Date: 20101209
Docket: IMM-171-10
Citation: 2010 FC 1257
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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FAKHERA TANVEER WARAICH
SAHRASH TANVEER WARAICH
ADEEL TANVEER WARAICH
ANZA TANVEER WARAICH
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
According to case law,
the Minister may adduce evidence at the vacation hearing to establish that a
claimant made misrepresentations at his or her refugee hearing. Similarly, a
claimant may adduce new evidence at the vacation hearing in an attempt to
persuade the Immigration and Refugee Board (IRB) that he or she did not make
the misrepresentations alleged (Coomaraswamy v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 153, [2002] 4 F.C. 501, at
paras. 16‑17; Chahil v. Canada (Minister of Citizenship and Immigration),
2007 FC 1214, 162 A.C.W.S. (3d) 299; Canada (Minister of Public Safety and
Emergency Preparedness) v. Gunasingam, 2008 FC 181, 164 A.C.W.S. (3d) 847;
Canada (Minister of Citizenship and Immigration) v. Wahab, 2006 FC 1554,
305 F.T.R. 288; Canada (Minister of Citizenship and Immigration) v. Yaqoob, 2005
FC 1017, 141 A.C.W.S. (3d) 103).
II. Judicial proceeding
[2]
This is an application
for judicial review of a decision by the Refugee Protection Division (RPD) of
the IRB, dated December 22, 2009, allowing the application to vacate the
decision to allow the applicants’ claim for refugee protection, filed by the
Minister under section 109 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA).
III. Facts
[3]
The applicants, namely,
the principal applicant, Fakhera Tanveer Waraich, and her three minor children,
are citizens of Pakistan, who arrived in Canada on June 10, 2002.
[4]
On March 8, 2004, the first RPD panel allowed the applicants’ refugee
claim in a decision signed on April 1, 2004. In support of her refugee
claim, the principal applicant submitted two First Information Reports and
arrest warrants for her and her husband.
[5]
On April 22, 2004, the Canada Border Services Agency disclosed the
results of an assessment of the First Information Reports submitted by the
principal applicant indicating that the documents were not related to the
principal applicant or her husband and, consequently, were fraudulent. Moreover,
since the corresponding arrest warrants referred directly to the fraudulent
First Information Reports, these were also false.
[6]
On February 21,
2006, the Minister’s representative filed an application to vacate the decision
to allow the claim for refugee protection, on the grounds that the decision was
obtained as a result of misrepresenting material facts relating to a matter
relevant to the claim, in accordance with section 109 of the IRPA and
section 57 of the Refugee Protection Division Rules, SOR/2002-228
(RPDR).
[7]
On June 30, 2008,
the RPD rejected the Minister’s application to vacate under subsection 109(1)
of the IRPA.
[8]
On July 29, 2008,
the Minister filed an application for leave to commence an application for
judicial review of the decision dated June 30, 2008 (IMM-3352-08).
[9]
On February 12, 2009, the Court allowed the application for judicial
review made by the Minister. The Court set aside the RPD’s June 30, 2008,
decision and returned the matter to the IRB for redetermination by a different
member.
[10]
On December 22, 2009, a second RPD panel allowed the Minister’s
application and vacated the refugee status granted to the applicants on
March 8, 2004. The applicants are challenging that decision in this
application for judicial review.
IV. The impugned decision
[11]
The IRB found that the
first part of the test in subsection 109(1) of the IRPA had been met
because of the misrepresentations made by the principal applicant before she
obtained her refugee status in March 2004.
[12]
The IRB then continued
its analysis under subsection 109(2) of the IRPA and found that the
remaining evidence was insufficient to justify the refugee status first
granted.
V. Issue
[13]
Did the IRB make a
reviewable error in allowing the Minister’s application to vacate?
VI. Analysis
[14]
There was no error on
the IRB’s part. The Court agrees entirely with the respondent’s position.
Legislation and applicable standard of
review
[15]
Section 109 of the
IRPA permits the Minister to request the vacation of a decision having granted
refugee status to a person if it appears that the decision was based on misrepresentations
of material facts and that there is no evidence to justify refugee protection.
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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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[16]
A reading of
subsection 109(1) of the IRPA shows that the burden of proof is on the
Minister: to have the refugee status already granted to the applicants vacated,
the Minister must satisfy the IRB, on a balance of probabilities, that the
applicants misrepresented or withheld some facts in their original claims for
protection (Nur v. Canada (Minister of Citizenship and Immigration),
2005 FC 636, 150 A.C.W.S. (3d) 455, at para. 21).
[17]
Then, in accordance
with subsection 109(2) of the IRPA, the IRB must assess whether other
sufficient evidence was considered at the time of the first determination to
justify refugee protection.
[18]
In Sethi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1178, 142 A.C.W.S. (3d) 310, at
paragraphs 14 to 20, the Court determined that the IRB’s findings under
subsections 109(1) and (2) of the IRPA were reviewable on different
standards of review, that of patent unreasonableness and that of reasonableness
simpliciter.
[19]
Since the Supreme Court
of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, this Court has determined that the standard of review
applicable to findings under subsection 109(1) of the IRPA is that of
reasonableness (Canada (Minister of Citizenship and Immigration) v. Chery,
2008 CF 1001, 334 F.T.R. 148, at para. 22).
[20]
The IRB’s findings
under subsection 109(2) of the IRPA are also reviewable on the reasonableness
standard since the IRB exercises a discretion to which the Court owes deference
(Chery, above, at para. 23; Wahab, above, at para. 24).
Misrepresentations (subsection 109(1)
of the IRPA)
[21]
The false documents
submitted by the applicants, namely the two First Information Reports and the
corresponding arrest warrants, were central to their claim. The
documents were submitted in order to corroborate the principal applicant’s
allegation that she feared returning to Pakistan since both she and her husband
were sought by the police because of false accusations registered against them
by their political opponents.
[22]
It appears from the
reasons for decision that the RPD invited the principal applicant to submit
explanations for the fraudulent First Information Reports she submitted to the
first panel.
[23]
The RPD duly considered
and weighed these explanations, but attached more probative value to the
evidence submitted by the Minister.
[24]
In order to decide
whether misrepresentations were made, the RPD considered the new evidence. The
new evidence showed that despite the principal applicant’s allegation that she
was sought by authorities in Pakistan, which the fraudulent First
Information Reports and arrest warrants were intended to establish, she has
returned to Pakistan on two occasions since 2004, with her children. They
returned to Pakistan to see their grandfather, despite the
alleged risk to their lives.
[25]
The principal applicant
was again confronted with this behaviour which totally contradicted her
allegation that if the applicants had to return to their country, they would be
killed. The RPD found that the explanations provided by the principal applicant
were unsatisfactory.
[26]
The applicants submit
in their memorandum that the RPD could not consider the fact that the
applicants returned to Pakistan after their refugee claim was granted in
2004. It appears from the reasons for decision that they also argued this point
at the hearing.
[27]
As the RPD pointed out,
the RPD considered this new evidence in order to decide whether the applicants
had made misrepresentations, the first part of the section 109 analysis. It
was from this perspective, that is, in order to assess and weigh the principal
applicant’s explanations concerning the fraudulent First Information Reports,
that the new evidence was considered.
[28]
According to case law,
the Minister may adduce evidence at the vacation hearing to establish that an
applicant made misrepresentations at his or her refugee hearing. Similarly, an
applicant may adduce new evidence at the vacation hearing in an attempt to
persuade the IRB that he or she did not make the alleged misrepresentations (Coomaraswamy,
above; Chahil, above; Gunasingam, above; Wahab, above; Yaqoob,
above).
[29]
Thus, contrary to the
applicants’ arguments, the RPD could consider the new evidence as it did.
[30]
The RPD scrutinized the
first panel’s decision in light of the misrepresentations and found that the
principal applicant’s claim that she was sought by the authorities formed the
basis of her claim. A reading of the narrative in the principal applicant’s
Personal Information Form (PIF), which I will analyze below, also supports the
RPD’s findings.
[31]
The RPD also found that
the personal documentary evidence, including the fraudulent First Information
Reports, had a definite impact on the first panel, since that panel referred to
the corroborating documentary evidence and also some concerns about the principal
applicant’s credibility (Decision at pp. 10‑12, paras. 24‑29).
[32]
In light of the results
of the examination of the First Information Reports, the principal applicant’s
unsatisfactory explanations when confronted with the fact that she had
submitted false documents and that the applicants had later returned to Pakistan
twice without being bothered by the authorities, the RPD could reasonably
conclude that the decision to grant the applicants refugee status was the
direct result of the misrepresentation or withholding of material facts
relating to a relevant matter.
[33]
The applicants have not
shown that the RPD erred in concluding as it did.
Is there other sufficient evidence? (subsection 109(2)
of the IRPA)
[34]
The original panel that
granted the refugee claim on March 8, 2004, based its decision on the
principal applicant’s testimony and the fact that her narrative was
corroborated by the general documentary evidence on the conditions in the
country and the personal documentary evidence submitted by the
applicants.
[35]
Since the principal
applicant’s allegations that she and her husband were sought by police because
of false accusations registered against them by their political opponents can
no longer be considered credible in light of the fraudulent First Information
Reports and arrest warrants submitted by the applicants, other evidence is
consequently also tainted by the misrepresentations.
[36]
In fact, a number of misrepresentations
can be noted in the two-page narrative in the principal applicant’s PIF
(Applicants’ Record (AR), Narrative of Fakhera Tanveer Waraich, p. 20, paras. 19‑20
and 23‑24).
