Sayed v. Canada (Minister of Citizenship and Immigration), docket IMM-4558-99

Date: 20001011

Docket: IMM-4558-99

BETWEEN:

     AHMAD NOMAN SAYED

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR JUDGMENT

DAWSON J.

[1]      This application arises out of the vacation of the applicant's status as a Convention refugee.

[2]      Ahmad Noman Sayed, the applicant, is a 29 year old citizen of Pakistan who, on June 18, 1996, was determined to be a Convention refugee. This determination was made on the basis of Mr. Sayed's assertion that he had a well-founded fear of persecution because he was an Ahmadi Muslim.

[3]      On August 6, 1998 the Minister applied ex parte to the Chairperson of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") under section 69.2 of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act"), for leave to make an application to the Board to reconsider and vacate the determination that Mr. Sayed was a Convention refugee. The Minister's application was based on the ground that the determination that Mr. Sayed was a Convention refugee was obtained by fraudulent means or misrepresentation, suppression or concealment of a material fact.

[4]      Leave was granted to the Minister who then served Mr. Sayed with an application to the Board for reconsideration and vacation of the original determination. A three-member panel of the Board heard the Minister's application to vacate the determination. On August 13, 1999, the Board rendered its decision whereby it allowed the Minister's application. The Board further determined that Mr. Sayed was not a Convention refugee.

[5]      Mr. Sayed brings this application for judicial review of that decision, and seeks an order setting aside that decision and remitting the matter back for reconsideration by a differently constituted panel of the Board.

THE FACTS

[6]      At the outset of the hearing, the Board identified the issues to be addressed during the course of the hearing. The Board stated as follows:

The issues raised in this application are as follows:      First of all, whether there is credible and trustworthy evidence that the respondent obtained refugee status in Canada by misrepresentation. And the second issue is whether there is other sufficient evidence upon which the determination was or could have been based.

[7]      At no point in the hearing did the Board give notice that it would be considering the issue of whether Mr. Sayed was a Convention refugee.

[8]      At the conclusion of the hearing, the Minister's representative submitted to the Board that the application to vacate status did not mean that Mr. Sayed "will be determined not to be a Convention refugee. It's just that his present status would be vacated and it would be, theoretically -- at least possible -- for him to make a fresh claim".

[9]      After hearing all of the submissions, the Board repeated that there were two issues for it to deal with, the first whether there was credible and trustworthy evidence that refugee status was obtained by fraudulent misrepresentations, the second, if so, whether there was sufficient evidence upon which the determination was or could have been based.

[10]      After reserving its decision, the Board found that Mr. Sayed had obtained refugee status by misrepresentations and concealment of material facts, and also determined that the remaining uncontradicted evidence could not have supported the original positive determination that Mr. Sayed was a Convention refugee.

[11]      The Board then concluded its analysis by stating as follows:

The panel has elected not to exercise its discretionary power under [sub]section 69.3(5) of the Immigration Act.

The Refugee Division, therefore, approves the application filed by the Minister and hereby vacates the respondent's previous positive Convention refugee determination. Further7, the Refugee Division determines that the respondent is not a Convention refugee.

__________________________

7 M.C.I. v. Bayat, Mohammad Farhad (F.C.A., no. A-338-95), Stone, Linden, Robertson (dissenting), June 10, 1999.

THE ISSUES

[12]      Mr. Sayed raised three issues on this application for judicial review:

1.      Did the Board fail to give him notice of its intention to consider the issue of whether or not he is a Convention refugee?;

2.      Was he entitled to present evidence and make submissions on the issue of whether he currently fell within the definition of a Convention refugee?; and

3.      Did the Board breach procedural fairness by denying Mr. Sayed the opportunity to present evidence and make submissions relevant to the issue of whether he fell within the definition of a Convention refugee?

ANALYSIS

[13]      The relevant legislative provisions are found within subsections 69.2(2) and 69.3(5) of the Act which provide:

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.

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.

[14]      In the present application, the Minister did not oppose Mr. Sayed's factual contention that the Board failed to give him notice that it would consider and rule upon the question of whether Mr. Sayed was a Convention refugee. Indeed, the Minister noted that at the time the Board held its hearing the prevailing view, based upon the decision of this Court in Bayat v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 76 (F.C.T.D.), was that at such a hearing the Board did not have jurisdiction to find the subject of the inquiry not to be a Convention refugee.

[15]      The Minister submitted, however, that this Court has consistently held that a hearing to reconsider and vacate a determination that an individual is a Convention refugee is not a fresh hearing but is limited to a consideration of the evidence before the original decision maker.

[16]      The Minister submitted that it followed that there was no right to adduce new evidence, and that the Board was confined to determining whether the original decision was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact and, if so, whether notwithstanding such impropriety there was other sufficient evidence on which the decision was or could have been based.

[17]      It further followed, the Minister submitted, that there could be no duty on the part of the Board to give notice of its intent to consider Mr. Sayed's status and no duty on the Board to provide him with an opportunity to present evidence or make submissions relative to whether he fell within the definition of a Convention refugee.

[18]      The Federal Court of Appeal's decision in Bayat v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 343 (F.C.A.) represents the most recent pronouncement on the jurisdiction of the Board when hearing an application brought pursuant to subsection 69.2(2) of the Act. In Bayat, the Court of Appeal reversed a decision of the Trial Division to the effect that on such application the Board did not have the jurisdiction to find a claimant not to be a Convention refugee. Instead, Justice Stone, speaking for the majority of the Court, held that on hearing an application under subsection 69.2(2) of the Act, the Board's jurisdiction included jurisdiction to reverse the determination that an individual was a Convention refugee.

[19]      At paragraph 22 of the judgment, the majority of the Court stated as follows:

[22] In my view, this language in subsection 69.3(4) ought not to be divorced from its context. The "application" mentioned therein is clearly the "application" referred to more fully in subsection 69.2(2). When the two subsections are read together it becomes clear that the Minister's application was to have the determination of the visa officer dated April 18, 1989 "reconsidered and vacated" and that it is this application that the Refugee Division is authorized "to approve or to reject". Thus, the power of the Refugee Division was not limited to merely "vacating" that determination but also of "reconsidering"11 it. ... The intent appears to be that the Refugee Division should be able to take up the impugned determination for renewed consideration with a view to reversing and vacating it. In my view, the power of reconsideration is in addition to that of "vacating" the determination. [footnotes omitted and emphasis added]

[20]      This decision is the starting point for Mr. Sayed's argument. Mr. Sayed submitted that because on a hearing held pursuant to subsection 69.2(2) of the Act, the Board has jurisdiction to determine a person not to be a Convention refugee, such person must be given an opportunity to present evidence and to make submissions on the issue of whether the person currently falls within the definition of a Convention refugee.

[21]      Mr. Sayed submitted the Board cannot base its assessment of the merit of the refugee claim solely upon evidence proffered years ago which would, arguably, be outdated. Rather, Mr. Sayed asserted, because the definition of a Convention refugee is forward looking, the Board must allow an applicant the opportunity to present evidence and to make submissions in support of the individual's claim to a well-founded fear of persecution.

[22]      In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.), the Supreme Court of Canada commented on the content of the duty of fairness and the right to an oral hearing. Justice L'Heureux-Dubé, writing for the Court, stated at paragraph 33 of the reasons, "it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations".

[23]      When considering the duty of fairness in the context of a hearing under subsection 69.2(2) of the Act , it is important to keep in mind that the individual has already had an oral hearing into his refugee claim before the Convention Refugee Determination Division of the Board.

[24]      Further, as described in more detail below, the prevailing view of this Court is that a hearing to reconsider and vacate a determination of refugee status is not to be equated with a fresh hearing into an individual's refugee claim. This Court has, on a number of occasions, held that the Board's discretion under subsection 69.3(5) of the Act to consider "other sufficient evidence on which the determination was or could have been based" is limited to the evidence which was actually before the original decision maker.

[25]      Richard, J., as he then was, concluded in Bayat, supra, at paragraph 7, that it was reasonable "that the language of subsection 69.3(5) clearly relates only to the evidence that was actually before the [original decision maker]". This conclusion was not reversed on appeal.

[26]      In Guruge v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 213 (F.C.T.D.), Rothstein, J., as he then was, followed the decision of Richard, J. in Bayat and stated as follows at paragraphs 11 and 12 of his judgment:

11      In the present case, the evidence the applicant sought to introduce was for the purpose of convincing the panel, that based on accurate information, she should still be found to be a Convention refugee. I do not think such evidence is contemplated by subsection 69.3(5). The words of subsection 69.3(5) are quite clear and their purpose can readily be understood. The relevant words are "there was other sufficient evidence on which the determination was or could have been based". The past tense "was" indicates that the evidence in question was evidence that was before the panel that made the original determination. The rationale for such an interpretation is not obscure. Notwithstanding fraud, misrepresentation, suppression or concealment of any material fact, there may still have been other credible evidence which, independent of the fraud, suppression, concealment or misrepresentation, could sustain a Convention refugee finding. Subsection 69.3(5) was clearly intended to provide the Refugee Division with discretion to reject the Minister's application under subsection 69.2(2) if such evidence was sufficient to support a Convention refugee finding by the original panel.

