Osei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 306

Date: 20020321

Docket: IMM-2105-00

Neutral citation: 2002 FCT 306

BETWEEN:

                                                                 PRISCILLA OSEI

                                                                                                                                                     Applicant

                                                                             - and -

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                 This judicial review application by Priscilla Osei (the "applicant"), a citizen of Ghana who had previously been granted refugee status in Canada on September 16, 1994, challenges a March 28, 2000 decision of the Refugee Division (the "tribunal") which granted the application of the Minister of Citizenship and Immigration (the "Minister"), pursuant to subsection 69.2(2) of the Immigration Act (the "Act") to reconsider and vacate her refugee status recognition (the "determination") on the grounds it was obtained by fraudulent means and also finding she was not a Convention refugee because, pursuant to subsection 69.3(5) of the Act, the tribunal was of the opinion that, notwithstanding the determination was obtained by fraudulent means, there was no other sufficient evidence on which the original determination of September 1994 was or could have been based.

BACKGROUND

[2]                 The statutory framework underpinning the tribunal's decision is contained in subsections 69.2(2), 69.3(1), (3), (4) and (5) of the Immigration Act (the "Act"). These provisions read:

[3]                 This is the second reconsideration and vacating decision the Minister has obtained from the Refugee Division connected to this applicant. The first decision was obtained from a differently constituted panel on July 15, 1997. That decision was set aside on judicial review by order of a judge of this Court dated March 15, 1998 because the panel had failed to consider an argument advanced by the applicant the Minister's application to reconsider and vacate should have been dismissed because of delay occasioned by the Minister in bringing it on.

[4]                 Unlike at the first hearing of the Minister's application to reconsider and vacate, after the Court's remand, the applicant, at the hearing held on February 16, 2000, which led to the decision now under review, admitted the 1994 determination granting her refugee status had been obtained by fraudulent means.

[5]                 The applicant admitted she was not Priscilla Osei--a name she had borrowed. She is Hannah Boadiwaah.

[6]                 She recognized having travelled to Canada as Hannah Boadiwaah in June 1993. She travelled on a valid Ghanaian passport and had obtained a six-month Canadian visitor's visa ("CVV") to attend a nurses' conference here.

[7]                 According to her latest testimony, it was in Canada, prior to making her refugee claim, she took steps to make that claim under a false identity which required her to obtain false or forged documentation from Ghana reflecting her new identity such as: (1) a new membership card from the New Patriotic Party ("NPP") under the name of Priscilla Osei; (2) a forged nurse's certificate; (3) a forged birth certificate. She also explained the Ghanian police had issued a warrant in the name of Priscilla Osei because her brother in Ghana had told them she was using that name in Canada.

[8]                 The reason she gave for taking on this new identity to make her refugee claim was because of her fear of what happened to her in Ghana and also because she had been told by her compatriots living in Canada if she was in possession of a valid Ghanaian passport, she would be returned to that country.

[9]                 She made her refugee claim on October 28, 1993, in Toronto under the false identity of Priscilla Osei, filed a Personal Information Form ("PIF") and, at the hearing, filed the forged or changed identity document referred to above.

[10]            Her original PIF tells a story which centres on her being employed as a nurse at the Ridge Hospital in Accra from 1989 to 1993 and becoming politically active in the NPP in 1990. The NPP opposed the dictatorship of then President Rawlings.

[11]            Because of her political activities, she was arrested on June 10, 1993, detained for two weeks and raped by the authorities. Upon her release, she returned to work at the Ridge Hospital and nursed political prisoners at a military camp. She realized the people she was nursing at the military camp were political prisoners who had been tortured. She decided to leak this information to a journalist who published the story. The police arrested the journalist shortly after and came looking for her. This is the reason, she wrote in her PIF, she fled Ghana on October 3, 1993, using a British passport provided to her by a man accompanying her.

[12]            The first disclosure of her true identity as Hannah Boadiwaah came when she filed a new PIF in connection with the new hearing ordered by a judge of this Court. Prior to that, including at the Refugee Division's first hearing on the Minister's application held in Winnipeg on December 3, 1996, January 8, 1997 and May 5, 1997, the applicant steadfastly maintained her identity as Priscilla Osei and filed additional false documentation in opposition to the Minister's application.

THE TRIBUNAL'S DECISION

[13]            The tribunal refused to accept any new evidence contained in the applicant's new PIF.

[14]            As I understand it, the new information added in the PIF was: (a) the disclosure of her real identity; (b) a change to January 10, 1993 of her arrest, detention and rape; (c) her admission of her having come to Canada in June 1993 using a valid passport and having stayed here since; and (d) additional elements to her fear related to tribal rivalries.

[15]            In rejecting the proposed new evidence, the tribunal expressed itself this way at page 3 of its decision:

The respondent further stated that the panel ought to hear new evidence about whether the refugee has a well-founded fear of persecution. This, again after consideration, is a motion that the panel denies.

We find that this position flies in the face of Federal Court jurisprudence, including the Court's decision in Bayat which states that the evidence to be considered by the CRDD in an application to vacate is that evidence in existence at the time of determination. Therefore, any evidence arising subsequent to 1994 is not applicable to these proceedings.

[16]                         As noted, the applicant conceded her recognition as a Convention refugee in 1994 had been obtained by fraudulent means.

[17]                         Given this concession, the Refugee Division then embarked upon the second task flowing from the Minister's application to reconsider and vacate, i.e. the determination mandated by subsection 69.3(5) of the Act which empowers the Refugee Division to reject the Minister's application if it is of the opinion that, notwithstanding the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was sufficient evidence on which the determination was or could have been based.

[18]                         A review of the transcript reveals the Minister's representative did not participate in this aspect of the hearing and made no submissions on whether subsection 69.3(5) of the Act had been made out.

[19]                         The applicant was sworn and it was the tribunal who reviewed the documentary evidence which the applicant had filed at the initial hearing of her claim in 1994. This documentation, as noted, reflected the name of Priscilla Osei. One of the exhibits originally filed is Exhibit C-9, a medical report dated June 2, 1994.

[20]                         At pages 4 and 5 of its reasons, the Refugee Division expressed the way it approached its section 69.3(5) finding and how it reached it:

Therefore, when the panel examined whether, aside from the misrepresentations, there was sufficient evidence before the original panel that it could have found her to be a Convention refugee, the major issue it dealt with was the respondent's credibility. Although the original determination was given orally, and there are no written Reasons available setting out that panel's analysis in finding her to be a Convention refugee, it is reasonable for this panel to assume that she was found to be credible and her documents were accepted as trustworthy and reliable.

The misrepresentations she has now admitted go to the very heart of her claim, and the panel finds her credibility has been so compromised that there is insufficient credible or trustworthy evidence upon which the panel could have relied to determine her to have a well-founded fear of persecution. Although she now alleges that the events she recounted did happen, just to her with a different personal identity, at a different time, the panel finds her allegations are unreliable and not sustainable, given her great efforts to promote her false stories for so long, and her general lack of credibility.

                                                 . . .

The panel concluded that her credibility be so lacking that, if her misrepresentations were set aside, there would insufficient credible evidence left before the initial panel on which it could have determined her to be a Convention refugee.

[21]                         As a result, the panel concluded the application by the Minister to vacate the September 16, 1994 decision finding Priscilla Osei to be a Convention refugee was granted. The panel also found she was not a Convention refugee.

THE ISSUES

[22]            Counsel for the applicant raised three issues: (1) the tribunal was wrong to exclude the applicant's new evidence in the subsection 69.3(5) determination. He argues the Federal Court of Appeal's decision in Bayat et al. v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 185, left the issue open; (2) the tribunal erred in law in failing to appreciate that, under the applicable legislative scheme, it had a discretion simply to vacate the 1994 determination thereby leaving to another panel the decision on the re-determination whether she was a Convention refugee in which case new evidence could be introduced at the new hearing as is the case with all regular Refugee Division hearings examining a claim; (3) in the alternative, the tribunal erred in using the Minister's subsection 69.2(2) evidence to vacate in order to re-assess the applicant's credibility in the subsection 69.3(5) determination citing Maheswaran v. Canada (Minister of Citizenship and Immigration) (2000), 11 Imm.L.R. (3d) 27, a decision of Rothstein J.A. (ex officio).

ANALYSIS

(1)        The exclusion of new evidence

[23]            In my opinion, the tribunal was correct in excluding the new evidence which the applicant wished to advance in relation to the tribunal's subsection 69.3(5) phase of its proceeding. I do so for several reasons.

[24]            First, the wording of the Act compels this conclusion. Parliament's intention is clear on the words it used all of which relate to the past evidence presented at the original hearing "... there was other sufficient evidence on which the determination was or could have been based" [emphasis mine]. The French text leads to a similar result. It speaks of there being sufficient remaining (restes) elements justifying refugee status recognition. Rothstein J., as he then was, applied this statutory interpretation in Guruge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1821. Second, while the Federal Court of Appeal in Bayat, supra, did not deal explicitly with the issue of the new evidence which had been rejected by the Refugee Division in the appeal before it with this issue of new evidence not being contested before the Trial Division, that Court sustained a determination by the Refugee Division the claimants were not Convention refugees on the basis that new evidence had been rejected and on the basis that:

. . . once the false evidence was disregarded the remaining evidence before the visa officer was insufficient to support a determination by him that the respondents were Convention refugees.

In my view, the Federal Court of Appeal could not have disposed of the appeal in the manner it did without endorsing the manner at which the Refugee Division, in that case, arrived at the conclusion the claimants were not Convention refugees.

[25]            Third, there is a consistent line of authority from judges of this Court that in a subsection 69.3(5) process, new evidence not before the initial panel is inadmissible. These authorities were recently canvassed by Justice Dawson in Sayed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1642. I endorse that line of authority.

[26]            Counsel for the respondent stated Mr. Justice Gibson in Mahdi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1691, sustained on appeal [1995] F.C.J. No. 1623, came to a different conclusion. I do not read Justice Gibson's decision as holding new evidence is allowed in a subsection 69.3(5) finding. However, I acknowledge Mahdi, supra, presented a complicated factual matrix. Also involved was the inter-relationship between paragraph 69.3(5) and article 1E of the Convention. Finally, in Mahdi, supra, the "new evidence considered related to letters from U.S. immigration officials concerning her potential loss of permanent resident status in the U.S., a factor relevant to the article 1E argument.

(2)        Failure to exercise its discretion

[27]            I do not see any merit in the applicant's argument the tribunal failed to consider it had a discretion in dealing with the Minister's application either simply to vacate the previous refugee recognition without more (which would have allowed a new panel to deal with the question whether Priscilla Osei was a Convention refugee) on the basis of new evidence or vacate and reconsider all at once which is what the tribunal did. Counsel for the applicant says the tribunal did not even realize it had an option.

[28]            In my view, the tribunal did not have the option which counsel for the applicant says it did. My conclusion is based on the Federal Court of Appeal's judgment which held, as a matter of statutory construction, a three-member Refugee Division panel seized with a subsection 69.2(2) application by the Minister has the ability to reject an application under subsection 69.2(2) if it is of the opinion there was other sufficient evidence on which the determination was or could have been made. Justice Stone in Bayat, supra, said this:

[22] . . .I do not think the word "reconsider" was intended to limit the power of the Refugee Division to that of dealing with a prior determination of its own. The intent appears to be that the Refugee Division should be able to take up the impugned determination for renewed consideration with a view to reversing and vacating it.

[29]            The statutory scheme governing subsection 69.2(2) applications compels the conclusion it is the same Refugee Division three-member panel which makes two decisions in the context of the Minister's application: a first determination the previous refugee recognition was obtained by illegal means and the second determination, notwithstanding such recognition was obtained by illegal means, there was other sufficient evidence on which the determination was or could have been based.

(3)        Using the Minister's evidence improperly

[30]            In Maheswaran, supra, Justice Rothstein set aside a Refugee Division's determination under subsection 69.3(5) of the Act because it used the Minister's evidence tendered for the purpose of demonstrating the previous refugee recognition had been obtained by illegal means to reassess the credibility of the remaining evidence that was before the original panel.

[31]            Specifically, what Justice Rothstein found to be in error was the Refugee Division based its subsection 69.3(5) finding on the fact the applicant had re-availed herself of the protection from Sri Lanka in 1990 and 1991, information which was not before the original panel whose decision had been rendered in 1989. Justice Rothstein put it this way at paragraph 21:

Just as misrepresented information is to be ignored, so is accurate information that was not before the original panel, whether it is the Minister or the applicant that attempts to adduce it. Whether the accurate information assists or detracts from the applicants' case is irrelevant. It is information that was not before the original panel and is inadmissible in a determination by a panel under subsection 69.3(5).

[32]            Counsel for the applicant argues this is what happened in the case before me.

[33]            My examination of the record does not support counsel for the applicant's argument.

[34]            As noted, counsel for the applicant before the tribunal on February 16, 2000, conceded Priscilla Osei's refugee recognition in 1994 had been obtained illegally.

[35]            A transcript review indicates the tribunal, on February 16, 2000, did not have to examine in any detail the Minister's evidence. What the tribunal did that day was to examine the original documentation which had been filed as exhibits before the original panel and discuss those exhibits with the applicant who, as noted, took the stand. In the circumstances, I do not see in the record any impermissible transference of evidence from the ministerial phase of the application to the refugee determination phase of that same application. Nor, as I see it, did the tribunal use the ministerial phase evidence to impugn the credibility of the applicant in the remaining phase.

[36]            For all of these reasons, this judicial review application is dismissed.

[37]            Counsel for the applicant asked me to certify six questions. Counsel for the Minister opposed the certification of any question either on the basis the question was a matter of settled law or was put forward on the basis of a lack of factual foundation.

[38]            In these reasons, I have expressed the view there is no conflict in the jurisprudence of this Court on the issue of whether new evidence, not before the original panel, can be considered by the Refugee Division in a section 69.3(5) finding. The matter is not beyond doubt because of Mahdi, supra. This is why Justice Rothstein certified a question in Guruge, supra, as did Justice Dawson in Sayed, supra. However, in both of those cases, the appeal to the Federal Court of Appeal was discontinued. In the circumstances, I certify the same questions they did as follows:

In the exercise of its discretion under subsection 69.3(5) of the Immigration Act, is the Refugee Division permitted to consider evidence that was not before the original panel that would support the applicant's refugee claim?

[39]            I am also prepared to certify the second question proposed by counsel for the applicant since the issue was raised in argument before me and seems to be a matter of divergent practice before Refugee Division panels. That question is as follows:

Does the panel of the Refugee Division which decides to vacate a previous refugee determination have the power to decline to reconsider the original refugee determination and to leave the claimant, in light of the vacating of the previous decision, as a person without a refugee determination whose claim would be determined by the Board in the normal course?

[40]            I decline to certify the remaining questions proposed by counsel for the applicant for two reasons. They were not the subject of argument before me and would have to be answered without a proper factual framework.

                                                                                                                                          J U D G E             

OTTAWA, ONTARIO

MARCH 21, 2002