MA6-03624

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File # / No. dossier SPR : MA6-03624 Private Proceeding Huis clos APPLICATION TO VACATE Applicant Demandeur Minister of Public Safety and Emergency Preparedness of Canada Respondent Intimé XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 4th, 2007 Place of Hearing Lieu de l'audience Montréal, Québec Date of decision Date de la décision May 22nd, 2007 Panel Tribunal Paule Robitaille Claimant's Counsel Conseil du demandeur d'asile Harry Tsimberis Refugee Protection Officer Agent de la protection des réfugiés ?deposit of documents? Designated representative Représentant désigné N/A Minister's Counsel Conseil du ministre Isabelle Poulin APPLICATION TO VACATE Pursuant to section 109 of the Immigration and Refugee Protection Act (the Act) and section 57 of the Refugee Protection Division Rules of the Immigration and Refugee Board, the Minister (the applicant) served notice of an application, dated June 12th, 2006, made to the Refugee Protection Division (the Division), to vacate the positive decision of May 7th, 2002, recognizing Mr. XXXXX XXXXX as a "Convention refugee"1. The Respondent's Alleged Persecution According to his Personal Information Form (PIF) In his original PIF2 dated January 22nd, 2002, the Respondent, a Tamil, alleged that he fled Sri Lanka in XXXXX, 2001 because he was persecuted by the LTTE since XXXXX 1999 and, also, by the Sri Lanka authorities since XXXXX 2000 until his alleged departure on XXXXX 2001. In that form, there is no mention that he ever spent time in Malaysia or Singapore. He also alleged that he never had a passport of his own and escaped Sri Lanka with a false passport. The Applicant's Exhibits and Allegations The Applicant produced exhibits M-1 to M-10 to demonstrate that the respondent left Sri Lanka on XXXXX, 2001, not in XXXXX 2001 as he wrote in his PIF3, and stayed in Malaysia and Singapore before his final journey to Canada. She added that he was also detained in the United States. The Applicant submits that the respondent was issued a genuine passport. This genuine passport4 was sent to the Ministry by an anonymous individual on June 2005. This passport was examined by a CIC Counterfeit Analyst who determined the document was probably authentic. The passport contains many entry and exit stamps that demonstrate that the respondent left Sri Lanka on XXXXX, 2001, to go to Malaysia, Singapore. The American authorities indicated that the respondent was detained on XXXXX 2001, on immigration related charges5. Considering the serious misrepresentation to the IRB especially in his PIF, the Applicant submits that his allegations stated in his narrative at question 37 of his PIF are false and the applicant is of the opinion that there is no remaining credible and trustworthy evidence to justify refugee protection. Had the tribunal known these facts at the time of the hearing, the Applicant wrote, the determination that the Respondent is a "Convention refugee" would have been different. The issue The issue before the Division is to decide whether the original positive determination was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. If the Division decides that it was so, it must, in accordance with 109(2), consider if the remaining uncontradicted evidence would support the original positive decision made on May 7th, 2002. Analysis The Respondent admits that the passport received by the Canadian authorities is his document. He also acknowledged that he left Sri Lanka on XXXXX, 2001. The minister's representative raised the issue of an absence of subjective fear in this case because the claimant admitted that he stayed in Malaysia, went through Singapore and in the United States but never claim asylum. The Applicant argues that the claimant was basically "country shopping." I do not believe that the only fact that the claimant would not have claimed in Malaysia, Singapore or, even, the U.S., would have changed the decision of the original panel. There are still material elements that could support the determination made by the original panel. The facts that remained and were not misrepresented were those related to his allegations of persecution by the LTTE; these events all happened between XXXXX 1999 and XXXXX, 2001. Furthermore, the important fact that the claimant is/was a young Tamil man (the claimant was 18 at the time) from northern Sri Lanka, obviously, remains and is extremely relevant. I examined the documentary evidence from the original refugee claim. It describes a context especially harsh for young Tamil men from northern Sri Lanka during that period. This explained mostly why the claimant was accepted as a "Convention refugee" through the fast tract process. Simply on this basis, I believe that there is still sufficient evidence to support the determination made by the original panel on May 7th, 2002. As to the detention in the United States, the respondent never tried to hide it. He writes in the second last paragraph of his PIF that he was detained for two months in the U.S. CONCLUSION I find that the Respondent did not misrepresent material facts concerning his persecution, Sri Lanka. He is a young Tamil male from northern Sri Lanka and according to the documentary evidence there are many reasons to believe that that these young Tamils are targeted by the LTTE and by the Sri Lankan authorities. The allegations regarding his persecution by the LTTE were not misrepresented. He also gave clear and straightforward explanations for what happened to him on his journey to Canada and why he was lured into misrepresenting certain dates. As a whole, I do not find that his credibility was seriously tainted. In the light of what was said at the hearing in front of me on November 27th, 2006, once I have set aside the misrepresented or withheld material facts, I believe that there is still sufficient evidence to support the determination made by the original panel on May 7th, 2002. Consequently, the Division does not allow the Minister application to vacate the "Convention refugee" status of Mr. XXXXX XXXXX. Paule Robitaille Paule Robitaille May 22, 2007 Date Rc KEYWORDS - REFUGEE PROTECTION DIVISION - VACATION - APPLICATION - PERSECUTION - MALE - DISMISSED - SRI LANKA 1 " 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reasons of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country." 2 See exhibit M-2. 3 See exhibit M-5. 4 See exhibit M-7. 5 See exhibits M-9 and M-10. --------------- --------------- --------------- --------------- RPD File # / No. dossier SPR : MA6-03624 3