Date: 19980130
Docket: IMM-1709-97
BETWEEN:
PARAMAYOGAMANY MURUGAMOORTHY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to an application for judicial review and an argument by applicant's counsel, both based on a false affidavit. The applicant sought to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") set aside on three grounds. It was alleged that the Board: (1) made capricious findings of fact; (2) committed a serious error in failing to recognize that she had been physically abused while in detention; (3) relied on out of date documentation.
[2] It is on examination of the first issue, the allegation of capricious findings of fact, that the falsity of the basis for the present proceeding becomes obvious. Counsel for the applicant, in his written argument, stated that the Board had ignored the detailed description, given by the applicant to the Board, of the police station in which she was detained:
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...the Panel entirely ignored the Applicant's detailed description of the interior of the police station and her own police cell in its conclusion that the Applicant was unable to describe the police station. It is submitted that it is clear from the Applicant's oral testimony that she was able to describe the interior of the police station in a methodical and detailed fashion but unable to describe the exterior. It is submitted that the Applicant was never asked why she was unable to describe the exterior of the police station and that her explanation as set out in her Affidavit, namely that she was whisked in and out of the police station is reasonable. It is submitted that the Panel has made a capricious findings of fact in ignoring the Applicant's description of the interior of the police station. |
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[emphasis added]
[3] The affidavit signed by the applicant and upon which leave to commence this judicial review proceeding was granted reads:
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As page 2 of the Reasons, the Panel notes that I have been asked to describe the police station in Colombo where I was detained for four days. The decision indicates that I was not able to do so. This is correct. I had understood the question put to me as asking for a description of the exterior of the police station building. As I was quickly whisked in and out of this building during my detention and release, I only caught a glimpse of it and I was not able to describe the exterior of the police station. However, at my hearing I did describe for the panel the interior of the police station in considerable detail. I described the cell in which I was held for four days in terms of its small size, the type of iron bars on the door of my cell, as well as the cement floor of my cell along with other descriptions of the interior of the police station. I was surprised to see that no mention of my detailed description of the inside of the police station was mentioned in the Reasons. |
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[emphasis added]
[4] The relevant part of the Board's decision reads:
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The RCO asked the claimant to describe the police station.. She was not able to do so. The claimant testified that she was kept alone in a cell. The RCO pointed out that the documentary evidence states that "the treatment of people held in short-term detention for identification checks....the primary problem being one of overcrowding." [emphasis added] The claimant had no response. |
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[5] The evidence given to the Board by the applicant was:
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RCO Can you describe to me what the police station building looked like? |
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CLAIMANT The police, it was a room, iron bars were there, it was cement floor, that was it. |
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RCO Were you held alone, or with other people? |
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CLAIMANT Kept separate, or alone. |
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RCO Okay. And do you recall how large this police station building was, how many storeys (inaudible)? |
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CLAIMANT I don't know that much. |
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[6] The second capricious finding that it is alleged the Board made related to dolls found in the applicant's suitcase when she arrived in Canada. This was described by her counsel in his written argument as:
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It is further submitted that the Panel in determining that an Applicant who is found with dolls in her suitcase is not acting with consistently with someone fearing persecution, (Reasons page 3), has made a capricious finding of fact. The Applicant in her oral evidence indicated that she purchased only one doll in Colombo, yet the Reasons refer to dolls in the plural. It is submitted that the Panel had an obligation to elicit evidence from the Applicant with respect to the |
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details of how (doll)s came to be purchased by the Applicant, prior to making a finding of fact adverse to the Applicant. It is submitted that the Applicant's explanation in her Affidavit, namely that a door to door salesman appeared at the home of the agent who was to bring her to Canada, is reasonable and further indicated that the Applicant herself did nothing at all which would endanger her position and be inconsistent with someone facing persecution. |
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[emphasis added]
[7] The affidavit signed by the applicant and upon which leave to commence this judicial review proceeding was granted reads:
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In the Reasons at page 3, the panel notes that I had dolls in my suitcase when I appeared at the port of entry and that I had indicated that the dolls were purchased for my nieces in Canada. The Reasons then go on to state "this does not appear to be consistent with someone fleeing persecution". Unfortunately the panel did not see fit to ask me how I came to have these dolls in my possession. I believe that the panel simply assumed that I had no difficulty in going out shopping in the streets of Colombo. In fact during the last week before I left Sri Lanka I was shifted to stay at the private home of the agent who arranged for my travel to Canada. One day a door to door salesman knocked on the door of the house and the agent answered the door. I was in the sitting room of the house and observed that the salesman was selling second hand dolls door to door. As I knew that I would shortly be departing for Canada and as I knew that I had nieces in this country, I decided to purchase one doll as a gift for my nieces in Canada. At my Hearing, I also indicated that I had purchased one doll. Nonetheless the Reasons at page 3 state in error that I purchased dolls in the plural. In so doing I did not have to venture out of the agents house and in no way did I do anything to endanger myself during my final days living in Colombo. |
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[emphasis added]
[8] The relevant part of the Board's decision reads:
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The POE notes indicate that the claimant had dolls in her suitcase. The claimant said that she brought them for her nieces in Canada. In the view of the panel, this does not appear to be consistent with someone fleeing persecution. |
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[9] The applicant's evidence before the Board was:
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RCO According to the port of entry, the form that you filled out, you were carrying dolls in your luggage. How did you get the dolls? |
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CLAIMANT I had my sister's daughter here, and I brought them with me for her. I brought those dolls for her. |
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RCO But how did you get the dolls? |
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CLAIMANT Some people brought them over, I asked the agent to buy them for me. |
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RCO Who brought, who brought them over, where? |
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CLAIMANT The hawkers, or the people who were carrying these dolls around to sell it. |
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RCO They come door to door? |
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[10] When leave to commence a judicial review application is granted, the Court does not have before it the record of the proceedings before the Board. It relies on the applicant's affidavit as to what occurred during that proceeding.
[11] I turn then to counsel's obligations. The applicant's present counsel did not represent her before the Board. Thus, when she chose to swear a false affidavit, it is possible he was not aware of that falsity. He would become so, however, once the Tribunal Record was provided to him, and certainly before his appearance in Court to argue the merits of the application. Once the Tribunal Record is in counsel's hands,
and he is in a position to know that his client has sworn a false affidavit, he has, as an officer of the Court, an obligation to inform the Court of those facts rather than continue the charade, rather than continue the fraud on the Court that has been perpetrated.
[12] I think it is important to remind affiants and counsel that filing false affidavits, or abetting in such action, constitutes contempt of Court. I have appended to these reasons a copy of a portion of a page of a book, Williston and Rolls, The Law of Civil Procedure (1970) p. 110. The text is not a recent one. I do not understand the obligations on counsel, however, to have changed since that text was written.
[13] At the very least, when proceedings are instituted and continued on the basis of false affidavits the individuals perpetrating such activity should expect to be required to reimburse the respondent for its costs, and to pay a fine into Court to recompense the public purse for the cost that has been occasioned by the Court proceeding.
[14] I should note that the two additional arguments that counsel made, that the Board had failed to recognize that the applicant stated that she was abused in detention, and that the Board relied on out of date documentation, were both spurious.
[15] For the reasons given the application was dismissed.
"B. Reed"
Judge
Toronto, Ontario
January 30, 1998
FEDERAL COURT OF CANADA
Date: 19980130
Docket: IMM-1709-97
BETWEEN:
PARAMAYOGAMANY MURUGAMOORTHY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1709-97
| STYLE OF CAUSE: PARAMAYOGAMANY MURUGAMOORTHY |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JANUARY 28, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: JANUARY 30, 1998
APPEARANCES: Max Berger
For the Applicant
Sudabeh Mashkuri
For the Respondent
SOLICITORS OF RECORD: Max Berger
MAX BERGER & ASSOCIATES
Barristers and Solicitors
1033 Bay Street
Suite 207
Toronto, Ontario
M5S 3A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
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