Date: 19981211
Docket: IMM-824-98
BETWEEN:
SEPALI GURUGE a.k.a. MUDITHA SEPALA DUHANAYAKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] This is a judicial review from a January 29, 1998 decision of a panel of the Refugee Division arising from an application by the Minister of Citizenship and Immigration under subsection 69.2(2) of the Immigration Act, R.S.C. 1985, c. I-2, to reconsider and vacate a May 6, 1991 decision of the Refugee Division that found the applicant to be a Convention refugee. Subsection 69.2(2) provides.
| 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. |
At the hearing before the panel, the applicant did not challenge the Minister's allegations that she had misrepresented her identity and where she had been living.
[2] The only issue before the panel was whether it should, under subsection 69.3(5), reject the Minister's application on the grounds that there was other sufficient evidence on which the Convention refugee determination was or could have been based. Subsection 69.3(5) provides:
| 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. |
[3] The applicant raises three issues on this judicial review. The first is that the panel erred in not providing applicant's counsel with an advance ruling as to what evidence it was going to consider at the hearing of the application. The applicant submitted a new Personal Information Form (PIF) with supporting documentation. At the hearing, the panel refused to consider anything but the identity information. The applicant says the panel had agreed at a pre-hearing conference to advise the parties in advance of the documentary evidence it would be prepared to admit and it failed to do so.
[4] When the applicant's material was submitted to the panel in advance of the hearing there was no request for an advance ruling. Nor was any argument made as to why the evidence submitted should be admitted for purposes of the advance ruling. Nor did the applicant, at any time before the hearing, take any other steps to request the panel to issue an advance ruling. Nor did the applicant make any submission at any time prior to the hearing as to why the evidence submitted should be admitted. Whatever misunderstanding the applicant may have had, I am not persuaded the panel undertook to provide an advance ruling as to what evidence it would be prepared to consider at the hearing. This argument is without merit.
[5] The applicant then says that the panel erred in not granting her an adjournment in order to give notice of a constitutional question under section 57 of the Federal Court Act, R.S.C. 1985, c. F-7. Subsections 57(1) and (2) provide:
| 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2). |
| (2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued. |
Applicant's counsel says that approximately five (5) days before the hearing he discovered a case that he says supported a constitutional argument relating to the interpretation of subsection 69.3(5). It was at that point he requested an adjournment. At the hearing, the panel refused to grant the adjournment.
[6] Applicant's counsel has not explained why the constitutional argument was so late coming. Nor has he explained why he did not serve the Attorneys General as soon as he decided to make the constitutional argument. Further, he made no request under subsection 57(2) for an abridgment of the time for service.
[7] The granting of an adjournment is a discretionary decision by the panel. In the circumstances here, applicant's counsel's conduct is not consistent with a serious constitutional argument to be made. The applicant has not convinced me that in exercising its discretion to refuse to grant the adjournment, the panel acted in bad faith, proceeded on the basis of any legal error, refused to consider relevant evidence or took into account irrelevant evidence. There is no merit to this argument.
[8] The applicant then says that the panel erred in refusing to admit the applicant's PIF beyond its correct identity information about the applicant. The applicant's PIF contains the applicant's story as to why, based on accurate information, she should still be considered to be a Convention refugee. The panel refused to admit the PIF on the grounds that this was not a rehearing of her Convention Refugee application.
[9] In Bayat v. Canada (Minister of Citizenship and Immigration), [1995-96] F.T.R. 76, Richard J. (as he then was) determined that the "other sufficient evidence" referred in subsection 69.3(5) was evidence that was actually before the previous panel. In other words, it was not open to an individual under subsection 69.3(5) to present new evidence based on accurate information to try to convince the panel to reject the Minister's application under subsection 69.2(2).
[10] However, in Mahdi v. Canada (Minister of Citizenship and Immigration), court file IMM-1600-94, a November 15, 1994 decision, upheld on appeal, Gibson J. found that a panel, in considering whether to reject the Minister's application under subsection 69.2(2), should have taken into account subsequent evidence that once the applicant left the United States, she might not be able to return.
[11] In the present case, the evidence the applicant sought to introduce was for the purpose of convincing the panel, that based on accurate information, she should still be found to be a Convention refugee. I do not think such evidence is contemplated by subsection 69.3(5). The words of subsection 69.3(5) are quite clear and their purpose can readily be understood. The relevant words are "there was other sufficient evidence on which the determination was or could have been based". The past tense "was" indicates that the evidence in question was evidence that was before the panel that made the original determination. The rationale for such an interpretation is not obscure. Notwithstanding fraud, misrepresentation, suppression or concealment of any material fact, there may still have been other credible evidence which, independent of the fraud, suppression, concealment or misrepresentation, could sustain a Convention refugee finding. Subsection 69.3(5) was clearly intended to provide the Refugee Division with discretion to reject the Minister's application under subsection 69.2(2) if such evidence was sufficient to support a Convention refugee finding by the original panel.
[12] Subsection 69.3(5) is not a provision under which the Refugee Division is given a fresh mandate to declare an individual to be a Convention refugee. Yet, if additional evidence to support a Convention refugee determination was to be allowed, that is what subsection 69.3(5) would become. I agree with Richard J. in Bayat that the evidence referred to in subsection 69.3(5) must be evidence that was before the original panel. New evidence to support a Convention refugee determination is not contemplated by the provision. The panel did not err in this case by refusing to admit the applicant's PIF and new Convention refugee evidence.
[13] The judicial review is dismissed.
[14] In view of possible conflicting jurisprudence in the Trial Division, the parties have agreed that the following question should be certified for appeal:
| In the exercise of its discretion under subsection 69.3(5) of the Immigration Act, is the Refugee Division permitted to consider evidence that was not before the original panel that would support the applicant's refugee claim. |
J U D G E
OTTAWA, ONTARIO
December 11, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-824-98
| STYLE OF CAUSE: SEPALI GURUGE a.k.a. MUDITHA |
SEPALA DUHANAYAKE
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: MONDAY, NOVEMBER 30, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FRIDAY, DECEMBER 11, 1998
APPEARANCES: Yehuda Levinson
For the Applicant
Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD: Levinson & Associates
Barristers & Solicitors
212 King Street West
Suite 410
Toronto, Ontario
M5H 1K5
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981204
Docket: IMM-824-98
Between:
| SEPALI GURUGE a.k.a. MUDITHA SEPALA DUHANAYAKE |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |