Selvakumaran v. Canada (Minister of Citizenship and Immigration), 2003 FC 1445

Date: 20031211

Docket: IMM-3854-03

Citation: 2003 FC 1445

Ottawa, Ontario, this 11^th day of December , 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                           EUGINE JAYANTHINI SELVAKUMARAN

                                                          SUBAN SELVAKUMARAN

                                                       SUHANJA SELVAKUMARAN

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Eugine Selvakumaran and her children obtained refugee status in Canada in 1997. They claimed that they had been persecuted in northern Sri Lanka during the late 1980s and early 1990s. It later came to light that they had actually spent those years in Switzerland. When the Minister learned this, he applied to the Immigration and Refugee Board to have the applicants' refugee status vacated: Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 109(1) (relevant provisions of IRPA are set out in an Annex). The Board granted the Minister's application.

[2]                 Ms. Selvakumaran has raised a number of concerns about the Board's decision and the manner by which it arrived at it. She asks me to overturn the Board's decision and refer the matter back to another panel of the Board.

[3]                 I find no basis on which to grant Ms. Selvakumaran's request. I must, therefore, dismiss this application for judicial review.

I. Issues

[4]                 Ms. Selvakumaran's principal argument is that the Board should not have granted the Minister's application because there was other evidence before it showing that she and the children had a well-founded fear of persecution in Sri Lanka.

[5]                 In addition, she suggests that the Board made errors in the course of hearing the Minister's application: it refused to allow the applicants to introduce fresh evidence relating to torture, and cruel and unusual treatment, for purposes of s. 97 of IRPA; its hearing was unfair because records relating to the original refugee determination had been destroyed; and it wrongly considered evidence tendered by the Minister that was not before the original panel.

1. Was there evidence before the Board that would sustain the applicants' refugee claims, even without the evidence that had been shown to be false?

[6]                 Most of the evidence on which the applicants had originally relied was discredited. Ms. Selvakumaran admits that the bulk of the evidence she supplied to the Board was untrue, including false birth certificates for her children.

[7]                 Nevertheless, she argued that the remaining evidence supported the applicants' refugee claims and, therefore, that the Board should not have allowed the Minister's application to vacate their status. The Board may reject an application by the Minister "if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection" (s. 109(2), IRPA). The evidence to which she points relates to the treatment of young Tamil women (she is 40 years old) and Tamil children (they are 11 and 7 years old). None of that evidence was specific to the applicants. Still, she argues that it shows that persons who are similarly situated to her and her children were persecuted in northern Sri Lanka by both security forces and the Liberation Tigers of Tamil Eelam (LTTE).

[8]                 The applicants had been granted refugee status by way of an expedited process. The panel that heard the original refugee claim may or may not have had documentary evidence of the conditions in Sri Lanka before it at the time. On the assumption that it did have such evidence, the Board agreed to consider documentary evidence about the conditions in Sri Lanka at the time of the original hearing.

[9]                 The Board concluded that the evidence did not prove that the applicants had a well-founded fear of persecution. It showed that some women were mistreated and that some children are conscripted. But without evidence about the applicants personally, the Board could not find a basis on which to sustain the applicants' refugee status.

[10]            I cannot find any error on the Board's part in its handling of this evidence. It showed that some persons in the applicants' situation were persecuted, but none of it indicated a subjective fear on the applicants' part. All the evidence that was specific to the applicants had been shown to be false and could not form part of the Board's analysis.

2. Should the Board have permitted Ms. Selvakumaran to introduce fresh evidence in respect of the expanded grounds for refugee protection in s. 97 of IRPA?

[11]            Section 97 of IRPA expands the grounds on which refugee protection can be granted, beyond the terms of the legislation that applied to the applicants at the time of their original claim. Persons who can show that they are at risk of torture, or cruel and unusual treatment or punishment, can now be granted refugee protection. Ms. Selvakumaran argues that the Board should have allowed her to introduce evidence directed to those new grounds.

[12]            In my view, when the Board is deciding whether to grant the Minister's application to vacate a person's refugee status, it may consider all of the grounds on which refugee protection may be granted. To repeat, the Board may reject the Minister's application if "it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection" (s. 109(2)). "Refugee protection" is a term that includes those who are refugees under the conventional definition, as well as those who are in need of protection from torture, or cruel and unusual treatment or punishment (s. 95(1)(b)). That expression is used consistently throughout IRPA to refer to all of the grounds on which refugee protection may be granted.

[13]            However, while the Board can consider all grounds on which refugee protection may be granted, it cannot receive new evidence. It must base its decision on the evidence that "was considered at the time of the first determination" (s. 109(2)).

[14]            Ms. Selvakumaran argues that denying her the opportunity to put forward evidence on the expanded grounds of refugee protection is contrary to the stated purposes of IRPA, offends principles of statutory interpretation, violates international conventions and ignores the rights of her children. However, I cannot find any basis on which to depart from the plain words of the legislation. The Board cannot receive new evidence.

[15]            In any case, Ms. Selvakumaran and her children will not be removed from Canada before the risk to them is analyzed by way of a pre-removal risk assessment (s. 112(1)). They will have an opportunity to produce any new evidence supporting the expanded grounds of refugee protection at that time. Ms. Selvakumaran would prefer to have had an oral hearing on those grounds before the Board, rather than having a paper review by a risk assessment officer. However, if I were to find that the Board should have received new evidence in those areas, Ms. Selvakumaran would have secured an advantage over other persons whose refugee hearings took place before the coming into force of IRPA, an advantage she would have gained by mendacity and misrepresentation. Naturally, I would be reluctant to interpret the law in a way that would reward such conduct: Coomaraswamy v. Canada (Minister of Citizenship and Immigration) 2002 FCA 153, [2002] F.C.J. No. 603 (QL) (F.C.A.), at para. 15. In any case, I see no legal basis for granting her that advantage under the circumstances. Further, it is possible that Ms. Selvakumaran will be permitted an oral hearing as part of the pre-removal risk assessment anyway (s. 113(b)).

[16]            Nevertheless, as mentioned, while it cannot receive new evidence, a Board hearing an application by the Minister to vacate a person's refugee status may consider all grounds of refugee protection. The Board did not do so in this case. Should the Board have analyzed explicitly the expanded grounds of refugee protection? In the circumstances of this case, it was not obliged to do so, in my view.

[17]            The Board had no evidence before it that was specific to Ms. Selvakumaran and her children. It could not find a basis for granting refugee protection on the conventional grounds. I do not see how it could do so on any other grounds. According to IRPA, a person is in need of protection if he or she would be subjected personally to risk of torture, or cruel and unusual treatment or punishment. Accordingly, the Board's failure to consider all possible grounds of refugee protection is not a basis on which to overturn its decision because the same result was inevitable. It had no evidence before it on which to decide otherwise.

3. Was the hearing before the Board unfair, in that records relating to the original hearing had been destroyed?

[18]            As mentioned, Ms. Selvakumaran and her children achieved refugee status by way of an expedited process. Few records remained. Ms. Selvakumaran argues that in the absence of proper records it is impossible to know what evidence was before the original decision-maker in her case. Therefore, the Board could not possibly know what evidence "was considered at the time of the first determination" (s. 109(2)). In that situation, she argues, the Board must allow her an opportunity to introduce new evidence in support of her claim. Otherwise, she will not be assured that the Board has given "full and fair consideration" to the relevant evidence: Randhawa v. Canada (Minister of Citizenship and Immigration), 2003 FCT 418, [2003] F.C.J. No. 595 (QL) (T.D.), at para. 11.

[19]            Out of caution, the Board allowed Ms. Selvakumaran to compile a package of documents that would represent a facsimile of the evidence that supported her original refugee claim. Those documents contained descriptions of the conditions in Sri Lanka at the time and included decisions of the Board granting refugee status to persons in similar circumstances. Nevertheless, Ms. Selvakumaran argues that there may have been other evidence, including her own testimony, before the original decision-maker. Without knowing exactly what the evidence was, the Board had a duty to allow her to adduce more evidence.

[20]            The respondent argues that the applicant is the person best placed to know what evidence she offered in support of her claim. In the absence of a proper record, it was open to her to supply what was missing and she failed to do so.

