Date: 20061222
Docket: IMM-1265-06
Citation: 2006
FC 1554
Vancouver, British
Columbia,
December 22, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
BIROUT WAHAB
(aka: VICTOR FEOKTISTOV)
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Minister of Citizenship and Immigration seeks judicial review of a decision of
the Refugee Protection Division (RPD) which rejected the Minister's application
to vacate the determination that Birout Wahab is a Convention refugee.
[2]
The
Minister argues that the RPD erred in its application of the two-step analysis
set out in sections 109(1) and (2) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA). Those sections set out the procedure
by which the Minister may bring forth an application to vacate a decision
granting refugee protection on the grounds that a claimant has committed a
relevant misrepresentation or omission. In this case, the Minister argues in
particular that the RDP erred by considering new evidence that was not before
the original decision-maker in making its determination pursuant to s. 109(2)
of IRPA.
[3]
Alternatively,
the Minister says that the RPD misapprehended the evidence put forth by the
respondent, ignored the evidence presented by the Minister in respect of the
Russian citizenship of the respondent and provided inadequate and insufficient
reasons in respect of this issue.
[4]
For the
reasons that follow, the Court finds that the decision under review must be set
aside.
[5]
This case involves
an application of sections 109(1) and (2) that does raise a question of general
interest that would benefit from clarification. In particular, when, like here,
a misrepresentation relates to a question of dual citizenship that is relevant
to section 96(a). It nonetheless turns out that the resolution of such question
would not be determinative in settling the matter at hand because the Court has
found that the RDP’s decision contains other reviewable errors. Thus, no
question will be certified.
I. Background
[6]
Birout Wahab
is an ethnic Kurd and a citizen of Iraq.
He fled Iraq in 1993 and resettled in a UN
refugee camp in Russia. Several years after his
arrival in Russia (probably 1998), he applied
for refugee status. In 2002, his application was finally rejected.
[7]
The UN
High Commission for Refugees then recommended resettlement. In January 2004, after
interviewing the respondent, an immigration officer at the Canadian Embassy in Moscow allowed the respondent's
application for protection as a member of a special class (resettlement program)
under the name of Birout Wahab. The respondent arrived in Toronto on July 26, 2004, where he obtained
his permanent resident visa. During his interview with the visa officer, he
indicated that he had no family in Russia and that he was a citizen of only one
country, Iraq.
[8]
Several
days later, the respondent volunteered new details about a family in Russia and various steps he had
taken to fraudulently obtain Russian citizenship prior to his coming to Canada.
[9]
More
particularly, it now appears that in 1996 the respondent bribed a Russian
official to obtain what the RPD describes as "a document indicating that
he had Russian
Federation
citizenship." This document was issued using the respondent's Iraqi name and on
the basis of a misrepresentation that he had married a Russian citizen.
[10]
In 1999,
the respondent obtained a legal change of name to Victor Vasil'evich Feoktistov.
This is the name that appeared on the Russian passport issued to him in 2000.
[11]
That same
year, he married a woman from Armenia with whom he had been living
for some years. The RPD describes her as having "a form of permanent
resident status in Russia but was not a citizen of the Russian Federation at the material time of the
application." The couple had two children born in Russia: a daughter in 1999 and a son in 2000.
[12]
It also
appears that the respondent used his Russian passport to travel prior to coming
to Canada. For example, he visited Turkey and possibly Iraq.
[13]
In
November 2005, the respondent obtained a special travel document from the
Russian Embassy because he wanted to see his sick child in Russia and his Russian passport had
expired. He later obtained an extension of his passport until 2010. He did use
his Russian documents to travel to Russia
at that time.
[14]
In October
2004, the Minister applied to vacate the decision pursuant to Section 109 of IRPA.
This led to a series of judicial hearings.
[15]
First, in
April 2005, the respondent set forth preliminary arguments challenging the
constitutional validity of s. 109 of IRPA. The respondent's main
argument was that to the extent that sections 109(2) and (3) are construed so
that the claim for protection of the claimant can be rejected without
consideration of whether he was at risk in the Russian Federation, these provisions would
violate sections 7 and 12 of the Canadian Charter of Rights and Freedoms
.
[16]
The RPD
adjourned and, in September 2005, it issued a decision stating that s. 7 and 12
of the Charter were not engaged as there is no claim that the claimant
could have brought against the Russian Federation while he was in Russia or now
that he is in Canada. It also found that the status he obtained in Russia was illegally obtained and
that the administration of justice would be brought into disrepute if the RPD were
to adjudicate a refugee claim based upon a fabricated claim to citizenship.
This decision was not challenged.
[17]
In January
2006, the RPD heard the evidence with respect to the misrepresentations
allegedly made by the respondent and the arguments in respect of s. 109(2). In
an amended decision released on March 17, 2006, the Board concluded that even
if there were material misrepresentations, there was sufficient evidence on
file to justify a finding of refugee protection. It rejected the Minister's
application.
[18]
The
analysis in the decision is short (about 2½ pages). It is divided into two
sections. Under the heading “First Step”, the RPD cites s. 109(1) and then states
that "it is clear the Respondent withheld… material facts relating to a
relevant matter." After considering whether the Minister had to
demonstrate that the misrepresentation "caused" the officer to reach
his decision or, instead, if it was sufficient that it "could have
caused" such a decision, the RPD concludes by saying:
… the panel finds that the Minister has
presented a prima facie case that the Respondent's misrepresentation or
withholding did cause the original Canadian official to come to the
determination it did."
[19]
Then, under
the heading “Second Step”, the RPD states that: "At this point, it is
necessary to turn to the second part of the review; namely was there ‘other sufficient
evidence’ in front of the original panel that could ‘justify refugee protection.’"
Although the RPD notes that this exercise should be done solely on the basis of
the information available to the original official, it nonetheless goes on to
say that the answer to this query will depend on whether or not the respondent
had Russian citizenship, or status akin to this, when his application was
assessed.
[20]
The next
paragraph is a summary of the arguments of the Minister to the effect that the
respondent not only obtained Russian citizenship in 1996, but has enjoyed the
benefit of such status and been treated as a citizen since then. It ends by noting
that for the Minister, until this Russian citizenship is revoked by a judgment
of a Russian court as provided by Russian law, the respondent remains a Russian
citizen.
[21]
The RPD
then turns to the respondent's evidence. It says that "he testified that
he is not a Russian citizen and that the ‘document’ he obtained saying so was
fraudulent." The RPD goes on to explain why it finds the testimony
credible on a number of grounds (i.e. the respondent volunteered this
information himself; he lied only because he was afraid of deportation to Iraq;
he pursued his refugee claim with the Russian Federation; etc.). The RPD then concludes its decision as follows:
All in all I find that the Respondent is
being truthful when he testified that he had no Russian citizenship. Minister's
Counsel did not provide any evidence to the contrary. She relied upon a
case – Zheng – which held that a passport is prima facie evidence
that a person has the citizenship stated in it. In that case the country in
question – the Dominican
Republic – was
consulted about the issue and confirmed that the claimant in question was a
citizen. That is not the case here; Russia
was not asked this specific question.
At law, not only may a passport be prima
facie evidence of the citizenship of the person identified in it but also a
person's testimony is presumed true. Which trumps which? In the panel's view
the prima facie evidence is displaced by the testimony unless the
Respondent's testimony is shown to be not credible. In this case the panel find
that, while the Respondent has lied to Canadian officials on some matters and
has been untrue, in the matter of whether he has genuine Russian citizenship
his testimony is to be preferred for the reasons given above.
[my emphasis]
II. Relevant Legislation
Immigration and Refugee Protection Act
109. (1) The
Refugee Protection Division may, on application by the Minister, vacate a
decision to allow a claim for refugee protection, if it finds that the
decision was obtained as a result of directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter.
(2) The Refugee Protection Division
may reject the application if it is satisfied that other sufficient evidence
was considered at the time of the first determination to justify refugee
protection.
