BETWEEN:
SUSAHOSH RAHMAN
and OGGNI RAHMAN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD vacated an earlier decision that had allowed the Applicants' claims for Convention refugee status. The decision under review is dated the 15th of March, 2005.
[2] The Applicants are a woman and her two children. They are citizens of Bangladesh.
[3] The Respondent urges that the Applicants obtained Convention refugee status by directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that, when the misrepresentations and withholdings are taken into account, there remains no "sufficient evidence" to support their Convention refugee status.
[4] Before the RPD, counsel for the Minister relied on a statutory declaration of Harold Shepherd, a Hearings Officer with the Toronto Hearings and Appeals Office in the Respondent's Ministry.[1] Mr. Shepherd annexed to his statutory declaration substantial documentation, some of which was obtained from the records of the Canadian Embassy in Dhaka, Bangladesh. The documentation indicated among other things, that a visitor visa application was made at that Embassy in late 1998, by the adult Applicant on behalf of herself and her children, together with a similar application by a person purporting to be the adult Applicant's husband, not the same person identified on the Applicants' application for Convention refugee status as her husband. The visa application included photographs of three persons alleged to be the Applicants. Mr. Shepherd declared:
The photographs e-mailed from Dhaka confirmed that the visa application was made by the respondents [here the Applicants].
[5] In her closing submissions before the RPD on the vacation application, counsel noted:
...The identities of the visa [applicants] have been identified by photographic comparison which is at Exhibit (h), pages 52, 55 and 56. This comparison indicates that the respondent, Susahosh Rahman, born January 20th, 1985 in Bangladesh and the visa applicant, Shahosh Rehan, born December 29th, 1985 are one [and] the same persons and that the respondent, Oggni Rahman, born September 1st, 1993 and the visa applicant, Agnita Rehan, born June 1st, 1992 are one [and] the same. The principle respondent [here the adult Applicant] identified first off as the spouse of Masadoor Rahman, born August the 1st, 1952, however the visa application indicates that she is the spouse of the person known as Mohan Rehan who was born August 10th , 1956 in Serajgong, Bangladesh.[2]
Counsel did not take the Court to the "photographic comparison" referred to in the foregoing quotation, and the Court was unable to identify anything in the Tribunal Record before it that might have aided in photographic identification.
[6] In the reasons of the RPD supporting the vacation decision, there are three references to the photographs. The first is in the following terms:
Photographs of the Respondents supplied to the visa post were attached. [3]
[7] The foregoing reference as to an attachment is to the visa application filed at the Canadian Embassy in Dhaka in December, 1998. The RPD provides no explanation as to how it concludes that the photographs are of the "Respondents", here the Applicants, until some three pages later in its reasons where, following a statement that the respondents, here the Applicants, denied all of the allegations against them it is noted:
She [the adult Applicant] identified her photograph and those of her children from the Minister's disclosures, could not identify the individuals in the remaining two photographs, one of whom was alleged to be her husband, and could not explain how the photographs came to be in the possession of Canadian immigration authorities in Bangladesh.[4]
[8] Finally in respect of the photographs, the RPD writes:
The respondents' [here the Applicants'] photographs were provided in support of the 1998 application made by Mohan Raihan on behalf of Roksana Lais, Shahosh Raihan, and Aggnita Raihan. There is no rational or common sense explanation for their presence in their CIC files other than as part of the 1998 visa applications. They are prima facie proof these respondents are not whom they allege and nor is there agent of persecution.[5]
[9] Clearly, the RPD's conclusion that the photographs are of the Applicants is based entirely on its assertion that the adult Applicant identified her photograph and those of her children. This is, I am satisfied, central to the RPD's decision to vacate the Convention refugee status of the Applicants, a decision critical to the interests of the Applicants.
[10] A close reading of the transcript of the hearing before the RPD leading to the vacation decision discloses no acknowledgement or admission by the adult Applicant, or indeed by any other person, that the photographs at issue are of herself and her children. She was not asked by counsel for the Applicant whether the photographs were of herself and her children nor did she volunteer such an admission. When questioned at the hearing before the Court, neither counsel identified any other context in which such an admission might have been made.
[11] In her submissions at the close of the hearing before the RPD on the vacation application, counsel for the Respondent acknowledged:
The Minister has the burden of proof in establishing on a balance of probabilities that the respondent [here the Applicants] directly or indirectly misrepresented herself or withheld material facts relevant to the matter at her refugee hearing.[6]
[12] In the absence of substantial evidence linking the photographs in the Minister's evidence with the Applicants, I am satisfied that the burden on the Respondent was not met before the RPD. The RPD erred in a reviewable manner in relying on a supposed acknowledgement by the adult Applicant that the photographs were of the Applicants. In all other respects, as noted by the RPD, the Applicants denied the Respondent's allegations. The names on the visa application were different from those of the Applicants. The birth dates were different. The adult Applicant's husband identified in the visa application was different, at least in name, from the adult Applicant's husband as attested to by her.
[13] In the result, this application for judicial review will be allowed, the decision of the Refugee Protection Division that is under review will be set aside and this matter will be referred back to the Immigration and Refugee Board for re-determination by a differently constituted panel.
[14] Counsel will each have ten (10) days from the date of distribution of these reasons to exchange and file with the Court any representations that they may wish to make regarding certification of a question. Following receipt of representations or, if none are received, following expiration of the ten (10) day period, an Order will issue.
"Frederick E. Gibson"
JUDGE
Ottawa, Ontario
November 7, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2125-05
STYLE OF CAUSE: ROKSANA RAHMAN, SUSAHOSH RAHMAN and OGGNI RAHMAN
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 2, 2005
REASONS FOR ORDER: GIBSON J.
DATED: November 7, 2005
APPEARANCES BY:
John H. Guoba For the Applicants
Margherita Braccio For the Respondent
SOLICITORS OF RECORD:
John H. Guoba For the Applicants
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent