Date: 19990317
Docket: IMM-1312-98
BETWEEN:
ABDUL HAMEED MOHAMED BADURDEEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] in which Abdul Hameed Mohamed Badurdeen ("the applicant") requests the Court to review and set aside a decision dated March 10, 1998, in which the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Refugee Division") rejected the applicant"s claim to be recognized as a refugee.
[2] The applicant is a 51 year old citizen of Sri Lanka and a Tamil speaking Muslim from the Eastern region. He came to Canada in August 1992 and claimed refugee status on the ground that he had been persecuted by the Liberation Tigers of Tamil Eelan ("the Tamil Tigers") and subsequently by the Sri Lankan army, who regarded him as supportive of the Tamil Tigers. He said that he feared that if he were returned to Sri Lanka he would be subject to further persecution from both the Tamil Tigers and the Sri Lankan military authorities.
| B. THE REFUGEE DIVISION"S DECISION |
[3] The hearing into the applicant"s claim was conducted by a two-member panel of the Refugee Division. The applicant had neither requested nor consented to the hearing and determination of his claim by a single member pursuant to subsection 69.1(8) of the Immigration Act , R.S.C. 1985, c. I-2 [as amended]. The two members retired at the conclusion of the oral submissions to consider their decision. No more than 30 minutes later, one of the members returned, informed those present that her colleague had left for the day because he was feeling unwell, and proceeded to deliver orally their reasons for refusing the applicant"s claim. Approximately one month later the applicant received a written notification of the decision, together with the reasons, which both members who had heard the claim had signed.
[4] The Refugee Division did not believe the applicant"s evidence that he had been persecuted by the Sri Lankan army and concluded that he therefore had no well-founded fear of persecution at their hands. Counsel for the applicant, Mr. Sriskanda, has not challenged the Refugee Division"s finding on this point.
[5] The Refugee Division then proceeded very briefly to consider whether the applicant had an internal flight alternative in Colombo and held that he did, because he had no well-founded fear that he would be persecuted there by the Sri Lankan army, and that it would not be unduly harsh for him to relocate in Colombo. The Refugee Division based this latter conclusion on a number of facts: the availability of social services and health care, and the sizeable Tamil population in Colombo, where the applicant had stayed with friends and acquaintances for two significant periods of time in the years 1990 to 1992.
[6] Although the Refugee Division did not find the applicant a credible witness, and did not believe his evidence with respect to his persecution by the Sri Lankan army, it did not expressly address his allegation that he had also been persecuted by the Tamil Tigers. Nor did it make a finding as to whether he had a well-founded fear of persecution from this quarter if he were to return to Sri Lanka. Instead, after finding that he had not been persecuted by the Sri Lankan army the Refugee Division proceeded directly to consider whether he had an internal flight alternative in Colombo. The Refugee Division's reasons for decision are silent on whether the applicant has a well-founded fear of persecution by the Tamil Tigers in the Eastern region or in Colombo.
[7] Counsel for the applicant contended that the Refugee Division committed a number of errors, any one of which is sufficient to require the Court to set aside the decision.
Issue 1
[8] Counsel argued that the Refugee Division erred when only one member of the two-member panel returned to the hearing room to render orally the panel"s reasons and decision following the members" withdrawal to deliberate after the close of the submissions. He alleged that, since two members constituted a quorum, it was a breach of that aspect of the duty of fairness that requires those who hear to decide for one member to have absented himself while the reasons and decision were orally delivered by the other.
[9] I do not accept this submission. The uncontroverted evidence was that both members had been present while the evidence was given and the submissions made; the members deliberated together; the member who orally gave the reasons and the decision made it clear that they were the reasons and decision of both members; and both members signed the written reasons and decision. In these circumstances, I can see no breach of the principle that those who hear must decide.
[10] There was no evidence that the member who was unwell simply left to his colleague the responsibility for making the decision and fashioning the reasons. Nor would a reasonable person infer from the facts that anything of the kind had happened, so that it could not even be said that an appearance of unfairness had been created.
