Date: 20110322
Docket: IMM-1433-10
Citation: 2011
FC 352
Ottawa, Ontario,
March 22, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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AJITPAL SINGH GONDARA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Minister of Citizenship and Immigration (the “Applicant” or the “Minister”)
seeks judicial review of a decision of the Immigration and Refugee Board,
Refugee Protection Division (the “Board”). In that decision dated February 11,
2010, the Board dismissed the Applicant’s application to reconsider and vacate
a finding that was made by the predecessor of the Board that Mr. Ajitpal Singh
Gondara (the “Respondent”) is a Convention refugee. That decision had been made
on February 7, 1996.
[2]
The
Respondent is a citizen of India. He is a Sikh from the Punjab. His full name is “Ajitpal
Singh Gondara” but he has been known as “Ajitpal Singh”, “Ajitpal Singh, son of
Jagbir Singh” and “Ajitpal Goldy Singh”, “Goldy” being his nickname.
[3]
In India, the Respondent was a basketball player
at the national level. He was also a community organizer. The Respondent had
moved to Uttar Pradesh in 1989 and in 1992, returned to the Punjab. On November
8, 1993, the police raided his home, arresting the Respondent and his cousin.
The police brought the Respondent and his cousin to a police station in
Faridkot, where they were separated.
[4]
The police
accused the Respondent of being a militant. He was tortured over two days. He
was released upon payment of a bribe. His leg and nose were broken, ending his
career as a basketball player.
[5]
The
Respondent returned to Uttar Pradesh. He was arrested again on November 14,
1994 and tortured again. He was sent to Punjab and tortured. He was released upon
payment of a bribe. He continued to suffer harassment from the police.
[6]
The
Respondent decided to leave India. He travelled to Delhi on or about December 10, 1994 and left
the country on December 14, 1994. He travelled to the United States of America
via Germany, arriving on December 16,
1994. He was detained for illegal entry and then sought asylum in the United States but was advised to travel to Canada instead. He arrived in Montreal, Quebec on February 3, 1995.
[7]
After the
Respondent’s departure from India, the police began harassing
his mother and youngest brother about his location. Eventually the police began
harassing his other younger brother. The two brothers left India in 1997 to seek asylum in the United
States and in 2002 to seek asylum in the United Kingdom, respectively.
[8]
Sometime
after his detention in Faridkot, a statement was filed with the Punjab police accusing the
Respondent of a robbery that was committed in July 1992. The Respondent was not
named in the original police report of that incident. Another report was filed
at a different Punjab police station in February 1996 alleging that the
Respondent had participated in an armed robbery in January 1993. Again, the
Respondent had not been named in the original police report. Since he was out
of the country, the Respondent was declared a “Proclaimed Offender” in July
1996.
[9]
In
February 1995, the Respondent applied for refugee status in Canada. He indicated that he had
left India on February 5, 1995. He did
not disclose one of his brothers in his original Personal Information Form
(“PIF”) and the PIF was later amended to include the brother.
[10]
The
Respondent’s refugee claim was fast-tracked and no hearing was held before the
Board. He was granted refugee status on February 7, 1996. Among the documents
that the Respondent submitted to the Board, in support of his identity, were a
birth certificate in the name of Ajitpal Singh, a driver’s licence issued to
(GONDARA) Ajit Pal Singh, school documents issued by Punjab University and the
Punjab Education Board Ajitpal Singh and certificates from various state
basketball associations issued to Ajitpal Singh or Ajit Pal Singh in
support of his identity.
[11]
In 2001,
the Respondent asked his uncle in India
to obtain a passport for him. The Respondent wanted to drive a truck to and
from the United
States and found
the annual renewal of his refugee travel documentation to be cumbersome.
[12]
The uncle
obtained a passport for the Respondent. Because it is illegal to mail a passport
from India, it was given to a family
friend who was travelling to the United States. The friend mailed the Indian passport concealed in a
dictionary, to the Respondent. The package was intercepted and seized in April 2003
by the Canada Border Services Agency (“CBSA”). At his hearing before the Board,
the Respondent said that the passport had never been in his possession and
further, that he would not have used it.
[13]
In
September 2002, the Applicant had applied for Canadian citizenship. His
citizenship ceremony, scheduled for July 11, 2005, was cancelled on that day.
[14]
The
Respondent sought an order of mandamus before this Court relative to his
citizenship application. On February 15, 2006, Justice Barnes allowed the
application and ordered that the Respondent be granted citizenship within 150
days. That did not happen and the Respondent sought further relief from the
Court. The Respondent was ultimately granted citizenship on July 18, 2006.
[15]
In October
2007, the Respondent initiated proceedings for the annulment of the outstanding
charges in India. By December 2008, he was
exonerated of both charges and the designation of “Proclaimed Offender” was
lifted.
[16]
Meanwhile,
on May 21, 2008 the Minister had brought an application before the Board to vacate
the decision granting refugee status to the Respondent. Initially, the
Applicant alleged that the Respondent’s refugee status should be revoked on the
basis of criminality and misrepresentation of identity documents.
[17]
The
Respondent’s birth certificate and driver’s licence had been found questionable
by the CBSA. A Memo from the Interpol Wing of the Central Bureau of
Investigation, New Delhi, addressed to the Royal Canadian Mounted Police, dated
March 17, 2006, states that the Punjab police department in Faridkot determined
that the Respondent’s birth certificate and driver’s licence were counterfeit.
[18]
Following
the cancellation of the criminal charges in India, the Applicant limited the vacation
request to the issue of identity.
[19]
In a
decision dated January 20, 2010, the Board denied the Minister’s application.
It found that, despite the misrepresentations, the original RPD panel had
sufficient remaining evidence to find that the Respondent had established his
identity. This evidence consisted of the documents relating to the Respondent’s
education and sports activities.
Issues
[20]
The
parties addressed the following issues:
i)
What are
the applicable standards of review?
ii) Did the Board err in its assessment
of the birth certificate and driver’s licence?
iii) Did the Board err in its
interpretation of section 109 of the Immigration and Refugee Protection Act,
S.C. 2001 c. 27 (the “Act”) relative to its mandate?
iv) Did the Board ignore relevant
evidence?
v) Did the Board err in failing
to consider that the education and sports documents were tainted
by the Respondent’s misrepresentations and lack of credibility with respect to
identity?
vi) Was the Board’s decision
reasonable with respect to subsection 109(2)?
Discussion and Disposition
[21]
As a
preliminary matter, I note that following the hearing of this application for
judicial review, the Respondent filed a motion in writing pursuant to the Federal
Courts Rules, SOR/98-106, seeking leave to introduce new evidence
concerning certain documents that he had submitted in the course of his expedited
refugee determination and the documents considered by the Board in the vacation
application.
[22]
By Endorsement
and Order issued on January 27, 2011, that motion was dismissed. The present
application will be decided on the basis of the documentary evidence that is
included in the certified tribunal record, that is the evidence that was before
the decision-maker, that is the Board, who dealt with the Minister’s
application.
[23]
Turning
now to the first issue, that is the standard of review, this must be considered
in relation to each of the arguments advanced. In Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 90, and Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, the Supreme Court of Canada said that there are only two
standards of review by which decisions of statutory decision-makers can be
reviewed, that is reasonableness and correctness.
[24]
Where the
appropriate standard of review has already been determined, an exhaustive
review is not required in subsequent cases. For findings of fact and issues of
mixed fact and law, the standard of reasonableness applies. That standard
applies to both the decision-making process and the outcome of the decision.
Errors of procedural fairness are reviewed on the standard of correctness.
Errors of law are generally reviewed on a correctness standard, unless the
decision-maker is interpreting a statute within its area of expertise, as was
emphasized by the Supreme Court of Canada in Smith v. Alliance Pipeline Ltd.,
2011 SCC 7.
[25]
The issues
relating to assessment of the documentary evidence and the ultimate outcome of
the application to vacate Convention refugee status pursuant to subsection
109(2) are to be decided on the standard of reasonableness. The
assessment of evidence is a fact-driven exercise, that is issue number 2 and
number 4, while issue number 6 raises a question of mixed fact and law.
[26]
Issues
number 3 and 5 raise questions of statutory interpretation. In light of the
discussion in Dunsmuir and the recent decision in Smith respecting
the applicable standards of review, these issues are reviewable on the standard
of reasonableness.
[27]
I will now
address the issue of the Board’s assessment of the birth certificate and
driver’s licence, an issue raised by the Respondent. The Board had found these
documents to be fraudulent and the Applicant submits that this finding is
reasonable, the Respondent argues that it is not.
[28]
According
to the Respondent, the Board acted capriciously in relying upon an analysis of
the Faridkot police department’s analysis of these documents. The CBSA’s
analysis of the documents showed only that the documents were of doubtful
authenticity.
