Jeyaseelan v. Canada
(Minister of Citizenship and Immigration)
Thangeswary Jeyaseelan and Piratheepa Jeyaseelan,
The Minister of Citizenship and Immigration, respondent
 F.C.J. No. 458
2002 FCT 356
Court File No. IMM-2510-01
Federal Court of Canada – Trial Division
Heard:March 21, 2002.
Judgment:March 28, 2002.
Max Berger, for the applicants.
Angela Marinos, for the respondent.
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.  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.
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.
 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:
 … 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.
 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.
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.
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  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.
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