Jeyaseelan v. Canada

Counsel:

Max Berger, for the applicants.
Angela Marinos, for the respondent.

REASONS FOR ORDER

1. McKEOWN J.:-The applicants seek judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (“the Board”) dated April 26, 2001, wherein the Board determined that the applicants were not Convention refugees.
2. There are two issues:

1. Did the Board err in applying the Vasquez decision?
2. Did the Board err in its assessment of the evidence, and in particular in not considering changed country conditions notwithstanding its credibility findings?

3. The applicant and her eleven year old daughter, the second applicant, are citizens of Sri Lanka who claimed refugee status on the basis of their race, perceived political opinion and membership in a particular social group – Tamils from the north of Sri Lanka. The applicants’ claim was first heard in November 1996 and they were found not to be Convention refugees. Leave to apply for judicial review was denied. The applicants made a repeat claim in 1999 after a sojourn in the United States. On application for judicial review to the Federal Court, the matter was sent back for a new hearing. The Board proceeded in this hearing, which is the basis of this application for judicial review, on the basis of:

what had changed – both in the claimants’ personal circumstances and in country conditions – since the hearing of the first claim. The panel rejected counsel’s submission that Vasquez should not apply since the application for judicial review of the original claim had been denied.

In Vasquez v. M.C.I. [1998] F.C.J. 1769, Rothstein J. held that the principle of res judicata applied where the applicant made a second refugee claim after his first claim was dismissed. He also held that the applicant could not raise arguments at the second hearing that could have been raised at the first. He also stated:

There are no special circumstances warranting the introduction of evidence that was previously available.

3. The applicant submitted that there were two reasons why the Board erred in its application of Vasquez. First, the Board itself said when it was sent back for a new hearing that “this is a de novo hearing on the repeat claim”. Second, the applicant argues in the alternative that the Board has discretion as to whether or not it chooses to apply Vasquez, and that it is thus incumbent upon the Board to carefully set out in its reasons why it chose to apply Vasquez. There are two cases since Vasquez which in my view are on point here. In Pillai v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1944, Gibson J. stated that if the person, instead of returning to the United States, had returned to Sri Lanka and there had been subsequent events, it might change the application of Vasquez, but these were not the facts in that case, nor are they the facts before me. Gibson J. said:

I find no basis on which to conclude that Parliament intended, on the particular facts of this matter, to confer on the applicant a de novo opportunity to claim Convention refugee status upon his third entry to Canada. Rather than bolstering his claim in a period of absence from Canada, his actions put into doubt his claim to a subjective fear of persecution if required to return to Sri Lanka.

Thus, the Board in this case correctly stated that it was not a de novo hearing in the sense of reviewing all of the evidence but only the evidence of changes since the first claim.

3. Justice Lemieux in Telemichev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1511 stated:

[24] It seems clear to me that, in authorizing the filing of a second claim, Parliament had no intention of completely rejecting a previous decision of the Refugee Division denying the claim, for several reasons.

He went on to say:

[26] … it would in my opinion be contrary to the purpose of the Act and the Convention, under which only those who are being persecuted warrant international protection. In my opinion, an interpretation that ignored the principle of res judicata would sanction many abuses and lead to a de facto recognition by Canada of a person who is not really a refugee.

[27] Consequently, the panel was correct to cite the principles in the Vasquez decision.

In my view, it is sufficient to refer to Vasquez without doing an analysis of why it is applicable in the circumstances of this case. The Board made no error on Vasquez.

3. A second issue is whether the Board was correct in not considering the country conditions even though it found that the applicant was not credible. In my view the Board erred in its assessment of the evidence when it stated there was no credible evidence. In this case the Board found that the applicant was not credible and normally that would be the end of the matter. However, the Board found that there were identity documents which would tend to link the applicants with the north of Sri Lanka as late as 1995. The applicants left Sri Lanka in the fall of 1995 although the Board was unable to determine the exact date of departure, but there was no doubt that they had left because they arrived in Canada in December of 1995.
4. There was also no doubt that the adult applicant had polio. She walked in front of the Board to demonstrate that she could not run and that she walked with a limp. I agree that polio is not a new piece of evidence. However, it is the link between polio and the change to country conditions which required the Board to assess whether this would lead to a positive determination. The Board specifically states:

The panel acknowledges changes in country conditions since 1996, in some areas for the worse.

In particular, counsel for the applicant at the Board hearing had asked the applicant about a new bombing campaign against Tiger positions which had been reported by the BBC, and the applicant indicated that the people would try to get to a bunker or go into the temple but because of her disability she could not run and would have to immediately lie on the ground when the bombing started. The Board, therefore, did have credible evidence that should have been looked at in connection with the changed country conditions to determine whether the applicant had an objective fear. Counsel specifically made submissions on this point before the Board and there is no analysis of this linkage between credible evidence of polio and the deteriorating country situation in Sri Lanka at the time of the Board hearing. There should have been an assessment of whether she was at a high level of risk in light of her disability. This is a reviewable error and the matter must be returned to a differently constituted board for redetermination.

3. The applicant’s ten and a half year old daughter relied on her mother’s claim as well as making some claims of her own. The Board acknowledged that the child’s age change from six to eleven would put her in a different risk category in certain situations, but went on to say:

the panel cannot assess where these claimants have been or their profiles; the panel cannot assess their risk of harm should they return to Sri Lanka. Thus, there is insufficient credible evidence on which to make a positive determination of this claim.

There was evidence that the Tamils were recruiting young children, as young as eight, in the north and as I stated earlier the panel already had found that they had been in the north until as late as 1995. Accordingly, they should have analysed whether the child was at risk in light of this change in age from the previous time. The newly constituted Board will have to review the documentary evidence and determine whether at her age, based on the documentary evidence preferred by the new Board, she is at increased risk. In my view Gibson J. stated the position correctly in Mylavaganam v. Canada [2000] F.C.J. 1195 where he stated at paragraph 10:

Even if it rejected outright as it did the applicant’s own alleged experience of persecution in its analysis and support of its decision in this matter, it does not appear to have rejected the applicant’s identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but potentially a well-founded objective basis to that fear.

3. The applicant also submitted there were errors in the Board’s assessment of the extortion evidence and also of whether she provided a reasonable explanation as to why she failed to make a refugee claim in the United States when she went there in 1997 after her first claim for refugee status was denied. In my view the Board findings were open to it on both of these matters.
4. The application for judicial review is granted. The decision of the Board dated April 26, 2001 is quashed. The matter is returned for redetermination by a differently constituted panel of the Board.

McKEOWN J.
QL Update: 20020415
cp/d/qlklc