[29]
The Board
noted that the Faridkot police department was not the wisest choice for
verification but that it had exonerated the Respondent of criminal charges and
was reliable. It considered this evidence together with the CBSA analysis, as
well as the fact that the Respondent had been forwarded a fraudulent passport
from India and a report discussing the availability of fraudulent documents in India. Considering the cumulative weight of
this evidence, the Board found that on a balance of probabilities, the
documents constituted misrepresentations.
[30]
In my
opinion, the Board’s analysis of these documents was justified, transparent and
intelligible, in accordance with the criteria discussed in Dunsmuir, and
therefore, reasonable. The Board committed no reviewable error in respect of
these documents.
[31]
The next
issue is the interpretation of section 109 of the Act. Section 109
provides as follows:
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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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[32]
The Applicant argues
that this provision of the Act allows the Board to conduct a two-stage inquiry
but does not require a two-stage inquiry. He submits that after finding a
misrepresentation, the Board was not required to conduct an analysis
pursuant to subsection 109(2).
[33]
The Respondent
disagrees with the Applicant’s interpretation of section 109 and takes the
position that the provision requires the Board to undertake an analysis
pursuant to subsection 109(2), but gives the Board discretion in conducting its
analysis. Further, the Respondent submits that the Board properly undertook an
inquiry and analysis of the evidence, pursuant to subsection 109(2).
[34]
I note that
subsection 109(1) itself grants a discretion to the Board in respect of
applications to vacate Convention refugee findings. Permissive language is also
used in subsection 109(2). In Thambipillai v. Canada (Minister of Citizenship and Immigration), 1999 CarswellNat 1424 (FCTD) in respect
of a similar provision in the former Immigration Act, R.S.C. 1985, c.
I-2, the Court addressed the scope of section 69.2, the predecessor to section 109
of the Act as follows at paras. 14 and 15:
The
Board, when considering an application brought under s. 69.2(2) [the
predecessor to subs. 109(1)] of the Act, may examine whether there is
sufficient evidence remaining on which a determination of Convention refugee
status may be found, after removing the fraudulent information or the
misrepresentation. In other words, the Board has the jurisdiction to consider
whether, notwithstanding the fact that Convention refugee status was obtained
by fraudulent means or misrepresentation, suppression or concealment of any
material fact, the person could still have been found to be a Convention
refugee at the time of the original determination.
The
Board may not allow an application made under s. 69.2(2) of the Act without
first turning its mind to s. 69.3(5) [the predecessor subs. 109(2)] and
determining whether it ought, in the circumstances, to exercise the discretion
conferred by that provision.
[35]
In proceeding to make
an inquiry under subsection 109(2) as to the existence of other credible
evidence that could support key parts of the Respondent’s claim, in particular
his identity, the Board acted in accordance with the discretion granted by the
Act and in accordance with the manner that section 109 is meant to be
interpreted. The Board did not err in its interpretation of subsection 109(2).
It is clear that the Board interpreted this subsection as requiring it to
consider whether, after setting aside the tainted evidence, namely the
Respondent’s birth certificate and driver’s licence, there was remaining
credible evidence upon which a Convention refugee claim could succeed.
[36]
The next issue is
whether the Board ignored relevant evidence. The Applicant submits that it did,
in particular a document entitled “India: The availability and prevalence of
fraudulent identity documents in India”. Although the Board referred to this document
in relation to the Respondent’s altered passport, it was not mentioned in
connection with the education and sports certificates.
[37]
Essentially, in my
opinion, the Applicant is complaining, in the guise of an argument, that the
Board ignored evidence that impairs the Respondent’s credibility relative to
the remaining identity documents. The Applicant raised the issue of ignoring
evidence as an error of law.
[38]
Although the
Applicant characterized this issue of ignoring evidence as an error of law that
could be reviewable on the standard of correctness, I disagree. In my
opinion, the real issue is whether the Board erred in its assessment of the
facts before it. That issue is reviewable on the standard of reasonableness.
[39]
I am not persuaded
that the Board ignored relevant evidence. Its reasons make it clear that it
considered all relevant evidence including the document about fraudulent
documents in India and the fraudulent passport.
[40]
The Board properly
excluded evidence about the Respondent’s presence in a geographic area of Canada that is associated with smuggling activities since that
evidence was not relevant to the credibility of the education and sports
documents.
[41]
In the result, I am
not persuaded that the Board erred as alleged by the Applicant.
[42]
The next issue is the
Board’s alleged error in failing to consider whether the education and sports
documents were tainted by the Respondent’s misrepresentation and lack of
credibility relative to his identity.
[43]
The Respondent,
relying on the decision of the Federal Court of Appeal in Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 501 (F.C.A.),
submits that the Board is barred from reassessing evidence that the Minister
did not show was tainted by misrepresentations in a vacation hearing. He argues
that the Minister did not challenge the authenticity of the sports and
education documents at the vacation hearing and cannot now complain that the
Board used those documents in a manner consistent with the decision in Coomaraswamy.
[44]
In Coomaraswamy,
the Federal Court of Appeal said the following at para. 26:
Maheswaran, supra, held that, in deciding
whether, apart from the misrepresented evidence, there was other sufficient evidence
to uphold its earlier decision that a claimant was a refugee, the Board must
confine itself to the evidence that was before it at the determination hearing.
The Board must not reassess evidence that was not tainted by the
misrepresentations in light of the evidence adduced by the Minister at the
vacation hearing as proof of the claimant's misrepresentations at the determination
hearing.
[45]
In para. 33 of Aleman v. Canada (Minister of
Citizenship & Immigration), 2002 FCT 710, Justice Rouleau, relying on Coomaraswamy
quoted above, clearly said that in a vacation hearing the Board cannot impute
negative credibility to documents when the documents themselves do not
constitute misrepresentations.
[46]
The Board correctly
recognized the distinction between subsections 109(1) and 109(2). It considered
whether the evidence relative to the misrepresentations of the other identity
documents undermined the authenticity of the sports and education
certificates. The Applicant Minister concedes that the remaining certificates
are not misrepresentations.
[47]
Having concluded that
the evidence in those certificates did not arise from misrepresentations, the
Board recognized that it was not to reassess the credibility of that
documentary evidence. It follows that the Board did not err by declining to
reweigh the sufficiency of the sports and education documents in light of the
evidence that showed other misrepresentations, as argued by the Applicant.
[48]
The final issue is
whether the Board’s overall decision with respect to subsection 109(2) meets
the standard of reasonableness.
[49]
The Applicant argues
that it does not meet that standard. Relying on the facts that the Respondent
had been sent a false passport, had used a false birth certificate and driver’s
licence, that he had used a different name while in the United States and that
he had lied, in his original PIF, about his travel route to Canada, the
Applicant submits that the Board’s finding that the remaining documents
constitute sufficient credible evidence of the Respondent’s identity is not
within the range of reasonable findings.
[50]
In reply, the
Respondent argues that the Board found his explanations to be reasonable
concerning the fraudulent passport and the inaccuracies in his original PIF. The
Board thoroughly weighed the remaining evidence that had been submitted by the
Respondent, at the original hearing, to establish his identity. He submits that
on the basis of the evidence that the Board discussed, the decision fell within
the range of “reasonable outcomes”, as discussed by the Supreme Court in Dunsmuir
at para. 141.
[51]
In my opinion, the
matters raised by the Applicant relative to this final issue are irrelevant to
an analysis pursuant to subsection 109(2). As discussed above, the Board was
correct in declining to consider the misrepresentations when assessing the
sufficiency of the education and sports documents to establish the Respondent’s
identity. The conclusion that the education and sports documents were
sufficient to establish the Respondent’s identity was reasonably open to the
Board.
[52]
The application for
judicial review is dismissed.
[53]
The Applicant
proposed the following question for certification:
In
assessing whether it is “satisfied that other sufficient evidence was
considered at the time of the first determination to justify refugee
protection” under s. 109(2) of the IRPA, is the Refugee Protection Division
precluded from reweighing the “other” evidence in light of the evidence of the
misrepresentation adduced by the Minister at the vacation hearing which taints
it?
[54]
I am not satisfied
that this question meets the criteria to be certified, namely that it is a
serious question of general importance that would be dispositive of an appeal;
see Zazai v. Canada (Minister of Citizenship &
Immigration) (2004), 318
N.R. 365.
[55]
In my opinion, the
Applicant’s proposed question was answered by the Federal Court of Appeal in Coomaraswamy.
As a result, the proposed question does not meet the criteria for certification
as it is not a serious one of general importance.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed, no question for certification arising.
“E.
Heneghan”
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