Date: 20090212
Docket: IMM-3352-08
Citation: 2009 FC 139
Ottawa, Ontario, this 12th day of February
2009
Present: The Honourable Orville
Frenette
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicants
and
Fakera Tanveer WARAICH
Sahrash Tanveer WARAICH
Adeel Tanveer WARAICH
Anza Tanveer WARAICH
Respondents
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”) dated June 30, 2008,
dismissing the applicants’ application to vacate, pursuant to section 109 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”)
and section 57 of the Refugee Protection Division Rules, SOR/2002-228, the
decision to allow the claim to refugee protection of the respondents.
The Facts
[2]
The
respondents, a mother and her three minor children, are citizens of Pakistan. They filed
a claim for refugee protection on June 10, 2002 claiming that the primary
respondent feared persecution because of her support of the Pakistan Muslin
League – Nawaz Group (PMLN). The primary respondent alleged that she and her
husband were sought by the police in relation to false cases that were
registered against them by their political opponents.
[3]
In
support of their claim for refugee protection, the respondents submitted copies
of two First Information Reports (FIRs) and the warrants of arrest
corresponding to the FIRs. The documents indicated that the primary respondent
and her husband were wanted by the police in Pakistan for having
allegedly participated in anti-government activities.
[4]
The
applicants’ representatives were not present at the time of the hearings on the
respondents’ refugee status but filed documentary evidence indicating that they
had not established their identity to the satisfaction of Canadian immigration
officials.
[5]
On
March 8, 2004, the first Immigration and Refugee Board panel rendered its
decision granting the respondents refugee protection. Satisfied that the
respondents had succeeded in addressing the identity issues that had been
raised, the first panel based its decision on the primary respondent’s credible
testimony.
[6]
The
primary respondent claimed that she and her husband were sought by the police
to be arrested for political activities against the government.
[7]
She
also had problems in establishing her credibility and her case had to be
postponed for this purpose. The hearing of her refugee claim took place on two
different days, in 2003, culminating in the final hearing of February 6, 2004.
[8]
Later
in 2004, the Immigration authorities, upon verification of the FIRs made in
2002, found that they were false. Both her and her husband’s FIRs were found to
be fraudulent as they concerned other persons and different criminal offences.
[9]
The
applicants presented the instant application under section 109 of the Act to
vacate the previous Immigration and Refugee Board decisions granting asylum and
based upon these false documents.
The Impugned Decision
[10]
The
Board’s decision, dated June 30, 2008, rendered by Me Michael Hamelin, in a two
and one-half page decision, rejected the applicants’ request to vacate the
decision, consequently upholding the granting of the respondents’ refugee
status.
[11]
The
Board recognized that the respondents produced two documents, FIRs which were
found to be false and upon which the Convention refugee decision was based
together with the testimony of the primary respondent and general documentation
of the social and political situation in Pakistan.
[12]
The
Board considered that notwithstanding this fraudulent misrepresentation there
was other sufficient evidence to justify applying subsection 109(2) of the Act.
[13]
The
Board also learned and considered the fact that the primary respondent had
returned twice to Pakistan for lengthy stays in 2005 and 2006 without
reporting any problems.
[14]
However,
the Board refused to consider this fact because this was not in evidence at the
original hearing of the case.
[15]
The
Board concluded that it would not grant the application to vacate the
respondents’ refugee status because “there is other sufficient evidence
considered at the time of the first determination to justify the original
decision”.
The Issue
[16]
The
issue in this case is whether the Board’s decision was reasonable.
The Standard of Review
[17]
The
applicable standard of review, according to the jurisprudence, for the
assessment of facts or mixed facts and law, is one of reasonableness (Dunsmuir
v. New
Brunswick, [2008] 1 S.C.R. 190).
The Legislation
[18]
The
relevant provision of the Act reads:
|
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.
|
Analysis
Insufficient reasons
[19]
The
applicants contend that errors of law were committed and that the decision is
ill-founded in fact and in law. They argue that in its two and one-half page
decision, the Board did not discuss and analyse the consequences of the
fraudulent misrepresentations committed by the primary respondent and its
consequences on the remainder of the evidence, mainly the testimony based
around these documents.
[20]
The
respondents claim the remainder of the evidence was sufficient to satisfy the
conditions required.
[21]
A
simple analysis of this point supports the applicants’ point of view, since the
Board failed to identify what “other evidence” supported the claim. It also
failed to assess the consequences of the fraudulent representations made by the
primary respondent.
[22]
The
Supreme Court of Canada in R. v. Sheppard, [2002] 1 S.C.R. 869 at 870, although it
involved a criminal case, yet is often quoted in an administrative law context,
held that:
The appeal
should be dismissed. The trial judge erred in law in failing to provide reasons
that were sufficiently intelligible to permit appellate review of the
correctness of his decision.
[23]
In
Dunsmuir, supra, an administrative law case, the Supreme Court of
Canada, at paragraph 47, stated that for a decision to be reasonable there
must be “justification, transparency and intelligibility”. This requirement has
been applied in immigration cases (Minister of Public Safety and Emergency
Preparedness v. Gunasingnam, 2008 FC 181, at paragraph 14).
[24]
Justice
Yvon Pinard in Minister of Citizenship and Immigration v. Fouodji, 2005
FC 1327, at paragraph 18, wrote “[t]he panel did not set out clearly and
explicitly what part of the remaining evidence filed before the first panel
remained credible and why it was credible”.
[25]
Justice
Yves de Montigny in Minister of Citizenship and Immigration v. Shwaba,
2007 FC 80, wrote at paragraph 17: “It is impossible to review a decision
without being able to evaluate the decision-maker’s reasons.”
[26]
Justice
Sean Harrington in Gunasingnam, supra, is even more direct. He
concludes his judgment in a refugee claim in these words: “It is simply wrong
to think one can gain entry to Canada on the strength of a lie” (at paragraph 24).
[27]
In
the present case, the Board has not satisfied this criterion. In its very brief
decision, it did not analyse the consequences of the false information
formulated by the primary respondent and its effects on her credibility and it
did not provide an evaluation and detailed examination of the evidence which
supported the conclusion of credibility.
[28]
This
failure or serious error constitutes an error of law justifying this Court’s
intervention.
Failure to properly
weigh the evidence
[29]
The
applicants submit that even if the Board had supplied sufficient reasons for
its decision, it did not analyse the remaining evidence submitted before the
first panel:
(a)
The
first panel made no specific reference to the fraudulent FIRs in its reasons
although it relied on documentary evidence. It also referred to the primary
respondent’s evidence, which turned out to be mainly false.
(b)
The
Board did not mention that the first decision was based upon the primary
respondent’s false claims and was the basis of her refugee claim. For example,
at paragraph 23 of her Personal Information Form (PIF), she states that a false
case was registered against her husband. This was later held to be false. She
also noted in her PIF, at paragraph 24, that the army and the police were
looking for her in Pakistan. Yet she returned there following her arrival
in Canada for lengthy
stays in 2005 and 2006 without problems.
[30]
The
Board refused to consider this element of false representation. Yet, the
Board’s avoidance of describing and analysing the “other evidence” and the
effects of falsity upon the credibility of the primary respondent constitute a
reversible error.
[31]
This
was an important issue because references to documentary evidence of general
country conditions alone without evidence of personalized risk cannot form a
basis for a valid claim of refugee protection (Fouodji, supra, at paragraph
20).
Consideration
of an irrelevant factor
[32]
The
applicants argue that the Board should have considered the length of time the
verification of the authenticity of documents takes, and claim it could have
been made before the first hearing.
[33]
We
do not know the weight and direction given by the Board on this point but it
appears to be negative. Yet the time element is totally irrelevant in this case
since the Court does not impose a time limit and the discovery of fraud depends
on many imponderable factors beyond the applicants’ control.
[34]
This
could, in the applicants’ opinion, be an indication or an appearance of bias for
the respondents.
[35]
At
the least, it was an unnecessary and irrelevant consideration.
Conclusion
[36]
In
conclusion, I find the Board committed at least two reversible errors which
justify the granting of the present application.
JUDGMENT
THIS COURT ORDERS THAT:
1.
the
application for judicial review is granted;
2.
the
Immigration and Refugee Board’s decision dated June 30, 2008, is quashed;
3.
the
matter is returned before the Immigration and Refugee Board to be heard by a
different member for re-determination;
4.
no
important questions are certified.
“Orville
Frenette”
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