Date:
20131011
Docket: IMM-345-12
Citation:
2013 FC 1037
Ottawa, Ontario,
October 11, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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CHAHNAZ AL-MAARI
AKA
CHAHNZ AL-HUSSEINI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Ms. Chahnz Al-Husseini, seeks judicial review pursuant to section
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]
of a decision made by the Immigration and Refugee Board [the Board], on
November 8, 2012, granting an application by the Minister to nullify her
refugee status due to her misrepresentation of a material fact.
I. Issues
[2]
The
issue raised in the present application is as follows:
A. Did
the Board member unreasonably conclude that the Applicant made a material
misrepresentation in her claim for refugee protection?
II. Background
[3]
The
Applicant is a stateless Palestinian by birth who habitually resided in Lebanon until refugee status was conferred on her by Canada on August 25, 1993. On February 16,
2012, the Minister made an application pursuant to s. 109(1) of the Act to
vacate the Applicant’s refugee status, on the ground that she had obtained
refugee status by fraudulent means, misrepresentation, suppression, or
concealment of material facts.
[4]
In
its application, the Minister argued that the Applicant acquired citizenship in
Belize on August 1, 1991, and failed to disclose this fact to the Board when
she applied for refugee protection in Canada. Holding Belizean citizenship
would also have the consequence that she failed to claim refugee protection in all
her countries of nationality. The Minister provided two exhibits to
demonstrate that the Applicant had acquired Belizean citizenship in 1991: (1) an
e-mail from grdn_wade@yahoo.com from Mr. Gordon Wade and
(2) a website printout of a list of attendees at a 2007 conference in Belize City, Belize, listing Mr. Wade as an officer attendee of Immigration and National
Services for Belize.
[5]
The
Board member noted the Applicant’s arguments that the e-mail communication was
not from a government address, did not indicate a government position, and that
the Applicant was unable to contact anyone at grdn_wade@yahoo.com. He noted
her testimony that she had never applied for Belizean citizenship, been sworn
in as a citizen, or even travelled to Belize.
[6]
In
his analysis, the Board member acknowledged that the burden of proof in a
section 109(1) application to vacate refugee status rests upon the Minister, on
a balance of probabilities. He commented that while he could understand the
Applicant’s concern as to whether Mr. Wade was an appropriate representative of
Belize to confirm citizenship, he had no reason to disbelieve the Minister’s
evidence, as there was no indication that it was not genuine or that the
Minister was trying to mislead the Board.
[7]
The
Board member concluded that on a balance of probabilities, the Applicant had
obtained refugee status in Canada by fraudulent concealment of the material
fact that she was, as of August 1991, a citizen of Belize, and that there
“remains no untainted evidence from the original hearing to justify granting
refugee status.” The Minister’s application was allowed.
III. Standard
of review
[8]
The
standard of review for the issue in this case, being a question of fact, is
reasonableness (Waraich v Canada (Minister of Citizenship and Immigration),
2010 FC 861 at para 3).
IV. Analysis
[9]
I
find that the Board member’s decision is unreasonable for the reasons below.
A. Did the Board member
unreasonably conclude that the Applicant made a material misrepresentation in
her claim for refugee protection?
[10]
It
is not disputed that for an order to vacate a positive refugee determination,
the Minister has the burden of proving, on a balance of probabilities, that an
applicant misrepresented or withheld material facts at the time a refugee claim
was made (Shahzad v Canada (Minister of Citizenship and Immigration),
2011 FC 905).
[11]
The
Board may reject the vacation application if, pursuant to subsection 109(2), it
is satisfied that other evidence before the panel which decided the refugee claim
is sufficient to justify maintaining refugee protection regardless. In other
words, notwithstanding the misrepresentation or withholding of facts, the
application to vacate may be rejected if there is other evidence, untainted by
the misrepresentation or withholding of material facts, that is sufficient to
justify maintaining refugee protection.
[12]
The
Board decided here there was a misrepresentation and that no such untainted
evidence from the original hearing remained to justify granting refugee status.
[13]
It
is also true that under section 109(1), it is not relevant whether the
Applicant knew that in 1991 she was a citizen of Belize (Canada (Minister of Citizenship and Immigration) v Wahab, 2006 FC 1554 at
para 29 (FCA)).
[14]
In
my view, it was unreasonable for the Board member to infer that the yahoo
e-mail from Gordon Wade was legitimate, or that the internet printout showing a
Gordon Wade attended a Migration Control Seminar in 2007, in any reasonable manner,
confirms that the yahoo e-mail is legitimate or corroborates the fact that the
Applicant was in fact a citizen of Belize at the time of her refugee
application in Canada. The Board member had, at best, a paucity of questionable
evidence to try to make a finding that the Applicant was a citizen of Belize at the relevant date.
[15]
As
important, and I appreciate the candour of the Minister’s counsel on these
points, the Board member refers to the Applicant’s previous criminal
convictions, apparently in questioning the Applicant’s credibility as to her
evidence concerning a lack of knowledge of any connection to Belize and the
fact she had never been to Belize. Yet there is no adverse finding or indeed
any finding concerning the Applicant’s credibility. The only way the Board
member could have decided the way he did was to not believe or accept the
Applicant’s testimony due to a lack of credibility. Such a finding was never
made.
[16]
Further,
in considering the question of how the Applicant could have obtained Belize citizenship when she had never been there, the Board member took notice of the
specialized knowledge the Board has concerning citizenship requirements in
foreign countries. While there is nothing wrong with doing so, the Applicant
should have been given the opportunity to respond to the Board member’s
findings concerning economic viability and sponsorship as a means to obtain
Belizean citizenship without being physically in Belize. The Applicant was not
given that opportunity.
[17]
The
Applicant also requested that one or more of the following questions be
certified:
A. Are
the previous Federal Court decisions ruling that mens rea or intention
to misrepresent are not a consideration under s.109(1) “absolute” and to be
applied in every case, or can the lack of intention or mens rea be
relevant in some cases, depending on the particular facts of that case?;
B. Is
the lack of intention in the present case, where the Applicant may have been a
citizen of another country without knowing that she was, a relevant factor that
should have been considered by the Board?; and
C. When
the issue is whether an Applicant misrepresented that he or she was a citizen
of another country when he or she made a refugee claim, does the burden of
proof imposed on the Minister under s.109(1) include the “burden” to confirm
citizenship with government officials and provide unquestionable documentary
evidence of that citizenship directly?
[18]
I
do not believe these questions need to be addressed. This Court and the Federal
Court of Appeal have effectively decided the first two issues, and the third
issue need not be considered, as I do not deem it necessary to dispose of this
application for judicial review.
[19]
Finally,
the parties are agreed that the style of cause should be corrected to add the
Minister of Public Safety as a Respondent. I agree.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application to set aside the Board member’s decision is granted,
and the matter is remitted to a different Board member for reconsideration. The
newly constituted Board shall determine, in advance of any hearing, and based
on probative evidence, whether the Applicant was a citizen of Belize at the time of her application for refugee status in Canada.
2.
The
style of cause is amended to add the Minister of Public Safety as a Respondent.
3.
No
question is to be certified.
"Michael D.
Manson"
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