Docket: IMM-8286-14
Citation:
2016 FC 515
Toronto, Ontario, May 6, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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IMTIAZ NASREEN
AND IMITIAZ AHMED
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Presently under consideration is the November
24, 2014 decision (Decision) of the Refugee Protection Division of the
Immigration and Refugee Board (RPD) vacating the refugee protection granted to
the wife-and-husband Applicants on August 2, 2005. The Decision was rendered
pursuant to s.109 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA). By that provision, the RPD may, on an application by
the Minister, vacate a decision to allow a claim for refugee protection, if it
finds that the decision was obtained as result of directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter.
[2]
With respect to the names of the Applicants,
there are original variations in the quotations in the present reasons for
decision. The narration in these reasons follows the style of cause.
[3]
By way of background, the August 2, 2005 oral
decision granting the Applicants’ claim for protection states the following
underlying facts and key findings:
Mr. Imtiaz Ahmed, and his wife Nasreen
Imtiaz, are citizens of Pakistan. They have requested Canada's protection due
to a risk to their lives, and a risk of cruel and unusual treatment or
punishment.
They allege that Mrs. Imtiaz was working as
a mid-wife. She delivered the baby of an unwed mother, who turned out to be the
daughter of the senior SHO of the local police station, and the niece of Molvi
Goldar. They allege that they were warned not to say anything about this birth
in order not to bring dishonour upon the unwed mother's family. They were
subsequently detained and abused by the police, both as a warning to keep
silent, and to also try to find out the whereabouts of the unwed girl, of which
the claimants were ignorant. Subsequently, further threats were made against
them and a false case was made against them implicating them in the possession
and distribution of alcohol, which eventually resulted in a warrant tor their
arrest. They allege that should they return to Pakistan given that the charges
were initiated by a senior police officer, they would not be able to obtain a
fair trial, false witnesses can easily be produced, and they would suffer
serious, if not fatal, consequences.
(...)
Credibility was the central element analysed
by the Tribunal. Both adult claimants testified in a direct and straightforward
manner. They provided details of the claim as requested. They both testified
spontaneously and without exaggeration. Each of their testimonies was
internally consistent as well as consistent with each other's testimony and the
documentary evidence presented in this claim. The area that was somewhat
confused was the dual purpose of the contention at the police station. The
Tribunal was satisfied with Mr. Ahmed's testimony in this regard.
Their identities are supported by several
documents including a passport for Madam, a National Identity Card (NIC),
Marriage Certificate and a Family Registration Certificate. They have also
presented documents which confirm both the professional background of Mrs. Imtiaz
and documents as well confirming their legal difficulties in Pakistan. While
their case is unusual, it is, nonetheless, plausible in the context of
Pakistan. The social mores and structure in Pakistan is known to the Tribunal
both through the documentary evidence and the Tribunal's specialized knowledge.
(Certified Tribunal Record (CTR), pp. 270 –
271)
[4]
A key feature grounding the Minister’s s.109
application is the fact that in 2007, shortly after becoming permanent
residents, the Applicants applied to sponsor their four children to Canada. In
the course of the effort, they admitted that one of the children named in their
claim for refugee protection was not their child but the son of the husband’s
brother. The admission caused the Minister to open an investigation of the
identity details supplied by the Applicants when they made their protection
claim.
[5]
On September 18, 2012, the RPD granted the
Minister’s s.109 application to vacate the refugee protection granted. On
judicial review of that decision, by an order dated April 16, 2014, Justice Roy
set aside the RPD’s decision and sent the matter back for redetermination on
the direction that “a more systematic attempt at
explaining the identification discrepancies should be made by the respondents
and the applicants would be expected to provide a clear explanation of the
circumstances surrounding their arrival in Canada on February 18, 2005”
(CTR, p.119). The Decision under review is the RPD’s s.109 redetermination.
[6]
The argument in support of the present Application
advanced two discrete issues in support of an order setting aside the Decision:
whether in a pre-hearing discussion between the RPD Member (Member), Counsel
for the Applicants, and Counsel for the Minister an Agreement was reached that
a single issue of misrepresentation on the part of the Applicant wife, Nasreen
Imtiaz, would be determinative of the s. 109 application; and whether, in
reaching the Decision, the Member unfairly introduced and applied evidence.
[7]
Immediately prior to the hearing of the present
Application, Counsel for the Applicants filed a new argument: the Member lost
jurisdiction to decide the redetermination because of the appearance of bias
exposed during the pre-hearing discussion with Counsel. Against the objections
of Counsel for the Minister, this argument was allowed to proceed.
I.
Issues for Determination
A.
Was there an Agreement?
[8]
This issue arises from paragraphs 1 to 4 of the
December 19, 2014 affidavit evidence of Mr. Bruce Perrault, Counsel for the
Applicants at the RPD hearing, filed in support of the Applicants in the
present Application:
I, BRUCE PERREAULT, of the city of Toronto,
province of Ontario, make oath and say as follows:
l. I was counsel of record in both
the application to vacate a determination heard and decided in Montreal on
September 28, 2012 and in the application to vacate a determination heard and
decided in Toronto on November 27, 2014, as a result of an Order of the
Honourable Mr. Justice Roy dated April16, 2014.
2. The Immigration and Refugee Board
Panel Member […] stated at the beginning of the proceedings that, should she
find that the protected persons were British citizens, the application to
vacate would be allowed and should she find that they were not British
citizens, the application brought by the Minister of Public Safety and
Emergency Preparedness to vacate a determination by which Nasreen Imtiaz and
Ahmed Imtiaz were granted protected person status in Canada, would not [sic] be
denied. [Emphasis added]
3. Both the Minister's Representative
and myself agreed that this would be a fair premise to proceed upon.
4. The Member found that the
protected persons were not British citizens, but, in making her decision, she
failed to follow her own premise stated at the outset of the proceedings.
[Emphasis added]
(Applicant’s Record, p. 65)
Counsel for the
Minister argues that no such agreement was made. For the following reasons, I
agree.
[9]
The certified transcript of the pre-hearing
conversation concerning the Agreement is as follows:
MEMBER: (…) This is a vacation application
brought by the Minister on file number TB4-05495. The persons protected in this
claim are Nasreen Imtiaz and Imitiaz Ahmed.
The panel has asked for a pre-hearing
conference in order to clarify the issues in this matter here today. What I
would like to talk to you both about is the issues that you've identified;
particular [sic] Madam Minister, I would like to hear from you about the
misrepresentations that you're going to be relying upon in this application
here today. So whenever you're ready, if you can just give me a quick run down
of that, I'd be grateful.
MINISTER'S COUNSEL: Right, okay. Madam
Member, we are relying on the same vacation application package that was filed
and used in Montreal and in addition, my colleague in Montreal filed three new
exhibits before the case got transferred to ...
MEMBER: Yeah.
MINISTER'S COUNSEL: ...Toronto. And then I
filed the transcript of the first vacation ...
MEMBER: I got that.
MINISTER'S COUNSEL: ... hearing ...
MEMBER: Thank you.
MINISTER'S COUNSEL:…last week. Okay, so we
have 19 exhibits now.
The misrepresentation that the Minister
alleges the respondent committed is very simple. It's one misrepresentation, so
it's whether or not she is a British citizen. We acknowledge that she admitted
to having used a British passport when she came to Canada in 2005. So we're not
saying that she ... that she failed to mention that she used a U.K. passport
but we're saying that she failed to mention that she was the British citizen,
the rightful holder of that passport because the clients are alleging that she
did, indeed, use that passport but that she ... that it wasn't her passport,
that she's not a British citizen.
MEMBER: Okay.
MINISTER'S COUNSEL: And we're saying that
we've made a prima facie case based on the information and pictures that we
received from the U.K. authorities, that she is this British citizen.
MEMBER: Okay.
MINISTER'S COUNSEL: And now our position is
that we've made a prima facie case and now it's up to the clients and their
counsel to rebut that case and they've attempted to do so at the last hearing;
mainly based on their ... the client's testimony. And now they have filed
further exhibits and so the member will have to wait. The evidence that we
received from the British authorities indicating that she is a British citizen
and the evidence from the clients indicating that she's not and decision based
on that.
MEMBER: Well, there is an issue, as well,
whether I'm actually going to admit that evidence.
MINISTER'S COUNSEL: Which evidence is that,
sorry?
MEMBER: The evidence provided by counsel. So
what I would like to ask both of you is the following question. I'll ...
actually, I'll ask you first. What about the male claimant? Do you submit that
he's made any misrepresentations or is it purely the female claimant
misrepresenting her citizenship?
MINISTER'S COUNSEL: I mean we're ... I guess
we ... we rely on the same application which was he misrepresented his
situation. Meaning he was married ... likely married to a British citizen and
he should've disclosed that because if that were the case, then I mean it would
have an impact on his claim as well. Especially based on the fact that his
entire claim was based on hers.
MEMBER: Mm-hmm.
MINISTER'S COUNSEL: And so we believe
they should be both vacated if the panel member agrees that the female
respondent is a British citizen.
MEMBER: Do you have any response, counsel?
COUNSEL: Yes, Madam. I agree a hundred
percent with my colleague here. The issue to be determined by you, with
respect, is whether Nasreen Imtiaz is a British citizen. If she is, then
she has, indeed, misrepresented herself. And also with respect, I ...
you would ... would revoke the ... the original claimant's protection. And
I believe that is the issue. In regards to the husband, I also agree that
if he ... if she is a British citizen, she ought to have known it and he would
fall with her, if I may use that wording. So the issue is, is she a British
citizen?
(CTR, p. 609, Line 23 to p. 610, Line 48)
(…)
MEMBER: Okay. So let's then just talk
briefly about the issues to be ... to be discussed here today. You're seeing
the sole issue as whether Nasreen is a British citizen. We all agree that if
she ... if you can prove to me that she's a British citizen, that his case will
fall as well?
COUNSEL: Yes.
MEMBER: Do you agree ...
COUNSEL: Absolutely.
MEMBER: ... with that?
COUNSEL: I do.
MEMBER: Okay.
MINISTER'S COUNSEL: And if I may, we were
talking a little bit earlier as to whether, you know, I was going to question
the ... both respondents at length and I am not because I feel like we've made
a prima facie case; the evidence that was before the first panel is before this
panel again, and I don't know if you've had a chance to read the transcript but
all the questions, really, that the Minister could put to both clients have
been put to them and they have answered and so our position is that it's now up
to them to rebut the case and they have attempted to and failed at the first
hearing but then that was taken to court. And now they have filed further
evidence, so they may have, you know, they may want to ask further questions on
that evidence. But the only new evidence that we filed, we feel, attacks the
respondents' credibility even more, because now we have filed this affidavit,
from the respondent, acknowledging that he lied about his son and that he
provided a fake death certificate and all of that, so we just feel that this
bolsters our case in the sense that it undermines their credibility ...
MEMBER: Mm-hmm.
MINISTER'S COUNSEL: ... even more and their
testimony, at the first hearing, was the only rebuttal evidence that they have
provided to rebut our case.
(CRT, p. 615, Line 17 to 48)
(…)
MEMBER: (…) So let's just deal with the
disclosure in this matter. The problem is when you get a vacation file, it's
got two items in it which makes life very, very confusing when you have to
write something to identify the items. So I have prepared a consolidated list
of documents. I've got a copy for each of you. Okay? Thank you very much.
Now, sir, what I need from you is you're
going to need to tell me why I should accept your disclosure and add it to the
list.
COUNSEL: Why you should accept my
disclosure?
MEMBER: Yes.
COUNSEL: Well, Madam, all I can tell you is
that I ... these affidavits were prepared. I had no control over them, I must
admit. And they were prepared and executed in Pakistan. I don't practice in
Pakistan. I have to rely upon the people who swore them. And for you to ... to
state that an affidavit, even for the probative value of them, the court cannot
accept them, I think would be a very serious matter, in that you'd be saying or
ruling that no affidavits from any country or particular, Pakistan, because of
whatever, can no longer be accepted by the court here.
MEMBER: That's not what I'm saying, sir.
This is a vacation application.
COUNSEL: Yes.
MEMBER: And the Minister is entitled to
adduce new evidence in a vacation application but the only evidence that I can
accept from the claimants is evidence that goes to the misrepresentation. And,
in this case, we've agreed that the misrepresentation is whether Nasreen is a
British citizen or not.
COUNSEL: And this, these affidavits go to
whether or not there was misrepresentation. In fact, the affidavits talk about
where she lived; where she was born; where ... you know, that she never left
Pakistan.
(CRT, p.617, Line 28 to p.618, Line 12)
[Emphasis added throughout the quoted
paragraphs]
[10]
I find that the evidence quoted with respect to
the Agreement does not support Mr. Perrault’s understanding of what transpired
during the pre-hearing conference. There is only evidence of an agreement that,
if it were proved that Nasreen Imtiaz is a British Citizen, the refugee
protection granted to her and her husband would be vacated. There is no evidence
of an agreement that, if it were proved that she is not a British citizen, the
refugee protection granted to her and her husband would not be vacated. Indeed,
the Member did not make a finding that Nasreen Imtiaz is not a British Citizen:
Surely, the United Kingdom has further
evidence on the female PP than the limited documentation which the panel has
before it, especially given that the female PP had arrived there in 1982, and
been naturalized there in 1986, and allegedly was there until she arrived in Canada
in 2005. The panel finds that the Minister has not provided all the evidence it
received from the United Kingdom regarding Zahida Ahmed [the name on the
British passport that Nasreen Imtiaz produced upon arrival in Canada in 2005].
The panel finds that the Minister did not disclose all the evidence it had
before it regarding the identity and citizenship of the female PP, and the
evidence it did provide was not persuasive. The panel finds that the Minister
has not met its evidentiary burden in proving that the female PP is a citizen
of the United Kingdom. The burden was on the Minister under this heading and
the panel finds the Minister did not meet its obligations.
(Decision, para. 31)
[11]
As a result, I dismiss the Agreement argument.
B.
Was there evidence of the appearance of bias on
the part of the Member?
[12]
Counsel for the Applicants argues that the
Member lost jurisdiction to conduct the hearing of the Minister’s s.109
application because of the appearance of bias exposed by comments made by the
Member during the course of the pre-hearing discussion. To reach a
determination on the argument requires the comments to be considered in the
full context of the evidence advanced by the Minister and the conversation that
transpired during the course of the pre-hearing.
[13]
As to the evidence advanced by the Minister, the
Minister’s “Application to Vacate Refugee Protection”
dated May 7, 2014 states as follows:
Following The Federal Court decision, dated
April 16, 2014, to send the matter back for a redetermination by a different
panel of the Refugee Protection Division of the Immigration and Refugee Board,
the Minister informs you that he maintains the previous application dated
September 12, 2011 and wishes to add the following: Exhibits M –16, M–17 and
M–18 for a question of credibility.
(CTR, p. 386)
[14]
The September 12, 2011 application cited the
following ground:
We are of the opinion that respondent did
not declare her real identity at the time of the first determination and that
she did not mentioned [sic] the fact that she had also the British citizenship.
Respondent did not claim refugee status
against the United Kingdom as requested by section 96 of IRPA.
We are also of the opinion that based on the
above; respondent's claim was manifestly unfounded and had no credible basis.
(CTR, p. 309)
[15]
The description of the documents added is noted
in the May 7, 2014 application to vacate as follows:
M-16: Bilal’s declaration – 2010, pages
52-54 (CTR, p. 389);
M-17: Imtiaz AHMED’ [sic] declaration –
2010, pages 54-56 (CTR, p. 392); and
M-18: CAIPS / GCMS notes, pages 57-68 (CTR,
p. 395 - 405)
(CTR, p. 388)
Thus, on the
redetermination, the application for vacation was based on the British
Citizenship misrepresentation issue, but the added evidence also introduced an
issue of fraud.
[16]
The added evidence provided by the documents
above identified is stated in the Decision as follows:
The PPs [Protected Persons] sought to bring
their four children to Canada in 2007, shortly after the PPs became Permanent
Residents. There is further evidence submitted by the Minister which evidences
the bureaucratic machinations involved in the sponsoring of the children. It
appears that Canadian authorities had some concerns regarding the lack of
credible evidence to establish the familial relationship between Bilal Imtiaz
and the male PP. The authorities then received a telephone call indicating that
fraudulent documents had been provided in support of the application for
sponsorship. Canadian authorities at this point requested DNA evidence, which the
male PP agreed to provide. Subsequent to this request, Canadian authorities
were informed that Bilal had died. The death certificate was requested. After
some cursory inquiries, this document was proven to be fraudulent. Subsequent
to this information being received, a fax was received by Canadian authorities.
This fax is characterized by the Minister as a 'poison pen' letter. This fax
indicates that Bilal was not dead, that the male PP wanted to take him to
Canada along with his children, but he had escaped. Furthermore, this fax
stated that the male PP "takes helpless children to Canada on fake
passports to sell them in Canada .. . he paid money to get DNA test positive
for his daughter Sumeria etc." It was at this point that the male PP filed
an Affidavit stating:
'"I submitted an application to
sponsor my children from Pakistan and I take full responsibility for including
a fourth child, that was not my own, in the application.
The fourth child listed as my
dependent in the application, Bilal Imtiaz, born on the10th of September 1990
is in fact not my son but my brother's son."
The male PP's Affidavit then goes on to say
that he is now frightened for his children in Pakistan as he used a ghost
immigration consultant who is a Canadian citizen. This consultant is
responsible for murdering a Belgian police officer and two men in Pakistan, and
this ghost consultant was taking funds from him and that he had an
"inside'' person at the Visa office in Islamabad who was looking after his
file. The male PP then makes the following statement:
" .. .I would like to have my
children here before I go to the Canadian authorities to report the fact that
this man and his wife obtained Canadian citizenship under false names."
He then admitted to the fraud he perpetuated
in the application for asylum here in Canada, and requested that Canadian
authorities issue visas to his children on an urgent basis.
[Footnotes omitted relating to the documents
added as noted in the Minister’s May 7, 2014 application]
(Decision, paras. 6 and 7)
[17]
Already examined above is the discussion with
respect to the Agreement. The exchange which took place immediately following
that discussion concerned new evidence being relied upon by the Minister. The
opening to the exchange immediately quoted below confirms that the added
evidence documents were available to the Member and were read the day before
the commencement of the hearing. With knowledge of the added evidence, the
Member had questions and concerns to express to Counsel for the Minister and the
Applicants. The individual comments made by the Member during the course of the
pre-hearing discussion relied upon by Counsel for the Applicants to ground the
bias argument are emphasised by underlining:
MEMBER: Now like [sic] me tell you what I
noticed when I was painstakingly preparing this case yesterday. Let me tell
you what my concern is. I am very concerned that the male claimant has
attempted to traffic Imitiaz [sic] to this country who is not a relative of his.
He ...
COUNSEL: I'm sorry, I didn't get that.
MEMBER: Okay, he ... did you get the
disclosure from the Minister which indicates that this Imitiaz [sic] is not
actually his son. Have you received that package of information, sir?
COUNSEL: Oh, you mean Bilal?
MEMBER: Bilal ... what ... is that Bilal is
that the one?
MINISTER'S COUNSEL: Yes.
MEMBER: Bilal.
COUNSEL: Yes.
MEMBER: Okay, so male claimant makes a
refugee application indicating that Bilal is his son.
COUNSEL: Yes.
MEMBER: Turns out Bilal is not his son.
COUNSEL: I agree.
MEMBER: There's evidence before the panel
that the male claimant is involved in trafficking individuals to this country.
I'm wondering why we haven't looked at the issue of 1F(b) [of the IRPA
with respect to the commission of serious non-political crimes].
MINISTER'S COUNSEL: The evidence that we
have in terms of the trafficking is basically a statutory declaration or a
poison pen letter as we would refer to by this individual Bilal. And, I mean,
we ... we have investigated the matter but a poison pen letter, in our opinion,
is not enough evidence and counsel has filed ... I don't know if you have
received it, a new affidavit from said Bilal saying he never wrote that letter.
I don't know if you've seen that.
MEMBER: I'm sorry, counsel. I ... I have
done tons of Pakistan, a bunch of affidavits. Are those people ready to
testify over the phone today, about the content of those affidavits?
COUNSEL: They're not.
MEMBER: Yeah. So he represented, at the time
he made the refugee claim, that he was the parent of somebody who he is not;
with the specific purpose of bringing that person to this country. That
strongly suggests to me that there is a crime being committed, that would raise
the issue of 1F(b). Clearly, the two of you haven't had the chance to think
about the implications of that. I would like to hear from both of you about
whether you think that that is a legitimate avenue to pursue or not. I
understand you're probably going to need some time to do that. Are we going to
be able to proceed here today, if I give you a little bit of time to think
about that or no?
COUNSEL: Well, if I may, Madam.
MEMBER: Yes.
COUNSEL: The issue of parents. And now we're
talking here, refugee claimants before the IRB, claiming that they have
children that are not theirs. It's very well determined in the Federal Court.
It does not go to whether or not the ... they should ... the vacation should
occur, because they did that.
MEMBER: What case are you referring to,
counsel?
COUNSEL: Well, I didn't ... I wasn't
prepared to argue this but I have come across this a lot in my practice. I took
over this case relatively a little while ago, in terms of ... of all of this.
When I found this out about Bilal, it was I who sent to ... to the visa office,
the affidavit saying Bilal is not his son. I insisted on that. But that does
not go to whether or not these are legitimate refuge claimants. And
consequently, really I don't think has any part in this particular hearing, as
to whether or not Nasreen Imtiaz' thing should be vacated. That would be my
argument.
MINISTER'S COUNSEL: Okay, my understanding
is the panel's concern in terms of 1F(b) is the male respondent's possible
involvement in child smuggling.
MEMBER: Yes.
MINISTER'S COUNSEL: Okay. Now I mean I ...
correct me if I'm wrong, but the only evidence that we have, so far, in regards
to that issue is this poison pen letter, which is unsigned, and allegedly filed
by Mr. Bilal. Now counsel has filed an affidavit, allegedly done by Mr. Bilal,
as well.
COUNSEL: It was certainly signed.
MINISTER'S COUNSEL: Signed this one, yes.
COUNSEL: And sworn.
MINISTER'S COUNSEL: But, I mean, we still
can't know for sure whether he wrote it or not. And my understanding is the
panel is not ready to accept that evidence. I'm just wondering if the panel is
ready to accept the poison pen letter which is unsigned because that's the only
evidence, in terms of human smuggling, that we have. Now we all agree and the
respondent and his counsel have acknowledged that the respondent lied about
this person being his son. But he says that this person is his brother's son
and that he did not coerce him or he was not trying to ... he's basically
denying the allegations that are in the poison pen letter and he's just saying
that he ...
COUNSEL: That he's not a smuggler.
MINISTER'S COUNSEL: Exactly.
COUNSEL: Yeah.
MINISTER'S COUNSEL: That's ... or
trafficking children is, I think, the word that was used. So he acknowledges
that and I'm not sure if that's the serious crime or you're more concerned
about the possible trafficking of children, as related to Bilal in his letter.
MEMBER:. Quite ... quite frankly, I am
concerned about the bona fides of these two people, obviously. We ... I
think we're all in agreement that the issue of whether the female claimant is a
British citizen is paramount importance, so let's put that as number one of our
list of issues, okay? Is Nasreen a British citizen? Now, obviously this is not
a re-hearing of the original claim but I am concerned about the poison pen
letter, as you understand. Some affidavits from Pakistan, I mean, I guess
that's probably the best you can provide as far as evidence goes. But...
COUNSEL: Well, I would think it's certainly
far better than a poison unsigned letter.
MEMBER: But as we ... as we have
discovered, your claimants have ready access to fraudulent documents, sir. They
obtained a fraudulent death certificate for ...
COUNSEL: Yes.
MEMBER: ... Bilal. This diminishes the
weight that I'm able to give any affidavits provided by them that are sworn in
Pakistan, as you might imagine.
COUNSEL: Yes, and I would agree with you
that many affidavits, unfortunately, done in certain countries are suspect. I
... I think we can all agree on that. However, the issue of whether my client
is a smuggler is something that really I have ... I have no doubt that that's
not true. And it re-originate [sic] from ... from a person which we believe we
know who is angry at him and wrote the letter; and was not the nephew Bilal,
and Bilal responded.
MEMBER: Are you going to be asking him
questions about that today? Is that part of your plan?
COUNSEL: I have a long list of questions to
ask him. A long list of questions to ask her from the beginning to the end
because I believe that this does come down to credibility as to who you
believe. And I was not going to ask him about Bilal but one of the issues that
you did bring up and maybe I should have considered and I ... I apologize if I
didn't, is this issue of the affidavits from Pakistan; because it was a poison
pen letter, I thought it would be met by an affidavit and in ... in your mind,
it may not be and it may well be that we should be ... I should be calling
Bilal.
MEMBER: Perhaps.
MINISTER'S COUNSEL: I mean clearly, we have
all concerns with this letter because if what's in this letter is true, I mean
this is a very serious matter. Now we have not been able, so far, to gather
more evidence ...
MEMBER: Okay.
MINISTER'S COUNSEL: ... and in terms of
1F(b) the question would be whether he committed a serious political crime
before he came here. So all that he filed afterwards in support of his PR
application, the fake death certificate and all of that, would not...
MEMBER: Except for the fact that he included
Bilal on his refugee application ...
MINISTER'S COUNSEL: Right, now ...
MEMBER: ... right?
MINISTER'S COUNSEL: Now what he did before
his claim, as far as we know, is only including a fake child on the Personal...
MEMBER: Okay.
MINISTER'S COUNSEL: ... Information form.
Now does that .. . is that enough, does that constitute a crime? If the
circumstances surrounding him. including this child, are what is said in this
letter, that he basically kidnapped this child, I mean, then yes. But we don't
have further evidence, so far ...
MEMBER: Okay.
MINISTER'S COUNSEL: ... and we're a little
reluctant to rely on this letter to try to make a 1F(b) case.
MEMBER: Okay.
MINISTER'S COUNSEL: So that's ...
MEMBER: Okay.
MINISTER'S COUNSEL: ...that's our position.
MEMBER: Okay, that's fair. All right. So my
only question for you then, Madam, is whether or not that would be the failure
to indicate or ... let me rephrase this, so I'm totally clear. I just want to
know whether the male claimant inclusion of Bilal, had you known at the time
that he's not his son, would that ... would that have led to a possible
consideration of 1F(b )? That's all I want to know, because that's something
that would've been precluded from the original panel.
MINISTER'S COUNSEL: It would've ... I think
it would've been more a concern of credibility.
MEMBER: Okay.
MINISTER'S COUNSEL: I mean obviously it is a
crime to make false declarations ...
MEMBER: Yeah.
MINISTER'S COUNSEL: ... but would that have
been enough to seek 1F(b) exclusion? I'm not really comfortable saying ...
MEMBER: Okay.
MINISTER'S COUNSEL: ... that it would have
in all honestly [sic].
MEMBER: Okay, okay. That's fine. I
appreciate your candour, thank you. Okay. Do you agree with what she says?
COUNSEL: I absolutely do, Madam, otherwise
we'd have a lot of applications for vacation. Maybe we should but that's not
what happens on a refugee case.
(CTR, p.610 to 615)
[18]
In my opinion, it was entirely appropriate for
the Member to fully prepare for the hearing of the Minister’s application by
reading the available file material in advance of the hearing of the Minister’s
application for vacation. In particular, it was important for the Member to be
fully informed about the added evidence to be relied upon as a critical feature
of the redetermination of the vacation application. As a result, it was
important for the Member to understand the exact issues that would be raised
during the course of the hearing and the pre-hearing conference was the most
productive manner of doing so.
[19]
In the course of learning the ambit of the
issues, the Member was certainly entitled to express her questions and concerns
to Counsel for the Minister and the Applicants in order to understand the
positions that would be taken at the hearing. As is clearly evident from the
transcript, the Member was transparent in asking questions and raising concerns
so that both Counsel would have notice of issues identified by the Member, and
the opportunity to confirm which issues would be addressed in the course of the
hearing.
[20]
Counsel for the Applicants relies upon the
discrete comments emphasized in the passages quoted above to argue that the Member’s
impairing bias was exposed during the course of the pre-hearing conference. The
following is the lead paragraph of Counsel for the Applicant’s argument:
It is submitted that the questions the
Member raised at the outset of the hearing, including branding the male person
as having been engaged in "crime" and doubting 100% the provenance or
reliability of any affidavits and documentary evidence from Pakistan and in
fact indicating before the hearing that, "I am concerned about the bona fides
of these two people" all raise reasonable apprehension of bias.
It is submitted that she had already locked
up her mind about what the decision should be. She had already determined
before hearing the evidence that the applicants (here in Federal Court) were
not credible and that whatever documents they provided, were also not credible.
All that remained was post facto justifications.
(Applicants’ Supplemental Memorandum of
Facts and Argument (Applicants’ Supplemental), paras. 26 and 27)
[21]
As to branding Imitiaz Ahmed as having been
engaged in “crime”, his admission detailed in
the added evidence that, in applying for refugee status he included a child,
not his own, and represented the child as his own, certainly and properly
fuelled the questions that the Member raised with Counsel. In my opinion, the
Member was entitled to closely question Counsel for the Minister as to whether
an argument would be made with respect the commission of serious non-political
crimes pursuant to s. 1F(b) of the IRPA. An assurance by Counsel for the
Minister that no such argument would be made alleviated this concern. There is
no question that Imitiaz Ahmed’s conduct had the potential of placing the bona
fides of both Applicants in issue, and, in my view, it was important for the
Member to have given notice that this was an issue. Counsel for the Applicants
expressed an understanding of this concern.
[22]
As an adjunct to the commission of crime issue,
Counsel for the Applicants makes a submission which relates to the last comment
in the Member’s statement of the added evidence as quoted above in paragraph 16
of these reasons being: “[Imitiaz Ahmed] then admitted
to the fraud he perpetuated in the application for asylum here in Canada, and
requested that Canadian authorities issue visas to his children on an urgent
basis”. The submission is as follows:
It is submitted that reasonable apprehension
of bias is also displayed when the Member finds as a fact that the male person
admitted to having committed fraud in his evidence during his refugee claim when
in fact there is no such admission of fraud.
(Applicants’ Supplemental, para. 29)
[23]
To the contrary, I find that the admission was
most certainly on the record as follows:
I beg your forgiveness for the fraud that
I committed in the application and I am requesting that you issue immigrant
visas to my children as soon as possible, so that they are no longer exposed to
any risks in Pakistan, where the above-mentioned ghost consultant now lives.
[Emphasis added]
(CTR, p. 393)
[24]
As to the Member’s comment about the Applicants’
access to fraudulent documents in Pakistan, the Member clearly related
experience with the issue, and Counsel for the Applicant agreed it is an issue.
I find no evidence of bias in the exchange on this purely evidentiary point.
[25]
Quite apart from advancing the Member’s discrete
statements out of context to support the bias argument, Counsel for the
Applicants even goes to the length of advancing an argument of actual bias on
the part of the Member:
It is submitted that fraud was now used as a
crutch by the Member to anchor her decision, which has no basis in facts, when
the Government failed to prove that Nasreen was a British Citizen.
(Applicants’ Supplemental, para. 31)
I find that there
is absolutely no evidence to substantiate what I find to be a spurious
allegation.
[26]
Counsel for the Applicants correctly cites the
test: “what would an informed person, viewing the
matter realistically and practically - and having thought the matter through –
conclude? Would [he or she] think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would not decide fairly”
(Committee for Justice and Liberty v. National Energy Board, [1978]1
S.C.R. 369). By addressing questions and concerns with Counsel at the
pre-hearing conference, and considering the bias argument in its full
evidentiary context, I find that the Member sought to ensure a fair and just
result. I further find that there is no evidence of the appearance of bias on
the part of the Member.
C.
Was the Decision rendered in breach of a duty of
fairness owed to the Applicants?
(1)
The arguments
[27]
The breach of a duty of fairness argument
advanced upon the filing of the present Notice of Application relies upon
paragraphs 5 to 10 of Mr. Perrault’s affidavit evidence:
5. In the written reasons of the decision,
[the Panel Member] makes reference to matters that were not put forward by
the Member during the proceedings, thus preventing both the Minister's
Counsel and myself from commenting upon these matters.
6. In paragraph [54] of the decision the
Panel Member indicated that, in concluding that the protected persons did not
follow proper procedure to obtain Pakistani passports, the Member consulted
the website of the Pakistani Diplomatic Missions in Canada.
7. The Member never brought this
information to the attention of either the Minister's Counsel or myself.
8. Further, the Member relied on information
dated 2014 from the website of the Pakistan diplomatic Mission in Canada.
9. This website did not exist at the time my
clients applied for passports and it is not known whether at the time they
applied the same rules and regulations were in force in connection with
applying for a Pakistani passport.
10. At no time was either the Minister's
Counsel or myself advised of the introduction of this information, which
was used by the Panel Member in the decision making process.
11. This affidavit is sworn in support of an
application to the Federal Court for leave and for judicial review of a
decision of the Immigration Appeal Division and for no other improper purpose.à
[Emphasis added]
(Application Record, pp. 65 – 66)
[28]
In further argument, Counsel for the Applicants
presents an ancillary argument with respect to relevance of the evidence as
emphasised:
The member completely ignored the [British
Citizenship] issue which was before the Board. She went on analyzing the
2005 and 2014 documents on Pakistan, which were not at issue before the Board,
and which were of no concern to the minister [sic].
The Member's consultation of the 2005 and
2014 Pakistani documents on the face of these documents is unjustified and much
of a pre-judgment. These documents were totally irrelevant to the
disposition of the vacation hearing.
[Emphasis added]
(Applicants’ Reply to the Respondent’s
Submissions on Relevance of 2015 & 2014 Document Packages, dated April 21,
2016, paras. 5 and 6)
(2)
The evidence relevant to the Applicants’
arguments
[29]
Two evidentiary elements are important to
consider: the evidence presented at the hearing of the Minister’s application;
and Justice Roy’s reasons for decision and directions.
[30]
As to the evidence presented during the hearing,
Counsel for the Applicants’ evidentiary fairness concern is about due notice
being provided about information being introduced into the
hearing record by the Member, and applied in reaching the Decision.
Cogent evidence with respect to each of the four features emphasised is as
follows.
[31]
The resource “website”
consulted in paragraph 6 of Mr. Perrault’s affidavit was, in fact, the Refugee
Board’s National Documentation Package on Pakistan (NDP) dated March 14, 2014,
which was placed into evidence as Exhibit 11 (see: CTR, pp. 437 - 462) during
the course of the hearing of the Minister’s vacation application:
MEMBER: Okay. I am going to have to ask some
questions about the passport and I'm also going to be ... because I didn't have
this evidence before today, I didn't know that I was going to need to be
adducing the current NDP for Pakistan but I am going to be doing that. So I'm
going to add that as item number 11. I'll provide you both with an index (see:
CTR, pp. 437 – 448) ...
COUNSEL: I'm sorry.
MEMBER: ... when we come back.
COUNSEL: It was what?
MEMBER: The current national
documentation package for Pakistan.
COUNSEL: Okay.
MEMBER: Okay? So I'm going to provide that
when we come back because it ... it contains some information about passports,
which I'm going to need to canvass it some.
[Emphasis added]
(CTR, pp. 654)
[32]
And further as to the purpose of the NDP:
MEMBER: I'm just going to give you both a
copy of the NDP, the recent one for Pakistan.
MINISTER'S COUNSEL: Thank you.
MEMBER: And I'm disclosing them to you only
to deal with the identity documents, not for anything ...
COUNSEL: It's from a CIA?
MEMBER: No, it's the ... a national
documentation package produced by the Board and I'm providing it to you just to
deal with the identity issues.
(CTR, pp. 664 – 665)
[33]
And further as to use made of the NDP during the
hearing:
MEMBER: Are you going to be questioning
either of them about this document, counsel?
COUNSEL: In terms ... you mean of the
national identity documents?
MEMBER: That documents that he provided, are
they provided to establish their identity at the original hearing? Are you
going to be asking him about that?
COUNSEL: Well, the only question I have,
really, is with respect, Madam, is your question that they only last for 10
years.
MEMBER: Mm-hmm.
COUNSEL: And that answer, I don't know. I
tried to find out ... out over lunch time but I will be asking him if he is
aware of how long they last.
MINISTER'S COUNSEL: Sorry, what was the
question, for 10 years?
MEMBER: The NADRA, the identity ...
MINISTER'S COUNSEL: Oh, right.
MEMBER: ... card that. ..
MINISTER'S COUNSEL: Okay.
MEMBER: ... they only last for 10 years.
MINISTER'S COUNSEL: Okay.
COUNSEL: Yeah. That's really ...
MEMBER: That's the evidence that l have
before me in the national documentation package about the identity cards from
Pakistan.
COUNSEL: Yeah, I ... and I ... I ... I don't
see that.
MEMBER: Well, that's because we don't
provide the document, we just provide the list and that's part of the reason
I've just provided the list to you. So there is a ... an ... an article in
there about the national identity cards in Pakistan and you'll find that
information in there.
COUNSEL: But they're only issued for 10
years?
MEMBER: Mm-hmm. They're only valid for
between 5 to I 0 years.
So are you ready to proceed with questioning
him then, counsel?
COUNSEL: Yes, I am, I am.
MEMBER: Whenever you're ready.
COUNSEL: Okay, Mr. lmitiaz. When were you
born?
(…)
(CRT, pp. 665 – 666)
[34]
In paragraph 16 of the Decision, the Member
identified Exhibit 11 as follows:
The panel disclosed the current National
Documentation Package (NDP) for Pakistan but noted that it was only being used
to assess the identity documents provided by the PPs, and not for the merits of
the claim.
[35]
Exhibit 11 lists under the heading “Identification Documents and Citizenship” document
3.1: “Requirements and procedures to obtain passport;
multi-biometric electronic passports, including procedures for issuance within
and outside the country, including Canada; manual passport procedures: Code
PAK104250.E” (CTR, p.439); and includes Response to Information Request
PAK104250.E, dated December 20, 2012 (CTR, pp. 449 to 453).
[36]
Paragraph [54] of the Decision quotes directly
from document Code PAK104250.E under heading “3. Manual
Passport in Canada” (CTR, 451):
The panel was confronted with four Pakistani
passports obtained here in Canada, which ostensibly establish the identities
the PPs are asserting. The panel had to address the Pakistani passports
provided by the PPs, as passports are prima facie evidence of identity and
nationality. The panel notes at the outset that there is an RIR in the NDP on
the issuance of Pakistani passports at the Consulate here in Canada.
(Consolidated List of Documents, Item #11 at 3.1) It states:
"In order to obtain a new manual
passport in Canada, citizens of Pakistan must submit the following documents to
the nearest Pakistani mission:
• a completed application form;
• a photocopy of a document
confirming applicant's status in Canada (Canadian passport, / Citizenship Card,
Permanent Resident Card, Study Permit, or visa);
• three passport photographs;
• original Pakistani passport and a
photocopy of the inside cover and pages 1, 2 and 3;
• original Pakistani National
Identity Card and a copy (Pakistan n.d.d; ibid. n.d.e).
According to the website of the
Pakistan Diplomatic Mission in Canada, manual passports will be issued only to
holders of a CNIC, NICOP or CRC (ibid. n.d.d). If an applicant does not have
one of these documents, he or she must apply for a NICOP at the time of
submitting a passport application (ibid.). The processing fee for a manual
passport is C$66.00, and for urgent processing it is C$175.00 (ibid.; ibid. n.d.e).
Manual passports are processed within seven working days and urgent processing
can be done in one working day (ibid.). Passport applications, along with
required documents, fees and a self-addressed envelope can be mailed to the
mission (ibid. n.d.d). According to the website of the Pakistan Diplomatic
Mission in Canada, applicants are also interviewed and decisions to issue
manual passports are made on a case by case basis (ibid.)."
The consulate here in Canada appears to have
a clear process and protocol in place for the issuance of passports to
Pakistani citizens in this country.
[37]
As to Justice Roy’s reasons for decision, the
following passages of the reasons set out expectations to be met on the
redetermination:
(…) Obviously, the issue raised before
this panel of the RPD is that of the identity of the applicants. The decision of the RPD which was to be vacated found the
following: "their identities are supported by several documents, including
a passport from Madam, national identity cards, marriage certificate and a
family registration certificate. They have also presented documents which
confirm both their [sic] professional background of Mrs. Imtiaz and, documents
as well confirming their legal difficulties in Pakistan." The panel
that concluded that the initial decision had to be vacated never referred to
that evidence nor, for that matter, the affidavit of March 21, 2005, about
a month after the arrival of the applicants, in which [sic] was disclosed that
they had travelled on false documents.
Having reviewed the record carefully, heard
the parties and reviewed the record again, I am still confused. The decision of
the RPD did not assist in clarifying the situation.
In the circumstances, I conclude that the
decision under review lacks the features required in order to conclude that it
is reasonable. In my view, the matter has to be sent back for a redetermination
by a different panel. A more systematic attempt at explaining the
identification discrepancies should be made by the respondent and the
applicants would be expected to provide a clear explanation of the
circumstances surrounding their arrival in Canada on February 18, 2005.
(Emphasis added)
(CTR, pp. 117 – 118)
[38]
In the Decision, the Member refers to Justice
Roy’s reasons as quoted, and in specifically acknowledging the direction that “a more systematic attempt at explaining the identification
discrepancies” states the challenge to be met:
It is thus that the matter has landed before
the RPD for a second determination of the vacation.
(Decision, para. 3)
[39]
As to meeting the challenge, the Member states:
The panel has considered the direction of
Mr. Justice Roy when he returned this matter to the panel. Noting that identity
was the issue in the original vacation (…) [t]he Panel has done the questioning
of the PPs and conducted this analysis as suggested by Mr. Justice Roy. This
analysis leads the panel to the conclusion that the original claims must be
vacated due to misrepresentation and presentation of fraudulent identity
documents as genuine.
(Decision, para. 38)
(3)
Conclusions on the evidence
[40]
With respect to Counsel for the Applicants’
ancillary argument, I find that the Member, as required, specifically followed
Justice Roy’s direction. The central issue on the redetermination was the
identity of the Applicants. As a result, to determine the issue, the
identification documents tendered by the Applicants in making their claim for
protection were relevant, very much in issue, and required the careful
attention the Member gave to them. On this basis, I dismiss the ancillary
argument.
[41]
As to the global unfairness argument, I find
that the evidence establishes that Counsel for the Applicants was provided with
due notice of the information being introduced by the Member, and how that
information would be applied in reaching the Decision. I further find that the
2014 NDP was disclosed and applied in a transparent manner in the course of the
hearing through the detailed questioning of the Applicants, resulting in well
documented findings in support of the Minister’s application (see: Decision,
paras: 54 to 63). As a result, I give no weight to the argument of lack of
knowledge.
(4)
The result of a failure to object
[42]
On the evidence, during the course of the
hearing, including final argument (see: CTR, pp. 711 - 713), Counsel for the
Applicants made no objection to the introduction of the information and how it
would be used in the decision-making process.
[43]
Of particular importance in the present case is
that no objection was made to the introduction into the record of the 2014 NDP
which, from the dialogue which took place as quoted above, could be easily
understood as the cornerstone of evidence upon which the Member would rely in
reaching the Decision. I find that, during the hearing, the Member provided
Counsel for the Applicants ample opportunity to make a request for
clarification, or to voice an objection to the 2014 NDP’s use; none were made.
[44]
Justice Stone’s decision in Yassine v. Canada
(Minister of Employment and Immigration) (F.C.A.) [1994] F.C.J. No. 949
provides an example of the result of a failure to object. In that case the
applicant claimed refugee protection based on fear of persecution from a
militia in Beirut, Lebanon. At issue was whether the Refugee Division breached
the rules of natural justice by receiving information after the hearing going
to establish that the militia concerned had left Beirut. Paragraph 7 of the
decision addresses the failure to object to the introduction and use of the
evidence:
It must also be noted that no objection was
taken to the procedure that the Presiding Member adopted for receiving the
additional information. That procedure consisted of a direction of November 20,
1990 that the Refugee Hearing Officer make copies of the material available to
the appellant's legal counsel and of giving such counsel a period of two weeks
within which to submit representations by way of "reply". That
procedure was followed. No such reply was submitted. Nor did the appellant
raise an objection of any kind as to this way of proceeding. That surely
was the time to raise an objection and to ask the panel to reconvene the
hearing, assuming that the information could not otherwise be received. The
appellant was then in possession of all of the new information and was aware
that the panel intended to take notice of it. Not only was no objection made at
that time, which I would regard as the "earliest practicable
opportunity" to do so (In re Human Rights Tribunal and Atomic Energy
of Canada Limited, [1986] 1 F.C. 103 (C.A.), per MacGuigan J., at pages
113-14), the appellant remained silent until after the Refugee Division's
decision was released on April 18, 1991. Thus, even if a breach of natural
justice did occur, I view the appellant's conduct as an implied waiver of that
breach.
[Emphasis added]
(5)
The result of the failure to object in the
present case
[45]
I find that the key circumstances in Yassine
are parallel to the circumstance in the present case: Counsel for the
Applicants had notice of the introduction and intended use of the 2014 NDP and no
objection was made at the “earliest practical
opportunity”, which would have been during the course of hearing or
after, but before the Decision was rendered. As was the case in Yassine,
in the present case no explanation was provided for not having made an
objection.
[46]
Thus, with respect to the present Application, I
find that, even if a breach of the duty of fairness owed to the Applicants did
occur, I view Counsel for the Applicants’ conduct as an implied waiver of that
breach. As a result, I dismiss the fairness argument.
II.
Conclusion
[47]
For the reasons provided, I find that the
Decision under review is reasonable because it is transparent, intelligible,
and defensible in respect of the facts and law.
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