Date: 20071120
Docket: IMM-1209-07
Citation: 2007 FC 1214
Ottawa, Ontario, November 20, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
HARPREET SINGH CHAHIL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This is an application for judicial review of
the February 26, 2007 decision by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) vacating an earlier decision granting
refugee status to the Applicant, Mr. Harpreet Singh Chahil also known as Pritam
Singh. The Board’s decision to vacate was made pursuant to Section 109 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) and Rule 57
of the Refugee Protection Division Rules (the Rules).
II. Facts
[2]
The Applicant alleged the following facts upon
which he based his refugee claim at the first hearing:
(1) He was born on April 1,
1981 in Mukandpur, Province of Punjab, India.
(2) He completed his
schooling (10th grade) in 1999, and then worked on his father’s farm until
October 1999 when he began his own transport business until December 2001 at
which time he became unemployed.
(3) On December 30, 2001, the
Applicant was stopped (while in his truck) by young men and subsequently fired
at by the police, questioned and tortured. He was released from the police
station on January 5, 2002 after a bribe was paid. On the urging of his mother
to leave Punjab to save his life, he subsequently fled to his uncle’s home in
Jagadi Mod on January 20, 2002.
(4) On March 7, 2002, his
mother warned him that the police were looking for him and with the help of his
uncle’s friend, an agent was found to prepare his travel documents. He left India on June 27, 2002.
(5) The Applicant travelled
to Canada, via England on June 27, 2002. The Applicant
entered Canada without a visa
but with a false passport under the name of Jatin Kumar. He claimed protection
on July 4, 2002. He produced as identity documents a birth certificate, a
driver’s licence and a “matric certificate” (school certificate).
(6) The Applicant claimed refugee protection alleging that he
had been persecuted in India.
His fear of persecution was based on the following allegations:
(a) Police atrocities;
(b) The arrest, torture and killings of
relatives;
(c) The arrest of his father and payment of
bribes for his release; and
(d) His arrest, interrogation
and torture by the police on August 12, 2000, his subsequent release and
medical treatment.
[3]
The Applicant’s claim was accepted by the Immigration
and Refugee Board (IRB) on July 31, 2003.
[4]
On March 31, 2004, a letter of denunciation was
received which alleged that the Applicant’s claim was fraudulent, that his real
name is Pritam Singh, that he was born on December 5, 1981, that he has no
record of police harassment or torture in India and that his father’s name is
Hajinder Singh and not Sukhwinder Singh as stated in his PIF. As a result, the
Minister sought information from the Canadian Mission to India to ascertain the veracity of these
allegations.
[5]
The Minister’s inquiry revealed that the
Applicant had obtained a student visa on December 31, 2001. He entered Canada
on January 4, 2002, under the identity of Pritam Singh indicating his intention
to study at the University of Windsor. At the time of his arrival in Toronto, he was in possession of an Indian passport under the identity of
Pritam Singh No. A8754942, which had been issued to him on March 29, 2000
(expiry date of March 28, 2010) with his photograph included therein.
[6]
On April 20, 2005, the Minister applied,
pursuant to Section 109(1) and (3) of the Act and Rule 57 of the RPD Rules, for
and Order to vacate an earlier decision which allowed the applicant’s claim for
refugee protection.
[7]
On the application, the Minister alleged that, based
on information obtained, the claimant made several false declarations in his
personal information form (PIF) which included:
(a) His name and names he
used;
(b) His date of birth;
(c) His mother’s name and name of his siblings;
(d) His employment history and educational
skills;
(e) His place of residence for the past 10 years
and his travel route to Canada;
(f) Information concerning
the travel documents he used to travel to Canada and how they were obtained; and
(g) False allegations in his PIF narrative.
[8]
The Minister submits that had the tribunal known
of these facts at the time of the hearing, the determination that the claimant
was a Convention refugee would have been different.
[9]
The Application to vacate was heard on September
14, 2006.
III. Decision under Review
[10]
The Board reviewed the evidence that was before
the first tribunal in rendering its decision to accept the claim. It also
considered the Minister’s evidence obtained as a result of the inquiry made
into the allegations contained in the letter of denunciation. Finally, the
Board considered the Applicant’s evidence in response to these allegations. In
its analysis, the Board focused on the Applicant’s identity and on whether
there was other sufficient evidence before the first tribunal to justify
granting the Applicant refugee protection.
[11]
The Board noted several inconsistencies,
contradictions and omissions between the applicant’s testimony and the
information contained in his PIF which led the Board to conclude that the
Applicant was not credible. Indeed the Board noted that the Applicant’s lack of
credibility caused it “…to bring into serious doubt his credibility on all
important issues.” Specifically, with respect to the Applicant’s identity, the
Board found, on the preponderance of the evidence, that the Applicant’s real
name is Pritam Singh and that he attended the Canadian Mission in India in
person to apply for a student visa to attend the University
of Windsor. The Board also
found that the Applicant had no difficulties in India and that he was not persecuted, detained or tortured as alleged in
his PIF narrative. The Board further determined that the Applicant had no
intention to attend the University of Windsor and that his delay of six months in making his claim for
refugee status indicates “a complete lack of genuine subjective fear.”
[12]
Consequently, on the evidence before it, the
Board found that the Applicant had obtained his refugee status as a result of
directly misrepresenting or withholding material facts relating to many
relevant matters including identification. The Board concluded that the
Applicant was indeed Pritam Singh.
IV. Issues
[13]
The following issues are raised in this application:
A. Did the Board err in finding that the
Applicant had directly misrepresented or withheld material facts relating to
relevant matters in respect to the Applicant’s refugee claim?
B. Did the Board err in its determination that
other evidence considered at the time of the first determination was insufficient
to justify refugee protection for the Applicant?
C. Did the Board breach the principles of natural
justice, when it refused to admit evidence that existed, but was not adduced at
the time of the first determination?
V. Standard of Review
[14]
In Sethi v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1178, [2005] F.C.J. No. 1434 (QL) at paragraphs
17 to 20, Justice Danielle Tremblay-Lamer conducted a pragmatic and functional
analysis in order to determine the standard of review applicable to decisions
made pursuant to subsections 109(1) and (2) of the Act.
[15]
With respect to a decision under subsection
109(1) of the Act, as to whether a misrepresentation was made, she found that
such questions of fact which involve the weighing of evidence produced by the
parties are subject to a standard of patent unreasonableness. She also found
that decisions under subsection 109(2) of the Act, which involve determining
whether remaining untainted evidence in the first determination, is sufficient
to nevertheless justify refugee protection, are reviewable on the
reasonableness simpliciter standard. In her view, such decisions warrant
less deference since the Board is not required to assess the refugee claimant’s
testimony and credibility at the time of the application to vacate. The Board
is not, relative to the Court, in a privileged position to determine whether
other sufficient evidence in support of the initial grant of refugee status
remains. I am in agreement with my colleague’s determinations in respect of the
assessment of the applicable standards of review on such questions and her
reasons for so finding.
[16]
The issue of whether the Board erred in failing
to admit new evidence at the vacation hearing conducted pursuant to section 109
of the Act is a question of law reviewable on the correctness standard.
VI. Analysis
A. Did the Board err in finding that the
Applicant had directly misrepresented or withheld material facts relating to
relevant matters in respect to the Applicant’s refugee claim?
[17]
I reproduce below section 109 of the Act:
|
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.
|
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.
|
[18]
At the outset, the Applicant contends that the
Board acted beyond its jurisdiction. He argues that section 109 of the Act requires
the Board assess the elements actually considered by the first panel in
rendering its decision and the weight given to each of the elements. The
Applicant argues that the absence of fulsome reasons by the first panel does
not provide the Board with this information. It is the Applicant’s position
that by not having before it the first panel’s reasons for decision, the Board
essentially conducted its own assessment of the facts and substituted the first
panel’s appreciation of the evidence with its own. This is so, particularly in
respect to determinations affecting the Applicant’s identity. In so doing, the
Applicant contends that the Board committed a reviewable error.
[19]
I reject the Applicant’s argument. The Board had
before it the tribunal record of the first hearing which included the evidence
which was adduced before the first panel. The Board was in a position to assess
the evidence adduced before the first panel against the evidence produced at
the vacation hearing, and determined whether the decision rendered by the first
panel was obtained as a result of directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter. In my view, the Board
did not exceed its jurisdiction in proceeding as it did.
[20]
In the instant case, the withholding and
misrepresentation of material facts by the Applicant at the first hearing are
clearly established in the evidence. This evidence is summarized above at
paragraph 7 of these reasons and is not disputed. The Applicant’s main argument
is that the impugned omissions and withheld facts are peripheral to his claim
and do not justify the decision to vacate his claim for refugee protection.
Further, the Applicant claims that his attempts to explain to the Board why he
was not forthcoming when he first came to Canada were frustrated by the Board’s refusal to admit his further
evidence at the vacation hearing as to why he withheld and misrepresented
certain facts.
[21]
Identity is fundamental in a refugee claim. The
Applicant was unable to explain to the Board’s satisfaction why he
misrepresented his identity. The Board did not err in rejecting his
explanations and particularly his account as to how he obtained his student
visa. The Board’s decision was also based on other factors, the late amendment
to his account of events, the changing of the dates of key incidents of his
alleged persecution in India.
These changes were only brought about after the Applicant was made aware of his
vacation hearing, and were required to make his story consistent with his new
arrival date in Canada,
January, 2004. Further, unexplained contradictions between his PIF narrative
and his testimony, and certain admissions relating to misrepresentations made
to the first panel were also noted by the Board as a basis for its findings and
for ultimately determining that the Applicant is not credible.
[22]
In my view, it was reasonably open to the Board
on the evidence, to conclude that the decision to grant the Applicant refugee
protection was obtained as a result of directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter. The evidence
before the Board establishes that the Applicant had misrepresented material facts
upon which refugee protection was granted.
B. Did the Board err in its determination that
other evidence considered at the time of the first determination was insufficient
to justify refugee protection for the Applicant?
[23]
While not expressly provided for in the Board’s
reasons, reading the decision as a whole, it is implicit that the Board was
satisfied that there was no other evidence considered at the time of the first
determination to justify refugee protection. The Board, at the outset of its
reasons, noted that it had to answer this very question. In my view, it was reasonably
open to the Board to answer the question in the negative. In finding that the
Applicant’s misrepresentations and omissions at the first hearing were such as
“…to bring into serious doubt his credibility on all important issues”
(my emphasis), the Board was essentially determining that there could be no
other evidence left to justify refugee protection. The Board did not believe
the Applicant’s account of events relating to his persecution in India. This determination is central to the
Applicant’s refugee claim and the evidence in support of this conclusion is
compelling. Therefore, having determined that the central elements of the
Applicant’s refugee claim were not credible, there could be no other evidence
considered at the first hearing that would justify refugee protection. In my
view, on the evidence, the Board committed no reviewable error in its treatment
of this issue and in respect of its finding and ultimate conclusion that the
claim be vacated.
C. Did the
Board breach the principles of natural justice, when it refused to admit
evidence that existed, but was not adduced at the time of the first
determination?
[24]
The Applicant had attempted to file as exhibits
a number of documents including (a) income tax notices of assessment; (b) a
work permit; (c) ration cards; (d) photographs showing bodily injuries; etc. As
I understand the Applicant’s submissions, this evidence would have served to
explain why he acted as he did in respect to the misrepresentations and
omissions at the first hearing.
[25]
The Court of Appeal has established that a Board
may only consider at a vacation hearing material that was before the original
panel which allowed the refugee claim. It is also clear that the Minister may
adduce evidence at the vacation hearing to establish that a claimant made
misrepresentations at the determination hearing. Similarly, a claimant may
adduce new evidence at the vacation hearing in an attempt to persuade the Board
that the misrepresentations were not made. (Coomaraswamy v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 153, [2002] F.C.J. No.603 (QL)
at paragraphs 16 and 17).
[26]
Here, there is no issue that the
misrepresentations were made by the Applicant and that the evidence at issue
was not before the original panel. Consequently, the Board did not err in not
admitting this new evidence.
VI. Conclusion
[27]
For the reasons above, the application will be
dismissed. The Board committed no reviewable error in deciding and concluding
as it did.
[28]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act, and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the
February 26, 2007 decision by the Refugee Protection Division of the
Immigration and Refugee Board is dismissed.
2. No question is certified.
“Edmond P.
Blanchard”
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