Date: 19990722
Docket: IMM-5279-98
BETWEEN:
THAMBY INDRARAJAH THAMBIPILLAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant, a citizen of Sri Lanka, seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the Board") dated September 18, 1998, wherein the Board allowed an application by the Minister of Citizenship and Immigration pursuant to ss. 69.2(2) of the Immigration Act (the "Act") to vacate its determination, dated May 11, 1993, that the applicant was a Convention refugee.
Issues
[2] The principle issue is whether the Board failed to observe the principles of natural justice and procedural fairness by denying the applicant the right to counsel, by failing to inform the applicant of the case against him, by failing to have complete interpretation, by failing to have complete disclosure of evidence in advance, and by allowing the applicant to be unduly influenced, all of which allegations were made by the applicant. The other issues are whether the evidence produced by the Minister was a new discovery of facts subsequent to the refugee claim, whether the Board failed to follow the principles in M.C.I. v. Bayat, Court file A-338-95, dated June 10, 1999 (F.C.A.), and whether the Board engaged in the analysis contemplated by s. 69.3(5) of the Act.
Analysis
[3] I will deal first with the issues of natural justice and procedural fairness. In my view, the applicant was properly notified of his right to counsel. The applicant was sent three notices to appear at the vacation and reconsideration hearing. In each notice, it specifically states that the applicant has a right to be represented by counsel at his own expense. The notices also indicate the nature of the proceedings and inform the applicant that more information may be obtained by contacting the Registrar. I make this ruling, accepting that the applicant has little education and no knowledge of the Canadian legal process. However, the applicant was asked at the beginning of the hearing if he intended to have counsel, and he stated that he did not and that he was ready to proceed. Later in the hearing, the applicant indicated he had his own reasons why he did not want to be represented by counsel. It appears that the applicant was concerned that counsel would extend the length of time required to complete the hearing. Since the applicant had ample opportunity to obtain and instruct counsel and failed to do so without any reasonable excuse, the absence of counsel does not amount to a denial of a fair hearing: see Siloch v. M.E.I. (1993), 18 Imm. L.R. (2d) 239 (F.C.A.).
[4] The applicant submitted that he was unaware that the exclusion clause was going to be raised at the hearing, and that it was only peripherally raised at the hearing. However, the Board did raise the exclusion clause in its Reasons, if not in its Order. Furthermore, since the exclusion clause is part of the definition of Convention refugee, it is automatically part of any hearing on whether a person is a Convention refugee, if applicable. Moreover, the applicant was provided with the CSIS notes on the interview with the applicant himself, prior to the hearing, and these notes contained the information on which the Minister based her decision to apply for a vacation of the applicant"s refugee status " his admission that he had participated in tortures. Therefore, there was no denial of fairness, as the applicant was alerted as to the case he had to meet.
[5] Applicant"s counsel also suggested that the applicant should not have been required to testify. However, the Board properly called the applicant as a witness. Proceedings before the Board are civil in nature. Prior to the applicant giving oral evidence, the Minister had presented as evidence a CSIS interview report which indicated that a material misrepresentation was made at the time of the applicant"s original refugee hearing. Furthermore, the Minister"s representative stated that the applicant indicated he wanted to speak on his own behalf. In these circumstances, there is no denial of fairness in having the applicant testify at the hearing.
[6] The applicant submitted that there was a denial of natural justice in failing to provide him with an interpreter for the full proceedings. However, the full proceedings were interpreted for the applicant. His concerns really only arise with respect to the fact that he did not have an interpreter for the discussions off the record and outside the hearing room. The applicant also raised some concerns about the quality of interpretation. However, only a few minor errors were found by an independent interpreter who reviewed the transcript and swore an affidavit as to any translation errors in the text of the hearing. Accordingly, there is no breach of fairness on the basis of the interpretation provided.