Issue 2
[11] Counsel argued that the Immigration Act does not permit the Refugee Division to render its reasons and decisions orally, and then subsequently communicate them in writing. The relevant provisions of section 69.1 of the Immigration Act are as follows:
| (9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister. |
(9) La section du statut rend sa décision sur la revendication du statut de réfugié au sens de la Convention le plus tôt possible après l'audience et la notifie à l'intéressé et au ministre par écrit. |
| ... |
... |
| (11) The Refugee Division may give written reasons for its decision on a claim, except that |
(11) La section du statut n'est tenue de motiver par écrit sa décision que dans les cas suivants : |
| (a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; and |
a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification; |
| (b) if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons. |
b) le ministre ou l'intéressé le demande dans les dix jours suivant la notification, auquel cas la transmission des motifs se fait sans délai. |
[12] Given the importance evidenced by subsection 69.1(9) of the Refugee Division"s rendering its decisions without undue delay, it would surely be extraordinary to interpret paragraph 69.1(11)(a ) as, in effect, preventing the panel that heard a claim from rendering a negative oral decision promptly after the claimant had been heard.
[13] I concede that, if no regard is had to the statutory context or purpose, the English text of the paragraph could be interpreted to require the Refugee Division to give written reasons for a negative decision at the time that it renders its decision, thus effectively precluding oral negative decisions. However, I do not think that it is necessary to reach this result, which is neither pragmatic nor functional, especially since this provision of the Act is the result of an amendment that was designed to deal with this very problem under the previous wording of the statute.
[14] First, I agree with the analysis of Wetston J. in Isiaku v. Minister of Citizenship and Immigration, (F.C.T.D.; IMM-1022-64-97; June 18, 1998), where he held that the requirement that the Refugee Division shall, with the written notice of the decision, give written reasons with the decision is satisfied if the written reasons sent with the notice of the decision include the decision itself.
[15] Second, any lingering ambiguity in the meaning of paragraph 69.1(11)(a) is clarified by reference to the French text which simply provides that "la transmission des motifs se fait avec sa notification". This makes it clear that the reasons have to be sent with the notice of the decision, and does not preclude the possibility that the decision may already have been rendered orally.
Issue 3
[16] The applicant alleged that the Refugee Division had committed a procedural error when one member indicated during the hearing that she accepted the Tamil Tigers as agents of persecution, and when the other member later said that he accepted the Sri Lankan army as an agent of persecution. The applicant contended that it was unfair for the panel to reject the applicant"s claim on the ground that it did not believe that he had been persecuted by the Sri Lankan army without first giving him an opportunity to respond.
[17] I do not accept this submission. Counsel did not allege that as a result of either member"s statement he had refrained from adducing evidence on the issues in the belief that the panel had accepted that the applicant had been persecuted, as he alleged. In other words, counsel could point to no possibility of prejudice that the claimant had suffered by virtue of the members" statements. They were therefore under no duty before rendering their decision to inform the applicant that they did not accept that he had been persecuted by the Sri Lankan army.
[18] In any event, I am not satisfied that the statements in question could reasonably be understood as an acceptance that the applicant had been persecuted by either the Sri Lankan military authorities or the Tamil Tigers. Rather, what the members appear to have meant was that they accepted that these organizations would be regarded as agents of persecution, if the applicant could establish that he had been persecuted in the past or otherwise had a well-founded fear of persecution in the future.
Issue 4
[19] Counsel contended that the Refugee Division"s conclusion that the applicant had an internal flight alternative in Colombo was erroneous in law because its analysis of the evidence on which it based its conclusion that it would not be unduly harsh to expect the applicant to relocate in Colombo was inaccurate and incomplete in significant respects.
