Navaratnam et al. v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 222 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 481 F.T.R. 222 (FC);2015 FC 664

Navaratnam v. Can. (M.C.I.) (2015), 481 F.T.R. 222 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.065

Navaneethan Navaratnam, Kalista Navaneethan, Thilaksan Navaneethan and Nitharsika Navaneethan (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-51-14; 2015 FC 664)

Indexed As: Navaratnam et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

May 21, 2015.

Summary:

Navaratnam and his family (the applicants) fled Sri Lanka and sought refugee protection in Canada. After the original member of the Refugee Protection Division (RPD) became ill before rendering a decision, a new RPD, on the basis of the transcript and submissions, denied the claim. The applicants sought judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 573

The hearing and decision - Decisions of the tribunal - Transcripts - [See Aliens - Topic 1329.3 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Aliens - Topic 1329.3 ].

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - Navaratnam and his family (the applicants) fled Sri Lanka and sought refugee protection in Canada - After the original member of the Refugee Protection Division (RPD) became ill before rendering a decision, a new RPD, on the basis of the transcript and submissions, denied the claim, finding that, overall, the applicants' evidence was not credible - Further, the RPD found that Navaratnam would not be at risk in Sri Lanka as someone with perceived wealth or as a returning asylum seeker, had failed to establish a nexus with a particular social group and, as a victim of crime, had a fear of criminality, which was a generalized risk in Sri Lanka - The applicants sought judicial review - The Federal Court dismissed the application - The RPD's credibility analysis was flawed and often unintelligible - The RPD made negative credibility findings that the applicants had no opportunity to address - However, the RPD's unreasonable credibility analysis did not taint the finding that the applicants were not Convention refugees nor persons in need of protection under the Immigration and Refugee Protection Act - Perceived wealth, without more, did not constitute membership in a particular social group - The RPD reasonably found that the applicants had not established a well-founded fear of persecution on the basis of membership in a social group - The RPD appropriately determined the nature of the risk faced by Navaratnam as a victim of crime - Nothing suggested that this exceeded the same risk faced by others in Sri Lanka - See paragraphs 37 to 60.

Aliens - Topic 1315

Admission - Refugee protection, Convention refugees and persons in need of protection - Convention refugees - General (incl. definition and test) (IRPA, s. 96) - [See Aliens - Topic 1314 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - [See Aliens - Topic 1314 ].

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - "Particular social group" defined - [See Aliens - Topic 1314 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - [See Aliens - Topic 1314 ].

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - [See Aliens - Topic 1329.3 ].

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - Navaratnam and his family (the applicants) fled Sri Lanka and sought refugee protection in Canada - Their claim was heard by a member of the Refugee Protection Division (RPD) who became ill before rendering a decision - The applicants were given the option of having (1) a de novo hearing or (2) another member of the RPD decide their claim based on the evidence, the submissions and a transcript of the proceeding - The applicants opted for the second choice, but requested a copy of the transcript for themselves in advance of any determination by the new RPD - The RPD concluded that the applicants were not Convention refugees nor persons in need of protection under the Immigration and Refugee Protection Act - A copy of the transcript was not provided to the applicants before this determination - The applicants sought judicial review, alleging, inter alia, a breach of procedural fairness - The Federal Court dismissed the application - The applicants were afforded a fair hearing even though the requested transcript was not provided - They had a full hearing and were represented by counsel who made oral and written submissions - There was no request to make post-hearing submissions on credibility or any other issues - There was no evidence that the RPD had agreed or would have agreed to new submissions based on the transcript, which, normally, was not provided prior to a decision being rendered - There was no breach of procedural fairness - See paragraphs 22 to 33.

Cases Noticed:

Juste v. Canada (Minister of Citizenship and Immigration), 2008 FC 670, refd to. [para. 6].

Olson v. Canada (Minister of Emergency Preparedness and Public Safety), [2007] F.T.R. Uned. 300; 2007 FC 458, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 7].

Zhou v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 1; 2015 FC 5, refd to. [para. 7].

Zhou v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 306; 2013 FC 619, refd to. [para. 7].

Ramirez et al. v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 13; 2013 FC 261, refd to. [para. 7].

Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 7].

Aguilar v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 168; 2013 FC 809, refd to. [para. 7].

Portillo v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 290; 2012 FC 678, refd to. [para. 7].

Gutierrez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 627; 2011 FC 1055, refd to. [para. 7].

Gabor et al. v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 145; 2012 FC 540, refd to. [para. 7].

Sarmis v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 312; 2004 FC 110, refd to. [para. 10].

Rowat v. Information Commissioner (Can.) et al. (2000), 189 F.T.R. 166 (T.D.), refd to. [para. 10].

Sawridge Indian Band v. Canada, [2000] F.T.R. Uned. 180 (T.D.), refd to. [para. 10].

Belgravia Investments Ltd. et al. v. Minister of National Revenue, [2000] F.T.R. Uned. 309; [2000] 4 C.T.C. 8 (T.D.), refd to. [para. 10].

Pluri Vox Media Corp. v. Canada (2012), 426 N.R. 162; 2012 FCA 18, refd to. [para. 10].

Dhillon v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 24; 2009 FC 614, refd to. [para. 12].

Zheng v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 776; 2002 FCT 1152, refd to. [para. 15].

Turcinovica v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 305; 2002 FCT 164, refd to. [para. 15].

Costeniuc v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 747; 2012 FC 1495, refd to. [para. 19].

Mervilus v. Canada (Minister of Citizenship and Immigration) (2004), 262 F.T.R. 186; 2004 FC 1206, refd to. [para. 19].

Nemeth v. Canada (Minister of Citizenship and Immigration) (2003), 233 F.T.R. 301; 2003 FCT 590, refd to. [para. 19].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 23].

Ismailzada et al. v. Canada (Minister of Citizenship and Immigration) (2013), 425 F.T.R. 271; 2013 FC 67, refd to. [para. 45].

Ahmed v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 73; 2013 FC 205, refd to. [para. 45].

Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 51].

Etienne v. Canada (Minister of Citizenship and Immigration) (2007), 308 F.T.R. 76; 2007 FC 64, refd to. [para. 53].

Cius v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 8; 2008 FC 1, refd to. [para. 53].

Kuruparan v. Canada (Minister of Citizenship and Immigration) (2012), 410 F.T.R. 288; 2012 FC 745, refd to. [para. 56].

Prophète v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 230; 2008 FC 331, refd to. [para. 56].

Florea v. Minister of Employment and Immigration, [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 58].

Counsel:

Robert Israel Blanshay, for the applicants;

Margherita Braccio, for the respondent.

Solicitors of Record:

Blanshay & Lewis, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 9, 2015, by Strickland, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on May 21, 2015.