Sivamoorthy v. Canada (Minister of Citizenship and Immigration), (2003) 231 F.T.R. 208 (TD)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: March 25, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 231 F.T.R. 208 (TD)

Sivamoorthy v. Can. (M.C.I.) (2003), 231 F.T.R. 208 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AP.062

Sivasothy Sivamoorthy (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2112-02; 2003 FCT 408)

Indexed As: Sivamoorthy v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Russell, J.

April 8, 2003.

Summary:

The Convention Refugee Determination Division of the Immigration and Refugee Board determined that Sivamoorthy was not a Convention refugee. Sivamoorthy applied for judicial review.

The Federal Court of Canada, Trial Division, allowed the application and remitted the matter for reconsideration by a different panel.

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly and observe rules of natural justice - [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 - Sivamoorthy claimed refugee status based on her race and membership in a particular social group (Tamils from northern Sri Lanka facing persecution from Sri Lankan authorities and the Liberation Tigers of Tamil Eelam), as well as her imputed political opinion - The Convention Refugee Determination Division (CRDD) decided that Sivamoorthy was not a Convention refugee - The CRDD found that Sivamoorthy failed to demonstrate with credible evidence that she was a Tamil woman who was present in northern Sri Lanka at times material to her claim - The Federal Court of Canada, Trial Division, allowed an application for judicial review and set aside the CRDD's decision - Sivamoorthy was denied natural justice where the CRDD misled her into believing that the issue of identity was resolved and then refused her claim based primarily on that issue - The CRDD's error was egregious and even if its other findings with respect to recent presence in the north and general credibility were valid, a new hearing was required.

Aliens - Topic 1336.1

Admission - Refugee protection - Convention refugees and persons in need of protection - Referral to board where decision quashed - [See Aliens - Topic 1329.3 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 15].

Velauthar v. Minister of Employment and Immigration (1992), 141 N.R. 239 (F.C.A.), appld. [para. 16].

Popal v. Canada (Minister of Citizenship and Immigration) (2000), 184 F.T.R. 161 (T.D.), refd to. [para. 17].

Oduro v. Minister of Employment and Immigration (1993), 73 F.T.R. 191 (T.D.), refd to. [para. 17].

Gonzalez v. Minister of Employment and Immigration (1991), 129 N.R. 396 (F.C.A.), refd to. [para. 18].

Peng v. Minister of Employment and Immigration, [1993] F.C.J. No. 119 (C.A.), refd to. [para. 21].

Katalayi v. Canada (Minister of Citizenship and Immigration), [1997] F.T.R. Uned. 666 (T.D.), refd to. [para. 24].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 26].

NAV Canada v. Canadian Air Traffic Control Association (1999), 250 N.R. 321 (F.C.A.), refd to. [para. 36].

Lai (S.M.) v. Canada (Attorney General) et al. (2001), 208 F.T.R. 67 (T.D.), refd to. [para. 36].

Singh (Harjit) v. Canada (Minister of Citizenship and Immigration) (2002), 219 F.T.R. 247 (T.D.), refd to. [para. 36].

Sharma v. Minister of National Revenue (2001), 206 F.T.R. 40 (T.D.), refd to. [para. 36].

Perera v. Minister of Employment and Immigration (1994), 82 F.T.R. 318 (T.D.), appld. [para. 42].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 45].

Lin v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 128 (C.A.), refd to. [para. 47].

Counsel:

Raoul Boulakia, for the applicant;

Tamrat Gebeyehu, for the respondent.

Solicitors of Record:

Raoul Boulakia, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 25, 2003, at Toronto, Ontario, before Russell, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on April 8, 2003.