[7] The applicant also said that there was not complete disclosure in advance of the hearing. However, the facts in this case are quite different from those reviewed by Teitelbaum J. in Patel v. M.C.I., Court file IMM-629-98, dated March 10, 1999. In Patel, supra, the applicant was given a huge volume of documents and told to read them through with the help of an interpreter. Teitelbaum J. rightly found that this was a denial of natural justice. In the case before me, the documents outlining the Minister"s case were provided to the applicant well in advance of the May 5, 1998 hearing, specifically, three months in advance. At the commencement of the hearing, the applicant was presented with more of his own documents, personal identity documents and the like, of which he was, of course, aware. Then, in the middle of the hearing, four pages of documents, pages 116 to 119 of the transcript, were produced and a recess was given to enable the applicant to review the documents with the interpreter. Although there is legal jargon contained therein, these pages consist primarily of an outline of what has gone on in this matter. After the recess, the applicant indicated that the documents had been translated to him and he did not take any objection to them. There is nothing in these documents which was new to the applicant. There was no denial of natural justice in the production of these four pages, nor in giving the applicant a package of his own documents. As stated above, he also received, three months before the hearing, the Minister"s documents and other documents which were the basis of the Minister"s application to vacate and reconsider.
[8] The applicant further submitted that the Minister"s representative and the RCO unduly influenced him, resulting in a breach of natural justice. The RCO and the Minister"s representative, at the vacation and reconsideration hearing, did discuss a couple of matters with the applicant outside the courtroom, and then returned to the courtroom and reported what the applicant had said. While it certainly would have been preferable to have the interpreter attend with the applicant, and the RCO should have made clear to the applicant that the substance of the discussion would be reported on the record, the applicant was asked at the hearing if he agreed with the substance of the RCO"s résumé of the discussion and the applicant agreed that the content of the conversation was accurately reported. Again, the subject matter of the conversation was not material with respect to the case against the applicant. Therefore, although this is not a practice which should be followed, it does not qualify as a denial of natural justice nor a denial of a fair hearing.
[9] Accordingly, having reviewed these matters, I am satisfied that there was no denial of natural justice nor procedural fairness, nor was there denial of a fair hearing to the applicant.
[10] The applicant raised the issue as to whether the CSIS report on the interview with him, which took place at the airport within days of his arrival in Canada, was properly new evidence before the Board, since the CSIS report predated his original refugee determination hearing of May 1993. The CSIS interview report, which was secret and not in releasable form, was not brought to the attention of Canadian Immigration authorities until July 1993. However, since the Minister was unaware of the CSIS document at the time of the original hearing and was not a party at the hearing, it was open to the Minister to proceed with the vacation application based on this new evidence which was not available at the time of the hearing. The original positive refugee determination decision had been founded on representations to the effect that the applicant had not been involved in torture during his time acting as interpreter for the IPKF in Sri Lanka, and that he had not been present during the acts of torture. However, the CSIS interview report contradicted these statements. The Act does not provide any specific time limitations on the filing of a vacation and reconsideration application, and therefore, the Board dealt with the question of the new evidence and the delay period in a manner which was open to it.
[11] The applicant also submitted that the Board failed to reconsider the determination made that the applicant was a Convention refugee as required by the Court in Bayat, supra, where Stone J.A. (Linden J.A. concurring) states that
| [18] ... It must be pointed out, however, that an application under that subsection is not limited to "vacating" a determination of a visa officer but rather "to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee". |
| [22] Thus, the power of the Refugee Division was not limited to merely "vacating" that determination but also of "reconsidering" (footnote 11) it. |
In this context, the applicant submits that the Board could not have properly reconsidered the matter as it did not have the full record of the original hearing before it.
[12] In my view, Bayat, supra, is inapplicable to the case at bar. In Bayat, supra, the issue was whether the CRDD had jurisdiction, pursuant to 69.3(4) of the Act, to reconsider a decision made by a visa officer overseas rather than by a panel of the CRDD. The Court of Appeal did not, in its decision, comment on the nature of the "reconsideration" to be performed by the CRDD.
