Zheng v. Canada (Minister of Citizenship and Immigration), 2005 FC 619

Date: 20050504

Docket: IMM-2739-04

Citation: 2005 FC 619

Ottawa, Ontario, this 4^th day of May, 2005

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                                 YI HUI ZHENG

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

NATURE OF THE APPLICATION

[1]                This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Panel") dated February 20, 2004 ("Decision"), wherein the Panel determined that the Applicant's Convention refugee determination was vacated.

[2]                The Applicant requests that the Decision of the Panel be set aside and that a new hearing be ordered to deal with the matter.

BACKGROUND

[3]                The Applicant arrived in Canada on May 15, 1999 on a BWIA flight from Barbados bearing a Dominica passport in the name of Wheel Hui. He told a Canadian Customs Officer that the purpose of his visit to Canada was a two-day sightseeing trip. When the Applicant was referred to an Immigration Officer for a secondary examination, he was highly uncooperative and aggressive. He refused to confirm his name or identify his two travelling companions. He gave more than one date of birth, and, despite his initial reported reason for visiting, stated that he had come to Canada to collect over $100,000 US from a Chinese man who resided in Canada.

[4]                The Senior Immigration Officer ("SIO") recorded in his notes that the Applicant was highly uncooperative and that he "stood up and walked out of the cubicle." The SIO further noted that the Applicant was "aggressive and shouting throughout the interview. Other officers had to come to tell him to be quite (sic) as he was disturbing the entire office."

[5]                An exclusion order was issued against the Applicant and he was detained pending confirmation by the Government of Dominica that his passport was genuine. By letter dated May 17, 1999 the Ministry of Legal Affairs, Immigration and Labour of Dominica confirmed that the Applicant's passport was genuine and that he had been granted Dominican citizenship on May 11, 1999. The Applicant was released from detention with the requirement that he report for removal from Canada on June 10, 1999. He failed to report for removal. On June 18, 1999, a warrant was issued for his arrest.

[6]                On January 11, 2000 the Applicant attended at Etobicoke CIC and submitted a Notification of Claim to be a Convention Refugee in the name of Yi Hui Zheng, a citizen of China. He claimed on the form that he entered Canada on May 15, 1999 by truck at Niagara Falls. The Applicant's claim proceeded under this name and he was found to be a Convention refugee on May 3, 2001.

[7]                As a result of an RCMP fingerprint comparison of the Applicant's fingerprints taken at the airport at the time of his arrival in Canada in 1999 and those taken when the Applicant claimed refugee status, the circumstances of the Applicant's arrival in Canada and his Dominican citizenship were discovered. The Minister moved pursuant to section 109 of IRPA to vacate the Refugee Division's decision of May 3, 2001.

Decision of the Panel

[8]                The Panel granted the Minister's application to vacate the decision and found that the earlier decision conferring refugee status had been obtained as a result of directly misrepresenting or withholding material facts relating to a relevant matter.

[9]                The Panel noted that the Dominican passport bore the Applicant's likeness and his date of birth. The Panel also noted that the Applicant testified that he obtained the passport through the intervention of smugglers to whom he provided some information, his photograph and $30,000 US. The Panel further noted the Applicant's explanation that he concealed the particulars of his entry into Canada and the existence of the passport out of a fear that smugglers would act upon threats to exact a violent revenge against his family members in China. The Applicant's counsel at the hearing submitted that the passport could not confer citizenship rights in Dominica because it was obtained through fraudulent means.

[10]            The Panel noted that the letter from the Ministry of Legal Affairs, Immigration and Labour of Dominica confirmed that the passport bearing the name Wheel Hui entitled the bearer to citizenship in Dominica. The Panel stated that the Applicant's use of the document created an onus upon him to establish that he could not avail himself of the protection of Dominica. The Panel concluded that the Applicant had failed to cast doubt upon the evidence that the document conferred upon him the rights of a citizen of Dominica.

[11]            The Panel found that the decision conferring refugee status had been obtained as a result of material misrepresentations and then went on to consider whether there was sufficient other evidence at the time of the first determination to justify refugee protection. The Panel observed that the Applicant's misrepresentations had precluded the original panel from assessing the Applicant's claim against all countries of nationality, which is an essential requirement of the Convention refugee definition. The Panel concluded that, given that there was no evidence of citizenship rights or of a fear of persecution in Dominica at the original refugee hearing, other sufficient evidence was not considered at the time to justify refugee protection in accordance with section 109(2) of IRPA.

RELEVANT LEGISLATION

Section 109 - IRPA

ISSUES

[12]            The Applicant raises the following issues:

1.          Did the Panel err in law in the application of section 109 of IRPA?

2.          Did the Panel err in finding that the passport was genuine, in that it conferred upon the Applicant the rights of a citizen of Dominica?

3.          Did the Panel err in its reference to exclusion provisions?

POSITION OF THE PARTIES

The Applicant

The Panel erred in law in the application of section 109

[13]            The Applicant submits that section 109(2) implies that, even if the Minister demonstrates that the Applicant intended to materially misrepresent a fact, such misrepresentation does not automatically lead to a vacation of the original refugee decision if there was other evidence which the refugee panel could have relied on to make its determination in favour of the Applicant. The Applicant submits that in order to make the second determination, the Panel must "put itself in the shoes of the original panel and assess both the original and new evidence." In the present case, the Applicant argues that the Panel failed to turn its attention to the question of intent because it failed to consider whether the Applicant feared smugglers and was therefore under duress and incapable of forming the intent to withhold information regarding the passport. The Applicant says this error is fatal since intent is a condition precedent to a successful application to vacate.

The Panel erred in finding that the passport was genuine

[14]            The Applicant submits that the Panel erred by failing to distinguish between a document which is forensically sound and one that is procured through legitimate means. The Applicant notes that the evidence before the Panel established that the Dominican passport was in a false name and that it was procured through the use of a smuggler. The Applicant draws an analogy to the Ressam v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 186 case where an Algerian terrorist was able to obtain a "genuine" passport issued by the government of Canada using a forged birth certificate. The Applicant argues that such passports are genuine documents which bestow citizenship upon the recipient and must be honoured by the government of Canada merely because the government of Canada issued the document.

[15]            Alternatively, the Applicant states that if by "genuine" the Panel meant legitimately issued, then the Panel failed to indicate what evidence it relied upon to determine that the passport was genuinely issued. The Applicant further notes that the Panel never made a factual determination as to whether the Applicant's true identity was Wheel Hui. This failure amounts to an error of law. As regards identity, the Applicant states that the Panel failed to consider the Immigration Officer's notes which stated that "all information on the file indicates misrepresentation and fraud given that the subject will not or cannot affirm his identity I can only conclude that he is either not the holder of the Dominican Travel Document or it is a complete fraud."

[16]            The Applicant also submits that the Panel erred by failing to consider the following disclaimer that appeared in the May 17, 1999 letter from the Ministry of Legal Affairs in Dominica: "This correspondence is for the use of the Canadian Immigration Authorities only. Further, this correspondence is not proof of identity of the applicants appearing before the Canadian Immigration Authorities."

The Panel erred in its reference to exclusion provisions

[17]            The Applicant notes that, in its reasons, the Panel stated that the misrepresentations "may, as the applicant submits, have attracted the application of exclusion provisions of the relevant legislation." The Applicant says, however, that exclusion provisions do not apply to situations where a claimant has multiple nationality. Thus there was never a possible exclusion issue in this case. The Applicant submits that the Panel's reference to exclusion provisions amounts to an error of law.

The Respondent

Preliminary Matter

[18]            The Respondent notes that there is no affidavit of the Applicant with this application. There is only an affidavit sworn by a law clerk. The Respondent states that, if it were to attempt to cross-examine the law clerk, she would answer truly that she does not personally know the answer to almost every question. Given the absence of sworn evidence from the Applicant, it can be inferred that the Applicant is attempting to shelter himself from cross-examination.

The Application of section 109 of IRPA

[19]            The Respondent submits that the Applicant's arguments are based on a fundamental misapprehension of section 109 of IRPA. The plain words of section 109(2) state that the Refugee Division must base its decision on the evidence that "was considered at the time of the first determination" and it cannot receive new evidence. Hence, the Applicant's lengthy explanations on whether he used "legitimate" or "fraudulent" means to obtain his Dominican passport, or whether his name is "Wheel Hui" are misguided. The Respondent says that evidence was not before the original determination panel; the vacation Panel could not, therefore, consider it.

[20]            In the case at bar, the Respondent argues, there was no question, based on the evidence and the Applicant's own admissions, that he directly misrepresented or withheld material facts. The Applicant's Dominican citizenship and all of the related issues that have arisen from that evidence, were not before the original panel and, therefore, could not be considered at the vacation hearing. The Respondent says that, given that a refugee claimant with more than one nationality must demonstrate a well-founded fear of persecution in each and every country of nationality in order to be found to be a Convention refugee, there could not, by definition, be "other sufficient evidence considered at the time of the first determination to justify refugee protection" under the applicable legislation.

ANALYSIS

[21]            The written representations of counsel do not focus in some ways upon what emerged as the most important points at the hearing of this matter before me on February 8, 2005. To some extent, counsel misread the positions of opposing counsel as expressed in writing.

[22]            An important preliminary matter is the failure of the Applicant to file an affidavit sworn by the Applicant as part of this application for judicial review.

[23]            My understanding of the jurisprudence of the Court on this issue is that such an omission is not absolutely fatal to the application, but the Applicant is confined, in both written and oral argument, to arguing from the face of the record. See Mazuryk v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 334, 2002 FCT 257.

[24]            The gravamen of the Applicant's case as it emerged at the hearing is that, in applying section 109 of IRPA, the Panel made a plethora of mistakes. Thus the Applicant argues that the Panel: (a) failed to address the issue of intent; (b) failed to distinguish between a forensically sound passport from the Commonwealth of Dominica and a document that, though forensically sound, has been procured through legitimate means; (c) failed to indicate what evidence it relied upon to determine that the passport was genuinely issued; (d) failed to consider whether the new evidence outweighs the original evidence; (e) failed to consider the manner in which the passport was issued; (f) failed to make a factual determination as to whether the claimant's true identity was Wheel Hui; (g) failed to review and consider the Immigration Officer's notes concerning the authenticity of the passport; and (h) failed to consider the full import of the document submitted by the Minister for the government of Dominica. Also, the Panel's view that the Applicant's misrepresentations may "have attracted the application of exclusion provisions of the relevant legislation" was bad in law. And, most importantly, the Panel failed to turn its attention to how the original refugee panel would have determined the case in light of the documentation that was already before the original panel.

[25]            Quite apart from the fact that most of these arguments are nothing more than bold assertions by Applicant's counsel and have no acceptable evidentiary basis and are, for the most, unsupported by relevant legal authority, they are, in my view, an attempt to import into section 109 of IRPA considerations that the wording of the provision and its full statutory context will not bear.

[26]            Section 109(1) of IRPA requires the Panel, on application by the Minister, to consider whether the original refugee decision "was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter." If the Panel decides that the original decision was so obtained, then, in accordance with section 109(2), it can reject the Minister's application "if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection." In other words, even if there was a misrepresentation or a withholding of material facts on a relevant matter, was there other evidence available when the refugee decision was made to justify protection?

[27]            There is nothing in the wording of section109, for instance, that requires that any misrepresentation or withholding of material facts must be deliberate and necessitate an inquiry into the Applicant's intent.

[28]            In my view, the only question before the Court is whether the Panel followed the process set out in section 109 of IRPA and provided the Applicant with a decision that showed it took relevant matters into account and that there was a sufficient evidentiary basis for its conclusions. In my view, the Decision meets these requirements.

[29]            The Panel clearly identified the misrepresentation or withholding of material facts on a relevant issue as being "the misrepresentation as to the particulars of the claimant's original entry into Canada utilizing a valid passport issued by the Commonwealth of Dominica and bearing his likeness and date of birth."

[30]            This is a misrepresentation of fact on a relevant issue because, as the Panel says "Its disclosure would reasonably have called for the original panel to examine whether the Commonwealth of Dominica was a country of reference."

[31]            The Applicant now wants to say that he lied back in May, 1999 and that the passport from Dominica is not genuine and does not confer citizenship rights upon him because he obtained it through fraudulent means.

[32]            But the Panel, as revealed in its reasons, clearly gave careful consideration to the Applicant's submissions in this regard. It concluded that the Applicant "has failed to cast doubt upon the evidence that the document confers upon him the rights of a citizen of the Commonwealth of Dominica." In fact, the Panel gives specific reasons for rejecting the Applicant's attempts to remove the passport from the deliberations under section 109(1). The Applicant, for obvious reasons, does not agree with the Panel's conclusions or the basis for those conclusions. But there is no acceptable reason, in my view, offered by the Applicant as to why the Panel's reasons and conclusions should now be set aside.

[33]            Because the "relevant matter" is that the Commonwealth of Dominica would have been a reasonable country of reference for the original refugee panel to consider, the crucial issue for the Panel was whether the Applicant had shown that he doesn't have the rights of a citizen of Dominica. And the Applicant was unable to satisfy the Panel that the passport he had used in 1999 to enter Canada didn't give him those rights. The Panel is careful to explain why this is so:

...the Commonwealth of Dominica confirmed that the passport entitled the Applicant to rights of citizenship, the Applicant travelled on the document and was released from detention in Canada based upon the verification from Dominica. Also, the Applicant failed to satisfy the Panel that he could not avail himself of the protection of Dominica.

[34]            So having decided that the Applicant had not established that he could not avail himself of the protection of Dominica, there was nothing wrong with the Panel's conclusion that the passport and the rights that went with it were issues that went to "material facts relating to a relevant matter" under section 109(1) of IRPA.

[35]            The primary issue for the Panel to consider was whether, under section 109(2) of IRPA, it was satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. Quite correctly in my view, given the fact that the Panel had found a material misrepresentation "as to the particulars of the claimant's original entry into Canada utilizing a valid passport issued by the Commonwealth of Dominica and bearing his likeness and date of birth . . ." the Panel went on to conclude under section 109(2) that "The Commonwealth of Dominica would reasonably have been considered a country of reference in light of the authenticity of the passport utilized by the claimant to enter Canada." This meant that the misrepresentation "precluded the original panel from the opportunity to canvas the Dominican citizenship of the claimant and all applicable countries of reference."

[36]            After considering each of the grounds advanced by the Applicant concerning the Panel's Decision, the crucial issue is whether the Applicant is right in his assertion that the Panel erred by not considering the identity issues raised by the Applicant and in not providing sufficient reasons in this regard.

[37]            On this point, the Applicant conceded that he lied concerning his entry into Canada in 1999 and as regards the authenticity of the passport at that time. But the Applicant asserts that the snakehead provided him with the passport and that he does not know who Wheel Hui - the name on the passport - is. The Applicant says that the Panel failed to deal with the fundamental issue of identity. He says the Panel just assumed that the Applicant and Wheel Hui were the same person and went on to apply 109(1) and 109(2) of IRPA on that basis. He says the Panel should have dealt with the identity issue because if the Applicant is not Wheel Hui, and merely lied and used a false passport in 1999, then there can be no assumption that he has citizenship rights in the Dominica. This in turn means that the decision under 109(2) could be entirely different. If the Applicant's evidence given at the hearing before the Panel is correct that he is not Wheel Hui and that he merely lied in 1999 and used a false passport, then the Applicant says it is obvious that Dominica should not be considered as a country of reference and the decision of the Panel under 109(2) could be different.

[38]            The Applicant faults the Panel's failure to consider the identity issue and deal with it in its reasons. He says the Panel was obliged to make a factual determination as to whether his true identity was Wheel Hui. He says the identity was not established by the passport because it is the passport that the Applicant puts into question. There was also evidence in the Immigration Officer's notes that he says the Panel should have considered. That evidence stated that "all information on the file indicates misrepresentation and fraud given that the subject will not or cannot affirm his identity, I can only conclude that he is not the holder of the Dominican Travel Document or it is a complete fraud."

[39]            In addition, the Applicant points out that the letter from the Minister in Dominica which certifies that Wheel Hui was granted citizenship in Dominica, also goes on to state that "This correspondence is for the use of the Canadian Immigration Authorities only. Further, this correspondence is not proof of identity of the applicant appearing before the Canadian Immigration Authorities." So the Applicant says this document cannot be used to establish that he and Wheel Hui are the same person.

[40]            But my review of the Decision suggests that the Panel does consider the identity issue, even if it does not use the same terminology as the Applicant has used to characterize the issue. The Panel points out that the "utilization of an authentic passport in this manner creates an onus upon the [Applicant] to establish that he cannot avail himself of the protection of the Commonwealth of Dominica. The [Applicant] has failed to cast doubt upon the evidence that the document confers upon him the rights of a citizen of the Commonwealth of Dominica."

[41]            It is true that this conclusion does not specifically say that the Panel has considered the identity question raised by the Applicant and has concluded that he and Wheel Hui are one and the same person. But the Panel does list various factors that lead to its final conclusion and it does indicate that it has taken into account the fact that the Applicant "testified that he obtained this document through the intervention of smugglers to whom he provided some information, his photograph and $30 000.00 US dollars."

[42]            So the Panel clearly indicates, in my view, that it has considered the Applicant's account of how he came by the passport. The Panel does not have to list every piece of evidence that it considered in detail, see Cepeda-Gutierrez v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1425 and Ozdemir v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 1646. Nor does the Panel have to analyse that evidence using the terminology suggested by counsel for the Applicant. Reviewed as a whole, the Decision indicates that the Applicant's explanation as to how he came by the passport was taken into account, but that this explanation was balanced against other material facts before the Panel came to its conclusion that the Applicant had "failed to cast doubt upon the evidence that the document confers upon him the rights of a citizen of the Commonwealth of Dominica."

[43]            I see no reviewable error here whether this matter is reviewed against a standard of patent unreasonableness or reasonableness simpliciter. And having reached this conclusion under section 109(1) of IRPA the balance of the Decision utilizing section 109(2) of IRPA is, in my view, entirely correct.

ORDER

THIS COURT HEREBY ORDERS THAT:

1.          The Application is dismissed.

2.          There is no question for certification.

JFC

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2739-04

STYLE OF CAUSE:                         YI HUI ZHENG         

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                       TUESDAY, FEBRUARY 8, 2005

REASONS FOR ORDER:              RUSSELL J.

DATED:                                              May 4, 2005              

APPEARANCES:                              Mr. Shelley Levine

FOR APPLICANT

                                                             Mr. Stephen H. Gold   

FOR RESPONDENT

SOLICITORS OF RECORD:           Levine Associates

                                                             Toronto, Ontario

FOR APPLICANT

                                                              John H. Sims, Q.C.

                                                              Deputy Attorney General of Canada

FOR RESPONDENT

FEDERAL COURT/COUR FÉDÉRALE

Date: 20050208

Docket: IMM-2739-04

BETWEEN:

YI HUI ZHENG

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent