Docket: IMM-11573-23
Citation: 2025 FC 361
Toronto, Ontario, `February 25, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
REZA SAFAEI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] Mr. Reza Safaei seeks judicial review of a decision in which his refugee status was vacated. The vacation proceeding arose after information came to light that Mr. Safaei was in Australia at a point in time when he had previously claimed he was detained in his native Iran. The Refugee Protection Division [RPD] of the Immigration and Refugee Board found that the Applicant had obtained refugee status as a result of misrepresenting a material fact, and it therefore allowed the Minister’s application to vacate Mr. Safaei’s refugee status.
[2] For the reasons that follow, I will grant this application for judicial review. While the Applicant clearly misrepresented important details related to his background, I have concluded that the RPD’s decision was unreasonable.
II. BACKGROUND
A. Facts
[3] Mr. Safaei is a citizen of Iran and no other country. He obtained refugee protection in Canada in 2013. In his Personal Information Form [PIF], which was completed in support of his claim for refugee protection, Mr. Safaei set out various reasons for fearing persecution in Iran: as an ethnic Kurd; as an atheist; as a political activist against the Iranian regime; and as a failed asylum seeker from a Western country. In his PIF (both the form and his narrative), he explained that he fears persecution from the Iranian government because he no longer believes in Islam and is instead an atheist. He additionally detailed that he feared persecution due to his participation in various protests against the Iranian regime, in 1999, 2002, 2009, and in 2011. After each protest, he claimed to have been arrested, detained, and tortured.
[4] Mr. Safaei’s original claim for refugee protection was granted via an expedited process and was determined without a hearing. No reasons were provided for granting his refugee claim, so it is impossible to know the precise basis on which the RPD accepted his claim.
[5] The Applicant submitted an application for permanent residence, and in 2018 he was called into an interview related to that application. During the interview, Mr. Safaei was presented with a report indicating that he had previously sought refugee protection in Australia, and that he was detained on Christmas Island as an “irregular maritime arrival.”
The report went on to note that his request for refugee protection was denied in February 2011, and subsequent to that negative decision, in October 2011, Mr. Safaei made a “request to be removed”
which resulted in his temporary return to Iran on November 1, 2011. The problem for Mr. Safaei was that he never disclosed to Canadian authorities that he sought asylum in Australia. More importantly, in his PIF, Mr. Safaei indicated that he had been detained in Iran from July 2011 to January 2012, a period which overlapped with his detention on Christmas Island. While Mr. Safaei initially denied the validity of the Australian report, he eventually conceded that it was accurate.
[6] Following the disclosure of this report, in 2020 the Minister brought an application to the RPD to vacate the Applicant’s refugee status, pursuant to s. 109 of the Immigration and Refugee Protection Act [IRPA]. The RPD granted the Minister’s application in early 2022. However, this Court granted judicial review of this first decision because of interpretation problems during the RPD hearing. A de novo hearing was held in August 2023, which led to the decision under review.
B. Decision under Review
[7] On reconsidering the matter, the RPD once again granted the Minister’s application, based on the following findings:
The Applicant withheld information from the original RPD panel that he entered Australia at Christmas Island on November 4, 2010, and filed an unsuccessful claim for refugee protection;
The Applicant concealed that he was detained in Australia from July 23, 2011, to January 10, 2012;
The Applicant returned to Iran voluntarily; and
The Applicant fabricated his alleged detention in Iran from July 2011 to January 2012.
[8] The RPD ultimately concluded that the Applicant had obtained refugee status in Canada by directly or indirectly misrepresenting material facts relating to relevant matters, as set out in s.109(1) of the IRPA.
[9] The RPD further determined that there was insufficient evidence, pursuant to s.109(2) of the IRPA, at the time of the first determination, to justify refugee protection notwithstanding the misrepresentation. In coming to that conclusion, the RPD panel found that the previous negative findings regarding the Applicant’s credibility tainted the evidence to such a degree that his evidence and testimony could not be relied upon, and thus “there is no remaining untainted evidence upon which a positive determination could have been made by the RPD panel of first instance.”
III. ISSUES and STANDARD OF REVIEW
[10] The Applicant essentially raises the following issues: 1) Whether the RPD breached the Applicant’s right to procedural fairness in, amongst other things, depriving him of the ability to adduce new evidence; and 2) whether the RPD erred by failing to adequately consider his residual profile under s.109(2) of the IRPA.
[11] Issues touching on procedural fairness attract a standard of review that is functionally the same as the correctness standard: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 FCR 121 at paras 49-56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35; Bharadwaj v Canada (Citizenship and Immigration), 2022 FC 1362 at para 8.
