Date: 20000915
Docket: IMM-3368-99
BETWEEN:
NADESWARY MURUGESU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is a judicial review of a decision by a senior immigration officer, dated June 16, 1999, made pursuant to section 46.4 of the Immigration Act, R.S.C. 1985, c. I-2.
[2] Section 46.4 provides that when a senior immigration officer is satisfied that a decision that a person was eligible to claim refugee status was based on fraud or the misrepresentation of a material fact, the immigration officer shall find the person to be ineligible and so notify the Refugee Division. On notification to the Refugee Division any decision granting the person refugee status becomes null and void:
46.4 (1) Where a person's claim has been referred to the Refugee Division and a senior immigration officer is satisfied that the decision with respect to the eligibility of the person to have their claim referred was based on fraud or a misrepresentation of a material fact and the person would not otherwise be eligible to have their claim referred, the senior immigration officer shall forthwith
| (a) make a determination that the person is ineligible to have their claim referred to the Refugee Division; and |
| (b) notify the Refugee Division of that determination. |
(2) On being notified pursuant to subsection (1), the Refugee Division shall terminate its consideration of the claim and any decision made by the Refugee Division in respect of the claim is null and void.
46.4 (1) Si, après que le cas a été déféré à la section du statut, il est convaincu qu'une personne a obtenu que sa revendication du statut de réfugié au sens de la Convention soit jugée recevable par des moyens frauduleux ou de fausses indications et qu'elle ne serait pas recevable par ailleurs, un agent principal la déclare irrecevable et en avise sans délai la section du statut.
(2) Sur réception de l'avis, la section du statut met fin à l'étude du cas; si elle s'est déjà prononcée sur la revendication, sa décision est nulle et de nul effet.
[3] In the present case, the Refugee Division made a decision on December 4, 1997, granting the applicant refugee status. In April of 1999, it came to the attention of a senior immigration officer that when the applicant applied for refugee status, she had been resident in France and in possession of a French document conferring refugee status on her. In applying for refugee status in Canada she had not disclosed her status in France but rather said that she was being mistreated in Sri Lanka during the time in question. A person is not eligible to make a refugee claim in Canada (i.e., not eligible to have their refugee claim referred to the Refugee Division) if that person has been recognized as a Convention refugee by another country and can be returned there. Paragraph 46.01(1)(a) of the Act provides:
46.01 (1) A person who claims to be a Convention refugee is not eligible to have
the claim determined by the Refugee
46.01 (1) La revendication du statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des
Division if the person
situations suivantes :
| (a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned; |
. . .
| a) il s'est déjà vu reconnaître le statut de réfugié au sens de la Convention par un autre pays dans lequel il peut être renvoyé; |
. . .
Procedure Followed
[4] The applicant was sent a call-in notice on April 19, 1999. There was no disclosure in the notice of the senior immigration officer's concerns about the applicant's ineligibility to have had her claim referred to the Refugee Division for determination. She was asked to bring all her personal identity documents, such as passport, travel documents and her children's birth certificates, with her for an interview on May 7, 1999. The applicant's counsel, Ms. Marquis, phoned the senior immigration officer sometime shortly after receipt of the call-in notice and was told that the officer had information that the applicant might not have been in Sri Lanka at the time she claimed when making her refugee claim. Ms. Marquis asked that the interview pursuant to the call-in notice, scheduled for May 7, 1999, be rescheduled because she was not available. The officer refused to reschedule. Another lawyer from the firm accompanied the applicant to the interview.
[5] At the interview, the applicant was asked questions about her whereabouts during the relevant time. She was shown documents that had given rise to the senior immigration officer's concern. She was shown an application for a Canadian Visitor's Visa ("CVV")and asked whether it was hers. She was told that the birth certificate she had provided for one of her children was false. The officer asked her to produce her son's French birth certificate - she said he had been born in Sri Lanka. The senior immigration officer's notes record:
| I told counsel the following: Subject issued a CVV from Paris on 6 Sept. 1996, valid until 5 March 1997. At the time she was a holder of a French RTD#94CA92645 valid to 11 June 1998. Case notes indicate she was a resident of France since 1985, with residence valid until 1999. Her application for French nationality was in progress. |
[6] The applicant was told that the senior immigration officer was giving serious consideration to rescinding her convention refugee determination, in accordance with section 46.4, as having been based on a fraudulent misrepresentation.
[7] The applicant denied that the CVV application documentation related to her; she denied that the birth certificate she had provided for her son was false. She was told that, if this was so, she should obtain properly verified documentation from Sri Lanka to support her claim. After the interview, the immigration officer wrote to Ms. Marquis informing her of the information that had been added to the applicant's file concerning the interview:
| As you are doubtless aware, your client, accompanied by Ms. Vania Campana of your office, attended at this office this morning for an interview. As I believe I explained to you during our recent telephone conversation, I am considering taking action in accordance with the privisions [sic] of section 46.4 of the Immigration Act. |
| Herewith please find a copy of your client's Canadian visitor visa (CVV) application from the visa post in Paris, plus an e-mail memo from Paris. |
| For your information, your client today denied ever having applied for or receiving any Canadian visa; however, as may be seen, the visa file number on the CVV application matches that on the memo. Also, the FOSS number on the memo is that of your client. (I have underlined those numbers in light blue, for you easy reference.) |
| Also enclosed herewith please find a "Notice of Seizure under Section 110 of the Immigration Act," a Form IMM 5079, whereon the items seized have been listed. A photocopy of the original national identity card will be forwarded by mail. |
| Ms. Campana agreed to let me make a photocopy of Ms. Murugesu's Personal Information Form. However, that proved not to be possible. Would you be so kind as to fax me a copy at your earliest convenience. |
| Please telephone me at 973-4809 in order to arrange a convenient time to see documentation from your client's file. As I told Ms. Campana, I wish to schedule that meeting for next week, if at all possible. Also, would you be so kind as to bring a copy of the PIF for the son to our meeting? |
[8] It had previously been agreed between the senior immigration officer and Ms. Marquis that no decision would be made until she had had an opportunity to review the applicant's file. Such a meeting was scheduled for May 21, 1999. On that date Ms. Marquis reviewed the information that was now part of the applicant's file. On May 28, 1999, she wrote to the senior immigration officer stating that she had advised the applicant that she should obtain documentation from Sri Lanka, confirming her residence there. Counsel suggested that she and the immigration officer discuss the matter further, two weeks hence, at which time she would be better able to advise him as to what documents might be expected and when they might arrive.
[9] On June 10, the officer and counsel met by chance and counsel was asked when the documentation was expected. She responded that she did not know, and that since it was coming from Sri Lanka, it would take some time. On June 16, 1999, the immigration officer made his decision and forwarded a copy of that decision to both the applicant and the Immigration and Refugee Board. On July 30, 1999, the Board sent the applicant a notice of cancellation of her refugee status. At no time, either before or after June 16, 1999, has the applicant produced any documentation from Sri Lanka in support of her position.
Procedure - Breach of Rules of Fairness?
[10] The applicant argues that the procedure that was followed was unfair because (1) there was inadequate disclosure - the reason for the call-in notice should have been disclosed in the notice; (2) the applicant was denied proper representation because the officer did not accommodate counsel's request for a re-scheduling of the May 7 interview; (3) the interview of May 7 was conducted as a "cross-examination", with the applicant being asked to respond when she had not been given prior notice of the reason for the interview; (4) disclosure had not been timely or complete - her counsel did not obtain disclosure until May 21, 1999, that is after the May 7 interview; (5) the officer did not give the applicant a reasonable time period within which to produce the documents she was obtaining from Sri Lanka.
[11] I cannot conclude that the procedure that was followed failed to meet the requirements of fairness. The procedure must be looked at as a whole. It is not correct to focus on the May 7 interview and treat it as a hearing on which the immigration officer's decision is solely based.
[12] There was adequate and full disclosure. While the documentation may not have been shown to the applicant until May 7, and to Ms. Marquis before May 21, the applicant was informed, through disclosure by counsel, shortly after April 23, that his concern was that the applicant had not been living in Sri Lanka during the time she stated she was there. The applicant knew, as of May 7, that the immigration officer was relying on a visa application she had filed in France and the details of the documentation relating thereto, particularly she had refugee status in France. The applicant knew by that date that the immigration officer believed one of her sons to have been born in France and that the Sri Lanka birth certificate she had provided for him was fraudulent. After this disclosure was made, the applicant was given an opportunity to respond and to produce documentation in response.
[13] Insofar as representation by counsel is concerned, the applicant was not denied counsel. Counsel accompanied her to the May 7 interview. I am not persuaded that there is a right to counsel for the purposes of the May 7 interview, but even if there is, there was no obligation on the immigration officer to arrange the scheduling of the interview to fit counsel's schedule.
[14] The applicant was questioned by the immigration officer on May 7. She was asked questions about the documentation that was now part of her file. While she had not been advised before the interview of the specific documents the officer was concerned about, she was given ample opportunity after that time to respond. Also, the questions were not complex and did not require any reflection or considered thought to answer: where were you between 1985 and 1996? where is your son's French birth certificate? did you file this visitor's visa application and is that your photograph?
[15] Similarly the assertion that disclosure was incomplete because Ms. Marquis did not see the file until May 21 is not well founded. It assumes that the May 7 interview was a hearing of a quasi-judicial nature, upon which the June 16, 1999 decision was solely based. It is more accurate to characterize that interview as an information-exchange session, after which the applicant was given an opportunity to respond to the allegations being made with respect to her status at the time she was found eligible to have her claim determined. The whole procedure is an administrative one, which stretches over a period of time and has several component parts. It is not a useful analysis to focus on one component and treat that component as a quasi-judicial hearing requiring the type of pre-disclosure that would apply in a more formal and compartmentalized quasi-judicial process.
[16] I turn then to the allegation that the applicant was not given an adequate opportunity to respond. The senior immigration officer was given no definite information concerning what documents he might expect to receive, or when they might arrive. The applicant was advised on May 7, 1999, that if there was documentation available to support her claims, she should obtain it. The immigration officer is not required to wait indefinitely to make his decision because there are assertions that documents may be coming. This is especially so when the officer has in hand convincing documentary evidence that the applicant perpetrated fraud and misrepresented the facts when she applied for refugee status. The assertion that documents may be coming, in such circumstance, looks like a delaying tactic. The questions to be answered are whether on reviewing the procedure as a whole, there was adequate disclosure, and whether the person concerned was given an adequate opportunity to respond. These requirements were met.
Section 46.4 Procedure - A Breach of Section 7 of the Charter?
[17] Counsel for the applicant argues that the section 46.4 procedure, as applied in this case, is unlawful because it, in effect, allows a senior immigration officer to revoke a Refugee Division decision. If the fraud was alleged to have occurred in the course of a hearing before the Refugee Division, a decision to revoke the refugee status that had been granted would have to be made by a panel of three Refugee Division members, and involve the trappings of a formal hearing, see sections 69.2 and 69.3 of the Act. The revocation of a person's eligibility to seek refugee status is, however, undertaken pursuant to the procedure described above.
[18] The Refugee Division in rendering its decision in the present case determined that the applicant resided in Sri Lanka at the relevant time. Thus, if the issue had been the place of residence of the applicant, rather than whether she had been granted refugee status by another country, her status could not have been revoked without a formal hearing before a three-person panel. Counsel argues that it is unfair and contrary to section 7 of the Charter for such different procedures to apply.
[19] I am not persuaded that this argument is correct. As I understand the logic of the statutory scheme: decisions made by a panel of the Refugee Division are revokable by it, in accordance with the statutory procedure prescribed; decision made by senior immigration officers are revokable by them, in accordance with the statutory procedure prescribed. Decisions of the latter type are less complex and more amenable to decision by an administrative process than the former might be. It is certainly true that the issue before the senior immigration officer, in this case, was a narrow and very precise one. It could easily be determined without the formal quasi-judicial procedure that is appropriate for the determination of more complex issues.
[20] In addition, the jurisprudence of this Court has indicated that a section 46.4 decision does not engage section 7 of the Charter, see Berrahma v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 180 (1991), 132 N.R. 202 (F.C.A.), Nguyen v. Minister of Employment and Immigration, [1993] 1 F.C. 696 (C.A.), and Jekula v. Minister of Citizenship and Immigration, [1999] 1 F.C. 266 at para. 31. The security of the person is not at issue as a result of a section 46.4 decision, because a risk assessment will follow that decision before the person is deported. If the person is at risk he or she will not be returned to the country from which they came.
[21] For the reasons given this judicial review application will be dismissed.
Judge
OTTAWA, ONTARIO
September 15, 2000