12      Subsection 69.3(5) is not a provision under which the Refugee Division is given a fresh mandate to declare an individual to be a Convention refugee. Yet, if additional evidence to support a Convention refugee determination was to be allowed, that is what subsection 69.3(5) would become. I agree with Richard J. in Bayat that the evidence referred to in subsection 69.3(5) must be evidence that was before the original panel. New evidence to support a Convention refugee determination is not contemplated by the provision. The panel did not err in this case by refusing to admit the applicant's PIF and new Convention refugee evidence. [emphasis added]

[27]      In Onesimo v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 262 (F.C.T.D.), Sharlow, J., as she then was, noted at paragraph 4 of the decision that in exercising its discretion under subsection 69.3(5) of the Act, the Board must take into account only that evidence which had been considered in the initial refugee claim.

[28]      Tremblay-Lamer, J. addressed the same issue in Ray v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 849, IMM-2818-99 (June 9, 2000) (F.C.T.D.), and wrote as follows at paragraphs 12 to 14 of her decision:

[12]      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.

[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.

[14]      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.

[29]      I adopt and apply the analysis and conclusions articulated in the jurisprudence referred to above. Therefore, it follows that I conclude that there was no duty on the Board in the present case to afford Mr. Sayed a fresh oral hearing into his current refugee status. Mr. Sayed was, instead, limited to making submissions on the issue of whether, on the untainted evidence before the Convention Refugee Determination Division on his original hearing, there was sufficient evidence on which the determination could have been made that he was a Convention refugee.

[30]      That opportunity was afforded to Mr. Sayed by the Board which, after hearing those submissions discussed the issue, and concluded there was no sufficient evidence on which it could have been determined that he was a Convention refugee.

[31]      Given that limited right and its exercise, I cannot find that the Board breached the principles of natural justice as Mr. Sayed asserts.

[32]      With respect to Mr. Sayed's submission that the definition of a Convention refugee is forward looking, I accept the submission advanced on the Minister's behalf that every applicant for status as a Convention refugee receives one hearing into his or her claim. The assessment of an applicant's claim is forward looking at the date of that hearing. Any subsequent change in country conditions, or the applicant's circumstance, may be dealt with, if appropriate, not by the Board while exercising its jurisdiction under section 69.3 of the Act, but by a claim under subsection 114(2) of the Act or by a claim for a determination that a claimant is a member of the post-determination refugee claimants in Canada class.

[33]      For these reasons, the application for judicial review is dismissed.

[34]      The applicant sought certification of the question as to whether the Board is required to take into consideration new evidence or new circumstances when exercising its discretion under subsection 69.3(5) of the Act.

[35]      The Minister opposed certification of the question on the ground that the Court of Appeal in Bayat, supra, upheld the decision of the Trial Division on the issue that the Board's discretion under subsection 69.3(5) is limited to consideration of the evidence actually before the original tribunal.

[36]      However, the relevant reasons of Richard, J. on this point were as follows:

Further, the majority reasonably determined that the language of subsection 69.3(5) clearly relates only to the evidence that was actually before the visa officer in making the decision, that the Refugee Division ought not speculate as to what documentary evidence might have been available to the visa officer. The majority decision engaged in the analysis mandated by Mr. Justice Gibson in Mahdi v. Canada (Minister of Citizenship and Immigration), [See Note 2 below] and declined to exercise the discretion provided in subsection 69.3(5) to reject the application to vacate the visa officer's decision.

______________________________________________________________________

Note 2: (15 November 1994), No. IMM-1600-94 (F.C.T.D.) [Please see [1994] F.C.J. No. 1691].

______________________________________________________________________

[37]      In Mahdi v. Canada (Minister of Citizenship and Immigration), referenced above, Gibson, J. concluded that the Convention Refugee Determination Division when exercising its jurisdiction under subsection 69.3(5) of the Act should have engaged in the analysis to determine "on the facts, as then known, whether the determination that [the applicant] is a Convention refugee in Canada could still be sustained." [emphasis added] The decision in Mahdi was affirmed by the Court of Appeal, [1995] F.C.J. No. 1623 (C.A.).

[38]      Thus, in light of Richard, J.'s reference to the Mahdi decision I am unable to accept the submission made on the Minister's behalf that the Court of Appeal definitively determined the issue of whether or not the Board may take into account subsequent evidence.

[39]      I further note that it was in light of the Mahdi decision, that in Guruge, supra, Rothstein, J. certified the following question for appeal: "In the exercise of its discretion under subsection 69.3(5) of the Immigration Act, is the Refugee Division permitted to consider evidence that was not before the original panel that would support the applicant's refugee claim."

[40]      Notwithstanding certification of that question, an appeal taken from the decision of Rothstein, J. was discontinued on June 6 of this year.

[41]      In view of this jurisprudence, I find this question to be a serious question of general importance and therefore certify the following question:

In the exercise of its discretion under subsection 69.3(5) of the Immigration Act, is the Refugee Division permitted to consider evidence that was not before the original panel that would support the applicant's refugee claim?

                                 "Eleanor R. Dawson"

     Judge

Ottawa, Ontario

October 11, 2000