Date: 19980302
Docket: IMM-3740-96
BETWEEN:
MEHRDAD DARGAHI, REYHANI GHASABEH, ABDOLREZA DARGAHI,
and minors, HESAMEDDIN DARGAHI and NEZAMEDDIN DARGAHI,
by their litigation guardian, MEHRDAD DARGAHI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application for judicial review of the decision of a Senior Immigration Officer (the "SIO"), dated October 3, 1996, wherein it was held that the applicants were ineligible, pursuant to paragraphs 46.4(1) and 46.01(1) of the Immigration Act, to have their claims for refugee status determined in Canada. Paragraph 46.01(1) states that a refugee claimant is not eligible to have his or her claim determined by the Refugee Division if that person has been recognized as a refugee by another country to which the person can be returned.
[2] The applicants seek an Order in the nature of certiorari to quash the decision of the SIO. They also seek a declaration that paragraphs 46.4(1) and 46.01(1) of the Act are inconsistent with sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter"), and are, therefore, of no force or effect.
The Facts:
[3] The applicants are nationals of Iran. Early in 1995, they were determined to be eligible to have their claims referred to the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board (the "Board"). Evidence subsequently came to the attention of the respondent that those eligibility decisions may have been obtained through fraud or misrepresentation of material fact, namely, that the appliants had failed to advise the respondent of their status as Convention refugees in Germany, and that they had fabricated their identities.
[4] The SIO sent the applicants and their counsel a letter, dated September 10, 1996, which was entitled "Notice to Appear to Address Possibility of a Section 46.4 (Fraudulent Claim) Determination", enclosing copies of the evidence supporting the allegations.
[5] The applicants, their counsel, and an accredited interpreter appeared for an interview with the SIO on October 3, 1996. In the course of the interview, the SIO referred to the Act and to the Immigration Manual, and consulted with national headquarters of the respondent. The SIO deposes that she had informed counsel for the applicants that a copy of the relevent Immigration Manual provisions could be obtained from a Board staff member, but that counsel did not get a copy during the lunch break, nor did she further raise the request when the interview resumed after lunch. Counsel for the applicant, on the other hand, submits that she made several requests for the guidelines in the course of the interview.
[6] During the interview, the applicant mother admitted that the applicants had received Convention refugee status in Germany, but that they did not feel safe there. The reasons for her fears include neo-Nazi marches near the refugee complex where they lived, a lack of or unwilling police protection, and systemic discrimination and harassment. She further admitted that she did not reveal her true identify when a SIO made the initial eligibility decision regarding the applicant children and herself. The applicant mother also explained that a certain Mr. Ghobadpour, an Iranian expatriate in Canada who had previously lived in Germany, essentially took over her immigration proceedings in Canada, isolating her, changing the names on the family's identity documents, and telling her what to do.
[7] The applicant father also admitted not disclosing his true identity in a similar fashion. He had arrived in Canada on a later date than the rest of the family. It is not clear why he was obliged to rely on Mr. Ghobadpour for his travel and identity documents.
The SIO's Decision:
[8] The SIO determined, pursuant to section 46.4 of the Act, that the applicants had had their claim referred to the CRDD based upon fraud or misrepresentation of a material fact. The SIO then revisited the initial eligibility decision and determined that, pursuant to paragraph 46.01(1) of the Act, the applicants were ineligible for determination of their claim by the CRDD because they had already been recognized as Convention refugees by Germany, a country to which they could be returned. The SIO deposes that she based her decision on a consideration of all the relevant evidence, and not only on the basis of the Immigration Manual.
[9] Counsel for the applicant argued that the impugned provisions were contrary to the Charter. The SIO made no determination in that respect, as she believed this was beyond her jurisdiction.
[10] During a second interview, held the same day as the first one, following a lunch break, the SIO considered the applicants' evidence relating to whether or not they were returnable to Germany, namely, a letter from the Consulate General of the Federal Republic of Germany which stated that the right of return would be lost if the applicants had been legally in Canada for more than six months. Although the applicants had been here for more than six months, the SIO determined that because they were not legally in Canada, their right of return to Germany was not lost.
[11] The applicants also submitted a letter from the Federal Office for the Recognition of Foreign Refugees concerning the refugee status of an Afghani citizen, Ghujan Awas. The SIO determined that the letter was not evidence of the applicants' own situation and was not persuasive evidence of an alleged inability to return to Germany. The SIO advised the applicants that, despite their not having valid travel documents, they could be returned to Germany.
The Issues:
[12] Did the SIO make an erroneous finding of fact, made in a perverse or capricious manner without regard to the evidence, in determining that the applicants were returnable to Germany?
[13] Is the SIO required to find fault or blameworthiness in order to come to a determination of fraud or misrepresentation within the meaning of section 46.4? Is it an error in law not to make findings of fault or blameworthiness?
[14] Did the SIO base her decision on material that was not made available to the applicants, such that she fettered her discretion, breached her duty of fairness, or breached the principle of natural justice?
[15] Are the impugned decisions contrary to the Charter?
Analysis:
1. Returnability of the applicants to Germany - capricious or perverse finding of fact?
[16] Counsel for the applicants submits that the proper test is whether the country in question will take the person back. However, counsel presents no evidence to show that the SIO did not apply this test.
[17] Counsel for the applicants alleges that the SIO ignored the two letters submitted by them. However, according to the SIO's affidavit, that is not the case. It would appear that she weighed and assessed the evidence before her, as is her duty, and that she did not ignore relevant evidence. A review of the contents of these letters leads me to the conclusion that there was nothing perverse or capricious in the SIO's finding of fact.
2. Section 46.4 and findings of fault or blameworthiness?
[18] The applicants cite no immigration case law to support their argument that the SIO must take into account the moral blameworthiness of the applicants in relation to the interpretation of the concept of misrepresentation of a material fact as referred to in section 46.4. With respect to intent, as required in an allegation of fraud, there is no question that the applicants intended to conceal their Convention refugee status in Germany, be it for valid reasons or not, from Canadian authorities. The applicants' argument, thus, has no basis in law.
[19] The applicants made an argument of duress with respect to the influence of Mr. Ghobadpour over the conduct of their refugee claims. However, there is insufficient evidence to support such a claim, and indeed, there are certain gaps in the evidence presented which call into question its credibility. The duress argument, as it stands, does not further the applicants' case in regards to section 46.4.
3. The duty of fairness, the principle of natural justice, and fettering discretion?
[20] The applicants had two interviews with the SIO. They had legal representation throughout the process, and their counsel was in attendance at the interviews. The notification of the allegation provided the applicants with the particulars of the case against them, and the interviews gave them, along with their counsel, an opportunity to be heard and make a full response and defence. Also, the delay or break between the first and second interviews indicates the provision of an even better opportunity for the applicants to prepare and present their case.
[21] The Immigration Manual and guidelines are publicly available. The SIO openly referred to the legislation and applicable policy during the interview. The applicants were given the name of a Board staff member who could assist them in obtaining documentation required by counsel. These are all evidence of the provision of natural justice in this case.
[22] With all due respect, I am of the view that counsel for the applicants has presented insufficient evidence of the SIO fettering her discretion.
Conclusion:
[23] It appears that this may be a case where a family of new arrivals in Canada may have sought and followed some very bad advice. Nevertheless, it is clear that the family knew perfectly well what they were doing. They may find other sources of relief elsewhere, but I should conclude that judicial review of the SIO's decision is not one of them. All in all, there is no substantive basis to the case. Furthermore, I fail to see where section 7 and 15 of the Charter can be engaged.
[24] The application for judicial review is dismissed.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
March 2, 1998.
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