Date: 20011002
Docket: IMM-2484-00
Neutral Citation: 2001 FCT 1080
BETWEEN:
SARVANANTHAN SATHASIVAM,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] This is an application for judicial review pursuant to s. 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, brought by the applicant against a decision of the Convention Refugee Determination Division ("CRDD") dated April 20, 2000, wherein the applicant's request to reinstate his claim for Convention refugee status was denied.
[2] The applicant seeks an order setting aside the decision of the CRDD, and an order sending his application to reopen his Convention refugee claim back to a differently constituted member or panel for redetermination.
Facts
[3] The applicant is a Tamil man from northern Sri Lanka and holds citizenship in that country. He made his claim for Convention refugee status upon his arrival in Canada on August 22, 1998. Subsequently, the applicant retained counsel and filed a Personal Information Form ("PIF"), claiming to be a Convention refugee. At the initial consideration of his claim, the applicant was found to be eligible for a full hearing before the CRDD.
[4] While awaiting the hearing of his refugee claim, the applicant met and married on March 22, 1999, his wife, a successful Convention refugee claimant and permanent resident of Canada.
[5] The applicant believed that in the processing of his refugee claim he experienced lengthy delay. Expecting his application to follow a "fast track" process, he waited eight months before a preliminary hearing on May 26, 1999, and no date for the full hearing before the CRDD had yet been set by mid-summer of 1999. He claims that frustration from the delay in processing his claim and advice from his then counsel, led Mr. Sathasivam to believe that an application for permanent residence would be more expeditiously dealt with if that goal were sought as a member of the family class, sponsored by his wife. He claims that as a result of counsel's advice he withdrew his claim for Convention refugee status on August 31, 1999. On February 22, 2000, his application for permanent residence, sponsored by his wife, was refused.
[6] The applicant then sought to reinstate his Convention refugee claim, submitting that he did not understand the implications of his earlier withdrawal, made on the advice of his previous counsel, and that he remains in continuing fear of persecution based on political opinion should he be returned to Sri Lanka. His application to reinstate his claim was considered by a member of the CRDD on the basis of written submissions without personal appearance. The resulting decision denied the request, because:
1. the applicant was more concerned with being "expeditiously" landed than with having his refugee claim heard fairly;
2. it was not believed despite his assertion, that the applicant's former counsel advised him to withdraw the claim or that he did not appreciate there was a possibility that his application for permanent residence, based on his wife's status and sponsorship, might be refused; and
3. although in May 1999 a full hearing of the applicant's refugee claim had been deemed to be warranted the applicant opted to seek landing through his wife's application. It was "highly unusual to believe that the claimant was certain of the positive outcome of his wife's application."
[7] The decision concluded that it was not in the interest of justice to reinstate the claim for an applicant who earlier decided not to avail himself of the opportunity to have his refugee claim considered by the CRDD. "The Refugee Determination system is not a revolving door, to respond to each individual's wish."
[8] In the decision reference was made to the implausibility of the reported advice of previous counsel. The basis of the second ground of the decision was stated thus:
Second, we do not believe the claimant's assertion that his former counsel advised him to withdraw his claim, and that he did not realise nor appreciate that there was a possibility that his application for permanent residence based on his wife's status may be refused. The claimant's former counsel is highly experienced, and appears before the CRDD almost on daily basis. It is inconsistent with counsel's experience and knowledge of Convention refugee law to recommend to the claimant to withdraw his claim for quicker landing through the wife's application. The claimant could have proceeded with his hearing and made an application for landing through his wife simultaneously. In addition, the claimant's withdrawal letter states that he understands the nature and consequences of his withdrawal. The letter is signed by the claimant, coupled with an interpreter's declaration and signature, indicating that the content of the withdrawal letter was translated back to the claimant in his mother tongue.
Submissions of the applicant
[9] The applicant submits the Federal Court of Appeal commented in Kaur v. Canada, [1990] 2 F.C. 209 (F.C.A.) that reopening an immigration proceeding may provide an appropriate remedy in order to avoid a denial of fundamental justice. The applicant urges that had he been aware of the consequences of withdrawing his claim for refugee status and the possibility that his application under his wife's sponsorship would be denied, he would not have withdrawn the claim. It is urged that the applicant has a strong case on its merits, that no prejudice would be suffered by either party in allowing the reopening of his refugee application, and that result would avoid a denial of justice.