[21]            Ms. Selvakumaran relied on case law suggesting that the lack of a transcript of a tribunal's hearing may cause a breach of natural justice: Kandiah v. Canada, [1992] F.C.J. No. 321 (QL) (F.C.A.); Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 (QL). In my view, those cases deal with a different situation. There, the absence of a transcript prevented persons from pursuing legal remedies in supervisory courts, by way of judicial review or appeal. That is not the case here. It was not Ms. Selvakumaran who was seeking a remedy before the Board. It was the Minister. By way of defence to the Minister's application, the applicant was entitled to point to evidence that she relied on to obtain her refugee status. The absence of a record before the original decision-maker no doubt made this more difficult for her, but it did not prevent her from defending herself against the Minister's application.

[22]            The Board's policy now is to record expedited hearings so that this problem will not recur:    Policy on the Expedited Process, June 1, 2001, at paragraph 5.2. However, that does not mean that it treated Ms. Selvakumaran unfairly in this case.

4. Did the Board wrongly rely on evidence tendered by the Minister?

[23]            To repeat, when deciding whether to grant the Minister's application to vacate the applicants' refugee status, the Board had to determine whether, even without the false evidence, there was sufficient proof of their original claims for protection. It could not receive any new evidence, whether tendered by the applicants or the Minister.

[24]            The Board concluded that there was insufficient evidence before it to justify continued recognition of the applicants' claims for refugee protection. However, in the course of stating its conclusion, the Board referred to some of the Minister's new evidence; in particular, the Board mentioned the applicants' visit to Sri Lanka in 1995 and their experiences while there, and the fact that they were actually residents of Switzerland. Ms. Selvakumaran argues that these references taint the Board's decision.

[25]            In my view, the Board had already reached its conclusion that the applicants' claims for refugee protection could no longer be sustained before it referred to the Minister's evidence. Referring to the package of documents tendered by the applicants, it said that it found "nothing in this additional documentary material to justify the original determination in their favour". It added that "the general information is not established to be sufficiently linked to the particular Respondents". Admittedly, it confirmed its conclusion by stating that the applicants had not experienced any difficulties when they visited Sri Lanka in 1995. It went on to say that "[t]his evidence was not before the original decision-maker, and that is not the point. The point is that this evidence . . . confirms that by submitting general dangers to Tamil children and women in Sri Lanka sufficiently justified refugee protection for the Respondents, their counsel is engaging in speculation and abstraction".

[26]            It might have been better if the Board had omitted these references to the Minister's evidence. Still, I do not believe they contaminate the Board's clear conclusion that the evidence properly before it did not justify recognizing refugee protection for the applicants. Accordingly, I reject Ms. Selvakumaran's argument that the Board's decision must be set aside on this basis.

II. Conclusion

[27]            Having found no basis on which to quash the Board's decision, I must dismiss this application for judicial review. Counsel for the applicants requested an opportunity to propose a question of general importance. Any submissions should be filed within five business days of this judgment. The respondent will have three days thereafter to file any responding submissions.

                                                                        JUDGMENT

THIS COURT' S JUDGMENT IS that:

1.          The application for judicial review is dismissed;

2.          Request by counsel for the applicants for an opportunity to propose a question of general importance for certification is granted. It should be filed within five (5) business days following this judgment;

3.          Counsel for the respondent shall have three (3) business days to reply.

                                                                                                                         "James W. O'Reilly"             

                                                                                                                                                               Judge                 

                                                                              Annex

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                 IMM-3854-03

STYLE OF CAUSE: EUGINE JAYANTHINI SELVAKUMARAN, SUBAN SELVAKUMARAN, SUHANJA SELVAKUMARAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:         Vancouver, British Columbia

DATE OF HEARING:           November 25, 2003

REASOND FOR JUDGMENT AND

JUDGMENT BY:              THE HONOURABLE MR. JUSTICE O'REILLY

DATE:                   December 11, 2003

APPEARANCES:

Mr. Daniel McLeod                           FOR THE APPLICANTS

Ms. Brenda Carbonell                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

McKitrick, Clark, McLeod                      FOR THE APPLICANTS

Vancouver, British Columbia

Morris Rosenberg                                   FOR THE RESPONDENT

Deputy Attorney General of Canada