A-947-90
Senthilvel Nadarajah (Appellant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: NADARAJAH Y. CANADA (MINISTER OF
EMPLOYMENT AND IMM/GRATION) (CA.)
Court of Appeal, Heald J.A.—Toronto, March 11;
Ottawa, March 19, 1992.
Immigration — Refugee status — Practice — Motion pursu
ant to RR. 1102 and 1305 for order to add material to Appeal
Book — Motion granted on basis of R. 1305 — Application for
refugee status — Refugee Division erred in refusing to consider
documentation submitted after oral hearing but before decision
rendered — Refugee Division seized of matter until decision
rendered — Documentation included in "all papers relevant to
the matter before the tribunal whose order or decision is the
subject of the appeal... that are in the possession or control
of the tribunal" (R. 1305) — Documentation relevant as indi
cating severe increase in threat of persecution.
Practice — Appeals and new trials — Motion pursuant to
RR. 1102 and 1305 for order varying contents of Appeal Book
by adding material thereto — Motion granted on basis of R.
1305 — Application for refugee status before Refugee Division
— Counsel for applicant submitting documentation as to recent
developments in Sri Lanka after oral hearing but before deci
sion rendered — Refugee Division erred in refusing to consider
documentation as seized of matter until decision rendered —
Documentation included in "all papers relevant to the matter
before the tribunal whose order or decision is the subject of the
appeal ... that are in the possession or control of the tribunal"
(R. 1305) — That documentation no longer in tribunal's pos
session not disengaging R. 1305(b), Refugee Division having
chosen to return it to appellant's counsel — Documentation
clearly relevant as indicating severe increase in threat of per
secution.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, RR. 1102, 1305.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), A-1026-90, Heald J.A., judgment dated
12/12/90, F.C.A., not yet reported.
COUNSEL:
Brenda J. Wemp for appellant.
Neelam Jolly for respondent.
SOLICITORS:
Brenda J. Wemp, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order rendered in
English by
HEALD J.A.: This is an application by notice of
motion pursuant to Rules 1102 and 1305 [Federal
Court Rules, C.R.C., c. 663]I by the appellant herein
1 Rule 1102.(1) The Court of Appeal may, in its discretion,
on special grounds, receive evidence or further evidence upon
any question of fact, such evidence to be taken by oral exami
nation in court, or by deposition, as the Court may direct.
(2) In lieu of the Court receiving evidence or further evi
dence under paragraph (1), it may direct a reference under Rule
500 as though that Rule and Rules 501 to 507 were incorpora
ted in this Part as far as applicable.
Rule 1305. The appeal shall be upon a case that shall consist
(unless, in any case, the interested persons otherwise agree or
the Court otherwise orders upon the application of an interes
ted person, the Deputy Attorney General of Canada, or counsel
specially appointed to apply on behalf of the tribunal) of
(a) the order or decision appealed from and any reasons
given therefor;
(b) all papers relevant to the matter before the tribunal
whose order or decision is the subject of the appeal
(hereinafter referred to as "the tribunal") that are in the
possession or control of the tribunal;
(Continued on next page)
for an order varying the contents of the Appeal Book
by adding thereto certain material. 2
The within motion was heard orally by me at
Toronto on March 11, 1992. The appellant's claim to
Convention refugee status was considered in oral
hearings of the Refugee Division (Board members
Barbara Fraser and Lorraine Thomson) on February
6, 1990 and April 11, 1990. At the conclusion of the
hearing on April 11, Presiding member Fraser stated
(Appeal Book, Volume 1, at page 68):
We shall reserve decision. This hearing is now concluded.
(Continued from previous page)
(c) a transcript of any verbal testimony given during the
hearing, if any, giving rise to the order or decision appea
led from;
(d) any affidavits, documentary exhibits or other docu
ments filed during any such hearing;
(e) any physical exhibits filed during any such hearing.
2 1. Letter from Brenda J. Wemp, Barrister & Solicitor,
dated July 16, 1990, and addressed to the Registrar of the
Immigration and Refugee Board, referring to Nadarajah Sen-
thilvel, and bearing the "Received" stamp of the Immigration
and Refugee Board dated July 18, 1990.
2. Letter from Brenda J. Wemp, Barrister & Solicitor, dated
July 16, 1990, addressed to the Immigration and Refugee
Board, attention: Ms. Barbara Fraser, Presiding Member, refer
ring to Nadarajah Senthilvel, and bearing the "Received"
stamp of the Immigration and Refugee Board dated July 18,
1990.
3. Copies of documentation referred to in the said letters,
and which were enclosed with the letters, as follows:
(i) "Bitter Siege symbolizes Sri Lankan war", The Toronto
Star, July 8, 1990
(ii) "We Are Back to Square One", TIME, July 2, 1990
(iii) "Civil War in Sri Lanka", Newsline, 20 June 1990, A
Sri Lankan Newsletter
(iv) "Bullets for Reporters", Time Magazine, April 23,
1990
(v) "Bombings killed civilians, Sri Lankan official
admits", The Globe and Mail, June 29, 1990
(vi) "War Declared on Rebels", The Globe and Mail, June
19, 1990
4. Letter from the Immigration and Refugee Board, dated
July 26, 1990, addressed to Brenda J. Wemp, Barrister & Soli
citor, referring to Nadarajah Senthilvel.
On July 16, 1990, Brenda Wemp, counsel for the
appellant wrote to the Registrar of the Refugee Divi
sion attaching to that letter a further letter, also dated
July 16, 1990 addressed to Presiding member Fraser.
That letter reads as follows:
July 16, 1990
Immigration and Refugee Board,
Convention Refugee Determination Division,
1, Front St, W., 5th Floor,
Toronto, Ontario,
M5J 1A5
Attention: Ms. Barbara Fraser, Presiding Member
Dear Mesdames;
Re: Nadarajah Senthilvel, File T89-05894 URGENT
I am writing to forward to you recent documentation on devel
opments in Sri Lanka in the past month which have direct rele
vance to Mr. Senthilvel's refugee claim. His hearing was con
cluded on April 11, and the decision reserved. As we have not
received a decision to date, I am requesting that the enclosed
documents be considered before a decision is rendered.
According to Mr. Senthilvel's testimony, he was a noted sup
porter of the LTTE in his area, and had suffered persecution by
the Sri Lankan military, the IPKF, and the EPRLF as a result.
At the hearing, much was made of the fact that the LTTE were
at that time in control of Jaffna, and in negotiations with the
Sri Lankan government. Mr. Senthilvel insisted that the peace
would not last, that war would break out, and that he would
again be persecuted by the Sri Lankan authorities on suspicion
of support to the LTTE.
Events which have occurred since June 10, 1990 have con
firmed Mr. Senthilvel's fears. According to the enclosed docu
mentation, hostilities have broken out, and the Sri Lankan gov
ernment had declared war on the LTTE. The Eastern and
Northern provinces are under attack by the Sri Lankan forces,
resulting in substantial civilian casualties. Nearly 2000 Tamil
males suspected of supporting the LTTE have been arrested in
Colombo.
In light of recent events, Mr. Senthilvel's fear of persecution as
a Tamil and an LTEE supporter is well-founded.
I trust these documents will be considered prior to rendering a
decision.
Yours very truly,
"Brenda J. Wemp"
Brenda J. Wemp
Barrister & Solicitor.
These two letters were received by the Refugee Divi
sion but were subsequently returned to Ms. Wemp.
Each of the original letters bears the receipt stamp of
the Immigration and Refugee Board of Canada under
date of July 18, 1990. They were returned to Ms.
Wemp with a letter dated July 26, 1990 from Case
Officer E. Bird of the Refugee Division. This letter
was received in Ms. Wemp's office under date of July
30, 1990. The pertinent portion reads:
Enclosed please find the documents that you provided to the
Refugee Division in regards to the above captioned. A final
decision has been made on this refugee claim, therefore the
Presiding Member will not consider the new documentation.
7
The decision of the Refugee Board which denied the
appellant's refugee claim is dated July 30, 1990, and
was signed on August 2, 1990. Leave to appeal that
decision to this Court was granted on October 22,
1990.
On the application for leave to appeal, the appel
lant argued, inter alia, that the appellant's rights to
fundamental justice under section 7 of the Charter
[Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44]] had been breached because of
the Refugee Division's refusal to consider the docu
mentation which forms the subject matter of this
motion which was submitted after the oral hearing
but before the decision of the Refugee Division was
pronounced.
It is the appellant's submission that the letters and
documentation set forth supra, fall within the con
templation of Rule 1305(b). In the appellant's view,
this documentation is included in the expression: "all
papers relevant to the matter before the tribunal
whose order or decision is the subject of the
appeal ... that are in the possession or control of the
tribunal". I agree with the appellant. The Refugee
Division had not rendered its decision on July 18,
1990 when the July 16, 1990 letters and the other
documentation from appellant's counsel were
received by the Division. Indeed, that decision was
not made until July 30, 1990.
The respondent submits, however, that Rule
1305(b) does not apply in the circumstances at bar.
That argument is set out in paragraph 9 of the respon
dent's submissions:
Materials to the case which were not before the tribunal at the
time of the decision and could not have been before the tribu
nal because they did not exist at the time cannot be deemed to
be "all papers relevant to the matter before the tribunal". It is
further submitted that this Honourable Court has declined to
add such material to the case in such circumstances: Pacific
Press Limited v. Canada (M.E.I.), A-1026-90, 12 December,
1990 (F.C.A.).
In my view, the factual situation in the Pacific Press
case, supra, is easily distinguished from the circum
stances at bar. In Pacific Press, supra, the motion
was to add to the contents of the case on a section 28
[Federal Court Act, R.S.C., 1985, c. F-7] application.
The decision a quo was dated October 18, 1990. The
material sought to be added came into existence on
November 6, 1990, more than two weeks after the
decision being attacked pursuant to section 28 was
made. The motion was refused because the material
sought to be added was not before the Adjudicator
when he made his decision and could not have been
before him because it did not exist at that time. That
is not so in this case. The Refugee Division was still
seized of the matter on July 18, 1990 when the new
material was received from the appellant's counsel.
The decision of the Refugee Division was still under
reserve and, therefore, outstanding when the new evi
dence was received.
Accordingly, that evidence falls clearly within the
parameters of Rule 1305(b). The fact that the docu
mentation is no longer "in the possession or control
of the tribunal" does not disengage Rule 1305(b)
since the Refugee Division chose, of its own volition,
to return the evidence to counsel for the appellant.
In so far as relevance is concerned, items 1, 2 and
4, being correspondence between appellant's counsel
and the Board, is clearly relevant to the Charter argu
ment which the appellant proposes to make when the
appeal is heard. Item 3 also has direct relevance to
the issues in the appeal. This documentation, if
accepted, indicates a severe increase in the threat to
Tamils and LTTE members in Sri Lanka as of June of
1990, and, thus appears to run contrary to the
expressed view of the Tribunal that conditions in Sri
Lanka had improved considerably due to "recent
developments". (Appeal Book, Volume 2, at page
248).
In view of the conclusion which I have reached
with respect to Rule 1305(b), it is unnecessary to
consider the alternative submissions of counsel for
the appellant with respect to the applicability of Rule
1102.
Accordingly, I would grant the motion and vary
the contents of the Appeal Book by adding thereto
the material set out in paragraphs 1 to 4 inclusive of
the notice of motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.