Date: 20001124
Docket: IMM-6216-99
BETWEEN:
MYLVAGANAM DURAISAMY
ANISIYAWATHY MYLVAGANAM
THINOOSAN MYLGANAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mlvaganam Draisamy, Aisiyawathy Mylvaganam and Thinoosan Mylganam (the "Applicants") seek judicial review of a decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated December 8, 1999. In its decision, the Board allowed the Application of the Minister of Citizenship and Immigration (the "Minister") to reconsider and vacate the previous determination by the Board that the Applicants are Convention refugees.
[2] On February 2, 1993, the Refugee Division determined Anisiyawathy Mylvaganam (the "wife") and Thinoosan (a.k.a. Dinooshan) Mylganam (the "son") to be Convention refugees. On February 21, 1994, the Refugee Division made the same determination in relation to Mylvaganam Duraisamy (the "husband").
[3] On September 1, 1998 the Minister applied to the Chairperson of the Board, seeking leave under section 69.2(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act") for a reconsideration and vacation of the decisions made in 1993 and 1994. Leave was granted to the Minister on October 15, 1998 and on October 22, 1998, the Minister applied to the Refugee Division for reconsideration and vacation of the prior determinations.
[4] Section 69.2(2) of the Immigration Act outlines the circumstances in which the Minister can seek reconsideration and vacation of a prior finding of Convention refugee status.
[5] In the present case, the Minister sought reconsideration and vacation of the prior finding on the basis that the adult Applicants had misrepresented their true circumstances when applying for Convention refugee status in Canada. At the time that the Applicants were claiming to be victims of persecution in Sri Lanka, they were actually living in Switzerland as permanent residents. According to the Minister, the husband went to Switzerland in July 1983 and claimed refugee status. His wife came to that country in September 1984 and claimed refugee status. These applications were refused but the Swiss Government granted the husband and wife residence permits on humanitarian and compassionate grounds. Their son was born in Switzerland in August 1986 and received the same residency status.
[6] In her application, the Minister alleged that the Applicants had obtained their initial Convention refugee status in Canada on the basis of fraudulent means, misrepresentations, suppression and concealment of material facts. The key and dominant misrepresentation related to the Applicants' statements that they were being persecuted in Sri Lanka while, in reality, they were living in Switzerland, with the status of residents.
[7] The Board allowed the application of the Minister for reconsideration and vacation of the prior Convention refugee determinations. In doing so, the Board apparently relied exclusively on section E of Article 1 of the United National Convention relating to the status of refugees. This article is incorporated in the Act as a Schedule and provides as follows:
| E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. |
E. Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays. |
[8] The Applicants argue that the Board erred in law by failing to consider the interpretation given to this section in Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.L.R. (2d) 135 (F.C.T.D.). The Applicants say that the Board improperly limited their consideration of the exclusion clause to the legal landscape which existed in 1993-1994. In its reasons, the Board said as follows:
| Would the panel have invoked Section 1(e)? In 1993-94, jurisprudence with respect to this section was still developing. The leading case of Shamlou had still not appeared. The general effect of the jurisprudence has been to introduce a note of caution and restrict the number of situations in the exercise of this exclusionary clause. In 1993-94, the exclusion clause was being applied more liberally. Because of this and because of the reputation Switzerland enjoyed in the sphere of refugee rights, it is our view that, on a balance of probabilities, the panel in 1993-94 might well have invoked the exclusionary clause. |
[9] In my opinion, the Board erred by taking this approach. There is no impediment to a Board considering current law which has developed since the initial hearing. This issue was addressed in Theiventhisan v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1851, DRS 95-04124, Action No. IMM-371-94.
[10] The effect of the decision in Shamlou is for a Board to require clear evidence that a person enjoys all of the rights of a national, including the right to return to the country where he or she has taken residence, before applying that section. In the present case, such evidence was not before the Board, and the nature and extent of the Applicants' rights in Switzerland were not canvassed by the Board. Application of the decision in Shamlou may have affected the decision of the Board.
[11] However, my finding on this point is not sufficient to dispose of this Application for Judicial Review. When an application is made for a reconsideration and vacation pursuant to section 69.2(2), the Board must proceed to assess the untainted evidence, to determine whether there remains sufficient evidence of persecution to sustain a determination of Convention refugee status. This requirement is imposed by section 69.3(5) of the Act which provides as follows:
| 69.3(5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based. |
| 69.3(5) La section du statut peut rejeter toute demande bien fondée au regard de l'un des motifs visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut. |
[12] There is nothing in the reasons to show that the Board considered the remaining evidence. There are no findings of credibility in respect of the evidence of the Applicants, once the former misrepresentations of the Applicants are excluded. In the final result, it appears that the Board based its decision to allow the Minister's application solely on the applicability of Article 1(E).
[13] In these circumstances, the Application for Judicial Review is allowed and the matter will be remitted to the Board for reconsideration before a differently constituted panel.
[14] In response to a request from counsel, the parties will have seven days from their receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
November 24, 2000