Date: 20020925
Docket: IMM-5627-01
Neutral citation: 2002 FCT 1002
Montréal, Quebec, September 25, 2002
Before: Blais J.
BETWEEN:
NEELAM RANI
NONU SINGH
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
This is an application for judicial review from a decision by the Immigration and Refugee Board (hereinafter "the tribunal") on November 8, 2001, which concluded that the plaintiffs did not meet the definition of a "Convention refugee".
Facts
[1] The plaintiffs are citizens of India. The female plaintiff was born on March 30, 1975, and her son, the minor plaintiff, was born on October 20, 1996. They alleged a valid fear of persecution for political opinions and membership in a social group, the family.
[2] The female plaintiff's husband, Sartaj Singh, was a receptionist for the Hotel Premier in Veer Marg, Jammu.
[3] One day while he was at work the police raided the hotel to arrest terrorists. Sartaj Singh was arrested, detained and tortured on two occasions. After his third arrest, he was allegedly shot by the police.
[4] The tribunal asked the Immigration and Refugee Board (IRB) research centre to ascertain from the hotel whether Sartaj Singh had in fact worked there.
[5] On September 12, 2001, the tribunal learned that Sartaj Singh was still working at the hotel, which contradicted the female plaintiff's testimony that her husband had been shot by the police.
[6] At a second hearing, the tribunal put the contradictory information to the female plaintiff and finally concluded that the plaintiffs were not Convention refugees.
Point at issue
[7] The only point at issue is whether the tribunal infringed the rules of natural justice by admitting in evidence the result of the research done with the night manager of the Hotel Premier, where Sartaj Singh was working, without adjourning the hearing to allow counsel for the plaintiffs to check the source of the information and cross-examine officer Judith Malka, who did the research.
[8] After the conclusion of the first hearing, the tribunal member indicated that he intended to check certain facts. The member made a "Request for Information" regarding Sartaj Singh to the IRB research centre. On September 12, 2001, the member obtained a memorandum from officer Judith Malka telling him that a person by the name of Sartaj Singh was still working at the Hotel Premier in Jammu as a receptionist.
[9] Counsel for the plaintiffs received a copy of this information request and the reply. On November 7, 2001, the parties were reconvened for this document to be put to the plaintiff.
[10] At p. 2 of the decision, the tribunal wrote:
Having analysed all the evidence both oral and written, the panel finds that the claimants are not convention refugees for the following reasons:
The claims at bar stem from the husband's employment as a receptionist at the Hotel Premier in Jammu. The claimants, in order to corroborate [sic] the employment and support their claims submitted exhibit P-6, a letter of reference from the hotel in question. The letter confirms Sartaj's employment at the hotel from July 6, 1994 to October 18, 1999. The panel decided to validate P-6 and made a request for information regarding the existence of the hotel as well as a confirmation of the principle's [sic] claimant's husbands' [sic] employment in said hotel. In a memorandum dated September 12, 2001, from the specific Information Research unit of the Immigration and Refugee Board, the panel discovered that a Mr. Sartaj Singh is currently employed at the Hotel Premier as a receptionist and that he is the only Sartaj Singh in the hotel's employment. The panel also discovered that Avatar [sic] Singh is not the owner of the hotel as mentioned in exhibit P-6. During a second sitting of the hearing on November 7, 2001, the claimant was asked to explain the contradiction between her exhibit P-6 and the findings of the Research Unit. She was unable to give any type of satisfactory explanation other than to say that her husband had been employed at the Hotel and that he had been killed. The request for information clearly discredits the claimants' story of persecution and as such the panel concludes that the alleged persecution was a total fabrication.
(My emphasis.)
[11] Exhibit P-6 (page 17 of the [TRANSLATION] "Plaintiff's record in support of her application for leave for judicial review") is mentioned several times in that passage. It is a letter dated February 21, 2001, signed by the owner of the Hotel Premier, Avtar Singh, which reads as follows:
TO WHOM IT MAY CONCERN
It is certified that Mr. SARTAJ SINGH S/o Sh. SURINDER SINGH, was working as Receptionist in our Hotel from 6 July, 1994 to 18 October, 1999 as per the record of Hotel.
