Selliah v. Canada (Minister of Citizenship and Immigration)
The applications judge made no reviewable error: Li v. M.C.I. governs the standard of proof; no duty to clarify arose on these facts; any misapprehension about letters was immaterial when the evidence is viewed as a whole; and new evidence offered after the decision could have been the basis for a reconsideration...
Source-derived case information.
- Citation
- 2005 FCA 160
- Parties
- Appellant: Gnanaseharan Selliah; Appellant: Nirmala Gnanaseharan; Appellant: Mahishan Gnanaseharan; Respondent: The Minister of Citizenship and Immigration; Respondent: Solicitor General of Canada
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 4 May 2005
- Procedural Posture
- Appeal to Federal Court of Appeal (immigration/judicial Review) / Judgment on Appeal
- Outcome
- Appeal dismissed without costs.
- Legal Topics
- Standard of Proof, Duty to Clarify/confront, New Evidence After Decision, Reconsideration, Functus Officio
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gnanaseharan Selliah
Appellant
Nirmala Gnanaseharan
Appellant
Mahishan Gnanaseharan
Appellant
The Minister of Citizenship and Immigration
Respondent
Solicitor General of Canada
Respondent
Procedural Posture
Appeal to Federal Court of Appeal (immigration/judicial Review) / Judgment on Appeal
Legal Issues
- 1 What standard of proof applies in credibility determinations in immigration cases?
- 2 Whether the decision‑maker had a duty to clarify or confront the applicant about ambiguous or conflicting evidence
- 3 Whether new evidence offered after the decision but before notice must be considered or whether the decision‑maker is functus officio
Ratio Decidendi
The applications judge made no reviewable error: Li v. M.C.I. governs the standard of proof; no duty to clarify arose on these facts; any misapprehension about letters was immaterial when the evidence is viewed as a whole; and new evidence offered after the decision could have been the basis for a reconsideration application after notice, so no interference was warranted.
Court Disposition
Appeal dismissed without costs.
Orders
- Appeal dismissed without costs.
Full Case Text
Judgment text and source record
1 paragraphs
Selliah v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2005-05-04 Neutral citation 2005 FCA 160 File numbers A-363-04 Decision Content Date: 20050504 Docket: A-363-04 Citation: 2005 FCA 160 CORAM: LINDEN J. A. SEXTON J. A EVANS J. A. BETWEEN: GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN and MAHISHAN GNANASEHARAN Appellants (Applicants) and THE MINISTER OF CITIZENSHIP & IMMIGRATION and SOLICITOR GENERAL OF CANADA Respondents (Respondents) Heard at Toronto, Ontario, on May 4, 2005. Judgment delivered from the Bench at Toronto, Ontario, on May 4, 2005. REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A. Date: 20050504 Docket: A-363-04 Citation: 2005 FCA 160 CORAM: LINDEN J. A. SEXTON J. A EVANS J. A. BETWEEN: GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN and MAHISHAN GNANASEHARAN Appellants (Applicants) and THE MINISTER OF CITIZENSHIP & IMMIGRATION and SOLICITOR GENERAL OF CANADA Respondents (Respondents) REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on May 4, 2005) LINDEN J.A. [1] We are of the view that the applications Judge made no reviewable error and that this appeal must be dismissed without costs. [2] The issue raised in the certified question, dealing with the standard of proof in cases such as this one, has been recently decided by this Court inLi v. M.C.I. (2005) F.C.J. 1 and we have not been persuaded to depart from that decision. [3] On the issue of the duty to clarify and to confront an applicant where there is some ambiguity or conflict in the evidence, while such a duty may exist in some circumstances, we are not convinced that it applies in this case. The most that can be said here is that the Officer may have misapprehended the evidence in thinking that there was a discrepancy between two letters. In our view, when all of the evidence is considered as a whole, this error does not warrant our intervention. [4] As for the new evidence offered to the officer after the decision had been made, but before notice of that decision was received by the applicant, we are not inclined to interfere. Though not expressly provided for in the legislation, an application for reconsideration on the basis of that new evidence could have been made by the applicant following receipt of the notice of the decision. [5] It is therefore, not necessary for us to decide the functus officio issue in this case. "A. M. Linden" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-363-04 STYLE OF CAUSE: GNANASEHARAN SELLIAH, NIRMALA GHANASEHARAN, MAHISHAN GNANASEHARAN Appellants (Applicants) and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA Respondents (Respondents) PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MAY 4, 2005 REASONS FOR JUDGMENT OF THE COURT: (LINDEN, SEXTON, EVANS, JJ.A.) DELIVERED FROM THE BENCH BY: LINDEN J.A. APPEARANCES: Barabara Jackman FOR THE APPELLANT Marcel Larouche Sharon Stewart Guthrie FOR THE RESPONDENT SOLICITORS OF RECORD: Jackman & Associates Toronto, ON FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT