Date: 20100830
Docket: IMM-559-10
Citation: 2010 FC 861
Ottawa,
Ontario, August 30,
2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
FERYDON GHORBAN
a.k.a. FERYDON GHORBON
a.k.a. FERYDON GHORDON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, who is a citizen of Iran, seeks judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated January 8, 2010, wherein pursuant to section 109 of the Immigration
and Refugee Protection Act (the Act), the Board vacated its previous decision
rendered on November 16, 1998, that the applicant was a Convention refugee (the
original decision).
[2]
In
the impugned decision, the Board concludes that the respondent has met its onus
of establishing that the applicant had, directly or indirectly,
misrepresented or withheld material facts relating to a relevant matter. As
well, the Board finds that there was not sufficient untainted evidence
considered at the time of the first determination to justify refugee
protection. Accordingly, the applicant’s claim is deemed to be rejected and the
original decision is nullified.
[3]
It
is not challenged that the Board’s findings of fact or of mixed fact and law in
a vacation proceeding should be reviewed on a standard of reasonableness. Thus,
unless the applicant can demonstrate to the Court that the Board made an error
of law, the sole issue to be decided is whether the impugned decision of the
Board falls within the range of possible, acceptable outcomes that are
defensible in respect of the facts and the law. For the reasons stated
below, my answer is yes, but first I will examine the test under section 109 of
the Act.
[4]
Section
109 of the Act reads as follows:
|
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.
|
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.
|
[5]
The
parties do not dispute the proper approach to an application to vacate a
decision granting refugee status. The text of section 109 and the caselaw are clear.
The Board must first conclude that the decision granting refugee protection was
obtained as a result of a direct or indirect misrepresentation, or of
withholding material facts relating to a relevant matter. Having found so, it
may nevertheless deny the application to vacate if there remains sufficient
evidence considered at the time of the determination of the claim for refugee
protection to justify refugee protection.
[6]
A
careful reading of the impugned decision shows that the Board clearly
understood what its task was in this case. The Board was well aware of the
applicable test and relevant caselaw (and doctrine), as appears from the
direct references to subsections 109(1) and 109(2) respectively, and the citations
in the impugned decision from the Federal Court of Appeal decision in Coomaraswamy
v. Minister of Citizenship and Immigration, 2002 FCA 153 and the Immigration
Law and Practice, Second Edition, Volume 1, updated 2009, Lorne Waldman,
Lexus/Nexus.
[7]
Despite
the general suggestion made by the applicant that an error of law has been made
by the Board, in fact what the applicant really questions is the
reasonableness of the Board’s finding that there were material
misrepresentations in respect of a relevant matter. In this regard, the applicant
submits that the Board failed, at the first stage, to consider or give proper
weight to the new evidence submitted at the hearing, notably a letter
from the applicant’s aunt dated September 25, 2009, which apparently corroborates
the fact that he had been detained and tortured in Iran after he was deported
from the United States in December 1996. However, upon closer examination of
the evidence on record, this latter ground of attack must fail.
[8]
With
respect to its assessment under subsection 109(1) of the Act, the Board found
that the applicant misrepresented a material fact relating to a relevant matter
in his Personal Information Form (PIF) and provided misleading evidence at the
original hearing. This conclusion is supported by the evidence presented by the
Minister and must be allowed to stand. Moreover, the Board’s factual findings
are supported by the applicant’s own admission that he had lied on a number of
key aspects of his asylum claim. The new evidence submitted by the applicant,
i.e. the aunt’s letter, merely corroborates the misrepresentations that were
made to the immigration authorities by the applicant back in 1997 when he
arrived in Canada and claimed refugee
status. The Board’s reasons for ignoring the aunt’s letter are reasonable and,
overall, they support the finding that the first part of the test has been
met.
[9]
The
misrepresentations conclusively established before the Board are as follows:
(a) The
applicant stated originally that he lived his life in Iran and was
captured by the Islamic regime, tortured and imprisoned for 22 months from
May 1995 to March 1997. However, the applicant now admits that he lived in
the United
States
from 1968 to 1996;
(b) The
applicant provided a comprehensive “back story” to his refugee claim when it
was initially filed in 1997. He claimed to have worked as a restaurant manager
from 1980 to 1997 in Tehran. During that time, following the death of
his father in prison in 1991, he engaged in political activities against
the regime. However, his participation in such activities is untrue and he
could not have been arrested in May 1995 as claimed since he was in
the United
States
from 1968 to 1996.
(c) With
respect to a police record, the applicant made no mention of the numerous drug convictions
and property offences that he perpetrated while living in the United States. He also
failed to mention that he had been deported to Iran in late
December 1996. He only mentioned the alleged 22 months in prison in Iran, which we
now know did not occur.
[10]
The
main argument advanced today by the applicant is that, when he returned to Iran after being
deported to the United States in December of 1996, he was kept in prison
for a three-month period, which would be corroborated by the aunt’s letter.
So, the argument goes, the applicant still suffered the treatment in question;
albeit in a different timeframe. However, even if the Board were to believe
the applicant, the fact that the concocted story provided by the applicant in
1997 contained some kernels of truth does not mitigate against the numerous
misrepresentations noted above and which were conceded by the applicant. Given
that the applicant was in the United States, and not in Iran, from 1968 to
December 1996, it was open to the Board to conclude that this misrepresentation
was material. The new evidence submitted by the applicant was duly considered
and otherwise found not to alter the materiality of the misrepresentation and
withholding of evidence, apart from the fact that any such evidence cannot be
used to bolster a totally new and different claim.
[11]
The
applicant also submits that the Board should not have considered the mens
rea or intention of the applicant in not telling the truth in the first
place in 1998, as it is not a relevant consideration in the assessment done by
the Board under subsection 109(1) of the Act. In the Court’s opinion, the
reasons of the Board must be read in totality and I am satisfied that the Board did
not include, in its analysis under section 109(1), any irrelevant
consideration. At best, the comment made by the Board about the lack of
explanation is unfortunate but it does not affect the analysis and ultimate
conclusion of the Board in this case. Overall, it is clear, upon a reading of the
impugned decision and a review of the tribunal’s record, that the original
decision was obtained as a result of directly or indirectly withholding
material facts relating to a relevant matter.
[12]
As
aforesaid, there is a second component in the subsection 109(2) of the Act. There
is thus still the issue of whether the Board acted in an unreasonable
manner in refusing to exercise its discretion to dismiss the Minister’s
application to vacate on the ground that, at the time of the determination,
there was other sufficient evidence considered which justified the
determination. In the case at bar, the Board provided articulate and
cogent reasons for finding that this was not the case, as there was no credible
and independent evidence, apart from the applicant’s assertions in his PIF, to
establish any reason why he would be subject to persecution, torture or a
personalized risk if he were returned to Iran. These findings of the Board
should also be allowed to stand as they are not unreasonable in respect of the
facts and the law. In passing, the Board rightly refused to consider the new
evidence submitted by the applicant, notably the aunt’s letter.
[13]
In
conclusion, the Court concludes that the applicant has failed to demonstrate
that a reviewable error has been committed by the Board. Consequently, the
present application must fail. No general question of importance which would be
determinative of the result is raised and none shall be certified by the Court.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed. No question is certified.
“Luc
Martineau”
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