[20] Thus, the Refugee Division did not refer to the fact that it was routine police practice not to allow Tamils who are newcomers in Colombo to remain there for more than for a few days. Moreover, it made no mention of the personal factors that make it unreasonable to expect the applicant to relocate in Colombo: his inability to obtain employment there and to speak Sinhalese, the lack of any family in Colombo and the fact that he has been in Canada for five years.
[21] On the other hand, Ms. Nucci, counsel for the respondent, pointed out that the applicant had lived in Colombo for seven months in the years 1990-1991, and for nine months in 1991-1992 prior to his departure for Canada. However, the applicant testified that during that latter period, he was being hidden by business friends and their acquaintances.
[22] In addition, she pointed out that the Refugee Division stated that it had considered the applicant"s personal circumstances, although its analysis was admittedly brief. Moreover, she reminded the Court that in Thironavukkarasu v. Minister of Citizenship and Immigration (1993), 163 N.R. 232 (F.C.A.), it was made clear that the test of undue hardship was not easily satisfied, and that accordingly the personal circumstances on which the applicant relied were not sufficient to constitute undue hardship.
[23] Of course, the internal flight alternative is only relevant to the disposition of this case if the Refugee Division found that he had a well-founded fear of persecution by the Tamil Tigers if he returned to the Eastern region of Sri Lanka. As I have already noted, the Refugee Division made no explicit finding on this issue. It cannot be inferred from its negative finding of credibility with respect to the applicant"s treatment by the Sri Lankan army that by implication it also found that he had no well-founded fear of persecution at the hands of the Tamil Tigers.
[24] Given the nature of the test of "undue hardship" articulated by the Federal Court of Appeal in Thironavukkarasu , I do not think that the Refugee Division committed a material error of law when it failed to deal explicitly with the personal factors that counsel argued made it unreasonable to expect the applicant to relocate in Colombo. Neither individually, nor collectively, are these factors sufficiently compelling to justify a conclusion of "undue hardship".
[25] The most significant omission in my view is the Refugee Division"s failure to address in its reasons the evidence that since 1996 the police have not permitted non-resident Tamils to remain in Colombo for more than a few days. If accepted, this evidence would surely render Colombo a destination that was not "realistically accessible" to the applicant, to use one of the indicia of an internal flight alternative adopted in Thironavukkarasu . In addition, the evidence would effectively negate the Refugee Division"s finding that social services would be available to the applicant in Colombo.
[26] Of course, the Refugee Division might have had good reason for not accepting the evidence that the applicant would not be permitted by the police to reside in Colombo. It might have concluded, for example, that the police did not apply the policy to Tamil Muslims, who have generally been regarded as being supportive of the Sri Lankan government in its struggle with the Tamil Tigers and the separatist movement. Or, it might have found that the time that the applicant spent in Colombo in the years 1990-1992 indicates that he has the kind of social network that would enable him to reside there, despite the normal police practice of refusing to allow newcomers to remain.
[27] However, in the absence of any reference by the Refugee Division in its reasons to this apparently significant piece of evidence about police practice, although it has no official legal status, it is possible only to speculate on how the Refugee Division treated it, or if they had regard to it at all. In my opinion, it is not imposing too high a standard to expect the Refugee Division to have addressed this evidence in its reasons and to have indicated what weight it attached to it.
[28] Its failure to do so rendered its decision erroneous in law, so that it must be set aside and the matter remitted to a differently constituted panel of the Refugee Division.
[29] For these reasons, the application for judicial review is granted.
"John M. Evans"
Judge
TORONTO, ONTARIO
March 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1312-98
| STYLE OF CAUSE: ABDUL HAMEED MOHAMED BADURDEEN |
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, FEBRUARY 24, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER: EVANS J.
DATED: WEDNESDAY, MARCH 17, 1999
APPEARANCES: Mr. Kumar Sriskanda
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: Kumar Sriskanda
Barrister & Solicitor
| 209-3852 Finch Ave. East |
| Scarborough, Ontario |
M1T 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990317
Docket: IMM-1312-98
Between:
ABDUL HAMEED MOHAMED BADURDEEN
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER