Ottawa, Ontario, August 29, 2005
PRESENT: MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
WALEED ALI SETHI,
FAXID ALI SETHI,
RADIA WAZIR SETHI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "RPD"), dated January 26, 2005, where an application to vacate the applicants' refugee status was granted.
FACTUAL BACKGROUND AND RPD DECISION
[2] There are four applicants: one mother and her three children, all citizens of Pakistan. The applicants were found to have a well founded fear of persecution in Pakistan, and they were granted refugee status on November 26, 1998.
[3] On August 14, 2003, the respondent brought an application to vacate the applicants' refugee status pursuant to section 109 of the Act and section 57 of the Refugee Protection Division Rules, SOR/2002-228, alleging that it had been obtained on the basis of wrong or misrepresented facts.
[4] The RPD concluded that the applicant deliberately or indirectly misrepresented or withheld relevant material facts relating to their application for refugee status, and that there did not exist sufficient evidence to support the tribunal's original decision granting refugee protection. Accordingly, the decision rendered in November 1998 was nullified.
[5] The RPD highlighted factual misrepresentations and related points in arriving at its decision.
[6] First, the applicant used different names when traveling to Canada (Sethi) as compared to when she traveled to the U.S. (Shaikh). On the applicant's Personal Information Form (PIF), the applicant's surname as well as the surname used for each of her children appears as "Sethi"; her ex-husband's name is indicated as Wazir Ali Sethi. In an affidavit addressed to Citizenship and Immigrated Canada, dated December 20, 1999, the applicant used Sethi as her surname as well. However, in a letter dated December 29, 1999 to the U.S. Immigration and Naturalization Services (INS), the applicant wrote that the name of her husband was Wazir Shaikh, and she used that surname - Shaikh - for herself and her children.
[7] Second, according to the INS Central Index System, and by the applicant's own admission, she arrived in the U.S. on January 17, 1997 whereas her PIF indicated that she was in Pakistan until March 1998. Furthermore, the applicant (and her children) obtained a visitor's visa to enter the U.S. using the surname Saed, which is not included in her PIF.
[8] Third, the narrative of the applicant's PIF only indicates some separation from her husband when he was in Karachi while she and the children lived in Sialkot. However, in the letter written to INS, the applicant indicated that her husband went to Dubai, then to the U.K. and then the U.S. in 1989.
[9] The applicant admitted at the hearing that her former husband saw her only occasionally, returning from Dubai, the U.K. or the U.S., but abused her physically when he did. Indeed, until the applicant went to join him in the U.S., the applicant had no contact with him for a period of six or more years. As such, the RPD held that her allegations of physical abuse could not be given any consideration since they did not occur in Pakistan as her PIF narrative seems to indicate.
[10] Fourth, in the applicant's December 1999 letter to the INS she wrote that she hoped that traveling to the U.S. would reunite her, husband and children as a "happy family"; and that she was "ecstatic" and "overcome with joy". The RPD determined that the Chairperson's Guidelines relating to domestic violence did not apply given the applicant's eagerness to join her husband in the U.S. Moreover, the RPD noted that the applicant was granted refugee status without the benefit of this information, which was of major importance.
[11] Fifth, while she did suffer physical abuse from her husband after arriving in the U.S. and learning that he had married multiple women, the RPD held that this was not relevant given that it did not occur in Pakistan where the applicant had alleged to be before arriving in Canada.
[12] Finally, the INS Central Index System shows that the three children received permanent legal status in the U.S. on March 12, 1998. Accordingly, pursuant to Article 1E of the Convention, that status would have excluded them from eligibility for refugee protection had the original tribunal been cognizant of that fact.
ANALYSIS
[13] Section 109 of the Act reads as follows:
| 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. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. |
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. (3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
|
[14] The jurisprudence to date has not squarely addressed what standard of review should govern in the context of an application to vacate, ostensibly, in part because the precise meaning of the analogous provision under the former Immigration Act, R.S.C. 1985, c. I-2, and what evidence may be introduced in respect thereof, were the primary issues before the Court (see for e.g., Annalingam v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 586 (C.A.); Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 501 (C.A.)).
[15] Under the former legislation, subsection 69.3(5) reads:
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. [emphasis added]
In Annalingam, supra, the Court of Appeal held that the RPD could reject the application to vacate "if, after finding that that allegations of misrepresentation are well founded, it considers nonetheless...that there remain sufficient elements justifying the awarding of the status": at para. 17. The wording of the current provision, subsection 109(2), essentially reflects this holding.
[16] More recently, in Zheng v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 749 (QL), Russell J., upheld a decision rendered by the RPD allowing the Minister's application to vacate regardless of whether patent unreasonableness or reasonableness simpliciter was controlling.
[17] Applying the factors of the pragmatic and functional approach,[1] RPD decisions are not protected by a strong privative clause[2] and materiality or relevance is a hallmark legal concept, with respect to which the RPD does not possess relative expertise vis-à-vis the Court. However, for the purposes of subsection 109(1), the RPD must assess the evidence relied upon in the first place to justify granting refugee status in light of the evidence presented during the application to vacate; namely, the new evidence presented by the Minister to show that misrepresentations were made and the refugee's own oral testimony, if any, to the contrary. And as such, the nature of the RPD's determination under subsection 109(1) is, at least in part, contingent upon its first-hand assessment of the putative refugee, her candour, general demeanour and overall credibility. This Court has repeatedly underscored that the RPD is in a privileged position in this regard (Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)(QL);
N'Sungani v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142 (F.C.)(QL)) Therefore, in my view, a high measure of curial deference is owed to subsection 109(1) determinations and patent unreasonableness is the appropriate standard to apply.
[18] However, the corollary determination made by the RPD as to whether "other sufficient evidence was considered at the time of the first determination to justify refugee protection" (under subsection 109(2)) constitutes, in my opinion, a different exercise: it is not premised, even if only in part, upon the RPD's assessment of the refugee's testimony and credibility at the time of the application to vacate. Rather, the inquiry required under subsetion 109(2) entails deciphering whether any of the evidence cited in support of the original positive determination is left "untainted" by the fact of the newly discovered material misrepresentations (see Babar v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 301 (T.D.)(QL); Duraisamy v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1915 (T.D.)(QL)).
[19] The RPD is, as stressed already, by virtue of its position adept at drawing inferences regarding the plausibility of an individual's story of persecution (Aguebor, supra) and, by the same token, judging whether misrepresentations about a relevant matter were made, based directly on the documentary and oral evidence that is submitted. But to accomplish its task under subsection 109(2), the RPD must examine the evidence from the original refugee claim hearing. The material misrepresentations having been found, this inquiry in no way depends upon the RPD's current assessment of the refugee at the hearing.
[20] In other words, the RPD is not in a privileged to position relative to this Court to undertake this exercise and determine whether other sufficient evidence in support of the initial grant of refugee status remains. Thus the standard of reasonableness simpliciter should in my view apply in respect of determinations made pursuant to subsection 109(2).
[21] In the case at bar, there is no question that misrepresentations were made and that the Board did not err in finding that the original decision was obtained as a result of misrepresenting or withholding material facts relating to a relevant matter.
[22] The applicant provided false or misleading information about the whereabouts of her husband, the occurrence of the domestic abuse, her travel to Canada, all of which was highlighted by the tribunal:
The tribunal concludes that the respondents deliberately or indirectly misrepresented or withheld relevant material facts relating to their application for refugee status. At question #2, they did not mention the name Sheikh or Saeed used in the U.S. or for traveling to the U.S. At #15, Wazir is in Pakistan; #18, the respondents were not in Pakistan from January 1997 on; #21, the respondent was never wanted by the authorities, surely not for political or religious activities; #22 and #23, they did not reveal residing or being away from Pakistan in the previous 10 years; #31, the route describe to come to Canada along with the timing stated cannot be correct since the respondents have been in the U.S. since January 1997; #37, there are many false statements; the respondents' story is false concerning events when she was not in Pakistan, therefore from January 1997; where the respondent wrote that, day by day, her husband grew more violent cannot be correct since her husband was so much away from Pakistan; moreover, what was left unsaid is that the respondent put much pressure on her husband for him to accept that they should come and join him in the U.S.. Once the tribunal set aside the misrepresented or withheld relevant material facts, there is not sufficient evidence to support the determination made by the original panel on December 7, 1998.
[23] The critical issue, however, rests on the RPD's application of subsection 109(2) of the Act.
[24] Despite these numerous misrepresentations, the applicant argues that refugee status was granted because domestic violence occurred, and the fact of its occurrence is not in doubt. Indeed, the original decision of the RPD rendered in 1998 reads in part:
[The applicant] explained that she was married against her will to a man she did not know. She alleged that he was always abusive with her throughout the marriage, that he was opposing her, among other things her religion and political opinion, but also that it was his nature to be violent against her and to treat as an object rather than a woman, as a person. She submitted some documents in support of this, among others a picture of herself with bruises on her face and some letters from a doctor in Pakistan indicating that she often had scratches and bruises on her body and a doctor's document indicating that at some point she had her wrist fractured. She testified that this was caused by her husband beating her.
The tribunal has some doubts on the religion and political aspects of the claim but found the claimant credible on the domestic violence issue. Her testimony in this regard was very emotional, there were no contradictions and her allegations in that respect are supported by the documentary evidence concerning Pakistan. [emphasis added]
[25] This evidence shows clearly that domestic violence had occurred in Pakistan. None of the misrepresentations made by the applicant undermine this evidence. Nor does any of the evidence filed by the respondent contradict these findings. While the applicant's former husband may not have lived continuously with her while in Pakistan, and some abuse also appears to have taken place when she visited him in the U.S., the medical reports are from Pakistan, not the U.S., and confirm the general story which the applicant has maintained all along: that she suffered domestic violence. Similar to Babar, supra and Duraisamy, supra, I cannot but conclude that the RPD failed to meaningfully assess whether sufficient untainted evidence remained to support the original determination.
[26] In light of this, the RPD's decision cannot be said to survive a "somewhat probing review": Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55. Therefore, I find that the RPD's conclusion that other sufficient evidence did not exist to be unreasonable.
[27] Though I have determined that reasonableness simpliciter is the applicable standard of review with respect to subsection 109(2), I would add, in the event that patent unreasonableness was held to apply, that I would find this standard to have been contravened also. The medical evidence of abuse in Pakistan is plain; thus, the RPD's conclusion is "so flawed that no amount of curial deference can justify letting it stand": Ryan, supra at para. 52.
[28] The application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS that
[1] The application for judicial review is allowed.
[2] The matter is referred back for redetermination by a newly constituted panel.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1032-05
STYLE OF CAUSE: FAUZIA WAZIR SETHI, WALEED ALI SETHI,
FAXID ALI SETHI, RADIA WAZIR SETHI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 24, 2005
REASONS FOR ORDER: Madam Justice Tremblay-Lamer
APPEARANCES:
Me Jean-François Bertrand FOR APPLICANTS
Me Édith Savard FOR RESPONDENT
SOLICITORS OF RECORD:
Me Jean-François Bertrand
83 St-Paul west
Montreal, Quebec
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT
[1] The factors comprising the pragmatic and functional approach are: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; the nature of the question - law, fact, or mixed law and fact (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).
[2] While the RPD has "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction" (subsection 162(1) of the Act), judicial review is allowed provided leave is obtained (subsection 72(1) of the Act).