its jurisdiction when Ms. Taub rendered her decision on November 12, 1997.
[10] Further, the fact that the Applicants made unsolicited post-hearing submissions in writing and submitted further documentary evidence after Ms. Allmen became seriously ill does not, in my view, lead to the conclusion that there has been a breach of natural justice or procedural fairness since the remaining panel member considered the additional materials before coming to her decision. This is clearly what the Act contemplates.
[11] The next issue that arises is whether the Board made an unreasonable finding of fact that the Applicants" fear of persecution in Colombo was not well-founded. The substance of the Board"s decision reads as follows:
| The panel is not satisfied that there is a "reasonable chance" or a "serious possibility" that the claimants would be persecuted were they to return to Sri Lanka, based on any of the grounds set out in the Convention refugee definition. |
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| The panel and counsel agreed that the key issues in this hearing were the well-foundedness of the fear of persecution, and an internal flight alternative (IFA) in Colombo. |
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| The test for well-foundedness is stated in Ponniah and further clarified in Rajudeen. The profile of the claimants, an elderly 55 and 65-year-old couple, is not that of those Tamils who are at greatest risk, i.e. young single male and female Tamils from the North. The elderly are not specifically targeted by the security forces except for the routine security checks. Furthermore, the panel notes that they failed to make a refugee claim in the US. When questioned why they failed to do so, the male claimant replied candidly that all their relatives are in Canada and that his education degree from Sri Lanka was recognized by the government of Ontario. In fact, the acknowledgment regarding the "Letter of Eligibility, Qualified Applicants", sent by the Ministry of Education to the male claimant, indicates that the Ministry requires proof of Canadian citizenship, permanent resident status, or employment authorization to teach in Ontario before issuing the requisite document. This letter was received by the CRDD on June 2, 1997. The panel is not satisfied with their explanations and find that, if indeed, they feared for their lives, they would have made a claim at their first opportunity to do so, i.e. in the US. |
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The Applicants submit that the Board failed to take into account credible accounts of extortion used by security officials against Tamil detainees picked up in routine round-ups. Further, they submit that the Board misconstrued the issue which was before it and avoided addressing the situation it admits is to be anticipated in Colombo: the routine security round-ups and detentions of Tamils in all age groups with extortion as a serious possible concomitant condition for release. Further, the Applicants submit that the Board ignored more recent evidence that Tamils returning from abroad are subject to obtaining a permit to stay for a limited time in Colombo, thereby ignoring the possible forced return to the North of Sri Lanka of the Applicants.
[12] In its decision, the Board addressed the Applicants' fear of persecution as a member of a particular group: "The profile of the claimants, an elderly 55 and 65-year-old couple, is not that of those Tamils who are at greatest risk, i.e. young single male and female Tamils from the North. The elderly are not specifically targeted by the security forces except for the routine security checks." The Board cites documentary evidence in support of this conclusion: Exhibit R-1, item 1.10, Contextual Information Package , April 1996, "Political and Human Rights Update," Question and Answer Series , DIRB, IRB, August 1996, p. 28. Thus, the Board"s finding of a lack of fear of persecution in Colombo for the group referred to as elderly Tamils returning from abroad is supported by some evidence and, thus the finding is not unreasonable.
[13] The Board"s factual finding that the Applicants had an Internal Flight Alternative in Colombo is derived from "documentary evidence [which] states that there is a large Tamil population in Colombo which will permit the claimants to socialize in their own language with people of their own ethnic background.". I have not been persuaded that there is any basis for this Court to intervene with respect to this finding.
[14] The Applicants admit that they were in the United States for at least four months before returning to Canada and making their claims. The Board made no error in finding that, if the Applicants had feared for their lives, they would have made their new refugee claims at the first possible opportunity, i.e. upon their arrival in the United States. This finding of fact goes to the Applicants' credibility. On the evidence, this finding is not unreasonable and I will therefore not interfere with it.
[15] For the above reasons, this application for judicial review will be dismissed.
[16] Counsel for the Applicants submitted that I should certify the following question: When is a matter considered to have been heard under subsection 63(2) of the Act? I am not convinced that this question should be certified. The answer to the question simply requires the making of a finding of fact. Whether a member has heard a matter will depend on the particular circumstances of the case. In the present instance, I am satisfied that Ms. Allmen did hear the matter that was before the Board. Consequently I see no purpose in certifying the question proposed by the Applicants. I therefore decline to certify the proposed question.
(Sgd.) "Marc Nadon"
J.F.C.C.
Vancouver, British Columbia
1 December 1998
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