[37]
For example, at
paragraph 19 of her narrative, the principal applicant states that she
held a women’s meeting on April 26,
2002, to support the Pakistan
Muslim League (PML). It is because of and after that meeting that the First Information
Reports, which turned out to be fraudulent, were registered against her. Consequently,
there are serious reasons to doubt that this meeting, a central element of the
claim, actually took place.
[38]
At paragraph 20 of
her narrative, the principal applicant falsely alleges that a First Information
Report was registered against her for anti-government activities after she held
the women’s meeting to support the PML that she described at paragraph 19
of her narrative.
[39]
At paragraph 23 of
her narrative, she alleges that a false charge was registered against her
husband.
[40]
At paragraph 24 of her
narrative, the principal applicant concludes by summarizing her fear of returning
to Pakistan as follows:
Army and
police in Pakistan are looking for me. Mian Zafar Iqbal
Gujar and his goons are very powerful because of the support of his Uncle SSP
Sajad Ahmad and colonel Imtiaz Ahmad. I could be either killed or under the
false case [sic] false case registered against me. My life in Pakistan is not safe I request you to
give me protection. (Emphasis added.)
[41]
The RPD found that the
misrepresentation made by the principal applicant greatly undermined the
credibility of the claim and the other evidence. The RPD essentially determined
that there was no other evidence to justify refugee protection. It did not
believe the principal applicant’s version of the facts concerning her alleged
persecution in Pakistan and the fact that she was wanted.
[42]
It is up to the RPD to
assess the credibility of remaining evidence. Consequently, it was not
unreasonable for the RPD to conclude that the principal applicant’s lack of
credibility affected the weight of the other evidence submitted, as it was to a
large extent based on her testimony (Oukacine v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1376, 159 A.C.W.S. (3d) 569, at
para. 32).
[43]
It is clear from the decision
that the RPD found that the principal applicant’s credibility, with regard to
her political involvement, was tainted because of her misrepresentations. The
RDP therefore found that the original panel would, if it had not found the
principal applicant’s persecution allegations to be credible, also have
dismissed the evidence for her political involvement (Decision at p. 8,
paras. 27‑30).
[44]
In fact, the RPD had
the following to say about the impact of the misrepresentations on the
principal applicant’s other allegations:
[29] Therefore,
I am of the opinion that, had he known the results of the expertise on the First
Information Reports, his evaluation of the principal respondent’s
overall credibility, including conclusions on the probative value to give
to other documents produced in her file (many of the other documents related to
problems suffered by the claimant and family members because of their
political involvement and two major documents are the Arrest Warrants
against the principal respondent and her husband) would have been different
in that they would not have been found credible with respect to their
allegations of past problems, including their problem with the police. (Emphasis
added.)
(See also para. 30 of the Decision.)
[45]
If the allegations of
the principal applicant’s problems with the police because of her political
involvement are rejected, the credibility of the alleged involvement, the
basis of the allegations of persecution, is logically also affected.
[46]
The RPD considered the
documentary evidence submitted before the original panel to correctly conclude
that mere membership in PML‑N (Nawaz group) could not have allowed the
original panel to conclude that there was a well-founded fear of persecution.
[47]
In response to the
applicants’ arguments in their memorandum (paras. 44 and following), under
subsection 109(2) of the IRPA, the existence of documentary evidence
regarding the general situation of a country is not in itself sufficient to
justify a person’s refugee protection (Annalingam v. Canada (Minister of
Citizenship and Immigration) (C.A.), 2002 FCA 281, [2003] 1 F.C. 586;
Coomaraswamy, above, application for leave to appeal dismissed by the
Supreme Court of Canada on January 9, 2003, (29274); Selvakumaran v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1445, 127
A.C.W.S. (3d) 723; Canada (Minister of Citizenship and Immigration) v.
Fouodji, 2005 FC 1327, 149 A.C.W.S. (3d) 478.
[48]
The applicants must
connect their situation and the documentary evidence, which they failed to do. They
had to prove personalized risk (Canada (Minister
of Public Safety and Emergency Preparedness) v. Waraich, 2009 FC 139, [2009] F.C.J. No. 188 (QL)).
[49]
Moreover, the
applicants did not deem it appropriate to submit the documentary evidence on
which they base their arguments (Appellants’ Memorandum, paras. 51 and
following).
[50]
The evidence allowed
the RPD to draw this conclusion.
[51]
The applicants failed
to show that the RPD erred in finding that there remained insufficient other
evidence among what had been considered in the initial decision to justify
refugee protection.
VII. Conclusion
[52]
In view of the
foregoing, the applicants’ arguments are not such as to persuade this Court
that the IRB erred. The IRB’s decision is fully justified.
[53]
For all of the above
reasons, the applicants’ application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS THAT the application for judicial review be dismissed;
no serious question of general importance is certified.
“Michel M.J. Shore”
Certified true
translation
Johanna Kratz,
Translator
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