Date: 20070420
Docket: IMM-5238-06
Citation: 2007
FC 420
Ottawa, Ontario, April
20, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KASHIF
MANSOOR
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 23,
2006, wherein the Board vacated a decision to allow Kashif Mansoor’s refugee claim.
THE FACTS
[2]
Mr. Mansoor
arrived in Canada on November 15, 2001, and
made a refugee claim shortly thereafter. He was found to have a well-founded
fear of persecution in Pakistan at the hands of the Pakistan
Muslim League (PML), and of the police and military government. His claim was
accepted in January, 2003, though the Board’s decision was actually dated April
10, 2003.
[3]
According
to his Personal Information Form (PIF), Mr. Mansoor’s father was a member of
the Pakistan Peoples Party (PPP) and he had assisted him during the election
campaign of 1997. In 1998, Mr. Mansoor joined the PPP, recruited other youths
and actively took part in party meetings.
[4]
His problems
started in April 1999, when he was beaten by gangsters from the PML as he was
coming out of a PPP meeting. Then, in April of 2000, the PPP meeting which he
was attending was raided and he was beaten and detained by the police for one
day.
[5]
Mr.
Mansoor’s wife passed away in December 2000. In February 2001, his wife’s best
friend, Shazia, proposed to him. She had been caring for Mr. Mansoor’s children
since his wife had died. Mr. Mansoor nevertheless refused her proposal, because
he was still guilt-stricken and because Shazia’s father was a retired Brigadier
in the army and a supporter of the PML.
[6]
In March
2001, Mr. Mansoor was stopped by someone named Brigadier Hayat and two PML
workers. He was told to stop seeing Shazia and to quit the PPP. He was also
beaten by these people. Shortly afterwards, he was stopped again by Brigadier
Hayat, with the local president of the PML and some goons. He was again beaten
and told they would break his legs if he continued to work for the PPP. Since
he continued to see Shazia, her father beat her up and also threatened Mr.
Mansoor.
[7]
On August
14, 2001, Mr. Mansoor took part in a gathering of the Muhib-e-Watan, a social
welfare organization he had joined in 1997. After having been arrested by the
police, Mr. Mansoor claimed he was beaten at the police station in front of
Shazia’s father. He fled to Guranwala on November 2, 2002, after his mother
told him two army men came to his home with the police and asked about him. He
later fled to Lahore and then to Canada.
[8]
In a
decision dated April 10, 2003, Mr. Mansoor was determined to be a Convention
refugee. He was found to be credible, and his allegations were considered
plausible in the context of the ongoing strife in Pakistan.
[9]
On
September 23, 2003, the Minister of Citizenship and Immigration (the Minister)
made an application to vacate the decision allowing Mr. Mansoor’s refugee
claim.
THE IMPUGNED DECISION
[10]
The
Minister based her application to vacate Mr. Mansoor’s refugee claim decision
on new evidence indicating that Mr. Mansoor arrived in the United States on July 18, 2000 with seaman
papers. This contradicted his allegation that he had suffered persecution in Pakistan on a number of occasions
after July 18, 2000.
[11]
The main
issue before the Board was whether the original decision in Mr. Mansoor’s
favour was obtained as a result of directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter and, if so, whether
the remaining uncontradicted evidence supported the original positive decision
from April 10, 2003.
[12]
In his
PIF, Mr. Mansoor wrote he left Pakistan in November 2001. U.S.
Immigration and Naturalization Service (INS) documents indicate that someone
with the same name and fingerprints as Mr. Mansoor arrived in the U.S. on July 18, 2000 as a stowaway.
[13]
At the
hearing, Mr. Mansoor admitted he entered the U.S. on July 18, 2000, but claimed
he returned to Pakistan in December 2000 because his
wife passed away. The Board’s analysis was almost entirely focused on determining
whether Mr. Mansoor did in fact return to Pakistan in December 2000.
[14]
The Board
requested Mr. Mansoor’s passport as proof that he was in Pakistan between December 2000 and
December 2001. He was unable to produce his passport at the first day of the
hearing, and stated he thought his passport was at home in Pakistan. He later said he knew he
needed the passport, but thought it was a crime to send a passport through the
mail. The Board nevertheless granted an adjournment and the passport was
eventually produced.
[15]
The
passport contains an entry stamp at Islamabad
airport dated December 7, 2000. It was sent for a counterfeit analysis at the Canada
Border Services Agency (CBSA). The analyst concluded the passport that bore the
number KB613228 had been altered and that the digit 6 was originally 8. Passport
KB813228 was stolen in Faisalabad in May, 2003. The analyst also
found Mr. Mansoor’s identity card had been altered and the Board noted that
those alterations are generally associated with fraudulent documents. Mr.
Mansoor said it was possible the passport had been altered, since he had paid
extra to obtain the passport quickly to get back to see his wife in Pakistan.
[16]
The Board
decided to give no probative value to the passport because of Mr. Mansoor’s
wavering about where the passport was and why he had not produced it, and
because a blank passport stolen in 2003 could not have been used to travel in
December 2000.
[17]
The Board
also made a negative inference from the fact that Mr. Mansoor had several
different explanations about his status or lack thereof in the U.S. He stated that he made an asylum claim
in the U.S. Information from the I.N.S. indicated that while Mr. Mansoor was
being transported to be returned to Pakistan,
on August 26, 2000, he absconded from the transportation vehicle. Based on the
fact that he was running away from U.S.
authorities, the Board concluded he had not, in fact, made an asylum claim in
the U.S. The Board also noted that Mr.
Mansoor did not inform U.S. authorities that he moved from Texas to New York and that this was inconsistent with the
behaviour of a person feeling at risk for his security.
[18]
Mr.
Mansoor brought two witnesses to the hearing to testify that they had seen him
in Pakistan in December 2000. In both
cases, the information provided by the witness about when they met Mr. Mansoor
was inconsistent with the information he provided.
[19]
Based on
the evidence of the stolen, altered passport and the unreliable testimony of his
witnesses, the Board concluded, on a balance of probabilities, Mr. Mansoor had
not returned to Pakistan in December 2000.
[20]
Based on
this finding, the Board held that the events involving Shazia and the
harassment by Brigadier Hayat could not have taken place since Mr. Mansoor was
in the U.S. at the time of the alleged
events. The Board also found that, once the misrepresented or withheld facts
were set aside; there was not sufficient evidence to support the original
panel’s determination.
THE ISSUE
[21]
The only
issue to be determined is whether the Board erred in applying the test for
vacating refugee status.
THE RELEVANT LEGISLATION
[22]
Section 109 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), 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.
|
ANALYSIS
[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 FC 492; Naqvi v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1605.
[24]
In the present case,
the Board correctly formulated the test and concluded that Mr. Mansoor, based
on the evidence before it, deliberately or indirectly misrepresented or
withheld relevant material facts relating to his application for refugee status.
Indeed, Mr. Mansoor does not contest that he misrepresented material facts on
relevant matters. In any event, this is a finding entitled to the highest level
of deference, as it was based on an assessment of Mr. Mansoor’s credibility and
on the weighing of the evidence submitted by both parties.
[25]
In Sethi v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1178, my
colleague Justice Danièle Tremblay-Lamer undertook a pragmatic and functional
analysis to determine the standard of review applicable to decisions made
pursuant to section 109 of the IRPA. She concluded that, with respect to the
first part of the test as set out in paragraph 109(1), the Board’s decisions
should be reviewed against a standard of patent unreasonableness: see also Canada (Minister of Citizenship and Immigration)
v. Wahab, 2006 FC 1554.
[26]
While not conceding
that he actually never returned to Pakistan, Mr. Mansoor focused his argument on the
second part of the test. He submits the Board did not properly analyze the
remaining uncontradicted evidence, and claims there was still enough material
evidence to support the original panel’s determination.
[27]
That second part of
the test does not attract the same standard of review. I agree with my
colleague in Sethi, above, that such a task does not entail the same
kind of exercise. In determining whether there is enough evidence left to
support the Board’s initial finding, the task is not so much to assess the applicant’s
credibility, but to draw inferences as to whether the evidence left can be
considered tainted by the misrepresentations. As Justice Tremblay-Lamer stated:
[18] However, the corollary determination
made by the RPD as to whether “other sufficient evidence was considered at the
time of the first determination to justify refugee protection” (under
subsection 109(2)) constitutes, in my opinion, a different exercise: it is not
premised, even if only in part, upon the RPD’s assessment of the refugee’s
testimony and credibility at the time of the application to vacate. Rather, the
inquiry required under subsection 109(2) entails deciphering whether any of the
evidence cited in support of the original positive determination is left
“untainted” by the fact of the newly discovered material misrepresentations
(see Babar v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 301 (T.D.)(QL); Duraisamy v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1915
(T.D.)(QL)).
[19] The RPD is, as stressed already, by
virtue of its position adept at drawing inferences regarding the plausibility
of an individual’s story of persecution (Aguebor, supra) and, by the
same token, judging whether misrepresentations about a relevant matter were
made, based directly on the documentary and oral evidence that is
submitted. But to accomplish its task under subsection 109(2), the RPD must
examine the evidence from the original refugee claim hearing. The material
misrepresentations having been found, this inquiry in no way depends upon the
RPD’s current assessment of the refugee at the hearing.
[20] In other words, the RPD is not in a
privileged position relative to this Court to undertake this exercise and
determine whether other sufficient evidence in support of the initial grant of
refugee status remains. Thus the standard of reasonableness simpliciter
should in my view apply in respect of determinations made pursuant to
subsection 109(2).
[28]
In the present case,
the Board did not conduct any specific analysis pursuant to subsection 109(2). After
having reviewed the evidence surrounding the circumstances of Mr. Mansoor’s
stay in the U.S., the Board merely found he had lied and never returned to Pakistan in December 2000. The Board then stated, in the concluding
part of its reasons:
The tribunal concludes that the
respondent deliberately or indirectly misrepresented or withheld relevant
material facts relating to his application for refugee status. Once the
tribunal has set aside the misrepresented or withheld relevant material facts,
there is not sufficient evidence to support the determination made by the original
panel on January 24, 2003.
[29]
Can that be
considered sufficient, for the purposes of the analysis required by subsection
109(2)? I do not think so. It could have been enough if the only evidence left
had been the general country conditions, as was the case in Arumugam v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1449, and in Coomaraswamy
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153. Here,
there were still material elements that could support the determination made by
the original panel – the fact that Mr. Mansoor was a member of the PPP, that he
was assaulted and threatened by the rival PML in April 1999, that he was
arrested, detained and beaten. It is not at all clear whether, and if so why,
this evidence must be considered unreliable as a result of his
misrepresentations with respect to his stay in the U.S.
[30]
The Minister tried to
argue that the three-month delay until Mr. Mansoor left his country, his
failure to claim protection in the U.S. despite a 16-month sojourn and his
attempt to abscond from immigration officials, were all relevant factors that
impugned his overall credibility. This behavior, according to the Minister,
demonstrates a lack of subjective fear, a fundamental and determinative element
of a refugee claim and a “relevant matter” under the terms of subsection 109(2)
of the IRPA.
[31]
The problem with
this submission is that it is purely speculative. There is no precise
indication in the Board’s reasons as to why the remaining evidence was found
insufficient to support the initial determination. If the Board felt there was
no evidence left untainted, it should have explained how the allegations about
persecution before July 2000 no longer suggested Mr. Mansoor needed refugee
protection. Absent such an explanation, it is not self-evident that Mr.
Mansoor’s misrepresentations about his stay in the U.S. necessarily imply his whole story is a tissue of lies.
[32]
It is simply not
sufficient to simply say there is no evidence left to support the determination
made by the original panel when there remain allegations, found to be credible
at the first hearing, that have not been shown to be misrepresentations. In my
opinion, the Board failed to apply the test that it set out at the beginning of
its analysis, and should have considered whether there was other untainted
evidence considered at the time of the first determination which would justify
granting refugee protection to Mr. Mansoor. This finding therefore constitutes
a reviewable error, as it “is not supported by any reasons that can
stand up to a somewhat probing examination” (Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at
paragraph 56).
[33]
For these reasons, I would accordingly grant this application for
judicial review and return the matter to the Board for a new determination
before a differently constituted panel.
[34]
Counsel for Mr.
Mansoor submitted the following question for certification: In the context of
section 109(2), when the Board member concluded to misrepresentation and when
credibility is questioned, is the Board member obliged to assess “other
sufficient evidence”?
[35]
I agree with the
respondent that this is not a question of general importance that transcends
the interests of the immediate parties. First of all, I do not think there is
any ambiguity in the interpretation of subsections 109(1) and (2). The two-pronged
test applied by the Board has been consistently followed by this Court, and the
respondent does not dispute that it is the correct approach. The Minister’s
position is rather that the Board did apply that test and properly came to the
conclusion that, once the evidence affected by the misrepresentations was set
aside, there was insufficient evidence to justify granting refugee protection
to Mr. Mansoor. The outcome of this case, therefore, turns on the application
of what is clearly the law to the particular facts of this case. As such, it
does not warrant the certification of a question.
JUDGMENT
THIS COURT ORDERS that this application for judicial
review is granted. There will be no certified questions.
“Yves
de Montigny”
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