Date: 20110407
Docket: IMM-3680-10
Citation: 2011 FC 431
Ottawa, Ontario, April 7,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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XIAO LING LIN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division (the Board) dated June 10, 2010 dismissing an application by the
Minister of Public Safety and Emergency Preparedness (the Minister) to vacate
the Respondent’s claim for refugee protection.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Respondent, Xiao Ling Lin, is a citizen of China. He arrived
in Canada and sought
refugee protection on February 7, 2007. He claimed to have a well-founded fear
of persecution because he sold Falun Gong books and CDs in his bookstore in Changle City, Fujian
Province, China. The store
was searched by the police in November 2006. Although he kept the banned
materials out of sight, the police found the Falun Gong materials. The
Respondent claimed to have escaped while the search was being conducted and
later fled to Canada.
[4]
Fourteen
(14) days in advance of the Respondent’s hearing before the Immigration and
Refugee Board, the Respondent submitted copies of his license to operate a
bookstore, alleged Public Security Bureau (PSB) search warrants, a notice of
closure of his bookstore from the Industry and Business Administrational
Management Bureau and three summons requiring him to report to Chinese
authorities. Despite the fact that this was outside of the 20-day period for
disclosure, the tribunal accepted the evidence pursuant to its discretion to do
so under the rules. On January 14, 2009 the tribunal concluded that, on a
balance of probabilities, the Respondent was involved in the sale of Falun Gong
materials which came to the attention of the Chinese authorities, giving rise
to more than a mere possibility that the Respondent would face persecution in
China. A notice of decision was issued the following day, and written reasons
followed on February 19, 2009.
[5]
Prior
to the hearing, the Hearings Officer began the process of attempting to verify
the authenticity of the Respondent’s documents. The documents were sent to the
“Migration Integrity Officer” in Guangzhou, China in December
2009. January 22, 2009 the Consulate General of Canada in Guangzhou forwarded
the documents to the Consular and Cultural Division of the Foreign Affairs
Office of Fujian Provincial People’s Government. On March 31, 2009 the
Minister was informed by the Chinese government via diplomatic note that
investigations by the pertinent authorities failed to find any record on file
concerning the submitted Business License and that the Changle PSB had no
police officers matching the names of the police officers on the submitted
summons.
[6]
As
a result of this information, the Minister brought an application to vacate the
Respondent’s Convention Refugee (CR) status on June 30, 2009. The Minister
based his application on the grounds that the decision was obtained as a result
of directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter which, if known to the tribunal, could have
resulted in a different determination.
B. Impugned
Decision
[7]
The
Board held the vacation hearing on January 15, 2010. The Minister took the
position that the Chinese authorities had concluded that the Respondent’s
documents were fraudulent and that there was therefore no basis upon which the
tribunal could have determined that the Respondent was a CR. The Minister
argued that the Respondent’s claim was false and that he misrepresented facts
relating to a relevant matter.
[8]
By
way of reasons dated June 10, 2010, the Board dismissed the Minister’s
application.
[9]
The
Board made two findings. First the Board found that the Minister sought the
views of the alleged persecutor with respect to the merits of the application
and the Respondent’s designation as a CR. The Board found that the evidence of
the Chinese authorities might be either true or false, and it would be the
panel hearing the refugee claim that would be in the best position to weigh the
evidence and make that determination.
[10]
Secondly,
the Board found that the Minister approached the Chinese authorities without
regard for the protected status of the Respondent as a CR, and failed to take
appropriate steps to protect the Respondent. In the view of the Board, this
was fatal to the Minister’s application.
II. Issues
[11]
The
Applicant raises the following issues:
(a) Did
the Board err with respect to its analysis under subsection 109(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] by not properly
considering the Minister’s new evidence?
(b) Did
the Board err by not conducting an analysis under subsection 109(2) of the IRPA
with respect to the remaining evidence that would support the Respondent’s CR
status?
[12]
The
Respondent raises the following issues:
(a) Did the Board err in concluding that
the Minister’s evidence was insufficient for the Minister to meet the onus of
proof and establish the facts to a balance of probabilities with respect to the
misrepresentation?
(b) Was the disclosure in this case
a breach of the Respondent’s rights under the Privacy Act?
(c) Was
the Board correct in dismissing the application after finding that there was an
abuse of process?
[13]
In
my view, the issues are best summarized as:
(a) Did
the Board err in concluding that the Minister’s evidence was insufficient to
establish misrepresentation?
(b) Did
the Board err in dismissing the application after finding that there was an
abuse of process?
III. Legislative
Scheme
[14]
Section
109 of the IRPA allows the Minister to apply to vacate a decision to allow a
claim for refugee protection if the decision was obtained as a result of
misrepresentation:
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Vacation
of refugee protection
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.
Rejection
of application
(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.
Allowance
of application
(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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Demande
d’annulation
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.
Rejet
de la demande
(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.
Effet de la décision
(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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IV. Standard
of Review
[15]
Decisions
rendered pursuant to section 109 of the IRPA are decisions of mixed fact and
law, and as such are entitled to deference by the Court. The appropriate
standard of review is the standard of reasonableness (Canada (Minister of
Citizenship and Immigration) v Chery, 2008 FC 1001,
334 FTR 148 at para 19). The Court will not disturb the Board’s finding so
long as the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Argument
and Analysis
A. Did
the Board Err in its Analysis Under Section 109?
[16]
The
Minister submits that the Board failed to engage in a proper analysis of the
Minister’s evidence under either subsection 109(1) or 109(2). It is the
Minister’s contention that instead of engaging in the analysis required by the
statute, the Board focused on the entirely extraneous and irrelevant
consideration of how the Minister obtained the evidence. The Minister posits
that by focusing on the Respondent’s privacy rights, the Board examined an
issue that was not before it and was not within the scope of the Board’s duty
at the vacation hearing. The Minister’s position seems to be that the Board
did not actually consider the credibility or sufficiency of the new evidence,
and such failure amounts to an error of law.
[17]
The
Respondent takes the view that the reasons of the Board reveal that the Board
did in fact consider the evidence and determined, on a balance of
probabilities, that the Minister did not meet the burden of showing that the
Respondent misrepresented a material fact.
[18]
As
I read the reasons, it is clear that the Board considered the Minister’s
evidence. The Board was aware that the Minister took the communication from
the Chinese authorities to lead to the indubitable conclusion that the
Respondent directly misrepresented facts relating to relevant matters, namely,
the existence of the bookstore, the search of the premises and seizure of the
material and the summonses requiring the
Respondent to appear. However, the Board did not share this view. The Board
stated at paras 27 and 28:
In the context of the
determination of the refugee claim itself, the panel hearing that case would be
in a position to weigh such evidence in the context of the evidence overall,
and deal with it in a way which would be not only appropriate, but sensitive to
the issues of credibility and trustworthiness arising generally in the case.
Evidence going to the question of inclusion should be dealt with, as much as
possible, within the process of determination of the claim, rather than as a
post-hearing application to vacate. It is in the process of the actual
determination of the claim that the strengths and weaknesses of evidence going
to inclusion can best be dealt with.
For instance, it is clear that what the
Respondent says about his treatment by the Chinese authorities, in particular
the PSB, is either true or false. Similarly, what the Chinese authorities say
in their communication to the Canadian authorities is either true or false.
However, if what the Respondent said about the Chinese authorities is true,
then that might be a reason to consider that what the Chinese authorities say
about the Respondent is false. That is, these matters are inextricably
intertwined. It is the panel hearing the refugee claim who is in the best
position to understand the body of evidence as a whole, and to make the
appropriate determination.
[19]
Perhaps
it is not as clear as the Minister would like, but it is obvious that the Board
found the Minister’s evidence to be insufficient to meet the requirement of
section 109. The evidence was, in the mind of the Board, not irrefutable. The
Board did not find itself in a position to be able to say it preferred the
Minister’s evidence over that of the Respondent. Although the Board does not
spell it out as clearly as the Respondent does in his submissions, the Board
did not find, on a balance of probabilities, that the Minister’s evidence showed
that the Respondent misrepresented relevant facts to the tribunal.
[20]
The
Supreme Court has recently reiterated that the onus is on the Minister to
provide sufficient evidence to terminate a previously recognized refugee
status, stating in Németh v Canada (Justice), 2010 SCC
56, 91 Imm LR (3d) 165 at para 109, “under the Refugee Convention, persons who
have established that they meet the refugee definition should not bear the
burden of proving that they continue to do so.” Specifically, at para 110,
“the IRPA makes it clear that it is up to the Minister of Citizenship and
Immigration (MCI) to apply for the order that refugee protection has ceased and
to advance the reasons in support of the application.” In the present case,
the Board expressed dissatisfaction with the reasons advanced by the Minister
in support of the application.
[21]
Furthermore,
contrary to the Minister’s submissions, the Board made it quite clear that it
was concerned with the credibility of the Minister’s evidence, given its
provenance. The Board noted at para 26 that “What the Canadian authorities did
do, however, was involve the alleged persecutor in an assessment of the
evidence of the claims which had been brought by the claimant, or respondent.”
The Board very clearly expressed its concern with the source and method by
which the Minister obtained the evidence. Though the Minister argues that this
is an irrelevant consideration, I disagree. It clearly has an impact on the
probative value that may be assigned to the evidence. And it is trite law that
the Board is in the best position to weigh and evaluate the submitted
evidence. More specifically, findings in a vacation hearing are entitled to
the highest level of deference, as they are based on an assessment of the
claimant’s credibility and on the weighing of the evidence submitted by both
parties (Mansoor v Canada (Minister of Citizenship and Immigration),
2007 FC 420, 61 Imm LR (3d) 227 at para 24).
[22]
The
Respondent submits that the Board made a decision that was reasonably open to
it based on the totality of the evidence. The Board considered the findings of
the previous tribunal, the new evidence and the procedures followed in
obtaining the communications from the Chinese authorities, and concluded that
the Minister did not advance sufficient evidence to warrant vacating the
Respondent’s CR status. I agree with the Respondent. The outcome falls within
the range of acceptable, defensible outcomes.
[23]
The
Minister further submits that the Board erred in not conducting a review of the
untainted evidence to determine whether there was sufficient evidence to
support a convention refugee finding for the Respondent, as mandated by
subsection 109(2).
[24]
There
is no basis for this argument. It is logically untenable to hold that the
Board must nonetheless analyze whether the Respondent would be able to maintain
a claim for CR status based on the remaining untainted evidence even after concluding
that it is not in a position to prefer the Minister’s evidence over that of the
Respondent. The Board never came to the conclusion that the Respondent’s
evidence was “tainted” in the first place, thus, there was no need to analyze a
claim based on the remaining evidence. The test for vacation is clear. As
stated by Justice Yves de Montigny in Mansoor, above, at para 23:
[23] The parties do not
dispute the proper approach to an application to vacate a decision granting
refugee status. The tribunal must first conclude the decision granting
refugee protection was obtained as a result of direct or indirect
misrepresentations, or of withholding material facts relating to a relevant
matter. Having found so, it may nevertheless deny the application if
there remains sufficient evidence considered at the time of the determination
of the claim for refugee protection to justify refugee protection: see, for
example, Canada (Minister of Citizenship and Immigration) v. Pearce,
[2006] F.C.J. No. 646, 2006 FC 492; Naqvi v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 1941, 2004 FC 1605
[Emphasis added]
[25]
I
find no reviewable error in the Board’s section 109 analysis.
B. Did
the Board Err in Considering How the Minister Obtained the Evidence?
[26]
The
Board found fault with the way in which the Minister obtained the evidence
given the protected status of the Respondent, writing at para 37:
The protection of persons is
at the core of the refugee determination system. The identification of those
who genuinely need protection is critical to [the] integrity of that system.
In investigating the merits, bona fides or veracity of claims brought before
the Division, the Minister must balance, and be seen to balance, the need to
protect the individual, including those who have been determined to be
Convention refugees, against the need, in the public interest, to detect and
prevent fraud. In this case, there is no evidence that any care was taken to
protect the Convention refugee, a protected person. This is fatal to the
Minister’s application.
[27]
The
Minister submits that a consideration of the method by which the Minister
obtained the evidence is irrelevant and not at issue. The Minister argues that
the protocol followed by the Minister in obtaining the evidence was consistent
with the case law and did not violate the Respondent’s privacy rights. The Minister
submits that the Board erroneously and microscopically read the case law and
mischaracterized what the Minister was attempting to do in verifying the
documents.
[28]
The
Respondent argues that the Board did not err in determining that the
Respondent’s privacy rights under the Privacy Act, RSC 1985, c P-21 were
violated by the Minister’s disclosure of personal information to the agents of
persecution since the disclosure of personal information in this case was not
consistent with the purpose of determining a refugee claim. The Respondent
further argues that the Minister’s vacation application constitutes an abuse of
process in that he failed to ask for a postponement and the subsequent
challenging of the evidence deprived the Respondent of an opportunity to
integrate that evidence into his claim.
[29]
The
Minister relied on two cases to illustrate that this Court has found it
acceptable to verify documents with foreign governments, even those alleged to
be the claimant’s persecutors. The Board examined these cases, excerpting a
section from Moin v Canada (Minister of
Citizenship and Immigration), 2007 FC 473, 157 ACWS (3d) 603. There,
the Federal Court found, relying on the decision of the Court in the case of Igbinosun
v Canada (Minister of Citizenship and Immigration), 87 FTR 131, 51 ACWS
(3d) 918, that disclosure to the state authorities, the alleged persecutors,
was essential to determine if the Respondent fell within the exclusion
provisions of Article 1F (war crimes, serious non-political crimes) of the Schedule
to the IRPA:
[35] According to s. 8(1)
of the Privacy Act, the person who provides the government with personal
information must consent for the government to subsequently disclose the
information. S. 8(2) then lists exceptions to that general rule. One of those
exceptions, at paragraph 8(2)(a), allows the government to disclose information
so long as the act of disclosure is for the same purpose, or one consistent
with, the purpose of originally collecting the information.
[36] In the present case, the
purpose for which Mr. Moin's personal information was collected may be
expressed as general immigration purposes or, more specifically, as
admissibility and refugee determination purposes. Under either interpretation,
using the information to determine whether Mr. Moin might be excluded from
Convention refugee status was a reflection of the same purpose or, in the
alternative, a purpose consistent with that which originally justified the
collection: Rahman v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 2041 (F.C.T.D.) (QL).
[37] Mr. Moin indicated in his
refugee intake interview that he was charged with corruption and misuse of
public office, thereby raising the possibility of exclusion under Article
1(F)(b) of the Convention. Appropriate inquiries were made to determine whether
he was excluded from the refugee definition. There is no evidence that
authorities in Pakistan were advised Mr. Moin had
made a claim for asylum. In any event, the disclosure was essential to
determine if he fell within Article 1(F). I believe the following paragraph
taken from the decision reached by Justice Donna McGillis in Igbinosun v. Canada (Minister of Citizenship and
Immigration),
[1994] F.C.J. No. 1705 (F.C.T.D.) (QL), is a complete answer to Mr. Moin's
argument:
6. In the present case, the evidence
establishes that the identity of the applicant was disclosed to Nigerian police
officials to determine whether he had been charged with the offence of murder.
There is no evidence to indicate that any confidential information given by the
applicant in his personal information form was disclosed. The objection to the
admissibility of the telex on the basis that the Privacy Act was violated has
been advanced in the absence of a proper evidentiary framework and, as a
result, must be rejected. Alternatively, even if Canadian officials did provide
confidential information from the applicant to the Nigerian police, the
disclosure was made for the purpose of permitting the Minister to formulate an
opinion as to whether the claim of the applicant raised a matter within the
exclusionary provision in subsection F(b) of Article 1 of the Convention. [See
subparagraph 69.1(5)(a)(ii) of the Immigration Act.] Since the applicant
provided the information for immigration purposes, its use, if any, by the
Minister or his representatives was clearly "for a use consistent with
that purpose" within the meaning of paragraph 8(2)(a) of the Privacy
Act.
[38] In light of the foregoing, I
agree with the Minister that the Board was not required to address Mr. Moin's
arguments concerning his refugee sur place claim. A tribunal is not
required to address such an argument where the applicant has been judged not to
have presented any credible evidence substantiating his claim: Barry v. Canada (Minister of Citizenship and
Immigration),
[2002] F.C.J. No. 266, 2002 FCT 203; Ghribi v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1502, 2003 FC 1191; Lai
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 230,
2005 FC 179.
[30]
The
Board distinguished the cases from the present matter in two ways. In Moin
and Igbinosun, above, the information was sought to determine whether or
not the claimants were excluded under Article 1F. The Board found that making
inquiries regarding potential exclusion to be essentially different from making
inquiries from the alleged persecutor regarding matters internal to the refugee
claim, such as an assessment of the evidence. Secondly, the inquiries made in Moin
and Igbinosun, above, were made prior to the determinations of the
claims, and the results were disclosed before the hearing in each case.
[31]
The
Minister argues that the Board distinguished these cases in a blind fashion.
The Minister submits that the Board read the cases microscopically to hold that
the Minister may only make inquiries in the case of exclusions. The Minister
emphasizes that the Minister is able to make an application to vacate CR status
at any time, so the fact that the inquiries in the present matter were made
after the hearing is not in any way significant.
[32]
I
do not read the reasons of the Board the same way as the Minister. Like the
Respondent and the Board, I share the view that in principle the Minister has
the right to send documents to foreign governments to be verified. However, at
issue in this matter is the manner in which the documents were verified. This
is a legitimate concern to which the Board rightfully turned its attention.
[33]
While
cognizant of the fact that, in accordance with the legislation, personal
information can be disclosed for a use consistent with the purpose for which
the information was obtained, the Board nonetheless determined that the
Respondent’s privacy rights had been violated because “seeking the views of the
alleged persecutor or perpetrator on the quality, provenance or credibility of
the evidence alleged against that person, institution or state” was, in this
case, not a use consistent with the purpose of determining a refugee claim.
The Board did not conclude that inquiries could only be made with respect to
exclusions, rather, that consistent with the case law, disclosure or personal
information must be consistent with the purpose of determining a refugee claim.
[34]
I
agree with the Respondent that framing the issue as general immigration
purposes, as suggested by the Minister, might be too broad. The Board focused
largely on the fact that inquiries were made after the Respondent had been
granted protective status. In this specific instance, it is hard to see how providing
the Respondent’s documents to a government known to be repressive without first
taking steps to protect the Respondent’s identity would be in line with the
objectives of the IRPA, which the Board reproduced:
Objectives — refugees
(2) The objectives of this Act
with respect to refugees are
(a) to recognize that the
refugee program is in the first instance about saving lives and offering
protection to the displaced and persecuted;
(b) to fulfil Canada’s international
legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to
provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression
of Canada’s humanitarian ideals, fair
consideration to those who come to Canada
claiming persecution;
(d) to offer safe haven to persons with a
well-founded fear of persecution based on race, religion, nationality,
political opinion or membership in a particular social group, as well as those
at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient
procedures that will maintain the integrity of the Canadian refugee protection
system, while upholding Canada’s respect for the human rights and fundamental
freedoms of all human beings;[…]
[35]
The
Minister maintains that the Respondent’s documents were provided to the Chinese
authorities for immigration purposes, and the fact, acknowledged by the Board,
that the Minister did not disclose that the Respondent had made a refugee claim
or was granted convention refugee status means that the appropriate protocol
was followed. This directly contradicts the Board’s findings that “no steps
were taken, or criteria applied to protect the protected person.”
[36]
Again,
the Minister fails to raise a reviewable error. Having rightly determined that
the Respondent’s privacy rights were in issue, the Minister had a duty to
ensure that the disclosure was appropriately limited and proportionate. As
Justice Danièle Tremblay-Lamer wrote in Canada (Minister of
Public Safety and Emergency Preparedness) v Kahlon, 2005 FC 1000, 278 FTR
254 at para 37, “The RPD should consider alternatives to full disclosure in
order to strike a balance between the need for disclosure and the right to
privacy.” The Minister took no steps. The Minister’s submission that
redacting the Respondent’s name from the documents would be counter-productive
strikes me as spurious. The Respondent’s identity was never at issue, only the
authenticity of the documents was questioned. Their genuineness could have
been examined without revealing the Respondent’s name to the Chinese
authorities, whom, a tribunal had already concluded, were more than merely
likely to persecute him.
[37]
I,
the Board and the Respondent recognize that in principle the Minister has the
duty to uphold the integrity of the Canadian refugee determination system and
accordingly the right to verify documents. However, I accept the Respondent’s
submission that the manner in which the verification is conducted must be
tailored to ensure that the claimant’s right to privacy is respected and that
his life is not endangered by the disclosure.
[38]
I
do not accept the Minister’s argument that the Board turned its mind to
irrelevant and extraneous considerations and thus committed a reviewable
error. The decision is justified and intelligible. I see no reason for this
Court to intervene.
[39]
The
Respondent submitted that the Minister’s vacation application constituted an
abuse of process. I do not feel the need to comment on these submissions,
other than to say that vacation applications should not be used as a more
convenient timeline within which to challenge the veracity of documents that
are internal to a claimant’s refugee determination process. That asking for an
adjournment would pose scheduling inconveniences for the Minister is not a
valid rebuttal to this point.
VI. Conclusion
[40]
Submissions
were received with respect to possible questions for certification but given my
findings with respect to this matter, I have decided that it would not be
appropriate to certify any questions.
[41]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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