Date: 20060927
Docket: IMM-266-06
Citation: 2006 FC 1146
Ottawa, Ontario, September 27,
2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MOHAMMAD WAKIL PARVANTA
aka AMAD VALI PARVANTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board), dated December 7, 2005, which
allowed the application of the respondent to vacate the determination that the
applicant was a Convention refugee.
[2]
The respondent brings a preliminary motion to
remove two of the applicants from this application. As it appears from the
transcript of the vacation hearing before the Board, the applicants admitted
that because Zohal Dost (a.k.a. Sohal Parvanta) and Adham Parvanta
(collectively, the mother and son) were Australian citizens, their refugee
status should be vacated. The applicant consents to this motion and does not
challenge the Board’s conclusions with respect to the mother and son.
Accordingly, those two individuals will be removed as applicants to this
application for leave and judicial review since they consented to the
respondent’s application to vacate their refugee status.
FACTS
[3]
The applicant is a citizen of Afghanistan. In 1980 or 1981, at the age of
18, he left and went to Germany
to study and applied there for refugee status, which was granted to him in
1984. He was delivered a German Travel Document which was renewed from time to
time and which expired in 1998.
[4]
The applicant claimed refugee status in Canada in 1995 without disclosing that the
mother and son were citizens of Australia and that he was recognized as a
refugee in Germany and
possessed a German Travel Document. He was granted refugee status in Canada in 1996.
[5]
In 2002, the applicant filed an application on
humanitarian and compassionate grounds for himself as well as the mother and
son. At that time, the applicant disclosed having misrepresented certain facts
in his first application in 1995.
[6]
On November 30, 2004, pursuant to subsection
109(1) of the IRPA and section 57 of the Refugee Protection Division Rules,
SOR/2002-228 (the Rules), the respondent filed an
application to vacate the decision to allow the applicant’s claim for refugee
protection on the basis that the decision was obtained as a result of directly
or indirectly misrepresenting or withholding material facts relating to a
relevant matter.
[7]
The Board found that the applicant had obtained
refugee status in 1996 as a result of directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter. More specifically,
the Board found that the applicant Ahmad Vali Parvanta (the applicant) had
withheld information regarding his status in Germany where he had been living since 1981 and where he was granted
refugee status in 1984. In fact, the applicant admitted to withholding,
fabricating and misrepresenting facts in his Personal Information Form (PIF)
and during his refugee hearing held in 1996.
[8]
The Board was also satisfied that if the Board,
which had heard the refugee claim in 1996, had had this evidence before it, it
could not have granted the applicant refugee status because he was excluded
under Section E of Article 1 of the Convention.
ANALYSIS
[9]
Sections 98 and 109 of the IRPA and section 1E
of the Convention found in the Schedule to the IRPA provide as follows:
|
Exclusion – Refugee Convention
98. A person referred to in section E or
F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
Application to Vacate
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.
SECTIONS E AND F OF ARTICLE 1 OF THE
UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES
E. This Convention shall not apply to a
person who is recognized by the competent authorities of the country in which
he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.
|
Exclusion par application de la
Convention sur les réfugiés
98. La personne visée aux sections E ou F
de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
Annulation par la Section de la
protection des réfugiés
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.
SECTIONS E ET F DE L’ARTICLE PREMIER DE
LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
E. Cette Convention ne sera pas
applicable à une personne considérée par les autorités compétentes du pays
dans lequel cette personne a établi sa résidence comme ayant les droits et
les obligations attachés à la possession de la nationalité de ce pays.
|
Article 1E Analysis
[10]
As is evident from the above provisions, section 98 is subject to
Article 1E of the Convention. The purpose of Article 1E is to exclude persons
who do not require the protection of refugee status. It therefore supports the
purposes of the IRPA by limiting refugee claims to those who clearly face the
threat of persecution: Kroon v. Canada (Minister of Employment
and Immigration) (1995), 89 F.T.R. 236 (F.C.T.D.) at para. 10; Mahdi v. Canada
(Minister of Citizenship and Immigration) (1995), 191 N.R. 170 (F.C.A.) at
para. 8.
[11]
The
standard of review applicable to the Board’s decision in such cases is
reasonable simpliciter (Canada (Minister of Citizenship
and Immigration) v. Choovak, 2002 FCT 573, [2002] F.C.J. No. 767 (QL)).
[12]
With respect to the burden of proof, in Hassanzadeh v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1494, [2003] F.C.J. No.
1886 (QL), at paragraphs 27-30, my colleague Justice Pierre Blais conducted an
extensive review of the case law pertaining to burden of proof in Article 1E
cases and concluded that “once the Minister has established a prima facie case
that the claimant can return to a country where he or she enjoys the rights of
the nationals of that country, the onus shifts to the claimant to show why this
is not possible”.
[13]
The respondent submits that the point in time at which to
determine the applicant’s status in Germany, and whether he is excluded by
Article 1E, is at the time of his application for refugee status to Canada,
that is 1995/1996, and not at his vacation hearing in 2005. I agree with the
respondent. The question of exclusion under Article 1E is to be assessed at the
time of the claimant’s admission to Canada. This position is supported by the
Federal Court of Appeal’s decision in Mahdi, above, at paragraph 12:
… the real question that the
Board had to decide in this case was whether the respondent was, when she
applied for admission to Canada, a person who was still recognized by the
competent authorities of the United States as a permanent resident of that
country. [Emphasis added]
[14]
In Canada Choovak, above, the claimant argued that the
relevant time for consideration of the right of her re-entry to Germany was at
the time of the hearing and that, at that time, her right to temporary resident
status was null and void. Justice Rouleau cited the above passage from Mahdi
and wrote as follows at paragraph 37:
I must admit I have difficulty
with the respondent's submission since this would yield the manifestly absurd
result that counsel may indefinitely postpone the hearing of a refugee claim so
as to cause the residence status of the claimant to expire, thus rendering the
exclusion clause of Article 1E of the Convention inapplicable. Article 1E must
be read in a more purposive light so as to provide safe haven to those who
genuinely need it, not to give a quick and convenient route to landed status
for immigrants who cannot or will not obtain it in the usual way.
[15]
In
the present case, the fact that the applicant allowed his permanent
resident status in Germany to expire by the time of the hearing of his refugee
claim cannot avail to his benefit.
[16]
The applicant relies on a stream of case law which provides that
in order to be excluded under Article 1E in the second country (in this case,
Canada), the claimant must enjoy the same fundamental basic rights of nationals
in the first country (in this case, Germany): Kroon, above, at para. 10;
Choovak, above, at para. 34; Hassanzadeh v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1494, [2003] F.C.J. No.
1886 (QL) at paras. 19-21.
[17]
The applicant also points to the case of Choezom v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1329, [2004] F.C.J. No.
1608 (QL) where Justice Konrad Von Finckenstein held that an Article 1E
exclusion analysis requires that the Board examine all of the circumstances of
the case, including: a) the right to return to and reside for an unlimited
period of time in the country of residence; b) the right to study; c) the right
to work; and d) the right to access basic social services in that country (at
para. 9).
[18]
Accordingly, the applicant submits that the question that should
have been answered by the tribunal was whether there was clear and equivocal
evidence that the applicant enjoyed all of the rights of a national of Germany.
The applicant submits that there was no clear and convincing evidence that the
principal applicant enjoyed all of the rights of a national of Germany.
[19]
However,
the applicant admitted that he was granted refugee status in Germany, he has the right to
study and work therein, he could live wherever he wanted in Germany, he was
delivered a renewable travel document with which he could travel outside Germany and that he did not
apply for German citizenship. The only restriction mentioned by the applicant
was the fact that as a permanent resident, he could not vote.
[20]
While
the language used in the decision could have been clearer, I am
satisfied that the evidence demonstrated, without a doubt, that when he applied
for refugee status in 1995/96, he did have the same basic rights of status
as German nationals and therefore he could not have been granted refugee
status by the Board at that time because he was excluded under section E of
Article 1 of the Refugee Convention. As a result, there would be no point to
send it back to the Board because the outcome could not be different (Yassine
v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.)).
Section 109 analysis
[21]
I
rely on the analysis in Bortey v. Canada (Minister of
Citizenship and Immigration), 2006 FC 190, [2006] F.C.J. No. 246 (QL), to
determine that the applicable standard of review in a 109(1) of the IRPA
determination is patent unreasonableness.
[22]
The applicant further submits that the tribunal failed to
consider subsection 109(2) of the IRPA and to evaluate whether or not there was
other sufficient evidence at the time of the first determination to justify
refugee protection, despite the misrepresentation. The applicant submits that
in the present case, despite numerous admissions of facts that were in fact
misrepresented, a number of important facts found in the applicant’s PIF, and
confirmed by his testimony during the vacation hearing, remained. I disagree
with the applicant.
[23]
Once
the Board concluded that the applicant was excluded under Article 1E, it
did not have to examine the remaining evidence with regard to the application
of subsection 109(2) of the IRPA since it could not, pursuant to section 98,
grant him refugee status or determine that it is a person in need of protection.
(See: Aleman v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 710, [2002] F.C.J. No. 955 (QL), Thambipillai v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1166 (T.D.)(QL).
[24]
In my opinion, it would be entirely nonsensical and clearly
unnecessary for the Board to engage in an analysis of a claim for refugee
protection once it has determined that the claimant is excluded from the
Convention refugee or person in need of protection definitions. As a result,
the application for judicial review is dismissed.
JUDGMENT
The application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
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