Vancouver, British Columbia, December 22, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
AND IMMIGRATION
and
(aka: VICTOR FEOKTISTOV)
REASONS FOR ORDER AND ORDER
[1] The Minister of Citizenship and Immigration seeks judicial review of a decision of the Refugee Protection Division (RPD) which rejected the Minister's application to vacate the determination that Birout Wahab is a Convention refugee.
[2] The Minister argues that the RPD erred in its application of the two-step analysis set out in sections 109(1) and (2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Those sections set out the procedure by which the Minister may bring forth an application to vacate a decision granting refugee protection on the grounds that a claimant has committed a relevant misrepresentation or omission. In this case, the Minister argues in particular that the RDP erred by considering new evidence that was not before the original decision-maker in making its determination pursuant to s. 109(2) of IRPA.
[3] Alternatively, the Minister says that the RPD misapprehended the evidence put forth by the respondent, ignored the evidence presented by the Minister in respect of the Russian citizenship of the respondent and provided inadequate and insufficient reasons in respect of this issue.
[4] For the reasons that follow, the Court finds that the decision under review must be set aside.
[5] This case involves an application of sections 109(1) and (2) that does raise a question of general interest that would benefit from clarification. In particular, when, like here, a misrepresentation relates to a question of dual citizenship that is relevant to section 96(a). It nonetheless turns out that the resolution of such question would not be determinative in settling the matter at hand because the Court has found that the RDP’s decision contains other reviewable errors. Thus, no question will be certified.
I. Background
[6] Birout Wahab is an ethnic Kurd and a citizen of Iraq. He fled Iraq in 1993 and resettled in a UN refugee camp in Russia. Several years after his arrival in Russia (probably 1998), he applied for refugee status. In 2002, his application was finally rejected.
[7] The UN High Commission for Refugees then recommended resettlement. In January 2004, after interviewing the respondent, an immigration officer at the Canadian Embassy in Moscow allowed the respondent's application for protection as a member of a special class (resettlement program) under the name of Birout Wahab. The respondent arrived in Toronto on July 26, 2004, where he obtained his permanent resident visa. During his interview with the visa officer, he indicated that he had no family in Russia[1] and that he was a citizen of only one country, Iraq.
[8] Several days later, the respondent volunteered new details about a family in Russia and various steps he had taken to fraudulently obtain Russian citizenship prior to his coming to Canada.
[9] More particularly, it now appears that in 1996 the respondent bribed a Russian official to obtain what the RPD describes as "a document indicating that he had Russian Federation citizenship." This document was issued using the respondent's Iraqi name[2] and on the basis of a misrepresentation that he had married a Russian citizen.
[10] In 1999, the respondent obtained a legal change of name to Victor Vasil'evich Feoktistov. This is the name that appeared on the Russian passport issued to him in 2000.
[11] That same year, he married a woman from Armenia with whom he had been living for some years. The RPD describes her as having "a form of permanent resident status in Russia but was not a citizen of the Russian Federation at the material time of the application." The couple had two children born in Russia: a daughter in 1999 and a son in 2000.
[12] It also appears that the respondent used his Russian passport to travel prior to coming to Canada. For example, he visited Turkey and possibly Iraq.
[13] In November 2005, the respondent obtained a special travel document from the Russian Embassy because he wanted to see his sick child in Russia and his Russian passport had expired. He later obtained an extension of his passport until 2010. He did use his Russian documents to travel to Russia at that time.
[14] In October 2004, the Minister applied to vacate the decision pursuant to Section 109 of IRPA. This led to a series of judicial hearings.
[15] First, in April 2005, the respondent set forth preliminary arguments challenging the constitutional validity of s. 109 of IRPA. The respondent's main argument was that to the extent that sections 109(2) and (3) are construed so that the claim for protection of the claimant can be rejected without consideration of whether he was at risk in the Russian Federation, these provisions would violate sections 7 and 12 of the Canadian Charter of Rights and Freedoms [3].
[16] The RPD adjourned and, in September 2005, it issued a decision stating that s. 7 and 12 of the Charter were not engaged as there is no claim that the claimant could have brought against the Russian Federation while he was in Russia or now that he is in Canada. It also found that the status he obtained in Russia was illegally obtained and that the administration of justice would be brought into disrepute if the RPD were to adjudicate a refugee claim based upon a fabricated claim to citizenship. This decision was not challenged.
[17] In January 2006, the RPD heard the evidence with respect to the misrepresentations allegedly made by the respondent and the arguments in respect of s. 109(2). In an amended decision released on March 17, 2006, the Board concluded that even if there were material misrepresentations, there was sufficient evidence on file to justify a finding of refugee protection. It rejected the Minister's application.
