VB4-00066

RPD File No. / No de dossier de SPR : VB4-00066 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Vacate - Demande d'annulation Applicant The Minister of Public Safety and Emergency Preparedness Demandeur Respondent(s) XXXX XXXX Défendeur(s) (a.k.a. "XXXX XXXX") Date(s) of Hearing October 30, 2014 Date(s) de l'audience Place of Hearing Vancouver,BC Lieu de l'audience Date of Decision January 2, 2015 Date de la décision Panel J Schmalzbauer Tribunal Counsel for the Respondent(s) Alex Stojicevic, Tien Tran Conseil(s) de la (des) Barrister and Solicitor Défendeur(s) Tribunal Officer N/A Agent(e) des tribunaux Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Jane Connell Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is the decision in the vacation application from the Minister of Public Safety Canada ("the Minister") pursuant to section 109 of the Immigration and Refugee Protection Act (the "Act").1 The application from the Minister of Public Safety Canada is to vacate the refugee status of XXXX XXXX, (a.k.a. XXXX XXXX) (the "Respondent"). The hearing was held on October 30, 2014. The Respondent testified at the hearing. [2] Section 109 states the following: a. 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 and indirectly misrepresenting or withholding material facts relating to a relevant matter. b. 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. c. 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. ALLEGATIONS [3] The Minister submits that the Respondent in the case at hand has misrepresented a material fact or withheld a material fact on a relevant matter and that there is no remaining credible and trustworthy evidence on which the original panel could have conferred refugee protection on the Respondent. The Minister is seeking an order that the refugee status conferred on the respondent be vacated and that the decision be nullified. At the Hearing [4] At the outset of the hearing, the Minister had brought forward vacation proceedings against the Respondent and the Respondent's family. The Respondent's family was severed from the Respondent's application and will be heard at another date. The Respondent had the benefit of counsel prior to and throughout the hearing. The Respondent and counsel disagreed at the end of testimony and after recess counsel had withdrawn in representing the respondent. The Minister provided oral submissions at the end of the hearing. The claimant was provided a written transcript of the proceeding and directed to find representation in order to provide submissions in relation to the matter at hand. The claimant submitted submissions through counsel at the agreed upon deadline. The Fact [5] The Respondent initiated a refugee claim in March 2005 and produced the requisite forms in claiming for Canada's protection. The Respondent was found to be a convention refugee on October 25, 2006. The Respondent had identified himself as XXXX XXXX, a citizen of Iran. The Respondent had submitted in his claim for protection that he had resided in Iran until coming to Canada through Turkey on XXXX 2005. He had submitted within his Personal Information Form (PIF), that he had been repeatedly detained by authorities over his political opinion for demonstrating against the Iranian government between 2001 and 2004. He was last arrested and detained in XXXX 2004 and the authorities had been requesting his whereabouts in XXXX 2004, his family allegedly went into hiding before leaving Iran in XXXX 2005 and coming to Canada. [6] In 2008 the West Vancouver Police had investigated Mr. XXXX in relation to his conviction of possession for the purpose of trafficking of a controlled substance, in the course of this investigation personal and identification documents were seized from the Respondents' home. These documents were issued in the names of XXXX XXXX and XXXX XXXX XXXX XXXX. Documents seized from the residence included International Driver's License issued in the Netherlands and Netherlands Asylum Reporting card. Further documents indicated that XXXX XXXX had been arrested and investigated by police, on drug related charges between XXXX XXXX, 2004 and XXXX XXXX, 2004. Fingerprints of the XXXX were sent to Dutch authorities to confirm the documents in question. Dutch authorities confirmed the fingerprints of XXXX XXXX are identical to XXXX XXXX, a Dutch citizen whose last passport was issued to him on XXXX XXXX, 2002. Records from Canada's Integrated Customs Enforcement System (ICES) indicated that XXXX XXXX had travelled to and on XXXX XXXX, 2005 on a Netherlands passport. [7] Fingerprints of Mr. XXXX were confirmed by Austrian authorities as being identical to one XXXX XXXX who was arrested in XXXX XXXX, 1998 and again on XXXX 2004. ANALYSIS [8] It is trite law that the Minister has the onus of establishing the required elements to vacate the status of the Respondent. In order for the Minister to vacate the status of the Respondent, the Minister must establish that the claimant misrepresented or withheld a material fact of a relevant matter from the original panel and that this misrepresentation or withholding of a material fact could have resulted in a different decision. The panel finds that the Minister has established that the claimant misrepresented and withheld material facts of a relevant matter from the original panel. [9] The panel finds that the Respondent withheld that he is a citizen of the Netherlands. The claimant conceded in his submissions that he had filed for refugee protection in 1991 in Holland and became a citizen of Holland. He met his wife in Holland they married and had children in that country. The Respondent agreed to having lived in Holland as presented by the Minister and that during his residence there he was arrested and convicted of drug smuggling. He submits that he travelled back to Iran in 1999 and he remained in Iran until approximately 2001. The Respondent submits that he returned to Holland and thereafter, he concedes that he was arrested in 2004 for drug related charges. He submits to this panel, that he and his family arranged for false IDs and they flew through Australia before coming to Canada and subsequently filed for Canada protection under their false identities and have since lived under these assumed names. The panel finds that these are material facts withheld, as they go to the country of reference in which the claim is to be judged against. [10] Further, the panel also find that the respondent misrepresented his location and pertinent facts regarding his treatment or alleged persecution in Iran between 2004 and 2005. The Respondent conceded that he misrepresented his entire claim before the previous panel; and he conceded that he and his family were residing in the Netherlands during the time he had alleged to be in Iran as presented before the previous panel. The Respondent had conceded that he had calculated the misrepresentations in order to remain in Canada. The Respondent conceded to misrepresenting almost all of the fact before the previous panel. [11] Although the Respondent had at the hearing and in post hearing submissions, detailed why he was allegedly forced to leave Holland including his criminal lifestyle that led to threats against his family, this evidence, is new evidence. New evidence may be adduced by the Minister in relation to the issue of the existence of a misrepresentation or the withholding of material facts, and similarly a person may adduce new evidence in an attempt to persuade the panel, that he did not make the alleged misrepresentation or withholding of facts, but not to present a corrected version of events or facts. 2 [12] Considering, the foregoing, the panel finds that the Minister has established that the Respondent misrepresented or withheld a material fact related to a relevant matter from the original panel. [13] The panel in reviewing whether sufficient credible and trustworthy evidence remains in the claim that would have allowed the original panel to confer refugee protection despite the Respondent's misrepresentations and withholding of material facts. Considering, where a person misrepresented or withheld information about the existence of a country of nationality, other than one on which the claim was based, it is unlikely that any evidence of a fear of persecution in such other country would have been adduced at the original hearing and consequently there would no evidence to consider in relation to section 109(2) at the vacation hearing.3 The panel finds that there is insufficient credible and trustworthy evidence remaining that would have allowed the original panel to confer refugee protection on the Respondent. CONCLUSION [14] The panel therefore allows the Minister's application to vacate the claim of XXXX XXXX (aka XXXX XXXX). The Respondent's claim is therefore rejected and the decision that conferred him with Convention refugee status is nullified. (signed) "J.Schmalzbauer" J. Schmalzbauer January 2, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Coomaraswamy, 2002 FCA 153; Gunasingam, 2008 FC 181. 3 Zheng, 2005 FC 619. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 2 RPD.15.7 (October 2007) Disponible en français RPD File No. /Dossier : VB4-00066 RPD File No. /Dossier :VB4-00066 1