[10] It is acknowledged that Rule 28(9) of the CRDD Rules permits the CRDD to dispose of a motion without a hearing where it is satisfied no injustice is likely to be caused. Yet if there is any doubt regarding the evidence provided by the applicant, the Division has an obligation, based on Rule 28(9) and the principle of fairness, to confront the applicant with that doubt at a hearing. Counsel for the applicant asserts that this is especially so where a negative decision may be based on findings of a lack of credibility of the applicant. In fairness, such a finding should not be made when the applicant is not afforded an opportunity to rebut the concerns of the decision-maker. In this case counsel had requested a hearing if the CRDD had any doubts about the evidence submitted by the applicant in his application for reinstatement.
[11] The applicant urges that the CRDD refused the application to reinstate the claim on the basis that it did not believe the applicant's former counsel provided misleading advice. That is said to have caused an injustice to be suffered by failing to provide an opportunity to rebut that belief. Moreover, it is urged based upon Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 213-4, (1985), 17 D.L.R. (4th) 422 at 465, " ...where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing."
[12] The applicant also asserts the CRDD improperly took judicial notice of the knowledge and experience of the applicant's former counsel. It is asserted that these are irrelevant considerations but if consideration be given to them, notice should have been served on the applicant, since the abilities of counsel are not a "generally recognized fact" nor are they "information or opinion" within the "specialized knowledge" of the Division within s-s. 68(4) of the Immigration Act. Even if it were so qualified, s-s. 68(5) precludes reliance by the Division upon opinion or information within its knowledge, other than matters within judicial notice, unless notice is first given to the applicant with an opportunity for him to respond.
[13] It is urged by the applicant that the decision erred in inferring that incorrect advice could not have been given by his previous counsel, and to make subsequent credibility findings on the applicant's evidence based on such an inference. It is the position of the applicant that these errors, of law, are subject to review on the standard of correctness.
Submissions of the respondent
[14] The respondent asserts the CRDD was not obliged to hold an oral hearing. Moreover, it is urged that no credibility findings were made against the applicant, but that reasonable inferences were drawn that rendered the applicant's allegations implausible. No reliance was placed on any perceived contradictions or inconsistencies which required further submissions from the applicant. The applicant was provided with full opportunity to present all the essential evidence in writing and the CRDD simply disbelieved it.
[15] The respondent submits that according to the Supreme Court of Canada in Singh, supra, when determining if an oral hearing is warranted, one must ask whether the procedures provide an adequate opportunity for an applicant to make an argument and to know the case to be met. If so, procedural fairness does not always require an oral hearing. The decision noted that no evidence was entered on behalf of the applicant's previous counsel, no evidence was provided concerning what advice was actually given, and there is no evidence of complaints to the previous counsel or to the law society. Finally, because the letter withdrawing the applicant's refugee claim was translated for, and was signed by him, the Division deemed the applicant to be aware of the consequences of his deliberate action.
[16] In response to the allegation that the Division was not entitled to take notice of the knowledge and experience of the applicant's previous counsel, the respondent urges that pursuant to s-s. 68(4) of the Immigration Act, the competency of counsel that appears before the CRDD on an "almost daily basis" is clearly an "opinion within CRDD's knowledge," and, therefore, no notice was required. I am not persuaded this is so in light of s-s. 68(5) of the Act, which requires that before notice of such knowledge is taken, a reasonable opportunity to make representations, is required.
Analysis
[17] In my opinion, the Board erred in law in relying upon its own knowledge of the applicant's former counsel to discredit, and to disbelieve his evidence that he had been misled by counsel's advice, without giving the applicant notice of its doubt about that evidence and an opportunity to address that doubt.
[18] That was the key factor, though not the only factor, on which the decision-maker relied in determining that there were not sufficient reasons why the claim should be reinstated. and why it was not in the interests of justice to have the claim reinstated . In my view, that error is sufficient to warrant an order setting aside the decision to deny the application to reinstate the refugee claim. It may well be that reconsideration of this matter would produce no different result. But where there has been unfairness in the process of the decision-maker in relation to determining the key factor in his decision, the Court has an obligation to intervene.
Conclusion
[19] Failure to provide notice to the applicant, and an opportunity to respond to the CRDD's conclusion that key evidence, concerning alleged advice from former counsel, was implausible and not to be believed, constituted procedural unfairness in this case, warranting the Court's intervention.
[20] An order goes setting aside the decision dated April 20, 2000 by the CRDD, and referring the application by Mr. Sathasivam back to the CRDD for reconsideration by a different member or panel.
(signed) W. Andrew MacKay
________________________________
JUDGE
OTTAWA, Ontario
October 2, 2001.