Date: 20060418
Docket: IMM-3826-05
Citation: 2006 FC 492
Ottawa, Ontario, April
18, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JENNIFER
JULIET PEARCE
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated on May 26,
2005. The Board rejected the application by the Minister of Citizenship and
Immigration (the Minister) to vacate a previous decision of the Refugee
Division (T99-14691) wherein the Respondent was found to be a Convention
refugee.
[2]
The
Applicant seeks an order setting aside the decision of the Board and remitting
the matter back to the Board for re-determination by a differently constituted
panel.
2. Factual Background
[3]
The
Respondent, Jennifer Juliet Pearce, is a citizen of Jamaica. She came to
Canada in September
1995. In December 1999, she made a claim for refugee protection on the basis of
her membership in a particular social group as a victim of domestic abuse. The
Respondent’s refugee hearing before the Convention Refugee Determination
Division (the First Panel) was held on September 7, 2000; the First Panel reserved
its decision.
[4]
On
or about October 15, 2000, the Respondent went to Jamaica using
another person’s passport and Canadian landing documents. On November 4, 2000,
the Respondent returned to Canada using the same person’s documents. She was
found to be carrying 200 grams of cocaine and was
charged under the Controlled Drug and Substances Act, S.C. 1996, c. 19.
[5]
On
November 30, 2000, the First Panel found that the Respondent had established a
well-founded fear of persecution in Jamaica and granted her
Convention refugee status.
[6]
The
Respondent pled guilty on December 11, 2000 to importing a controlled substance
and wilfully obstructing a peace officer. She was sentenced to two years plus a
day in custody. On November 6, 2001, the Adjudication Division of the Immigration
and Refugee Board found the Respondent to be inadmissible pursuant to paragraph
19(1)(c) of the Immigration Act, R.S.C. 1985, c. I-2 and ordered
her deported.
[7]
The
Minister issued a danger opinion against the Respondent but that danger opinion
was quashed by the Federal Court on November 13, 2002.
[8]
On
August 26, 2003, the Minister commenced an application to vacate the First
Panel’s positive refugee determination, pursuant to section 109 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), on the basis that
she had directly or indirectly misrepresented or withheld material facts – the alleged
material facts being her re-availment to Jamaica and her serious criminal
activity in Jamaica and Canada.
[9]
On
February 25, 2005, the Board ruled that portions of the Applicant’s documentary
evidence would be excluded from consideration by the Board hearing the vacation
application. This included evidence that post-dated the First Panel’s
determination of the Respondent’s refugee claim, including information about
the Respondent’s conviction in Canada.
[10]
The
Board heard the vacation application on March 31, 2005. The Respondent did not
attend the hearing nor did counsel appear on her behalf. The Board rendered its
decision orally, dismissing the Minister’s application to vacate. The Board later
issued written reasons on May 26, 2005.
[11]
The
Minister filed an application for leave and judicial review on June 22, 2005.
The Respondent did not file a notice of appearance. The Applicant sought and received
an order from the Court dispensing of personal service and an order for
substituted service on July 7, 2005.
[12]
Leave
for judicial review was granted on September 12, 2005.
[13]
The
Respondent has not responded to this application for judicial review.
3. Impugned Decision
[14]
In
its written reasons, the Board acknowledged that the information about the
Respondent’s return to Jamaica and her subsequent arrest for possession of
cocaine “would have had a profound effect on [the] reasoning” of the First
Panel. That panel had accepted the Respondent’s refugee claim on the grounds
that she was a credible witness and that she had established a well-founded
fear of persecution in Jamaica. The Board added that:
“The case becomes a difficult one for the Immigration and Refugee Board (the “Board”)
because the Board seems to have been mocked by this particular respondent.”
[15]
However,
despite finding that the Respondent’s positive refugee determination was
obtained as a result of the withholding of material facts relevant to the
Respondent’s claim, the Board declined to exercise its discretion under
subsection 109(1) to vacate the First Panel’s decision. In making its
determination, the Board took into consideration the fact that the Respondent had
only nine years of education and had led “an unsophisticated life” both in
Jamaica and in Canada. More significantly, the Board held that Citizenship
and Immigration Canada (CIC) was to be faulted for not bringing the relevant
information to the attention of the First Panel; CIC was informed about the Respondent’s
trip to Jamaica and her arrest
for importing cocaine into Canada about 25 days before the First Panel issued
its decision.
[16]
Specifically,
the Board noted that when the Respondent became aware that “the jig was up”,
she acknowledged her true identity to CIC, sometime near midnight on November
4, 2000. The Board found that it was not reasonable to expect in the
circumstances, “with all of this unhappiness falling upon this women that she
would have considered to ponder the difference between CIC and the Board.” The
Board did not fault the Respondent for not bringing this new information to the
attention of the First Panel, rather, the Board faulted CIC for doing nothing
when it could have brought the new information to the attention of the First
Panel before it rendered its decision. The Board stated that: “CIC would be
expected to bring that information to the Board’s [First Panel’s] attention; this
expectation is much greater than that is placed on the respondent.”
[17]
As
a result, the Board refused the Minister’s application to vacate the
Respondent’s positive refugee determination pursuant to subsection 109 of the
IRPA.
4. Relevant
Statutory Provisions
[18]
Section
109 of the IRPA prescribes the authority of the Board in determining applications
to vacate positive refugee decisions:
|
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.
(3) If
the application is allowed, the claim of the person is deemed to be
rejected and the decision that led to the conferral of refugee protection is
nullified
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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.
(3) La
décision portant annulation est assimilée au rejet de la demande d’asile, la
décision initiale étant dès lors nulle.
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Subsection 109(1) confers on the Board
the discretion to vacate a positive refugee determination if it finds that that
decision was obtained as a result of the refugee directly or indirectly
misrepresenting or withholding material facts relevant to his or her claim. The
Board may reject the vacation application if, pursuant to subsection 109(2), it
is satisfied that other evidence before the panel which decided the claim is sufficient
to justify granting refugee protection.
5. Issues
[19]
The
two following issues are raised in this application for judicial review.
1.
whether
the Board erred by basing its decision to reject the Minister’s application to vacate
the First Panel’s positive refugee determination on irrelevant factors, namely:
a)
the
Respondent’s limited education and lack of sophistication which caused her not
to appreciate the difference between CIC and the First Panel; and
b)
CIC’s
conduct in failing to inform the First Panel of the new material facts related
to the Respondent’s refugee claim.
2. Whether
the Board erred by failing to consider if there was “sufficient other evidence”
before the First Panel to justify a positive refugee decision before rejecting
the Minister’s application to vacate.
6. Standard of Review
[20]
In order to determine the applicable standard of review, the
Supreme Court of Canada dictates that four contextual factors, which generally
comprise the “pragmatic and functional approach”, must be weighed: (1) the
presence or absence of a privative clause or statutory right of appeal; (2) the
expertise of the tribunal relative to that of the reviewing court on the issue
in question; (3) the purposes of the legislation and the provision in
particular; and (4) the nature of the question – law, fact, or mixed law and fact:
see Dr. Q v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226. Considering these four factors enables the Court to
address the core issues in determining the degree of deference to be afforded
to the Board. Depending on the level of deference,
three standards of review are possible: correctness, reasonableness simpliciter
and patent unreasonableness.
[21]
There are two issues that must be considered by
the Board in the context of an application to vacate. These matters are
essentially raised by the operation of subsections 109(1) and (2) of the IRPA
and require the Board to make factual determinations. First, under subsection
109(1), the Board must determine if the positive decision was obtained as a
result of direct or indirect misrepresentation or withholding of material facts
relating to a matter relevant to the refugee claim. Second, the Board notwithstanding
the misrepresentation or withholding may still reject the application to vacate
if it finds that there is sufficient “other evidence,” untainted by the
misrepresentation or withholding of evidence, to justify refugee protection.
[22]
In the present case, the Board did not conduct
the analysis required under subsection 109(2) of the IRPA. This constitutes an
error of law reviewable on a correctness standard: Pushpanathnan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982. It is therefore
unnecessary to conduct a pragmatic and functional analysis in respect to this issue.
[23]
I will now proceed with the pragmatic and
functional analysis in respect to the subsection 109(1).
A. The presence or absence of a privative clause or a
statutory right of appeal
[24]
Although the IRPA does not contain a privative
clause or a statutory right of appeal, several statutory provisions indicate
that a greater level of deference is due to the Board. First, subsection 162(1)
of the IRPA states that the Board has “sole and exclusive jurisdiction to hear
and determine all questions of law and fact, including questions of
jurisdiction”. Second, by virtue of subsection 72(1), an application to
judicially review decisions of the Board requires leave of the Federal Court.
Further, although the Board’s decision with respect to a vacation application
may be judicially reviewed pursuant to sections 18 and 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, the availability of a judicial review does
not necessary decrease the level of deference owed to the Board. As the Supreme
Court of Canada stated in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, the jurisdiction of a court on appeal is
much broader than the jurisdiction of a court on judicial review. At paragraph
31, the Supreme Court stated that: “In principle, a court is entitled, on
appeal, to disagree with the reasoning of the lower tribunal”. On judicial
review, the Court’s role is to review the decision on the applicable standard
of review. As a consequence of the above provisions, I am of the view that with
regard to this first factor a greater level of deference owed to the Board.
B. The relative expertise of the Commission
[25]
In evaluating this second factor, the Court must
consider the “three dimensions” of relative expertise, stated in Pushpanathan,
above, at paragraph 33:
a.
the Board’s expertise;
b.
the Court’s own expertise relative to that of
the Board; and
c.
the nature of the specific issue before the
Board relative to the Court’s expertise
[26]
The Supreme Court of Canada elaborated on the
relationship between expertise and curial deference in Dr. Q., above. At
paragraph 28 of its reasons, citing Moreau-Bérube v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, the Supreme Court stated that:
Greater
deference will be called for only where the decision-making body is, in some
way, more expert than the courts, and the question under consideration falls
within the scope of this greater expertise.
[27]
In the present case, the nature of the specific
issue determined by the Board – that is, whether the Respondent’s refugee claim
ought to be vacated by virtue of subsection 109(1) of the IRPA – is two-fold:
first, whether the Respondent withheld information, and second, whether the new
information concerning the Respondent can be said to be material and a matter
relevant to the Respondent’s refugee claim.
[28]
Whether the impugned information is material to
the Respondent’s refugee claim and whether the information was indeed withheld
by the Respondent at the time of the first determination, are questions of
fact. To the extent that such questions involve assessing a claimant’s
credibility in respect to the new evidence, it is generally accepted that such
determinations are within the specialized expertise of the Board and afforded
curial deference by the reviewing court: see Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL). However, when the questions to be answered, as is the case
here, do not involve credibility or plausibility assessments, but rather involve
simply assessing whether new information was withheld and whether that
information is material to the Respondent’s refugee claim then, in my view, the
Board has no particular expertise in such matters that would warrant the same
degree of curial deference. The Board has no greater expertise relative to the
Court’s expertise on such issues. It follows, in my view, that this second
factor is neutral.
C. The purpose of the statute and the provision in
question
[29]
The purpose of the IRPA, in general, with respect to
refugee protection is set out in subsection 3(2). Among the objectives are the
following:
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3. (2)
The objectives of this Act with respect to refugees are
(a) to recognize that the
refugee program is in the first instance about saving lives and offering
protection to the displaced and persecuted;
(b) to fulfill Canada’s
international legal obligations with respect to refugees and affirm Canada’s
commitment to international efforts to provide assistance to those in need of
resettlement;
…
(d) to offer safe haven to
persons with a well-founded fear of persecution based on race, religion,
nationality, political opinion or membership in a particular social group, as
well as those at risk of torture or cruel and unusual treatment or
punishment;
…
(h) to promote international
justice and security by denying access to Canadian territory to persons,
including refugee claimants, who are security risks or serious criminals.
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3. 2) S’agissant des réfugiés, la
présente loi a pour objet :
a) de reconnaître que le programme pour les réfugiés vise avant
tout à sauver des vies et à protéger les personnes de la persécution;
b) de remplir les obligations en droit international du Canada
relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du
Canada de participer aux efforts de la communauté internationale pour venir
en aide aux personnes qui doivent se réinstaller;
[…]
d) d’offrir l’asile à ceux qui craignent avec raison d’être
persécutés du fait de leur race, leur religion, leur nationalité, leurs
opinions politiques, leur appartenance à un groupe social en particulier,
ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels
et inusités;
[…]
h) de promouvoir, à l’échelle internationale, la sécurité et la
justice par l’interdiction du territoire aux personnes et demandeurs d’asile
qui sont de grands criminels ou constituent un danger pour la sécurité.
|
[30]
The
purpose of section 109 of the IRPA is to provide a mechanism for the Minister
to apply to vacate a positive decision for refugee protection in circumstances
where a person was granted refugee protection on the basis of misrepresentation
or concealment of relevant facts. Section 109 is permissive and provides the
Board with discretion in deciding vacation applications. That discretion is
limited by subsection 109(2) which provides that the Board may reject an
application to vacate if it satisfied that there is other sufficient evidence
considered at the time of the first determination to justify refugee
protection.
[31]
The IRPA sets out a
statutory scheme for determining the claims of persons seeking the protection
of Canada. Section 109 complements the general
objective of refugee protection stated in the IRPA by ensuring that persons do
not improperly obtain refugee status. The refugee protection provision of the
IRPA provides for the adjudication of rights and entitlements in respect
to refugee claimants and not the balancing of competing interests. As a result,
this third factor militates in favour of less curial deference to the Board.
D. The nature of the
question
[32]
Finally,
with respect to the fourth contextual factor of the pragmatic and functional
approach, as noted above, I find the substantive issues before the Court in
this case to be questions of fact. As a consequence, I am of the opinion that
this factor militates towards greater deference.
[33]
Upon
considering the four contextual factors of the pragmatic and functional
approach and the facts of this case, I find that the applicable standard of
review with respect to the first issue raised in the application for judicial
review to be patent unreasonableness. I note that in Sethi v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1178, Justice Danielle Tremblay-Lamer came to the same conclusion
respecting the appropriate standard for reviewing the Board’s decision under
subsection 109(1) after conducting a pragmatic and functional analysis.
7. Analysis
[34]
The Board, in its reasons, recognized that material facts
were withheld from the First Panel and that those material facts would have had
a profound impact on the First Panel’s decision. Notwithstanding this
determination the Board rejected the vacation application on the basis of the
following findings, namely:
1) given the Respondent’s limited education and her
lack of sophistication, she would not have understood the difference between
CIC and the First Panel; and
2) CIC was at fault for failing to bring the new
material facts to the attention of the First Panel.
[35]
While finding that material facts were withheld from the First
Panel, the Board appears to be saying that the Respondent is nevertheless
forgiven for doing so because of her limited education and lack of
sophistication. Further, the Board also appears to say that since CIC became
aware of the material facts on November 4, 2000, when these were admitted by
the Respondent, CIC, and not the Respondent, had the obligation to bring this
new information to the attention of the Board.
[36]
In my view, it was patently unreasonable for the Board to
base its decision to reject the Minister’s application to vacate on these two
factors. First, whether the Respondent had the intellectual capacity to
understand or the intention to misrepresent the facts or withhold material
facts is not relevant. Subsection 109(1) states simply that the Board may vacate
“…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.” In
Zheng v. Canada (Minister of Citizenship and Immigration), 2005 FC 619,
at paragraph 27, Justice James Russell states the following:
There is nothing in the wording
of section 109, for instance, that requires that any misrepresentation or
withholding of material facts must be deliberate and necessitate an inquiry
into the Applicant's intent.
I agree. In my view, the
Board’s decision under the subsection 109(1) does not warrant consideration of
the Respondent’s motives, intention, negligence or mens rea.
[37]
Second, I agree with the Applicant that it is the behaviour
of the Respondent - in withholding material facts - that is relevant to the
determination of the vacation application. While
it may have been desirable for CIC to communicate the new information to the
Board, this cannot excuse the Respondent from her obligation to make known all
material facts relevant to the refugee claim to the First Panel. The Board was
wrong in effectively shifting the onus away from the Respondent and onto the
CIC. It was patently unreasonable to rely on such an erroneous finding to
dismiss the application to vacate.
[38]
What then is the
ambit of the Board’s discretion once it finds that material facts are
misrepresented or withheld? In my view, subsections 109(1) and 109(2) must be
read together. The ambit of the Board’s discretion to reject an application is
limited by the language of subsection 109(2) which provides for rejection of
an application to vacate by the Board, “…if it is satisfied that other
sufficient evidence was considered at the time of the first determination to
justify refugee protection.” The Board in this case failed to consider whether
there was other untainted evidence considered at the time of the first
determination which would justify granting refugee protection to the Respondent,
notwithstanding the withheld material facts. The Board simply exercised its
discretion to reject the Minister’s application based on the above-noted
irrelevant considerations. The Board could not, in my view, reject an
application to vacate after finding that the requirements of subsection 109(1) were
met without first considering whether “other sufficient evidence” before the First
Panel supported the Respondent’s refugee claim. By failing to do so, the Board
committed a reviewable error. It erred at law by failing to comply with the
provisions of subsection 109(2) of the IRPA.
[39]
On the record, it is
not obvious that other sufficient evidence was before the First Panel which
would have justified granting the Respondent refugee protection. It is not,
however, for this Court on judicial review, to make such a determination.
8. Conclusion
[40]
In conclusion, the Board committed a reviewable error by basing
its decision to reject the Minister’s application to vacate on irrelevant
factors. The Board also committed a reviewable error by failing to conduct a
proper analysis under subsection 109(2) of the IRPA before rejecting the
application to vacate. In the result, the Board’s decision will be set aside and
the matter remitted for re-determination by a differently constituted panel.
[41]
The
Applicant had the opportunity to raise a serious question of general importance
as contemplated by paragraph 74(d) of the IRPA, but did not do so. I am
satisfied that no serious question of general importance arises on this record.
I do not propose to certify a question.
ORDER
THIS COURT
ORDERS that
1. The application
for judicial review is allowed.
2. The Board’s decision will be set aside and
the matter is remitted for re-determination by a differently constituted panel.
3. No serious
question of general importance is certified.
“Edmond P. Blanchard”
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