[18] The analysis in the decision is short (about 21⁄2 pages). It is divided into two sections. Under the heading “First Step”, the RPD cites s. 109(1) and then states that "it is clear the Respondent withheld... material facts relating to a relevant matter." After considering whether the Minister had to demonstrate that the misrepresentation "caused" the officer to reach his decision or, instead, if it was sufficient that it "could have caused" such a decision, the RPD concludes by saying:
... the panel finds that the Minister has presented a prima facie case that the Respondent's misrepresentation or withholding did cause the original Canadian official to come to the determination it did."
[19] Then, under the heading “Second Step”, the RPD states that: "At this point, it is necessary to turn to the second part of the review; namely was there ‘other sufficient evidence’ in front of the original panel that could ‘justify refugee protection.’" Although the RPD notes that this exercise should be done solely on the basis of the information available to the original official, it nonetheless goes on to say that the answer to this query will depend on whether or not the respondent had Russian citizenship, or status akin to this, when his application was assessed.
[20] The next paragraph is a summary of the arguments of the Minister to the effect that the respondent not only obtained Russian citizenship in 1996, but has enjoyed the benefit of such status and been treated as a citizen since then. It ends by noting that for the Minister, until this Russian citizenship is revoked by a judgment of a Russian court as provided by Russian law, the respondent remains a Russian citizen.
[21] The RPD then turns to the respondent's evidence. It says that "he testified that he is not a Russian citizen and that the ‘document’ he obtained saying so was fraudulent." The RPD goes on to explain why it finds the testimony credible on a number of grounds (i.e. the respondent volunteered this information himself; he lied only because he was afraid of deportation to Iraq; he pursued his refugee claim with the Russian Federation; etc.). The RPD then concludes its decision as follows:
All in all I find that the Respondent is being truthful when he testified that he had no Russian citizenship. Minister's Counsel did not provide any evidence to the contrary. She relied upon a case – Zheng – which held that a passport is prima facie evidence that a person has the citizenship stated in it. In that case the country in question – the Dominican Republic – was consulted about the issue and confirmed that the claimant in question was a citizen. That is not the case here; Russia was not asked this specific question.
At law, not only may a passport be prima facie evidence of the citizenship of the person identified in it but also a person's testimony is presumed true. Which trumps which? In the panel's view the prima facie evidence is displaced by the testimony unless the Respondent's testimony is shown to be not credible. In this case the panel find that, while the Respondent has lied to Canadian officials on some matters and has been untrue, in the matter of whether he has genuine Russian citizenship his testimony is to be preferred for the reasons given above.
[my emphasis]
II. Relevant Legislation
Immigration and Refugee Protection Act
109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. Immigration Act, R.S.C., 1985, c. I-2 69.2... (2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person. ...
69.3... (5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.
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Loi sur l'immigration et la protection des réfugiés 109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait. (2) Elle peut
rejeter la demande si elle estime qu’il reste suffisamment d’éléments de
preuve, parmi ceux pris en compte lors de la décision initiale, pour
justifier l’asile. Loi sur l'immigration, L.R.C. (1985), ch. I-2 69.2 [...] (2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers. [...] 69.3 [...] (5) La section du statut peut rejeter toute demande bien fondée au regard de l'un des motifs visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut.
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III. Standard of Review
[22] In Sethi v. Canada (Minister of Citizenship and Immigration), 2005 F.C.J. No. 1443; 2005 FC 1178, Justice Danièle Tremblay-Lamer applied the pragmatic and functional analysis to determine the standards of review applicable to decisions made under sections 109(1) and (2) of IRPA.
[23] With respect to conclusions as to whether or not misrepresentations were made, she found that such questions of fact which involves the weighing of evidence produced by the Minister as well as the claimant are subject to a standard of patent unreasonableness. I agree and adopt her reasoning in that respect.
[24] I also agree with her views that a decision under s. 109(2) of IRPA (which entails determining whether the evidence left untainted by the misrepresentation(s) is nonetheless sufficient to grant refugee status) deserves less deference for it does not, among other things, involve the RPD's current assessment of the refugee at the hearing. Like my colleague, I find that such an assessment is subject to the standard of reasonableness simpliciter.
[25] The issue of whether the RPD erred in law by considering the new evidence put forth by the two parties in respect of the respondent's status in Russia while exercising his discretion pursuant to s. 109(2) is, in my view, subject to the standard of correctness. In effect, it is clear that the RPD has no special expertise in that respect.
[26] Finally, with regard to the adequacy of the reasons, there is no need to apply the pragmatic and functional analysis. The Court will set aside the decision if the RPD breached its duty to act fairly (Canada (AG) v. Sketchley 2005 FCA 404).
IV. Analysis
[27] The Federal Court of Appeal in Coomaraswamy v. Canada, 2002 FCA 113, [2002] 4 F.C. 501, and in Annalingam v. Canada (Minister of Citizenship and Immigration) 2002 FCA 281, [2002] F.C.J. No. 971, reviewed what evidence the RPD (formerly the Immigration and Refugee Board) could consider in making the determinations mandated by sections 62.2(2) (former version of s. 109(1) and 62.3(5) of the old Act (former version of s. 109(2). Those provisions are essentially the same as sections 109(1) and (2) in IRPA and so the Court is bound by these decisions.
[28] The Court must also carefully consider the other case law dealing with the former sections 62.2(2) and 62.3(5) and other aspects of the process they involved.
[29] I have reviewed the two above-mentioned decisions of the Federal Court of Appeal as well as Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 1, 191 N.R. 170 (F.C.A.); Hassan v. Canada (Minister of Citizenship and Immigration), 1999 F.C.J. 1359, para. 16; Maheswaran v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 1768; Aleman v. Canada, 2002 FCT 710; [2002] F.C.J. No. 955; Parvanta v. Canada (Minister of Citizenship and Immigration), 2006 FC 1146, [2006] F.C.J. No. 1435 at para. 23; Canada (Minister of Citizenship and Immigration) v. Yakoob, 2005 FC 1017, [2005] F.C.J. No. 1260; and Canada (Minister of Citizenship and Immigration) v. Pearce, 2006 FC 492, [2006] F.C.J. No. 646. On the basis of this review, the Court understands that the following principles are to apply when reviewing an application to vacate like the one at hand:
a) Under s. 109(1), to determine if the original decision was made as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter, the RPD must consider all the new evidence put forward by the Minister and the claimant.
b) Mens rea or the intention of the claimant is not relevant to the finding to be made under s. 109(1).
c) As the extent and nature of the material misrepresentation or withholding may be relevant to its ability to exercise its discretion pursuant to section 109(2) of IRPA, the RPD must give sufficient details in its reasons as to which misrepresented or withheld fact(s) it found material and in respect of what relevant matter. Those detailed findings will enable the RPD to consider if a particular claimant is, for example, excluded under section 98 of IRPA. Such determination must be made prior to proceeding to the second step set out in s. 109(2) and involves consideration of all the evidence on file, including the new evidence presented by both parties.
d) The RPD only needs to proceed to the s. 109(2) analysis (step two) if it is satisfied that a claimant is not excluded under section 98 of IRPA.
e) When carrying out the analysis set out in s. 109(2), the RPD can refer to its findings under section 109(1) but only to identify what "old" evidence remains untainted by the withholding or misrepresentation. The RPD cannot reassess the "old" evidence in light of new evidence adduced by the Minister or the claimant pursuant to section 109(1).The RPD cannot give any weight or even consider the new evidence produced by either party when exercising its discretion pursuant to section 109(2).
[30] Applying those principles to the decision under review, it is evident that the RPD did not consider all of the evidence produced by the parties before making its finding under section 109(1). It refers to "a prima facie case by the Minister" whereas it is clear that, at least in respect of his Russian citizenship, the applicant had adduced evidence that had to be weighed. There was also contradictory evidence as to the status of the applicant's wife in Russia and exactly what he said when he was interviewed by different officers in Canada.
[31] Furthermore, in the portion of its decision concerning section 109(1), the RPD does not explain the nature or the extent of the misrepresentations it found to be material when conducting its analysis. From the decision, it is not clear, for instance, whether the RPD accepted the following position put forth by the Minister: i) the respondent’s change of name was material insofar as it may, for example, have been relevant to complete his security check; ii) the existence of the applicant’s wife and children was material and relevant to an evaluation of the possibility of durable settlement in Canada. Likewise, it is not possible to determine whether the RPD may have instead adopted the respondent’s position that none of this information was material for the purpose of determining his status as a Convention refugee. The claimant certainly argued before the RPD that, regardless of any information he may have withheld, he never made a misrepresentation when he said that he was only a citizen of Iraq.
[32] When asked by the Court to explain what material facts were found by the RPD to have been misrepresented or withheld, the respondent took the position that, on a fair reading of the decision as a whole, the Court should conclude that the RPD accepted that he concealed all of the information included in the Minister's evidence and that all of it was material and relevant pursuant to s. 109(1).
[33] The Court finds that it would also be consistent with a fair reading of the decision to conclude that the RPD in fact only dealt with the withholding of information relating to the respondent's Russian citizenship. Why else would it only refer to a prima facie case and only deal with this issue under “Step Two”?
[34] There is no doubt that the RPD's reasons can be brief. But to be adequate, they must serve the functions for which the duty to provide them is imposed. As noted by Justice Edgar Sexton in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, at para. 22:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion ... Rather, the decision maker must set out its findings of fact and the principal evidence upon which these findings were based ... The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
[35] Having carefully read the decision several times, the Court must conclude that the reasons are not adequate in respect of the findings made under s. 109(1).
[36] It should also be noted that the RPD states that it is not entitled to look at new evidence under s. 109(2). Nevertheless, in the portion of its decision related to s. 109(2), it then goes ahead and does just that. As such, it is not clear whether this mistake is simply a matter of form (i.e. the RPD inserted its discussion of the new evidence under an inappropriate heading) or whether the RPD in fact committed a substantive error of law.
[37] But even assuming, for the moment, that the analysis of the evidence in respect of the respondent's status in Russia was meant to be part of the analysis under s. 109(1), the RPD's findings in that respect are still deficient. In effect, it appears that it either ignored some of the evidence put forward by the Minister or it failed to explain how it dealt with it.
[38] The RPD had to decide whether or not the respondent had misrepresented that he was only a citizen of Iraq. This was essential to determine in “Step Two” if there was sufficient evidence on file.
[39] Here, this should have involved two distinct findings of fact. First, the RPD had to decide whether it was dealing with foreign documents (passport and grant of citizenship) that were forged, or with genuine documents effectively issued to this claimant but on the basis of fraudulent representations.
[40] In this respect, the RPD clearly accepted the respondent's testimony. It was open to it to do so and, in any event, it does not appear that this point was contested by the Minister.
[41] This meant that the RPD then had to consider and evaluate the legal effect of the grant of citizenship obtained by the respondent in 1996 and this at the time that his application was considered by the original decision-maker. Again, this involved a distinct finding of fact as foreign law is also a question of fact. And it was not the same thing as deciding whether or not the respondent considered himself a citizen of that country. It necessarily involved looking at the Russian statutes (pages 244 and following of the Tribunal Record) put in evidence by the Minister.
[42] Although the respondent was never asked to explain his understanding of Russian law and appeared to have no special knowledge to opine on such an issue, it was indeed open to the RPD to accept his position that he was "a real" citizen of Iraq only. However, it certainly had to explain how it dealt with the other evidence that contradicted this bare statement. Instead, it says that the Minister did not provide any evidence to contradict the testimony of the respondent that he had no Russian citizenship. This indicates that the RPD misapprehended evidence or failed again to meet its duty to give adequate reasons explaining the basis on which it discarded the evidence supporting the Minister’s position on this crucial issue.
[43] In summary, the Court has found that the reasons of the RPD are inadequate insofar as they fail to identify the nature of the misrepresentation(s) put forth by the applicant and the extent to which the misrepresentation(s) may have been material. Also, the RPD has made findings based on new evidence under s. 109(2) or, at the least, given its reasons in such a way as to make it impossible to determine whether or not it committed such an error in law. Finally, the Minister submitted evidence related to the applicant’s citizenship which the RPD failed to address at all.
[44] For these reasons, this decision must be set aside. A new hearing should take place so that the Minister’s application to vacate can be reconsidered by a different panel.
ORDER
THIS COURT ORDERS that:
1. The application is granted. The decision dated March 16, 2006, is set aside.
2. The application to vacate by the Minister shall be reconsidered by a different panel.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1265-06
STYLE OF CAUSE: MCI v. BIROUT WAHAB (aka: VICTOR FEOKTISTOV)
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 13, 2006
REASONS FOR ORDER: GAUTHIER J.
AND ORDER
APPEARANCES:
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Ms. Caroline Christiaens
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Mr. Robert Kincaid
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SOLICITORS OF RECORD:
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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Robert J. Kincaid Law Corporation Vancouver, BC
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[1] From the notes at p. 202 of the transcript, it appears that he may have mentioned that he lived with someone between 1997 and 1999. He was specifically advised that if a spouse or family member was not declared he would not be able to sponsor them later.
[2] However, the Iraqi name in the Russian documents is not identical to the one used in this respondent's application.
[3] The Federal Court of Appeal deal with and rejected a similar argument in respect of the former version of these sections in the old Immigration Act, R.S.C. 1985, c. I-2 in Coomaraswamy v. Canada, (Minister of Citizenship and Immigration), [2002] 4 F.C. 501. However, the respondent argued before the RPD that this case should be distinguished because he could not make a claim against Russia while in Russia.