VB3-03095

VB3-03095

The panel found on the balance of probabilities that the claimant withheld material facts (US status, years resident in the US, and a US criminal conviction for conspiracy to commit bank fraud) that were relevant and causally linked to the original positive RPD determination; had the original panel had that information it would have considered exclusion under Article 1F(b) and there were serious reasons to believe the claimant committed a serious non-political crime (fraud involving approximately US$961,395.76, sentencing and mode of prosecution), therefore the August 1, 2007 RPD decision was obtained by withholding/misrepresentation and is vacated under s.109 IRPA.

Citation
VB3-03095
Parties
Claimant (asylum Seeker): XXXX XXXX XXXX; Applicant (minister): Minister of Public Safety and Emergency Preparedness
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
22 August 2016
Procedural Posture
Application to Vacate Prior RPD Refugee Determination Under S.109 IRPA / Decision on Minister's S.109 Application (hearing June 21, 2016; Reasons Dated August 22, 2016)
Outcome
Minister's application allowed; original RPD decision of August 1, 2007 vacated and claimant excluded from refugee protection
Legal Topics
Vacation of Decision Under S.109 IRPA, Misrepresentation/withholding of Material Facts, Exclusion Under Article 1 F(b) Refugee Convention, Serious Non Political Crime, Credibility and Plea Agreements
Source Language
English
Immigration and Refugee Law Criminal Law Administrative Law Vacation of Decision Under S.109 IRPA Misrepresentation/withholding of Material Facts Exclusion Under Article 1 F(b) Refugee Convention Serious Non Political Crime Credibility and Plea Agreements

Case Brief

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Parties

XXXX XXXX XXXX

Claimant (asylum Seeker)

Minister of Public Safety and Emergency Preparedness

Applicant (minister)

Procedural Posture

Application to Vacate Prior RPD Refugee Determination Under S.109 IRPA / Decision on Minister's S.109 Application (hearing June 21, 2016; Reasons Dated August 22, 2016)

Legal Issues

  1. 1 Whether the claimant withheld material facts relevant to his refugee claim
  2. 2 Whether the withholding caused the original RPD positive determination
  3. 3 Whether the claimant committed a serious non-political crime attracting exclusion under Article 1F(b)

Ratio Decidendi

The panel found on the balance of probabilities that the claimant withheld material facts (US status, years resident in the US, and a US criminal conviction for conspiracy to commit bank fraud) that were relevant and causally linked to the original positive RPD determination; had the original panel had that information it would have considered exclusion under Article 1F(b) and there were serious reasons to believe the claimant committed a serious non-political crime (fraud involving approximately US$961,395.76, sentencing and mode of prosecution), therefore the August 1, 2007 RPD decision was obtained by withholding/misrepresentation and is vacated under s.109 IRPA.

Court Disposition

Minister's application allowed; original RPD decision of August 1, 2007 vacated and claimant excluded from refugee protection

Orders

  • Decision granting refugee protection dated August 1, 2007 is nullified
  • Claim of XXXX XXXX XXXX is rejected; claimant is neither a Convention refugee nor a person in need of protection