Date: 20091016
Docket: IMM-1804-09
Citation: 2009 FC 1055
Toronto, Ontario, October 16,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SUGANJA
SOTHIRATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Suganja Sothiratnam is a 28-year-old citizen of Sri Lanka, whose claim
for refugee protection was found to be ineligible for consideration by the
Refugee Protection Division on the grounds that she had been recognized as a
Convention refugee in the United States.
[2]
Ms. Sothiratnam asserts that she was denied procedural fairness in
relation to this determination. She alleges that the immigration officer
considering the question of her eligibility to seek refugee protection in Canada
refused to accept or consider a letter addressed to Ms. Sothiratnam from the
American authorities dealing with her status in that country. She further
asserts that in the event that a breach of procedural fairness is found to have
occurred, the question of her eligibility to claim refugee protection in Canada
is not so free from doubt as to render it futile to remit the matter for re-determination.
[3]
For the reasons that follow, I am not persuaded that Ms. Sothiratnam was
denied procedural fairness in this matter. As a consequence, the application
will be dismissed.
Analysis
[4]
Both Ms. Sothiratnam and the immigration officer have provided
affidavits describing what transpired in the meetings that led up to the
ineligibility finding. Neither side chose to cross-examine the deponent of the
opposing affidavit.
[5]
Ms. Sothiratnam’s brief affidavit refers to a single interview with
Canadian immigration officials regarding her eligibility. No date is provided
for that interview. The sum total of her evidence on the issue of the letter
from the American authorities is her statement that she had the letter in
question with her at the interview, and that she “tried to give it to the
officer. But the officer did not want to take it”.
[6]
In contrast, the affidavit of the immigration officer is lengthy and
detailed. The officer describes three separate exchanges between Ms. Sothiratnam
and Canadian immigration officials.
[7]
The first contact occurred on March 11, 2009, when Ms. Sothiratnam
presented a number of documents from Sri Lanka at the reception area of the
immigration officer’s office. These documents were copied and put on her file.
[8]
On March 18, 2009, the immigration officer met with Ms. Sothiratnam. A
routine check of the FOSS system had disclosed that Ms. Sothiratnam had been
issued an American travel document, and that her parents were asylum claimants
in the United States. In response to a query from the immigration officer, Ms.
Sothiratnam stated that she did not know what her status was in the U.S. She
also stated that she had not sought refugee protection in any other country.
[9]
The officer states in her affidavit that she was not able to make a
decision with respect to Ms. Sothiratnam’s eligibility that day, and asked her
to return a week later with her travel documents.
[10]
The officer goes on to state that information provided by the U.S.
authorities confirmed that Ms. Sothiratnam had entered the United States in
1999, and had subsequently been granted asylum in that country.
[11]
According to the officer’s affidavit, when Ms. Sothiratnam returned on
March 25, 2009, she provided the officer with a current United States Refugee
Travel Document, which identified her as an “asylee”. The officer then advised
Ms. Sothiratnam that her claim for refugee protection in Canada was ineligible
for referral to the Refugee Protection Division, as she had been granted asylum
in the U.S. and was able to return to that country.
[12]
The officer’s affidavit states categorically that Ms. Sothiratnam never
attempted to give her a copy of the letter in issue at any time.
[13]
I have several reasons for preferring the immigration officer’s evidence
to that of Ms. Sothiratnam.
[14]
First, the officer’s recollection is clear, specific and detailed, and
is supported by contemporaneous notes. In contrast, Ms. Sothiratnam’s affidavit
is vague and lacks any specifics as to when it was that she allegedly tried to
provide the letter in question to the officer.
[15]
Second, it is not at all clear why the officer would have refused to
consider the letter in issue, had it indeed been proffered by Ms. Sothiratnam.
The immigration officer had no personal interest in the outcome of the matter,
whereas Ms. Sothiratnam clearly had a strong interest in having her refugee
claim go forward.
[16]
Third, the record demonstrates at least some confusion on the part of Ms.
Sothiratnam in some respects, as well as a lack of candour on her part in her
interaction with Canadian immigration authorities. For example, Ms. Sothiratnam
told the immigration officer that she did not know what her status was in the United
States. Giving her the benefit of the doubt, I will accept that she really
did not know and was not attempting to deceive the officials. However, even if
there was no intent to deceive in this regard, it does suggest that she was, at
a minimum, confused.
[17]
More importantly, however, it is quite clear that, in at least some
respects, Ms. Sothiratnam actually tried to mislead the Canadian authorities.
For example, she stated in her Claim for Refugee Protection in Canada form that
she lived in Sri Lanka until 2006, when she left that country to come to Canada.
In actual fact, Ms. Sothiratnam had been residing in the United States since
1999.
[18]
Ms. Sothiratnam’s Claim for Refugee Protection in Canada form is
detailed, providing both dates and places of residence in Sri Lanka in the
years before 2006, and is also very specific with respect to her itinerary in
coming to Canada, allegedly from Sri Lanka. There is no possibility that she
was confused on these points, and her misrepresentation in this regard calls
her overall credibility into serious question.
[19]
Ms. Sothiratnam bears the burden of establishing that there has been a
breach of procedural fairness in this case. In light of the foregoing, she has
not persuaded me that she attempted to give the letter in issue to the
immigration officer. As a consequence, I am not satisfied that she was treated
unfairly in this matter.
[20]
In light of my factual finding on this point, it is unnecessary to
consider what effect, if any, the letter in question could have had in relation
to Ms. Sothiratnam’s eligibility to have her refugee claim considered in Canada.
Conclusion
[21]
For these reasons, the application for judicial review is dismissed.
Certification
[22]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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