[13] The applicant also cites subsections 69.2(2), 69.3(4) and 69.3(5) of the Act in submitting that the vacating panel did not properly and fully reconsider the original positive refugee determination. These sections provide as follows:
69.2 (2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
69.2 (2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers.
69.3 (4) The Refugee Division shall approve or reject the application and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the Minister and the person who is the subject of the application.
69.3 (4) La section du statut accepte ou rejette la demande le plus tôt possible après l'audience et notifie sa décision, par écrit, au ministre et à l'intéressé.
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.
[14] The Board, when considering an application brought under s. 69.2(2) of the Act, may examine whether there is sufficient evidence remaining on which a determination of Convention refugee status may be found, after removing the fraudulent information or the misrepresentation. In other words, the Board has the jurisdiction to consider whether, notwithstanding the fact that Convention refugee status was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, the person could still have been found to be a Convention refugee at the time of the original determination.
[15] The Board may not allow an application made under s. 69.2(2) of the Act without first turning its mind to s. 69.3(5) and determining whether it ought, in the circumstances, to exercise the discretion conferred by that provision.
[16] In reaching its conclusion that the applicant had based his original refugee claim on a material misrepresentation, the Board found that the applicant had not told the truth at the original hearing concerning his involvement with torture in the IPKF camps. The applicant misrepresented his role as a mere interpreter for the IPKF as he was involved in the torture of prisoners.
[17] The Board therefore correctly concluded that the evidence established misrepresentation according to the Act.
[18] Due to the misrepresentation of the role of the applicant in the IPKF camps, the original Board was foreclosed from thoroughly assessing whether the applicant fell within the exclusion provisions.
[19] The Board looked at the evidence and determined, within its discretion, that in its opinion, there were serious reasons for considering that the applicant had committed a crime against humanity pursuant to Article 1F(a). Since the application of Article 1F(a) took the applicant outside the realm of possible Convention refugee status, s. 69.3(5) was inapplicable to his case; but for his material misrepresentation, he would have been excluded from Convention refugee status. Thus the vacating panel was not required to engage in an assessment of the evidence as it applied to the inclusionary aspects of the Convention refugee definition. Accordingly, the Board did not require the full record of the original hearing, and it is highly doubtful that a full record is required in any event.
[20] In Mahdi v. Canada (1995), 191 N.R. 170 (F.C.A.), the Board did not engage in the analysis of s. 69.3(5) because the panel was satisfied that the applicant was excluded on the basis of Article 1E. Both the Trial Division and the Court of Appeal judges found that the panel erred because of a lack of evidence that the applicant was described in Article 1E. The Courts did not object to the panel engaging in an analysis of the exclusion clause per se. As I stated earlier, an analysis of the application of the exclusion provisions is inherent in an application to vacate Convention refugee status. There was no denial of natural justice to the applicant in the manner in which the exclusion issue was addressed at the hearing of the present case. The Board"s inferences and conclusions are reasonably open to it on the record and accordingly, whatever my opinion, it is not up to me to interfere with its inferences: See Miranda v. M.E.I. (92-A-6660, May 6, 1993, F.C.T.D.)
[21] The application for judicial review is dismissed. The applicant sought the following question to be certified:
| Is it an error of law for the Refugee Division to engage in an analysis of exclusion clause in a vacation hearing under section 69.2 of the Act? If so, can it deal with such exclusion issue without expressly raising that issue? |
In my view, this question has already been answered by the Court of Appeal in Mahdi, supra. Accordingly, I will not certify the question. The applicant had also asked that in the event that I was prepared to allow this application for judicial review, the Board be instructed not to receive the transcript from the vacation hearing. In light of the result, I have not responded to that request.
William P. McKeown
JUDGE
OTTAWA, Ontario
July 22, 1999.