Date: 20001102
Docket: IMM-908-00
BETWEEN:
KABUIKO ZOBETO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Kabuiko Zobeto (the "Applicant") seeks judicial review of a decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") pursuant to section 69.3 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") as amended. The decision under review was made on January 20, 2000. The effect of the decision was to approve the application of the Minister of Citizenship and Immigration for vacation of the prior determination of the Board that the Applicant was a Convention refugee.
[2] The Applicant is a citizen of Angola. He arrived in Canada on December 25, 1992 and claimed Convention refugee status. Following a hearing on July 23, 1993 the Board made its decision on November 2, 1993 and found that the Applicant was a Convention refugee.
[3] On June 23, 1995, the Respondent obtained leave to apply to the Board for reconsideration and vacation of the determination that the Applicant was a Convention refugee.
[4] On November 20, 1998, the Minister applied for a reconsideration and vacation of that finding pursuant to section 69.2(2) of the Act, that is on the grounds that the initial determination was obtained by fraudulent means or misrepresentation or concealment of any material fact.
[5] A hearing was held before the Board on November 15, 1999. The Applicant, although entitled to appear and participate, did not attend. He was represented by counsel and the hearing proceeded on the basis of legal arguments advanced on his behalf in an effort to preclude the introduction of evidence relating to the personal circumstances of the Applicant, on the ground that the introduction of that evidence constituted an abuse of process.
[6] This information related to the name of the Applicant, his marital status, his sojourn and status in Switzerland, and reasons why he had sought residence in Canada. This information was not provided at the Applicant's Convention refugee hearing by the Applicant or by anyone else. This information, according to the Applicant, was available to the Respondent at the time of the initial hearing before the Board which led to a positive result for the Applicant.
[7] The evidence sought to be introduced by the Minister was the statutory declaration of Charles Dombrady, an Appeals Officer with the Immigration Appeal Office in Toronto. The relevant part of this declaration addressed details which the Minister said were deliberately withheld by the Applicant when he sought admission into Canada as a Convention refugee. The information in question is as follows:
| I, Charles Dombrady, of the City of Toronto, in the Municipality of Metropolitan Toronto, SOLEMNLY DECLARE THAT |
| I am an Appeals Officer with the Immigration Appeals Office in Toronto. I represent the Minister of Citizenship and Immigration before the Immigration and Refugee Board, and as such I have reviewed the file of the Respondent and have knowledge of the matters hereinafter declared. |
| The respondent to this motion was deemed to be Convention Refugee at Toronto on the 2nd day of November, 1993 by members A. Hope and F. Mortazavi. Exhibit "A" is a copy of the refugee determination decision. |
| We have reason to believe that the Respondent misled the Board by fraudulent means, misrepresentation, suppression, and concealment of material facts as follows: |
| -in Q3 of his Personal Information Form (Exhibit B) he lists no alternate names and indicates himself as "single" while letters from his spouse confirm that she knows him as Nunes CARVALHO (Exhibit F); |
| -further, the marriage documents (Exhibits G, H, I) also refer to the respondent as Nunes CARVALHO; |
| -finally, marriage photos (Exhibits J, K, L) establish that the groom, Nunes Carvalho, is the same person as that in the photo provided by the respondent where he identifies himself as Kabuiko ZOBETO, in the Details of Arrival Form (Exhibit N); |
| -in response to Q17 the respondent makes no mention of France whereas Exhibits G, H, I, establish that he was married there; |
| -in Q30 the respondent denies claiming refugee status elsewhere while Exhibit M indicates that he has claimed refugee status in both Switzerland and France; |
| -Exhibit F also indicates that the respondent was in Switzerland in August 1990 but this information is omitted from his Personal Information Form; |
| -in his Personal Information Form (Exhibit B) the respondent lists one deceased sibling; meanwhile, in his letter dated February 7, 1993, he states he comes from a family of 9 children who are counting on his support; |
| -in response to Q33 of his Personal Information Form the respondent outlines the reasons for his fear of persecution but in his letter marked Exhibit E, states he fears nothing and indicates education as his motivation for coming to Canada, with the intention of eventually returning to his country of birth; |
| I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath. |
[8] Despite the detailed submissions presented by counsel on the issue of abuse of process, the Board admitted this evidence at the hearing conducted on November 15, 1999. It appears from the decision dated January 20, 2000 that the Board rejected the arguments on abuse of process, including the issues of estoppel, res judicata and delay.
[9] Upon the hearing of this application for judicial review, the Applicant submitted that the Board did not address its mind to the arguments advanced on abuse of process.
[10] The first issue to be addressed on this application for judicial review is the standard of review. As stated by this Court in Sivasamboo v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 46 at paragraph 24 by Richard J., as he then was:
| Given my conclusion that the Refugee Division is a specialized tribunal to which this court should accord considerable deference, when reviewing its findings on questions of law and questions of fact the standard of judicial review to be applied is patent unreasonableness. |
[11] The inquiry, then, turns on whether the Board's decision was patently unreasonable.
[12] It is clear that regardless of the terms used in its decision, the Board was conscious of the thrust of the Applicant's submissions. The Applicant was objecting to the introduction of evidence before the Board upon the reconsideration and vacation hearing which evidence was available to the Minister prior to the initial determination by the Board on November 2, 1993, that the Applicant was a Convention refugee. The Board stated the issues before it, as follows:
| 1. Whether the applicant should be permitted to found its application to reconsider and vacate the respondent's refugee status, in view of what the respondent submits is an abuse of process, considering the doctrines of issue estoppel and/or res judicata, and the delay by the Minister in seeking leave and proceeding with this application. The respondent also asks the panel to find that the evidence which was available prior to the original July 23, 1993 refugee hearing be declared inadmissible and excluded from this hearing. |
| 2. If the Refugee Division decides that there has not been an abuse of process, whether the original positive determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact. If yes, whether the remaining uncontradicted evidence could support the original positive determination made in November 1993. |
[13] The Applicant sought to exclude this evidence on the grounds that its introduction allowed the Minister to rely on evidence in circumstances which were not available to the Applicant. In this regard, the Applicant relied on the decision of this Court in Vasquez v. Minister of Citizenship and Immigration (1998), 160 F.T.R. 142. The Applicant argued that if he, the Applicant, cannot subsequently introduce evidence which was available at the time of the initial hearing, then in fairness the Minister likewise should be prohibited from doing so.
[14] In my opinion, the Board properly stated the issues and canvassed them. The Board decided that issue estoppel did not apply since the true facts were not before the Board at the initial Convention refugee hearing. Further, the Board concluded that this argument was inapplicable on the basis that the section 69.2(2) hearing was different from the first "determination" hearing, since it was a vacation hearing.
[15] The Board considered the issue of res judicata and concluded that this doctrine did not apply to a vacation hearing which it found to be different from a repeat claim.
[16] Finally, the Board considered the period of delay between the granting of leave for the reconsideration of the Applicant's Convention refugee status and the commencement of the application. That delay was a period of more than three years. The Board concluded that no prejudice resulted to the Applicant for this delay and furthermore, that there is no time limited for the commencement of a reconsideration application, once leave has been granted.1
[17] In my opinion, the decision of the Board to accept the challenged evidence was not patently unreasonable, or in any way unreasonable. The evidence in question was known and available to the Applicant at the time he sought admission into Canada as a Convention refugee. He had the opportunity to present it. Indeed, it may be that he had an obligation to present it, having regard to the onus imposed by section 8 of the Act.
[18] The Board then went on to consider the merits of the case, that is the credibility of the evidence presented by the Minister. The Applicant did not cross-examine the maker of the statutory declaration and did not rebut the documentary evidence presented. The findings of the Board in relation to this evidence are reasonable.
[19] Finally, the Board addressed the issue of section 69.3(5) of the Act, that is whether in the absence of "tainted" evidence there was sufficient evidence upon which the Applicant could be found to be a Convention refugee. It found that there was insufficient evidence to sustain such a finding.
[20] The Board approved the application by the Minister for reconsideration and vacation of the Applicant's Convention refugee status, and found that the Applicant is not a Convention refugee.
[21] In conclusion, the application for judicial review is dismissed and the decision of the Board is upheld.
[22] Counsel for the Applicant submitted a question for certification. In my opinion, the proposed question is not one falling within the scope of section 83 of the Act, and I decline to certify a question.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
November 2, 2000
__________________
This position has been confirmed by this Court in Thambipillai v. Canada (Minister of Citizenship and Immigration), IMM-5279-98, July 22, 1999 where Justice McKeown said:The Act does not provide any specific time limitations on the filing of a vacation and reconsideration application, and therefore, the Board dealt with the question of the new evidence and the delay period in a manner which was open to it.
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