Toronto, Ontario, August 09, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
SHAKTHIPRIYA VASANTHAKUMAR
SHIESWARAN VASANTHAKUMAR
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 15, 2005 wherein the Board determined that Mrs. Gowri Vasanthakumar (the applicant) and her children were not Convention refugees nor persons in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a Hindu Tamil and a citizen of Sri Lanka. She is married and has two minor children that are included in her claim. The applicant’s husband fled Sri Lanka in 2000 to escape persecution from the authorities and Tamil militants. He was accepted as a Convention refugee in Canada.
[3] The applicant is seeking refugee protection based on the grounds of race.
[4] The applicant was interviewed in Colombo as part of her spouse’s sponsorship application for her. She and her children were granted visas in 2005. Because of problems with documentation submitted by her husband, the applicant was stopped at the airport and told that her husband’s paperwork was not in order and that she was not admissible. It was then that she was permitted to speak to her husband, who was waiting at the airport for her. After this conversation, she requested refugee protection.
ISSUES
[5] 1. Did the Board err in law by fettering its discretion?
2. Did the Board err by failing to assess the risk to the applicant given her age, ethnicity and
past background based on the evidence that it believed to be true?
ANALYSIS
1. Did the Board err in law by fettering its discretion?
[6] The applicant notes that there are two cases currently pending in the Federal Court of Appeal: Benitez v. (Minister of Citizenship and Immigration) 2006 FC 461 and Thamotharem v. (Minister of Citizenship and Immigration) 2006 FC 16. These cases will be considered by the Court in the fall of 2006. Both cases deal with reverse order questioning. The applicant contends that Thamotharem determined that there was an improper fettering of discretion when the Board engaged in reverse order questioning. The applicant further contends that the Court came to the opposite conclusion in Benitez. The applicant submits that, under the circumstances, the most reasonable course of action would be to adjourn the application for judicial review pending a decision in the Federal Court of Appeal.
[7] The applicant further notes that notwithstanding the fact that there was no objection prior to or during the hearing to reverse order questioning, the issue of waiver is one of the issues that is being certified in the Federal Court. The applicant submits that the issue of whether a breach of natural justice occurred is a live issue and as such, this case ought to be adjourned pending Benitez in the Court of Appeal.
[8] The question at issue in the present matter is the same as that found in Mulliqi v. Canada (Minister of Citizenship and Immigration) 2006 FC 563. In the aforementioned case Justice Judith Snider noted that the issue was whether or not an applicant, in failing to object to the use of Guideline 7 at the hearing, waived his right to raise the issue on judicial review. Justice Snider, at paragraphs 24 and 25, further noted that the issue of waiver was not before the Federal Court in Thamotharem.
The Applicant submits that, at the beginning of the second hearing, the Board member "jumped in" and conducted a direct examination without advising the Applicant's counsel that this would be done in accordance with Guideline 7. The Applicant noted that this Court ruled in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16, and Jin v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 55, 2006 FC 57 that Guideline 7 fetters the discretion of the Board. The Applicant concedes that he did not object to the application of Guideline 7 at the hearing. Nor was the issue raised in the Notice of Application or the Applicant's Record; the issue was only raised in the Applicant's further memorandum of argument.
Even assuming, as asserted by the Applicant, that Guideline 7 fetters the discretion of the Board, the question raised by the facts of this application is whether, by not objecting to the use of Guideline 7 at the hearing, the Applicant has waived his right to raise this issue at the judicial review stage. This issue, while not considered by the Court in Thamotharem, was before Justice Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 631, 2006 FC 461. In respect of the issue before me, Justice Mosley concluded as follows, at para. 237:
The common law principle of waiver requires that an applicant must raise an allegation of bias or a violation of natural justice before the tribunal at the earliest practical opportunity. If counsel were of the view that the application of Guideline 7 in a particular case would result in a denial of their client's right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself.
[9] Considering that the issue of waiver was not before the Court in Thamotharem, I cannot agree with the applicant’s position that this judicial review should be adjourned pending a decision of the Federal Court of Appeal. The applicant's failure to raise the Guideline 7 issue at the hearing before the Board must be taken as an implied waiver of any perceived unfairness resulting from the application of Guideline 7. As such, I find that the Board did not err by applying Guideline 7.
2. Did the Board err by failing to assess the risk to the applicant given her age, ethnicity and past background based on the evidence that it believed to be true?
[10] The applicant asserts that the Board erred in law by failing to assess the risk to the applicant given her age, ethnicity and past background based on the evidence that it believed to be true. I disagree with the applicant’s argument. The Board’s negative conclusion with respect to the applicant’s credibility was determinative in the rejection of the latter’s claim. The Board stated the following it its decision:
After reviewing all of the evidence adduced, I find that the claimant has not established the central factual elements of her claim on a balance of probabilities, with credible and trustworthy evidence. I find that the evidence indicates that the statements made both to the Canadian visa office in Colombo, as well as the statements made to CIC upon the claimant’s arrival, when she initially requested refugee protection, and during the hearing, indicate that the claimant was not facing a serious risk of persecution, torture, cruel and unusual treatment or punishment, or a risk to her life when she left Sri Lanka. I find that the inconsistencies in her testimony and the different versions of events as given to CIC seriously undermined her credibility with regard to her alleged fear, and lead me to conclude that they were fabrication.
[11] In Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695, Justice Danièle Tremblay-Lamer, at paragraph 10, confirmed that a lack of evidence going to the subjective element is a fatal flaw which in itself warrants dismissal of the claim, since both elements -- subjective and objective -- must be met.
[12] The standard of review applicable to the Board's assessment of credibility is patent unreasonableness. The Court will not substitute its opinion for the Board's decision unless the Board's decision is clearly wrong. (See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161.)
[13] In the present matter, the Board rejected the applicant’s claim on the basis of credibility issues and absence of subjective fear. As such, the alleged failure of the Board to assess the risk to the applicant given her age, ethnicity and past background is irrelevant given that the Board has found no justification for the applicant's claim of fear of persecution. Furthermore, the applicant failed to direct the Court to any evidence which would indicate that due to the applicant’s age, ethnicity and background, there exists a reasonable chance of persecution.
[14] The Board conducted an in-depth analysis of the applicant’s claim and its findings were not patently unreasonable. The applicant lacked a subjective fear and brought no evidence to address the Board’s negative credibility finding.
[15] Even if my conclusions are that the application for judicial review be dismissed, I will nevertheless assess whether I should certify a question as was done in Thamotharem and Benitez above.
[16] In referring to the affidavit of the applicant dated January 10, 2006, filed in support of her application, the respondent suggests that there is no evidence before the Court that the applicant suffered any unfairness as a result of the order of questioning. Further more, the applicant’s affidavit is short and makes no reference to the order of questioning.
[17] The respondent suggests that we should rely on Garcia v. Canada (Minister of Citizenship and Immigration), 2006 FCJ 834, 2006 FC 645. In Garcia, Chief Justice Lutfy provided at paragraphs 12, 14 and 15:
Finally, the applicant raised the issue of the Chairperson's Guideline 7 in his further memorandum of argument on the basis of the decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16. The applicant concedes that the order of questioning was not raised during the refugee hearing. The first reference to the issue was in the applicant's further memorandum of argument which was filed on April 3, 2006. There is no other suggestion that the refugee hearing was unfair.
. . .
In my view, it was not appropriate for the applicant to raise this issue for the first time in his further memorandum of argument. Here, I adopt the statement of Justice Frederick E. Gibson in Arora v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 24 (QL) (T.D.) at paragraph 9:
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...the principle that the Court will deal only with the grounds of review invoked by the applicant in the originating notice of motion and in the supporting affidavit must, I am satisfied, govern. If, as here, the applicant were able to invoke new grounds of review in his memorandum of argument, the respondent would conceivably be prejudice[d] through failure to have an opportunity to address the new ground in her affidavit or, once again as here, to at least consider filing an affidavit to address the new issue. In the result, I determine that the second issue raised on behalf of the applicant is not properly before the Court. |
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The applicant submits that the Court should deal with Guideline 7 on the basis of his further memorandum of argument. He also urges that a serious question be certified regarding this issue. To do so, in my view, would be unfair to the respondent. There would be no opportunity for the respondent to file affidavit evidence in this Court. In the event of an appeal, the record before the Federal Court of Appeal, as in this Court, would be incomplete.
[18] In my view, our case should be distinguished from Garcia, above. In the present matter, the issue of the order of questioning was raised by the applicant in his application for leave. In Garcia, the applicant raised the issue only in his further memorandum of argument.
[19] I will therefore certify the same question as was done in Romero v. Canada (Minister of Citizenship and Immigration, [2006] F.C.J. No. 647, 2006 FC 506, de la Cruz v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 657, 2006 FC 512, Wu v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 658, 2006 FC 513, and Mulliqi v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 711, 2006 FC 563:
When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
JUDGMENT
1. This application for judicial review is dismissed;
2. The following question is certified:
When must an applicant raise an objection to Guideline 7 in order to be able
to raise it upon judicial review?
“Pierre Blais”
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7261-05
STYLE OF CAUSE: Gowri vasanthakumar
SHAKTHIPRIYA VASANTHAKUMAR
SHIESWARAN VASANTHAKUMAR
Applicants
and
THE MINSITER OF CITIZENSHIP &
IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 8, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Blais, J.
APPEARANCES BY:
Mr. Lorne Waldman FOR THE APPLICANTS
Mr. Stephen H. Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT