Naqvi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1605

Date: 20041116

Docket: IMM-1167-04

Citation: 2004 FC 1605

Ottawa, Ontario, November 16, 2004

Present:         The Honourable Mr. Justice Blais                                 

BETWEEN:

                                                               NASSEM NAQVI

                                                               MOHSIN NAQVI

                                                                                                                                        Applicants

                                                                           and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                     Respondent

                                           REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated January 14^th, 2004, which determined that Nassem Naqvi (applicant) and Mohsin Naqvi (collectively, the applicants) had misrepresented and withheld material facts which led to a favourable decision on August 7, 2000, and therefore that the claim granting refugee protection be deemed rejected and the conferral of refugee protection be nullified, in accordance with subsection 109(3) of theImmigration and Refugee Protection Act (Act).

RELEVANT FACTS

[2]                The applicants, a 66 year old mother and her 34 year old son, are Shia Muslims from Pakistan. They arrived in Canada in January 2000 and December 1999 respectively. They applied for refugee protection and this was granted to them on August 7, 2000.

[3]                In May 2003, the Minister applied to have the decision of August 7, 2000, granting the applicants refugee protection, overturned based on material misrepresentations made before that tribunal. The applicant had been living in the United States from 1989 to 1999, but had fabricated a myriad of allegations on his Personal Information Form (PIF) which related to events occurring in Pakistan over that same time frame.

[4]                The RPD in their decision dated January 14^th, 2004, found that there had been material misrepresentations made by the applicants and vacated the refugee protection status which was granted to the applicants on August 7, 2000.

ANALYSIS

[5]                The main point of contention between the parties is the applicable test to determine whether or not an application to vacate should be granted under section 109 of the Act.

[6]                Subsection 109(1) of the Act is not contested, seeing as to how the applicants have admitted to fabricating and misrepresenting facts in their PIFs and during their original hearing. The issue rests on the interpretation given to subsection 109(2) of the Act.

[7]                The test has been well established by jurisprudence based on the similar provision in the former act, subsection 69.3(5) of the Immigration Act R.S.C. 1985, c-12, and both parties agree on the formulation of the test. In fact, both parties cite the same passage from Ray v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 849:

Where there is no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee.

[8]                The applicant submits that the RPD should reject the Minister's application if, once the fraudulent evidence set aside, there remains sufficient evidence to support a finding by the original panel, and this, without re-weighing the original evidence.

[9]                To apply such a strict test as the applicant suggests, would lead to a granting of more rights to a party who has put itself in this situation by misrepresenting the facts.

[10]            Why should a prevaricator have the advantage of keeping the weight accorded to his evidence when the tribunal was still under the impression that he was an honest claimant? He simply should not; that is why it is in the interest of justice to allow the current tribunal to re-weigh the evidence which was presented to the original panel.

[11]            In fact, Justice Tremblay-Lamer in Ray, supra, held that the same was true of the predecessor of this section, subsection 69.3(5) of the former Immigration Act. She held at paragraphs 12-14:

In the present case, the Panel found that there was no credible evidence upon which to find that despite the misrepresentations, there remained sufficient evidence upon which a favourable refugee determination was or could have been made.

Where there is no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee.

The Applicants' suggestion that they are entitled to a new hearing would be inconsistent with the scheme of the Act. A failed claimant who told the truth is not entitled to another hearing. Clearly the scheme of the Act is not to give more rights to a party who has misrepresented material facts. [my emphasis]

[12]            Although the above case was in the context of a request for a new hearing, the principle remains the same, it was not the intention of the Act to give more rights to a party who has misrepresented material facts. In respect to the new Act, Justice O'Reilly in Selvakumaran v. Canada, [2003] F.C.J. No. 1849 at paragraph 15, also found it appalling that a deceptive or fraudulent claimant would gain extra rights. Although his decision was in the context of admittance of new evidence, the underlying point remains the same:

However, if I were to find that the Board should have received new evidence in those areas, Ms. Selvakumaran would have secured an advantage over other persons whose refugee hearings took place before the coming into force of IRPA, an advantage she would have gained by mendacity and misrepresentation. Naturally, I would be reluctant to interpret the law in a way that would reward such conduct. [my emphasis]

[13]            In the present case, the RPD found that the applicants:

... deliberately or indirectly misrepresented or withheld relevant material facts relating to their application for refugee status. Once the tribunal has set aside the misrepresented or withheld relevant material facts, there is not sufficient evidence to support the determination made by the original panel on August 7, 2000. (Reasons for decision of the RPD dated January 14^th, 2004, page 5).

[14]            From the above passage, it is evident that the RPD applied the proper test. There was no new evidence presented, the panel simply relied on the evidence provided at the original hearing, and came to the conclusion that after excluding the tainted evidence, there was not sufficient grounds on which to reject the application to vacate.

[15]            In Annalingam v. Canada (M.C.I.), [2003] 1 F.C. 586 (FCA), at paragraphs 27 and 28, the Federal Court of Appeal approved the test set out in Ray,supra:

[27] It is for this reason that Tremblay-Lamer J. concluded, as she did in Ray, supra, that it could be inferred from the fact that a claimant's refugee status was withdrawn, that the claimant was not in fact a Convention refugee [at paragraph 13]:

Where there is no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee.

[28] Having regard to the test which the reviewing panel must apply when deciding whether to allow the Minister's application, the conclusion reached by Tremblay-Lamer J. is sound.

[16]            In Annalingam, supra, even if the Court was considering subsection 69.3(5) of the former Immigration Act, the Federal Court of Appeal dismissed the appeal. In that case, the refugee claimants were arguing that the decision to vacate should be set aside because there was documentary evidence to support their claim.

[17]            As it was suggested by the respondent, the documentary evidence alone is not sufficient to allow the RPD to reject the Minister's application to vacate.

[18]            I also agree with the respondent that the suggestion by the applicant that the test applicable to subsection 46.01(6) of the former Immigration Act which was called "credible basis test", is not applicable. The task performed by the "credible basis panel" under the former subsection 46.01(6) was different from the one now used by the RPD under subsection 109 of the present Act.

[19]            Furthermore, I have no hesitation in concluding that the RPD did not exceed its jurisdiction by inferring from the documentary evidence filed in 1999, which evidence was before the RPD at the first time, that there is not a serious chance of persecution for the applicants even if there is evidence of violence in Pakistan.

[20]            I, therefore, find no error in the findings or the procedure undertaken by the RPD and the application for judicial review must be dismissed.

[21]            Counsel for the applicant has proposed questions for certification:

In a vacation hearing under subsection 109(2) of the IRPA, after having set aside the evidence tainted by the misrepresentations, the Board is to determine if "other sufficient evidence was considered at the time of the first determination to justify refugee protection".

QUESTION:     Can this test be met by the Board proceeding to make a new determination on the remaining evidence, rather than by a specific evaluation of whether the evidence could sustain the earlier positive decision?

QUESTION:     Can this test be met by a laconic statement that "in spite of the violence that occurs in Pakistan society, there is not a serious chance that the respondents would be persecuted if they returned to Pakistan"?

[22]            I disagree with the suggestion by counsel for the applicants that those questions have not yet been addressed by this Court. In fact, as it is signalled by counsel for the respondent, the language of subsection 109(2) of the Act is clear.

[23]            I also agree with counsel for the respondent and I also quoted those decisions in my reasons. It is settled law that the Board may reassess evidence at the vacating hearing. Cooramaswamy v. M.C.I., [2002] 4 F.C. 501 (FCA), Annalingam, supra, and Selvakumaran, supra, are similar to the present one and have already disposed of that issue. Therefore, I find that those questions are not of general importance and will not be certified.

[24]            Counsel for the respondent has proposed an alternative formulation for a question to be certified. The formulation is:

In deciding whether to reject or not the Minister's application to vacate, does the Refugee Protection Division have jurisdiction under ss. 109(2) of the Immigration and Refugee Protection Act to reassess the remaining credible evidence, including the documentary evidence, which was before the Division at the original hearing, in order to determine whether that evidence is sufficient to justify refugee protection?

[25]            In my view, there is nothing new in this reformulation of the question and I find that this question is not of general importance. Therefore, this question will not be certified.

                                               ORDER

THIS COURT ORDERS that:

-            This application for judicial review be dismissed.

-          No questions for certification.

                  "Pierre Blais"                 

                        J.F.C.

                                             ANNEX A

APPLICABLE LEGISLATION

Immigration and Refugee Protection Act

Former Immigration Act

FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                    IMM-1167-04

STYLE OF CAUSE:                 NASSEM NAQVI et AL.

v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:            MONTREAL, QUEBEC

DATE OF HEARING:               OCTOBER 27^th, 2004

REASONS FOR ORDER AND ORDER OF THE HONOURABLE

MR. JUSTICE BLAIS

DATED:                                      NOVEMBER 16, 2004

APPEARANCES:

MR. WILLIAM SLOAN                                                         FOR THE APPLICANT

MRS. MICHÈLE JOUBERT                                                FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MR. WILLIAM SLOAN                                                       FOR THE APPLICANT

MR. MORRIS ROSENBERG                                            FOR THE RESPONDENT            

DEPUTY ATTORNEY GENERAL OF CANADA