Nadarajah v. Canada (Minister of Citizenship and Immigration), docket A-434-96

    

Date: 19990302

Docket: A-434-96

CORAM:      STRAYER J.A.

         LINDEN J.A.

         ROBERTSON J.A.

BETWEEN:     

     RATNAM NADARAJAH AND

APPUKUDDY NADARAJAH

     Appellants

    

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(Delivered from the Bench at Toronto, Ontario on

Monday, March 1, 1999)

STRAYER J.A.:

[1]      The motions judge in this case held that documents on general country conditions not before the Immigration and Refugee Board but considered by the Post-claim Determination Officer would constitute extrinsic evidence with the meaning of this Court"s decision in Shah¹ only if they were documents to which the applicant could not have had access and were material to the decision made. He found in this case that the documents were available to the applicants and of a sort that they should have anticipated as being subject to consideration by the officer. He therefore dismissed the application for judicial review. In doing so he certified this question:

Does an Immigration Officer conducting a review pursuant to the PDRCC regulations violate the principle of fairness as enunciated by the Federal Court of Appeal in Shah, when he or she considers documentary evidence about general country conditions not contained in the applicant"s immigration file without advising the applicant of his or her intention to do so, and without providing the applicant with an opportunity to respond the same.

[2]      Since the decision under appeal, this Court in Mancia v. Minister of Citizenship and Immigration² has held that such documents are "extrinsic evidence" and must be disclosed by the Officer only if they are novel and significant and demonstrate changes in general country conditions that may affect the decision. These criteria appear to be consistent with those applied by the motions judge in the decision under appeal, and his findings of fact would not bring the documents within the criteria for extrinsic evidence adopted in Mancia .

[3]      We will therefore dismiss the appeal. We will answer the question in the terms employed in Mancia.

                                 "B.L. Strayer"

     J.F.C.A.

              FEDERAL OURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                  A-434-96

STYLE OF CAUSE:              RATNAM NADARAJAH AND

APPUKUDDY NADARAJAH

Appellants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:          MONDAY, MARCH 1, 1999

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:          STRAYER J.A.

Delivered at Toronto, Ontario

on Monday, March 1, 1999

APPEARANCES:              Mr. David Tyndale

                    

For the Appellant

Ms. Toni Schweitzer

                         For the Respondent

SOLICITORS OF RECORD:      Morris Rosenberg

Deputy Attorney General of Canada

For the Appellant

                     Jackman, Waldman and Associates

Barristers & Solicitors

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

                         For the Respondent

FEDERAL COURT OF APPEAL

Date: 19990302

Docket: A-434-96

BETWEEN:

RATNAM NADARAJAH AND

APPUKUDDY NADARAJAH

     Appellants

        

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR JUDGMENT

OF THE COURT

__________________

¹      (1995) 29 Imm. L.R. (2d) 82.

²      [1998] 3 F.C. 461.