Immigration
Act, R.S.C., 1985, c. I-2
69.2…
(2) The Minister may, with leave of
the Chairperson, make an application to the Refugee Division to reconsider
and vacate any determination made under this Act or the regulations that a
person is a Convention refugee on the ground that the determination was
obtained by fraudulent means or misrepresentation, suppression or concealment
of any material fact, whether exercised or made by that person or any other
person.
…
69.3…
(5) The Refugee Division may reject
an application under subsection 69.2(2) that is otherwise established if it
is of the opinion that, notwithstanding that the determination was obtained
by fraudulent means or misrepresentation, suppression or concealment of any
material fact, there was other sufficient evidence on which the determination
was or could have been based.
|
Loi sur l'immigration et la
protection des réfugiés
109. (1) La Section de la protection des réfugiés peut, sur demande du
ministre, annuler la décision ayant accueilli la demande d’asile résultant,
directement ou indirectement, de présentations erronées sur un fait important
quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut
rejeter la demande si elle estime qu’il reste suffisamment d’éléments de
preuve, parmi ceux pris en compte lors de la décision initiale, pour
justifier l’asile.
Loi sur l'immigration, L.R.C. (1985),
ch. I-2
69.2 […]
(2) Avec
l'autorisation du président, le ministre peut, par avis, demander à la section
du statut de réexaminer la question de la reconnaissance du statut de réfugié
au sens de la Convention accordée en application de la présente loi ou de ses
règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue
par des moyens frauduleux, par une fausse indication sur un fait important ou
par la suppression ou la dissimulation d'un fait important, même si ces
agissements sont le fait d'un tiers.
[…]
69.3 […]
(5) La section du
statut peut rejeter toute demande bien fondée au regard de l'un des motifs
visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste
suffisamment d'éléments justifiant la reconnaissance du statut.
|
III. Standard of Review
[22]
In Sethi
v. Canada (Minister of Citizenship and
Immigration),
2005 F.C.J. No. 1443; 2005 FC 1178, Justice Danièle Tremblay-Lamer applied the
pragmatic and functional analysis to determine the standards of review
applicable to decisions made under sections 109(1) and (2) of IRPA.
[23]
With
respect to conclusions as to whether or not misrepresentations were made, she
found that such questions of fact which involves the weighing of evidence
produced by the Minister as well as the claimant are subject to a standard of
patent unreasonableness. I agree and adopt her reasoning in that respect.
[24]
I also
agree with her views that a decision under s. 109(2) of IRPA (which
entails determining whether the evidence left untainted by the
misrepresentation(s) is nonetheless sufficient to grant refugee status)
deserves less deference for it does not, among other things, involve the RPD's
current assessment of the refugee at the hearing. Like my colleague, I find
that such an assessment is subject to the standard of reasonableness simpliciter.
[25]
The issue
of whether the RPD erred in law by considering the new evidence put forth by
the two parties in respect of the respondent's status in Russia while exercising his
discretion pursuant to s. 109(2) is, in my view, subject to the standard of
correctness. In effect, it is clear that the RPD has no special expertise in
that respect.
[26]
Finally,
with regard to the adequacy of the reasons, there is no need to apply the
pragmatic and functional analysis. The Court will set aside the decision if the
RPD breached its duty to act fairly (Canada (AG) v. Sketchley 2005 FCA
404).
IV. Analysis
[27]
The
Federal Court of Appeal in Coomaraswamy v. Canada, 2002 FCA 113, [2002]
4 F.C. 501, and in Annalingam v. Canada (Minister of Citizenship and
Immigration) 2002 FCA 281, [2002] F.C.J. No. 971, reviewed what evidence
the RPD (formerly the Immigration and Refugee Board) could consider in making
the determinations mandated by sections 62.2(2) (former version of s. 109(1)
and 62.3(5) of the old Act (former version of s. 109(2). Those provisions are
essentially the same as sections 109(1) and (2) in IRPA and so the Court
is bound by these decisions.
[28]
The Court
must also carefully consider the other case law dealing with the former sections
62.2(2) and 62.3(5) and other aspects of the process they involved.
[29]
I have reviewed
the two above-mentioned decisions of the Federal Court of Appeal as well as Mahdi
v. Canada (Minister of Citizenship and
Immigration)
(1995), 32 Imm. L.R. (2d) 1, 191 N.R. 170 (F.C.A.); Hassan v. Canada (Minister of Citizenship and
Immigration),
1999 F.C.J. 1359, para. 16; Maheswaran v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 1768; Aleman
v. Canada, 2002 FCT 710; [2002] F.C.J. No. 955; Parvanta v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1146, [2006] F.C.J. No.
1435 at para. 23; Canada (Minister of Citizenship and Immigration) v. Yakoob,
2005 FC 1017, [2005] F.C.J. No. 1260; and Canada (Minister of Citizenship
and Immigration) v. Pearce, 2006 FC 492, [2006] F.C.J. No. 646. On the
basis of this review, the Court understands that the following principles are
to apply when reviewing an application to vacate like the one at hand:
a) Under
s. 109(1), to determine if the original decision was made as a result of
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter, the RPD must consider all the new evidence put forward by
the Minister and the claimant.
b) Mens
rea or the intention of the claimant is not relevant to the finding to be
made under s. 109(1).
c) As the
extent and nature of the material misrepresentation or withholding may be
relevant to its ability to exercise its discretion pursuant to section 109(2)
of IRPA, the RPD must give sufficient details in its reasons as to which
misrepresented or withheld fact(s) it found material and in respect of what
relevant matter. Those detailed findings will enable the RPD to consider if a
particular claimant is, for example, excluded under section 98 of IRPA.
Such determination must be made prior to proceeding to the second step set out
in s. 109(2) and involves consideration of all the evidence on file, including
the new evidence presented by both parties.
d) The RPD
only needs to proceed to the s. 109(2) analysis (step two) if it is satisfied
that a claimant is not excluded under section 98 of IRPA.
e) When
carrying out the analysis set out in s. 109(2), the RPD can refer to its
findings under section 109(1) but only to identify what "old" evidence
remains untainted by the withholding or misrepresentation. The RPD cannot
reassess the "old" evidence in light of new evidence adduced by the
Minister or the claimant pursuant to section 109(1).The RPD cannot give any
weight or even consider the new evidence produced by either party when
exercising its discretion pursuant to section 109(2).
[30]
Applying those
principles to the decision under review, it is evident that the RPD did not
consider all of the evidence produced by the parties before making its finding
under section 109(1). It refers to "a prima facie case by the
Minister" whereas it is clear that, at least in respect of his Russian
citizenship, the applicant had adduced evidence that had to be weighed. There
was also contradictory evidence as to the status of the applicant's wife in
Russia and exactly what he said when he was interviewed by different officers
in Canada.
[31]
Furthermore,
in the portion of its decision concerning section 109(1), the RPD does not
explain the nature or the extent of the misrepresentations it found to be
material when conducting its analysis. From the decision, it is not clear, for
instance, whether the RPD accepted the following position put forth by the
Minister: i) the respondent’s change of name was material insofar as it may,
for example, have been relevant to complete his security check; ii) the
existence of the applicant’s wife and children was material and relevant to an evaluation
of the possibility of durable settlement in Canada. Likewise, it is not
possible to determine whether the RPD may have instead adopted the respondent’s
position that none of this information was material for the purpose of determining
his status as a Convention refugee. The claimant certainly argued before the
RPD that, regardless of any information he may have withheld, he never made a
misrepresentation when he said that he was only a citizen of Iraq.
[32]
When asked
by the Court to explain what material facts were found by the RPD to have been
misrepresented or withheld, the respondent took the position that, on a fair
reading of the decision as a whole, the Court should conclude that the RPD accepted
that he concealed all of the information included in the Minister's evidence
and that all of it was material and relevant pursuant to s. 109(1).
[33]
The Court
finds that it would also be consistent with a fair reading of the decision to
conclude that the RPD in fact only dealt with the withholding of information
relating to the respondent's Russian citizenship. Why else would it only refer
to a prima facie case and only deal with this issue under “Step Two”?
[34]
There is
no doubt that the RPD's reasons can be brief. But to be adequate, they must
serve the functions for which the duty to provide them is imposed. As noted by
Justice Edgar Sexton in Via Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25, at para. 22:
The obligation to provide
adequate reasons is not satisfied by merely reciting the submissions and
evidence of the parties and stating a conclusion … Rather, the decision maker
must set out its findings of fact and the principal evidence upon which these
findings were based … The reasons must address the major points in issue. The
reasoning process followed by the decision maker must be set out and must
reflect consideration of the main relevant factors.
[35]
Having carefully
read the decision several times, the Court must conclude that the reasons are
not adequate in respect of the findings made under s. 109(1).
[36]
It should
also be noted that the RPD states that it is not entitled to look at new
evidence under s. 109(2). Nevertheless, in the portion of its decision related
to s. 109(2), it then goes ahead and does just that. As such, it is not clear
whether this mistake is simply a matter of form (i.e. the RPD inserted its
discussion of the new evidence under an inappropriate heading) or whether the
RPD in fact committed a substantive error of law.
[37]
But even
assuming, for the moment, that the analysis of the evidence in respect of the
respondent's status in Russia was meant to be part of the
analysis under s. 109(1), the RPD's findings in that respect are still
deficient. In effect, it appears that it either ignored some of the evidence
put forward by the Minister or it failed to explain how it dealt with it.
[38]
The RPD
had to decide whether or not the respondent had misrepresented that he was only
a citizen of Iraq. This was essential to determine
in “Step Two” if there was sufficient evidence on file.
[39]
Here, this
should have involved two distinct findings of fact. First, the RPD had to
decide whether it was dealing with foreign documents (passport and grant of
citizenship) that were forged, or with genuine documents effectively issued to
this claimant but on the basis of fraudulent representations.
[40]
In this
respect, the RPD clearly accepted the respondent's testimony. It was open to it
to do so and, in any event, it does not appear that this point was contested by
the Minister.
[41]
This meant
that the RPD then had to consider and evaluate the legal effect of the grant of
citizenship obtained by the respondent in 1996 and this at the time that his
application was considered by the original decision-maker. Again, this involved
a distinct finding of fact as foreign law is also a question of fact. And it
was not the same thing as deciding whether or not the respondent considered
himself a citizen of that country. It necessarily involved looking at the
Russian statutes (pages 244 and following of the Tribunal Record) put in
evidence by the Minister.
[42]
Although
the respondent was never asked to explain his understanding of Russian law and
appeared to have no special knowledge to opine on such an issue, it was indeed
open to the RPD to accept his position that he was "a real" citizen
of Iraq only. However, it certainly had to explain how it dealt with the other
evidence that contradicted this bare statement. Instead, it says that
the Minister did not provide any evidence to contradict the testimony of the
respondent that he had no Russian citizenship. This indicates that the RPD
misapprehended evidence or failed again to meet its duty to give adequate
reasons explaining the basis on which it discarded the evidence supporting the
Minister’s position on this crucial issue.
[43]
In
summary, the Court has found that the reasons of the RPD are inadequate insofar
as they fail to identify the nature of the misrepresentation(s) put forth by
the applicant and the extent to which the misrepresentation(s) may have been
material. Also, the RPD has made findings based on new evidence under s. 109(2)
or, at the least, given its reasons in such a way as to make it impossible to
determine whether or not it committed such an error in law. Finally, the
Minister submitted evidence related to the applicant’s citizenship which the
RPD failed to address at all.
[44]
For these
reasons, this decision must be set aside. A new hearing should take place so
that the Minister’s application to vacate can be reconsidered by a different
panel.
ORDER
THIS COURT ORDERS that:
1. The application is
granted. The decision dated March 16, 2006, is set aside.
2. The application to
vacate by the Minister shall be reconsidered by a different panel.
“Johanne
Gauthier”
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