Ottawa, Ontario, Friday the 24th day of June 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Subsection 109(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") permits the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel"), on the application of the Minister, to vacate a previously made decision to allow a claim for refugee protection, if the RPD finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. Section 109 of the Act is set out in the Appendix to these reasons.
[2] This application for judicial review is brought in respect of the decision of the RPD allowing the Minister's application to vacate the previous determination that Mr. Kalmykov is a Convention refugee.
THE FACTS
[3] The relevant facts may be summarized as follows. In July of 2000, Vladimir Kalmykov was determined to be a Convention refugee because the Convention Refugee Determination Division of the Immigration and Refugee Board accepted that Mr. Kalmykov had a well-founded fear of persecution in Russia on the basis of a political opinion attributed to him by the Russian state. By a notice of motion dated February 10, 2004, the Solicitor General of Canada and the Minister of Citizenship and Immigration applied for an order vacating Mr. Kalmykov's refugee status on the basis that it was obtained as a result of directly or indirectly misrepresenting or withholding material facts relevant to the matter originally determined.
[4] The grounds upon which the motion was based were stated thusly:
THATthe ground(s) upon which this application is(are) based involve(s) the failure of the Respondent to advise of material facts that had these facts been known would had [sic] the result of denying refugee status of the Respondent pursuant to Article 1E of the Convention (namely: the 1951 United Nations Convention and the 1961 [sic] Protocol relating to the Status of Refugees) and that the issue of the credibility of the refugee claim of the Respondent is also questioned given evidence that is to be filed with this application.
[5] The accompanying statement of law and argument, in material part, asserted:
6. In his original Personal Information Form (see Exhibit "B") dated 20 May 1999 the Respondent indicated in paragraphs 35 and 36 therein that his claim for refugee status in Costa Rica had been refused and that he was never accorded status by the United Nations High Commissioner for Refugees. Further in his IMM 5389: Information on Admissibility to Canada and Claim to be a Convention Refugee in paragraph 27 he indicated that he had never requested to be recognized as a convention refugee in any other country. This information now is noted, based on the enclosed documents, to be not credible. The Respondent was accorded said status, that status was convertible to permanent residence status, and said status is now capable of being re-instituted.
[6] The document relied upon by the Ministers was a letter from the Ministry of the Interior and Police in Costa Rica which stated:
Mr. Vladimir Kalmikov was granted refuge in 1995. On July 15, 1998, under Resolution 0006420-98-DB, his immigration category changed from Refugee to Permanent Resident free of conditions. He was notified on August 28, 1998; a Resident Identification Document was not obtained.
Since the interested party has been out of the country more than five years, he must re-apply for residence from abroad. He must submit police certificates from the country where he is currently residing so that his application can be assessed by the National Council on Migration and if possible, a renewal will be approved.
Regarding refugee status, if refugee elements exist they must be assessed by the corresponding Department.
[7] In response to the motion to vacate his refugee status, Mr. Kalmykov swore an affidavit in which he deposed:
1. I am the respondent in this application.
2. At my refugee hearing, I did not knowingly mislead the panel. The testimony I gave I believed to be true.
3. The notification letter of August 28, 1998 that I had become a permanent resident in Costa Rica was received by my parents, not by me. I was, after all, a child at the time, aged 17. I was born October 27, 1980. I became aware that I had earlier been a permanent resident in Costa Rica only after I received the motion materials of the Minister. I then checked with my parents, who confirmed this information.
[8] The transcript of the hearing before the RPD records the following:
PRESIDING MEMBER:
[...]
We've had a brief pre-hearing conference before the hearing got underway. It was agreed at that point that it would not be necessary to ask you any questions here today, either by the Minister or by your counsel. Your counsel indicated that he would be relying on the Affidavit that you swore previously in response to the Minister's application.
What I will ask you to do, sir, here today is to attest to the contents of your Affidavit. And before I ask you to do so, I will ask you to make an affirmation here today to ensure that you are telling the truth.
CLAIMANT: Yes, sir.
PRESIDING MEMBER: Would you please stand and raise your right hand.
V. KALMYKOV (CLAIMANT), Affirmed:
PRESIDING MEMBER: Thank you. Please be seated.
Just note for the record that the exhibits in the hearing will be those exhibits that are listed on the exhibit list that I've provided both parties here earlier. There may be some additional documents that the respective parties will file with their submissions at a later date.
Mr. Matas, so would you like to proceed to have the Respondent attest to the contents of his Affidavit?
MR. MATAS: Yes.
I'm just presenting you the Affidavit you've previously signed on February 20th, 2004.
CLAIMANT: Yes.
MR. MATAS: And the question I have to ask you now is, is the information that's in this Affidavit true to the best of your knowledge?
CLAIMANT: Yes, sir.
PRESIDING MEMBER: Okay. Mr. Offrowich, any questions for the Respondent?
MR. OFFROWICH: None.
PRESIDING MEMBER I don't have any questions for you, sir. Mr. Matas, any questions?
MR. MATAS: No.
[9] A schedule was then set for the filing of written submissions.
THE DECISION OF THE RPD
[10] The RPD, in its reasons, did not address whether Mr. Kalmykov had misrepresented material facts. Rather, it focussed only on whether Mr. Kalmykov had withheld the material facts that he had been recognized as a Convention refugee in Costa Rica and had been granted permanent resident status there as a result.
[11] With respect to Mr. Kalmykov's sworn testimony that he never personally received notification that he had been granted permanent resident status, the panel wrote as follows:
The panel finds it not credible that the respondent's parents would have received a letter from the Government of Costa Rica, and that his parents would not have communicated the information contained in this letter to him, in which he was granted permanent residence in Costa Rica. Indeed, the Costa Rican authorities indicated that, "He (the respondent) was notified..." The panel further notes however that the claimant was a minor at the time that he was granted permanent residence in Costa Rica. The panel finds that the respondent was aware that he was a permanent resident of Costa Rica when he arrived in Canada in February 1999, and that he withheld this material fact from the original panel.
PRINCIPLES OF LAW APPLICABLE TO THE REVIEW OF THE RPD'S FINDING
[12] The panel's rejection of Mr. Kalmykov's testimony that he only learned after the application to vacate was commenced that he had acquired permanent resident status in Costa Rica, and its consequent finding that he knowingly withheld this fact, is reviewable on the standard of patent unreasonableness, except where the duty of fairness is engaged. When considering whether the duty of fairness was met a reviewing Court owes no deference to the decision made. It is for the Court to provide the legal answer to the question. See: C.U.P.E. v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100.
[13] Because the panel's finding was made on the basis that the panel found it to be implausible that Mr. Kalmykov's parents would not communicate to him the contents of the letter received from the government, the following non-controversial principles of law are relevant to the review of the panel's finding:
- the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.
- it is insufficient for the RPD to simply assert that a witness' testimony is implausible. The RPD must explain the reasoning behind that finding.
- where made, adverse findings of credibility must be based upon inferences reasonably drawn from the evidence and not upon conjecture or mere speculation.
- there is a distinction between reasonable inference and conjecture. In Canada(Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, the Federal Court of Appeal quoted the following with approval:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.
- if there is an area of evidence which is central to the claim, and the RPD finds the evidence to be implausible, the RPD should put its concern to the claimant in order to allow him or her an opportunity to explain why the evidence is plausible.
APPLICATION OF PRINCIPLES TO THE RPD'S FINDING
[14] Applying these principles to the finding of the RPD, as expressed in its reasons, I note first that the RPD failed to explain the reasoning behind its conclusion that Mr. Kalmykov's parents would have communicated the letter's contents to him.
[15] Further, the plausibility of a parent's conduct toward a 17-year-old child is dependent upon a number of individual factors, including things such as the nature of the relationship, and the degree of parental control exercised in the parent-child relationship, and the maturity, intelligence and independence of the child. What might be plausible in one relationship would be implausible in another. It follows that evidence as to the nature of the parent-child relationship is relevant and necessary for an inference of implausibility to be properly drawn from the evidence.
[16] In the present case there was no such evidence, because neither the Minister's representative nor the panel chose to question Mr. Kalmykov upon his sworn testimony that he did not know that he had been granted permanent resident status. This course of conduct was one open to the Minister's representative (who may have been content to argue the case upon the basis of the conceded innocent misrepresentation). It was not, however, open to the panel to reject Mr. Kalmykov's testimony on the central point of his defence to the Minister's application, without providing him the opportunity to explain why, in his circumstances, his testimony was plausible. While not every inconsistency or implausibility must be put to a witness, fairness requires the RPD to provide an opportunity to address inferences on central matters before the RPD.
CONCLUSION
[17] It follows that the application for judicial review will be allowed. Counsel posed no question for certification, and I agree that no question arises on this record.
ORDER
[18] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the RPD dated October 28, 2004 is hereby set aside.
2. The matter is remitted for redetermination before a differently constituted panel of the RPD.
Judge
APPENDIX
Section 109 of the Immigration 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. 109(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. 109(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.
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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. 109(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.
109(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9604-04
STYLE OF CAUSE: VLADMIIR KALMYKOV V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JUNE 16, 2005
REASONS FOR ORDER AND DAWSON J.
ORDER
APPEARANCES:
ALIYAH RAHAMAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER AND SOLICITOR FOR THE APPLICANT
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C.