[12] The applicable standard of review on the merits of an RPD decision is reasonableness, as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision bears the hallmarks of justification, transparency and intelligibility, with the burden resting on the challenging party to show that the decision is unreasonable: Vavilov at paras 99-100. A reviewing court must ensure that the decision demonstrates an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrained the decision maker: Vavilov at para 85.
[13] I have determined that the decision under review was unreasonable. This said, in the paragraphs that follow, I will also point to some procedural irregularities that give rise to fairness concerns. As I will be remitting this matter back to the RPD for reconsideration, I would advise the parties, and the tribunal, to closely consider the somewhat unusual procedural background to this matter, in determining a procedurally fair path forward.
IV. LEGAL FRAMEWORK
[14] Subsection 109(1) of the IRPA states that the RPD may, upon an application from the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
[15] Subsection 109(2) of the IRPA stipulates that the RPD may reject the Minister’s vacation application, if it is satisfied that there was other sufficient evidence before the first instance RPD panel to justify refugee protection.
[16] In Canada (Public Safety and Emergency Preparedness) v Gunasingam, 2008 FC 181 [Gunasingam], this Court set out the common-sense principle that a determination must be made on s.109(1), before considering s109(2). The Court also identified three elements to s.109(1):
There must be a misrepresentation or withholding of material facts;
Those facts must relate to a relevant matter; and
There must be a causal connection between misrepresenting or withholding on the one hand and the favourable result on the other.
[17] On the consideration of s.109(2), it is also important to note that the issue is not whether there is sufficient evidence adduced at the vacation hearing to justify refugee protection, but whether there was sufficient evidence “considered at the time of the first determination”
to justify protection. This being the case, the task for the tribunal member at this stage of the vacation analysis is to step into the shoes of the original decision maker and ask whether, at the time of the original refugee decision, there was “other sufficient evidence”
to justify the grant of refugee protection: Nabacwa v Canada (Citizenship and Immigration), 2024 FC 249 at para 16.
V. ANALYSIS
A. Procedural Matters
[18] At the outset of my analysis, I wish to point out two procedural issues that lie in the background of this matter but cast a somewhat unusual shadow over it. The first is that the Applicant’s original grant of refugee protection arose further to an expedited process in which: i) no hearing was conducted; ii) little if any evidence appears to have been adduced; iii) there appears to be a lack of clarity over what evidence was before the decision-maker; and iv) no reasons for granting the claim were provided. As I indicated above, this is a complicating factor, as it is impossible to discern the evidence that the RPD considered or the basis on which the RPD granted the Applicant’s claim.
[19] The second irregularity concerns the timing of the Minister’s acquisition of the information related to the Applicant’s asylum claim in Australia, and the corresponding decision to bring the vacation application before the RPD. The following dates are relevant to this concern:
The Applicant arrived in Canada in June 2012 and submitted his Personal Information Form on July 31, 2012.
Very soon after, on August 13, 2012, the Canada Border Services Agency [CBSA] sent the Applicant’s fingerprints to Australian authorities.
On August 15, 2012, CBSA received a response from Australian authorities, indicating a fingerprint match, and containing the information related to the Applicant’s asylum claim in Australia.
On August 20, 2012, the CBSA Biometrics Unit appears to have sent this information to the Manager of Hearings at the CBSA Greater Toronto Enforcement Unit. The information also appears to have been copied to the Immigration and Refugee Board.
Some eight months later, on August 10, 2013, the RPD granted the Applicant’s claim for refugee protection – it is unclear whether the information related to the Applicant’s refugee claim in Australia was before the decision-maker who decided the RPD claim.
Some five years later, in 2018, the Applicant was first confronted with the information related to his time in Australia.
Some two years after this, in 2020, the Minister submitted the application to vacate the Applicant’s claim.
[20] As can be seen from the above, the chronology of events in this matter differs from many vacation proceedings, where the Minister typically obtains information related to alleged misrepresentations after the claim for refugee protection is granted. In this case, the Minister possessed the relevant information long before the RPD decision, but simply neglected to act on it until many years later.
B. Stage One of the Analysis: IRPA s.109(1)
[21] I have concluded that the RPD’s analysis under s.109(2) of the IRPA was unreasonable, and that this matter should be returned on this basis. Nevertheless, I also have some concerns about the tribunal’s approach under s.109(1) and will briefly comment on those concerns here.
[22] As noted above, the Applicant conceded that: i) he made a previous claim in Australia that was rejected; ii) he was detained on Christmas Island for a period of time that overlapped with his last alleged detention; iii) this last detention in Iran did not happen; iv) he requested to be returned to Iran from Australia.
[23] Aside from these concessions, the Applicant maintains that the rest of his story is true, including his claim to having been detained on three occasions prior to the 2012 fabrication. The Applicant also asserted that he only fabricated the last detention because he was told that his Canadian refugee claim would be denied if he were to have disclosed his prior claim in Australia.
[24] The Applicant asserts that the RPD decision is unreasonable, at least in part, because the Tribunal mischaracterized the scope of his concession - as he always maintained that each aspect of his claim remained valid and true, with the one exception of the final Iranian detention. The Applicant further asserts that the RPD breached principles of procedural fairness in hearing the Minister’s submissions on credibility, while limiting his own ability to adduce evidence on this central issue.
[25] It is obvious that the Applicant’s failure to disclose his asylum claim in Australia was a serious omission, primarily because it completely undermined the details in his narrative about his final detention, which was the event that, in his own words, precipitated his flight from Iran.
[26] As noted above, however, the Applicant has consistently maintained that his fabricated evidence was limited to the final detention; this being the case, the RPD was required to evaluate the vacation application on the basis of this concession. Of course, the RPD was not required to accept that the Applicant’s misrepresentations were limited to the last detention, but it was required to assess the application on this basis.
[27] At times in the RPD’s analysis, it did just this. At other times, however, it was overly expansive in identifying the scope of the Applicant’s admissions. For example, at one point the RPD stated: “the Respondent has conceded that the core issue of the basis for his claim for refugee protection was a complete fabrication.”
At another point in its reasons, the RPD stated: “When coupled with his admission that the basis for his refugee claim in Canada was fabricated, the panel must draw a further negative credibility inference from his testimony on this issue.”
[28] These passages mischaracterize the nature of the Applicant’s concessions. From my review of the record, I see no indication that the Applicant has ever conceded that either the “core issue”
or the “basis for his refugee claim in Canada”
were fabricated. What he conceded (and it was an important concession) was that he made a claim for asylum in Australia, that he was detained there, and that the last detention set out in his PIF narrative did not occur.
[29] While these errors may not, on their own, have warranted the granting of this application for judicial review, I point them out so that the new panel can avoid them in reconsidering the matter.
[30] In an unrelated error, I also note that the RPD misstated the dates and duration of the Applicant’s detention in Australia. It stated, “The Respondent further concealed that he was held in detention whilst in Australia from July 23, 2011, to January 10, 2012. These dates conflict with the Respondent’s BOC narrative that he was detained in Iran from July 24, 2011, to January 10, 2012.”
While it is certainly true that the Applicant’s detention in Australia conflicted with his alleged final detention in Iran, the dates listed for his Australian detention are incorrect. While, superficially, this may appear to be a minor error, the RPD dedicated a significant part of its analysis to the Applicant’s voluntary return to Iran, finding that it further undermined his credibility and his subjective fear of persecution.
[31] The Applicant’s testimony on this issue was that he had been detained for an extensive period of time, that he saw no way out of Christmas Island, that he was pressured to sign a document initiating his voluntary return to Iran, and that he eventually came to the conclusion that “there was no difference being in prison in Christmas Island or going back to Iran.”
Given the RPD’s reliance on these facts to support its credibility findings, it was imperative that it accurately identify the duration of the Applicant’s detention in Australia. Again, this error may not have been sufficient, on its own, to warrant the granting of this application for judicial review, but it should be avoided in the redetermination of this matter.
[32] It may well be that a new panel hearing this matter will again conclude that the Applicant obtained refugee protection as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. In assessing whether this is the case, however, the RPD must conduct a “careful and cautious evaluation”
of all of the facts, which will include: i) a clear understanding of the precise scope of the Applicant’s concessions; ii) an accurate assessment of the Applicant’s experience in Australia; and iii) a reasonable assessment of the causal connection between the Applicant’s misrepresentations and the favourable result: Gunasingam at para 7.
[33] Procedurally, I also have some concerns with the way the RPD vacation hearing unfolded. While it is unnecessary to make a formal finding in this matter as to whether the RPD breached the Applicant’s right to procedural fairness, I share my concerns here for the sake of informing the reconsideration of this matter, should the Minister continue to pursue it.
[34] It is well established that procedural fairness requirements will vary significantly depending on the administrative law context: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 47; Essaidi v Canada (Citizenship and Immigration), 2011 FC 411 at para 25. It is equally established that, given the important rights at stake in refugee determination proceedings, such matters fall at the high end of the procedural fairness spectrum: Mehra v Canada (Citizenship and Immigration), 2022 FC 1591 at para 11. This is the general administrative law context in which the RPD proceedings took place. The more specific context was that the Applicant’s original claim had been heard by way of an expedited decision, in which it appears that little evidence was considered, no hearing took place, and no reasons for the decision were provided.
[35] Given the importance of the initial refugee proceeding in assessing vacation applications under s.109 of the IRPA, I find that in this case, the RPD was obligated to exhibit some procedural flexibility in allowing the Applicant to provide testimony and evidence as to the materiality of his misrepresentation. This would include hearing testimony about other elements of the Applicant’s claim that may, on their own, have justified a grant of refugee protection, notwithstanding the misrepresentation. To the extent that the RPD did not exhibit this flexibility, I am concerned that the Applicant was deprived of a fair process. Parenthetically, I also note that the RPD did not include, in the Certified Tribunal Record, a transcript of the vacation proceedings. While it has produced an audio recording, its failure to provide a transcript has impaired the Court’s ability to review the events as they unfolded at the RPD hearing.
[36] The sequence of events in this matter is quite unusual, but not unprecedented. In Selvakumaran v Canada (Minister of Citizenship and Immigration), 2003 FC 1445 [Selvakumaran], the applicants’ refugee claims were also accepted by way of an expedited procedure. Later, when the Minister brought an application to vacate the applicants’ refugee status, it was (as in this case) impossible to know what evidence was before the original decision-maker. Out of caution, and to ensure the fairness of the process, the Board in that case allowed the applicants to compile a package of documents that represented a “facsimile”
of the evidence that supported their original refugee claim: see Selvakumaran at paras 18-19.
[37] Without dictating any specific procedure that the RPD must follow in reconsidering this matter, I will say that the procedure followed in Selvakumaran appears to have been a sensible approach and, I would note, was upheld by this Court as fair. To be more precise, the Applicant has noted that he provided to the original RPD panel (or at least to counsel who represented him before that panel) both a summons from Iranian authorities and photographs documenting his experiences of torture. If these documents are located, and if indeed they appear to have been produced by the Applicant in support of his original claim, I would suggest that the new RPD panel consider them in the redetermination of this matter.
C. Stage Two of the Analysis: IRPA s.109(2)
[38] I find that the RPD’s analysis of s.109(2) of the IRPA was unreasonable. While this is the primary basis on which I have concluded that the RPD’s decision cannot be sustained, my reasons for so finding are brief.
[39] The entirety of the panel’s findings on this issue are as follows:
Finally, the panel must consider whether at the time of first determination, there was sufficient evidence to justify refugee protection, notwithstanding the aforementioned misrepresentations. On this point, the panel has already made several negative findings with respect to the Respondent’s credibility to the point that his evidence and testimony cannot be relied upon as credible. To reiterate, the Respondent has conceded that the core issue of the basis for his claim for refugee protection was a complete fabrication. Consequently, the panel finds that the Respondent’s evidence as submitted to the RPD panel of first instance was thoroughly tainted through the Respondent’s omissions and admitted misrepresentations such that there is no remaining untainted evidence upon which a positive determination could have been made by the RPD panel of first instance.
[40] There are two key problems with these findings. The first is that, as noted above, it is simply inaccurate to state that the Applicant conceded that the core issue of his claim for refugee protection was a complete fabrication. A reasonable assessment of the applicability of s.109(2) of the IRPA must proceed on an accurate understanding of the nature and scope of the alleged misrepresentation and, taking this into account, assess whether other, sufficient evidence was considered at the time of the first determination to justify refugee protection. The sole paragraph that the RPD dedicated to its s.109(2) analysis calls into question whether it proceeded on this basis.
[41] The second problem is that the RPD panel concluded there was no “untainted”
evidence that could have justified an original grant of refugee protection without considering, on any level, aspects of the Applicant’s profile that may indeed have been untainted by the Applicant’s misrepresentations. In particular, I would note that the Applicant identified his atheism, his Kurdish ethnicity, and his status as a returned asylum seeker as important aspects of his claim for refugee protection. Indeed, much of the first five paragraphs of the Applicant’s PIF narrative were dedicated to his atheism, and to his objection to the religious oppression imposed by the Iranian state.
[42] At the very least, it was incumbent on the RPD to consider these aspects of the Applicant’s identity. If the RPD was of the opinion that the Applicant’s misrepresentations related to his asylum claim in Australia and his final detention in Iran called into question these seemingly independent grounds of persecution, it was required to explain why this was the case. Moreover, this explanation must be the product of a rational chain of analysis, based on the evidence that was before the original RPD panel, taking into consideration the procedural irregularities in this case. At the very least, I would note that the Applicant’s PIF narrative constituted evidence in support of his original claim, and the RPD vacation panel was therefore required to consider all of the grounds set out in it, in arriving at its conclusions.
VI. CONCLUSION
[43] For all of the above reasons, this application for judicial review is granted. The parties did not propose a question for certification, and I agree that none arises in this case.
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