Date: 20000609
Docket: IMM-2818-99
BETWEEN:
SAMIR CHANDRA RAY, SUMITA RAY,
JOYONTEE RAY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "CCRD") of the Immigration Refugee Board rendered on May 17,1999 , by which a motion to set a hearing date for the Applicants was dismissed.
[2] The Applicants, citizens of Bangladesh, arrived in Canada on September 2,1994 and claimed refugee status. On October 29,1994, a single-member panel of the CRDD concluded that they were Convention refugees.
[3] On August 15, 1997, the Chairperson of the CRDD granted the Minister of Citizenship and Immigration leave to make an application to the Refugee Division to reconsider and vacate its determination that the Applicants are Convention refugees, pursuant to subsection 69.2(2) of the Immigration Act1 (the "Act"). Subsection 69.2(2) reads as follows:
| 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 by any other person. |
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. |
[4] On December 7,1998, in accordance to subsection 69.3(4)2 of the Act, a three-member panel of the CRDD (the "Panel") concluded on the basis of the many misrepresentations and contradictions in the Applicants" claim, that they had misrepresented the overwhelming majority of the factual elements of their respective claims.
[5] The Panel also concluded that there was no credible evidence upon which to find that despite their acknowledged misrepresentations, there remained sufficient evidence upon which a favourable refugee determination was or could have been made. This decision was never challenged.
[6] On May 17, 1999, the CRDD dismissed the Applicant"s motion to set a hearing date for the Applicants to determine the merits of their claim as Convention refugees. The CRDD concluded that the effect of the December 7, 1998 decision was to vacate and annul the initial positive determination of the Applicants claim and that the Board was functus officio with regard to their refugee status.
[7] In the Bayat v. Canada (Minister of Citizenship and Immigration)3 judgment, the Federal Court of Appeal, in a majority decision4 held that the power of the Refugee Division pursuant to subsection 69.2(2) and 69.3(4) and (5) of the Act is not limited to merely "vacating" a determination made under the Act, but also to "reconsidering" it.
[8] It therefore follows that in an application pursuant to subsection 69.2(2) of the Act, the Refugee Division has the corollary power to determine whether or not the Applicants are indeed Convention refugees.
[9] In the case at bar, the Applicants" argue that the Board erred in dismissing the Applicants" motion to set a date for a hearing, given that they are entitled to a new hearing before a new panel in order to determine whether the applicants are Convention refugees or not. I disagree.
[10] I believe that the Federal Court of Appeal"s finding in Bayat does not vitiate the Board"s determination that the effect of allowing an application to vacate does not in any way create a new claim or new referral or revive the initial referral.
[11] My understanding of the conclusion in Bayat is that the Panel, when acting pursuant to subsection 69.2(2) of the Act, has the jurisdiction to determine that a person is not a refugee. It is at this point in time that the Refugee Division is empowered to make such a determination. The Bayat decision does not stand for the proposition that an applicant is entitled to a new hearing where he would be able to present fresh evidence. In my view the principle established by my colleague Rothstein J. in Guruge v. Canada (Minister of Citizenship and Immigration)5 is still applicable in that, in making its determination, the evidence is limited to the evidence that was considered in the initial claim. The "reconsideration" in subsection 69.2(2) cannot be disassociated from the words of subsection 69.3(5). As pointed out by Rothstein J.
| The words of s. 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.6 |
[12] In the present case, the Panel found that there was no credible evidence upon which to find that despite the misrepresentations, there remained sufficient evidence upon which a favourable refugee determination was or could have been made.
[13] Where there is no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee.
[14] The Applicants" suggestion that they are entitled to a new hearing would be inconsistent with the scheme of the Act. A failed claimant who told the truth is not entitled to another hearing. Clearly the scheme of the Act is not to give more rights to a party who has misrepresented material facts.
[15] The Applicants further submit that they were not fully heard because their motion to set a hearing date was heard in writing when they specifically requested an oral hearing.
[16] A review of the correspondence exchanged between the parties and more particularly the reply dated May 3, 1999, shows that the Applicants did not challenge the absence of an oral hearing but, to the contrary, elaborate on their intention to proceed in writing. In such circumstances, I believe they waived their rights to raise an objection today.
[17] Thus, I am of the view that the CRDD did not err in dismissing the Applicants" motion to set a date for a hearing for determination on the merits of the Applicants" refugee claim. The Panel correctly determined that it was functus officio regarding the Applicants" refugee claim.
[18] Accordingly, the application for judicial review is dismissed.
[19] Counsel for the Applicants has submitted the following question for certification:
| Considering that the Appeal Division of this Court has not elaborated on the nature of the "reconsideration" at 69.2(2) through which a CRDD panel can declare someone not to be a Convention refugee: |
| - is the vacating of a refugee status or |
| - the refusal to exercise the powers under 69.3(5) |
| equivalent to a "reconsideration" and a conclusion that the claimants are not Convention refugees? |
[20] The Court is not convinced that this is a serious question of general importance. Therefore, the Court will not certify the question.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 9, 2000.
__________________2 Subsection 69.3(4) provides as follows:
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.