[12] The hearing of November 7, 2001, was only held so the plaintiff could respond to the new evidence submitted.
[13] As she was aware of the content of the memo from Judith Malka, refugee claims officer, dated September 12, 2001, the plaintiff could have summoned one or more of the persons involved in preparing this memo to the hearing of November 7, 2001, but did not do so: a period of nearly two months elapsed between the memo (September 12, 2001) and the hearing (November 7, 2001).
[14] At the hearing of November 7, 2001, the plaintiff testified to contradict the new evidence without presenting any new facts, except that she had unsuccessfully tried to contact the hotel where her husband was working five or six times and the line was busy.
[15] Counsel for the plaintiffs dwelt at length on her problems reaching the hotel in India and Ms. Malka, the writer of the memo.
[16] When the evidence was concluded, counsel for the plaintiffs submitted her oral argument and at the end said, at p. 267 of the tribunal's record:
[TRANSLATION]
That is what I would submit . . . I feel rather helpless and unable to give you anything today. That is what I would submit to you. If on the other hand you want to summon the . . . the person who did that research, I . . . whatever you want, I was . . . I am . . . I am a lawyer, I am not a detective to know who could have been called, and how, and all that, and to try to penetrate the secrets of Immigration Canada.
So I would humbly submit to you that in my opinion you should not take any account of this memo, this memorandum, which no one has come to defend here, which has not been checked by anyone so far as I know from here, and I have left messages repeatedly for Ms. Malka, and it does not seem to have meant very much to her. It may not mean much, but it may mean a lot to my client if this evidence is accepted.
I would ask you therefore not to take this memo into account in your deliberations on Ms. Rani's case, if you please.
[17] In Abdoli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 383, Muldoon J. said the following:
There is an issue of fairness however, in that the applicant was unable to cross-examine either the Immigration Officer or Mr. Sourani, the evidence of such person being used to impugn the applicant's credibility. Notwithstanding, the applicant was given fair notice of this information and the opportunity to respond to it. The Refugee Hearing Officer never called the Immigration Officer to testify on direct examination, and therefore the applicant was not denied the opportunity of cross examination. If the applicant wanted to question the Immigration Officer on the contents of the letter dated December 27, 1992, then the applicant could have subpoenaed the author of the memo and questioned him at the hearing, and if appropriate, could have invited the CRDD panel to declare that the Immigration Officer was a hostile witness. The applicant chose not to follow this course of action, and thus the CRDD has not denied the applicant's right to natural justice and procedural fairness.
(My emphasis.)
[18] In Siad v. Canada (Secretary of State) (C.A.), [1997] 1 F.C. 608, p. 11, McDonald J.A. for the Court of Appeal stated (para. 27):
Furthermore, the admission of Professor Samatar's evidence was not unfair in the circumstances of this case, especially since counsel for the claimant was afforded every opportunity to raise objections to its admission before the hearing, to call rebuttal evidence, and to make submissions as to the weight that the Tribunal should attach to it . . .
[19] I entirely concur with this reasoning. The tribunal did not infringe the rules of natural justice by admitting the evidence obtained by the IRB research centre, since the plaintiff did not formally ask to cross-examine the persons involved in preparing the memo of September 12, 2001, and also did not request an adjournment to do this, but instead chose to testify in rebuttal simply to deny the contents of the memo and add at the conclusion of the argument that the tribunal ought not to take the memo into account.
[20] The tribunal was entitled to assess the plaintiff's credibility, and especially the weight of the evidence submitted to it. That is what it did.
[21] Intervention by this Court does not appear to be justified in the circumstances.
ORDER
Consequently, the instant motion for judicial review is dismissed.
The parties submitted no question for certification.
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"Pierre Blais"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA TRIAL DIVISION
Date: 20020925
Docket: IMM-5627-01
Between:
NEELAM RANI NONU SINGH
Plaintiffs
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-5627-01
STYLE OF CAUSE: NEELAM RANI
NONU SINGH
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 24, 2002
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATE OF REASONS: September 25, 2002
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFFS
Caroline Cloutier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec