MA9-07860

RPD File No. / N° de dossier de la SPR : MA9-07860 MA9-07565 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of hearing October 17, 2013 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons November 29, 2013 Date de la décision et des motifs Panel Me Paule Robitaille Tribunal Counsel for the claimant(s) Me Meryam Haddad (for Ms. XXXX) Me Vincent Desbiens Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jean-Denis Saint-Pierre Conseil du (de la) ministre APPLICATION TO VACATE REFUGEE STATUS - S. 109 [1] The Minister of Public Safety and Emergency Preparedness,1 hereinafter referred to as the Minister, is applying under section 109 of the Immigration and Refugee Protection Act (IRPA) for vacation of the refugee status granted to XXXX XXXX XXXX and XXXX XXXX XXXX, hereinafter referred to as the respondents. [2] The Minister also seeks, in accordance with section 108 of the IRPA, the cessation of XXXX XXXX XXXX refugee protection. DE NOVO [3] This decision is pursuant to a Federal Court order quashing the decision rendered by the Refugee Protection Division on July 13, 2012, with respect to vacating the statuses of the respondents and requiring a new hearing. FACTS [4] The parties at the hearing had no objection to the summary of facts and issues written by my colleague, Member Michèle Langelier, in her July 2012 decision. Therefore for practical reasons, I will repeat her text. [5] The respondents are from Guinea. Their refugee protection claims were processed separately because they claimed refugee protection when they arrived in Canada on different dates. Refugee protection claim filed by respondent XXXX [6] Respondent XXXX claimed refugee protection on June 29, 2000, at the Immigration Canada inland offices in Montréal, alleging that he had arrived in Canada the day before at the Dorval airport with a passport that was not his.2 He stated in his Personal Information Form,3 hereinafter referred to as the PIF, that he was single. He alleged that he was a political activist and member of the "po" [rally of the people of Guinea] party and that he had been subjected to persecution for that reason. [7] His refugee protection claim was heard on January 11, 2001, and was allowed from the bench.4 He was granted permanent residence in Canada on June 20, 2002. He travelled to Africa in late 2002; his passport contains an exit stamp from Senegal dated XXXX XXXX, 2002, and an entry stamp for Canada also dated XXXX XXXX XXXX 2002.5 Refugee protection claim filed by respondent XXXX [8] Respondent XXXX arrived in Canada on XXXX XXXX, 2002, with a false passport. She alleged that she had left Guinea that day and had transited through Senegal.6 She claimed refugee protection at the Dorval airport port of entry. She stated in her PIF that she was the widow of the deceased XXXX XXXX XXXX7 and the mother of three children.8 [9] In her Personal Information Form, hereinafter referred to as the PIF, the female respondent alleged that after the death of her husband, XXXX XXXX XXXX, in XXXX 2002, she was forced to marry his brother, who was already married and was older than her. She refused this marriage, and she alleged that she was verbally, physically and sexually abused by that man, from whom she escaped on XXXX XXXX XXXX 2002, to come to Canada, where she claimed refugee protection when she arrived.9 [10] The female respondent's claim for refugee protection was heard on May 20, 2003, and was allowed from the bench.10 According to the hearing transcript, the panel found that she was credible and that her testimony matched the documentary evidence concerning the situation of women in Guinea.11 On December 17, 2007, Ms. XXXX was granted Canadian citizenship.12 INFORMATION FOLLOWING THE HEARING [11] On September 1, 2004, the Canadian authorities were informed by the Swiss authorities that respondent XXXX had been detained in Switzerland on charges of trafficking cocaine.13 It must be noted that in Switzerland, the male respondent was known by several names, including XXXX XXXX XXXX. [12] Respondent XXXX was sentenced in Switzerland for drug trafficking. According to the decision,14 he had stated the following to the Swiss authorities, with respect to his personal situation: [translation] The judges in this court duly note the accused's statements about his personal situation (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) and accept the following relevant elements. XXXX XXXX XXXX was born on XXXX XXXX XXXX 1972, in XXXX, Guinea. In XXXX 2000, he married XXXX XXXX [sic] XXXX. A child, XXXX, aged one and a half, was born of that union. His wife and son live in Montréal, Canada. He has two brothers and two sisters, who live in Morocco and Senegal. His mother lives in Guinea. He completed his compulsory education and college in XXXX. He studied XXXX at the Université de XXXX [university of XXXX] for two years. He then went to Montréal to train as a XXXX XXXX. His wife subsequently joined him. At the same time, he took a XXXX XXXX course for a year. He also trained as a XXXX for six months. In early 2004, he arrived in Switzerland by airplane. He wanted to work there as a XXXX. He landed in Geneva and stayed there for about 3 or 4 days. Since he could not work and needed money, he went to Vallorbe and applied for asylum under the name XXXX XXXX XXXX. He had left his passport with a compatriot who lived in Germany. He stayed in Vallorbe for about 20 days. When he left, his compatriot gave him back his passport and he was assigned to the XXXX XXXX XXXX XXXX XXXX centre. He then travelled in Germany for a month. After that, he returned to Switzerland, to the centre he was assigned to in XXXX XXXX XXXX XXXX XXXX. That was in XXXX or XXXX 2004. He received between 250 and 400 francs a month from the Red Cross. He stayed at the centre until XXXX 2004. His asylum application was rejected. Since then, he has stayed with friends, at the foyer XXXX XXXX XXXX the foyer XXXX XXXX XXXX, in the lower town, and with someone named XXXX. [13] Based on that information, the Minister filed this application to vacate against the two respondents on May 26, 2009. The Minister is asking the panel to vacate the respondents' refugee status under section 109 of the IRPA. He is alleging that if the panel members who allowed their respective claims for refugee status had been aware of the facts set out in this application, their decisions would have been different. ANALYSIS Subsection 109(1) of the IRPA [14] First, the panel must assess, under subsection 109(1) of the IRPA, whether the respective decisions granting refugee status to the respondents were obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. [15] To that end, this panel will first analyze the relevant facts alleged in support of the application to vacate the refugee status conferred on Ms. XXXX and will then proceed to analyze the application concerning Mr. XXXX. Vacation of refugee status granted to XXXX XXXX XXXX [16] At the vacation hearing, respondent XXXX vigorously defended the version of facts that she gave when she arrived in Canada concerning the persecution to which she was allegedly subjected in Guinea. She maintained that she was the widow of XXXX XXXX XXXX, with whom she had had three children, and that she had fled a forced marriage to her deceased husband's brother. [17] In support of her refugee protection claim, respondent XXXX had submitted the following documents to corroborate her allegations: a death certificate for Mr. XXXX,15 dated XXXX XXXX XXXX 2002; and to establish the existence of her children, judgments in place of birth certificates.16 None of these documents contained security features; they were simply handwritten or typed forms. The rest of the female respondent's evidence consisted of her testimony and the documentary evidence on the situation of women in Guinea. She had also attached to her PIF a copy of a prescription for antibiotics.17 [18] The first panel had believed the female respondent, and since the documentation in the national documentation package on Guinea corroborated her testimony, it allowed her claim for refugee protection from the bench.18 [19] The female respondent alleged that immediately after arriving in Canada, she met and developed a conjugal relationship with respondent XXXX. A child was born from that union in XXXX 200319 (10 months after she arrived in Canada). She testified that she had not met Mr. XXXX before she arrived in Canada. [20] In light of the new evidence adduced by the Minister, I find that what Ms. XXXX alleged in her refugee protection claim is not credible. The Minister has established, on a balance of probabilities, that she misrepresented the following facts: - that she is the widow of someone named XXXX XXXX XXXX; - that she has three children in Guinea; and - that she fled Guinea on XXXX XXXX, 2002, to avoid a forced marriage. [21] This leads me to conclude that there is insufficient evidence, among what was considered at the time of the first determination, to justify refugee protection. Here is the analysis that led to those conclusions. Mr. XXXX statements to the Swiss authorities [22] The statements that Mr. XXXX made at his drug-trafficking trial in Switzerland-statements that I reproduced above-shine a different light on the situation of both respondent XXXX and respondent XXXX. Among his statements, Mr. XXXX testified during the criminal trial, where this was only peripheral information, that he had been in a relationship with Ms. XXXX since 2000 and that she joined him once he had settled in Canada. [23] During the hearing before Ms. Langelier, respondent XXXX denied ever making those declarations. First, he vigorously challenged the trial judge's choice of the term [translation] "married" and explained that in the African culture, common-law spouses can describe themselves as husband and wife. I am well aware of that fact, but that is not the issue. What draws my attention is that Mr. XXXX stated-and I stress that he made his statements before an authority that had absolutely no interest in his marital status-that he had been in a relationship with Ms. XXXX since 2000, thus, when he was in Guinea. [24] During the hearing before Ms. Langelier, when confronted with that statement, which he had made to the Swiss authorities and which contradicts his claim that he met Ms. XXXX here in Montréal in early 2003, respondent XXXX first answered: [translation] "I do not know why that is written." Later during that hearing, when confronted with his statement that he had come to Canada to work as a XXXX, respondent XXXX became angry and repeated the following five times: [translation] "I did not open my mouth during the entire trial." He later stated that the people he had talked to before the trial had [translation] "taken that to write that." [25] The male respondent was then questioned as to whether it is reasonable to believe that the trial judge would have invented these statements, and whether it is reasonable to believe that the male respondent would not have testified at his own trial, despite the fact that the testimony he apparently gave there is detailed over nine single-spaced pages. At that point, the male respondent changed his answer and stated that during the trial, he simply answered the questions he was asked and that he did not understand the legal language. [26] At the hearing of October 17, 2013, before this panel, the male respondent asserted that his words were misreported by the Swiss police and judges. He added that he could not comment on their words. He also emphasized that in XXXX 2000, the day of the alleged marriage in Guinea, he was residing in Montréal. [27] I consider this entire portion of Mr. XXXX testimony to not be credible. Yes, he was in Canada in XXXX 2000, but what is evident in this text is that he and the female respondent had been a couple since at least 2000 and that she came to join him later in Canada. Furthermore, this series of explanations transformed over the course of questioning during both the first and the last hearing. I must concur with my colleague Ms. Langelier that it is hard to imagine the Swiss authorities, in a detailed nine-page decision, just inventing the connection with Ms. XXXX, his marriage in 2000 and all the rest of the evidence presented. [28] The respondents' lawyer during the first hearing, Mr. Gobeil, strongly argued that I must not give any probative value to these comments, which were reported in a decision from a foreign authority. He argued first that the stare decisis rule is not aimed at foreign decisions. I agree. He added that the comments made by the male respondent before his sentence are triple hearsay, that he did not have an opportunity to cross-examine the person who received the male respondent's comments; that the context in which those comments were heard and collected was not established; that a clerical error could have been made in the year the respondents got together; that the judge might have likened [translation] "my spouse" to "he is married;" that I must not give any probative value to it because I do not have the recording of his testimony; and that there is no mention in the decision that the male respondent knew Ms. XXXX in Guinea. Mr. Gobeil pointed out that the consequences of vacating refugee status are too serious for me to base my decision on pure speculation and hearsay. [29] In written submissions made after the hearing,20 Mr. Gobeil repeated these arguments and added that the Swiss decision bears no seal or mention that it is a true copy of the original, and no evidence of a marriage between the respondents was submitted at that trial. He stated that the judge's comments regarding the date of the respondents' marriage were purely incidental and had nothing to do with the key considerations. [30] I considered all of these arguments, but I am of the following opinion. First, the fact that the male respondent's comments that are reported in the Swiss decision are peripheral to the case strengthens their probative value in my opinion, because as this was not at issue in the male respondent's criminal trial, there is no reason that the male respondent would not have spontaneously told the truth about these facts. As for the lawyer's arguments regarding the security features missing from the document, the Act allows me to base my decision on evidence that I find to be trustworthy. [31] Finally, regarding the trigger in the present matter, that is, the respondents' marriage in 2000, as well as the triple hearsay and the fact that this panel should disbelieve it, I do not accept that argument at all. The respondents were recognized as refugees based on their testimony about their alleged persecution. No documents were submitted that would establish that these respondents were persecuted for the reasons and in the manner that they allege. Upon reading the reasons in the two positive decisions,21 rendered from the bench in both cases, it is clear that the panel members who allowed their claims placed a strong emphasis on their testimony, in the absence of written evidence of their alleged persecution. Although respondent XXXX presented membership cards for the political party to which he alleged he belonged, the entirety of his evidence of persecution depends on his testimony. Similarly, although Ms. XXXX presented a death certificate concerning her husband, the entirety of her evidence of persecution came from her testimony-the prescription is illegible and it is impossible to establish anything regarding her fear of persecution. [32] In these circumstances, it is just as reasonable to consider the male respondent's testimony in Switzerland to support the Minister's allegations. The hearsay evidence is acceptable before this panel, which is not bound by the rules of evidence in civil matters. Finally, although respondent XXXX strongly denied having ever stated that he has been in a relationship with Ms. XXXX since 2000, he did not demonstrate to me why I should believe that this part of the Swiss decision is wrong. In addition, his overall credibility was undermined by the contradictions and implausibilities that were not explained to my satisfaction. Indeed, the respondents did not adduce any credible evidence to rebut the Minister's evidence, which demonstrates that they made misrepresentations during their respective refugee protection claim hearings. For these reasons, I choose to attach full probative value to the Swiss decision submitted as Exhibit M-10, and I hold Mr. XXXX statements about his union in 2000 with Ms. XXXX and his reasons for coming to Canada, against the claimants. [33] Considering Mr. XXXX often shaky explanations, I give more weight to the information indicated in this nine-page judgment than to the male respondent's testimony. That statement completely destroys Ms. XXXX account about the death of her husband and the forced marriage that ensued. This leads me to seriously question the veracity and accuracy of the allegations made in Ms. XXXX refugee protection claim, particularly the one to the effect that she met Mr. XXXX for the first time in 2003. Respondents' vague, hesitant testimony regarding their alleged meeting in 2003 [34] During the hearings held before Ms. Langelier and before this panel, Ms. XXXX and Mr. XXXX were questioned about when exactly they had met. In each case, the testimony was vague and hesitant. [35] Questioned on this subject, the female respondent hesitated a long time and finally declared that they met in XXXX 2003. As for the male respondent, he equivocated about the dates relating to his meeting with Ms. XXXX, when they started living together and when their first son was conceived, this over six pages of transcript from the hearing before Ms. Langelier (pp. 18 to 24). One would have expected clearer, more direct testimony if the claimants had really met in Canada. [36] Their manner of testifying suggests that this story of meeting in Canada was an invention from start to finish, as alleged by the Minister. Mr. XXXX passport issued on XXXX XXXX, 2002 [37] I also considered the fact that respondent XXXX passport bears the mention [translation] "married," and the passport was issued on XXXX XXXX XXXX 2002,22 on which date he alleged that he did not yet know respondent XXXX and that he was single. Confronted with that contradiction, he maintained that this was incorrect and answered that it was his mother who had applied for his passport and that she had probably made a mistake. I cannot accept that explanation; a mother generally knows her son's marital status. [38] This indication in the male respondent's passport adds to the evidence tending to demonstrate that he was already married in XXXX 2002 when the passport was issued and that the spouse was probably Ms. XXXX. XXXX XXXX, 2002 [39] Moreover, I cannot ignore the fact that respondent XXXX returned to Canada (after being away for an undetermined period of time, because there is no evidence of his leaving Canada) on XXXX XXXX XXXX 2002, from Senegal, as shown by the stamps in his passport.23 However, XXXX XXXX XXXX 2002, is the date when respondent XXXX entered Canada and claimed refugee protection.24 They both entered at the Dorval airport and were received by the same customs officer (number 477, at booth 396), according to the stamps.25 [40] Confronted with that evidence, the respondents denied having been received by the same customs agent but answered that they absolutely did not know that they had entered Canada the same day and on the same flight; they stated that it was pure coincidence. Their lawyers argued that no negative conclusion should be drawn as a result of this, because this is purely conjecture. I reject that explanation. [41] The respondents' lawyer at the time argued that there was absolutely no evidence that the respondents [translation] "reportedly had been seen sitting side-by-side in the airplane or had any verbal exchange whatsoever." With respect, I repeat my colleague's position that there is no need for such evidence beyond a reasonable doubt, as the burden on the Minister is to establish, on a balance of probabilities, that the initial allegations are not credible in light of the new information presented. [42] Mr. Gobeil also argued that the fact that the respondents may or may not have known each other before arriving in Canada is not relevant to their claim. I do not agree with that view. This consideration is central to Ms. XXXX refugee protection claim, as she based her fear on an alleged second husband who was violent and who forcibly confined her, whereas the facts tend to show that she was in a relationship with Mr. XXXX at the time of the events that she alleged. [43] Considering all of the evidence referred to above (Mr. XXXX statement to the Swiss authorities, the [translation] "married" entry in the passport and the vague and hesitant testimony about their alleged meeting in 2003), this panel finds that that the respondents likely entered Canada together knowingly on XXXX XXXX, 2002, and that they were already a couple at the time. This considerably undermines the credibility of Ms. XXXX refugee protection claim. It also demonstrates that refugee protection was granted as a result of misrepresentations of material facts relating to whether her fear was well founded. XXXX XXXX XXXX [44] It is intriguing to note that respondent XXXX was known in Switzerland by the alias XXXX XXXX XXXX XXXX that is, the name of Ms. XXXX alleged late husband. [45] At the vacation hearings, he was questioned about the circumstances in which he used that name. He testified that he had gone to Switzerland to find his brother, who had applied for asylum in Switzerland and had disappeared. In order to find him, respondent XXXX stayed at a Red Cross camp, and XXXX is the name he gave when he registered. [46] He thus applied for applied for asylum in Switzerland under that name. When asked why he had not applied for asylum in Switzerland under the name that he alleged was his, Mr. XXXX XXXX the male respondent answered that drugs were mentioned each time he had approached the Swiss authorities, and so he had felt persecuted. As my colleague Ms. Langelier did not understand that answer, she asked the male respondent to reformulate his explanation. He answered that in Switzerland, undocumented people are accused of being drug traffickers, and so he had decided to adopt a false identity. [47] She still did not understand the explanation, and so, in a final attempt to obtain a clear answer from the male respondent, he was asked the question again. His lawyer intervened at that point and answered that it was clear: the male respondent could not have entered the Red Cross refugee camp as a refugee protection claimant since he was a Canadian resident. Ms. Langelier pointed out to the male respondent that he did not have to say that he was a Canadian resident; what was preventing him from giving his [translation] "true" identity? The male respondent answered that he was already known to the Swiss authorities under the name of Mr. XXXX; he did not want to be found by them, so he gave this fake name, XXXX XXXX XXXX. [48] These explanations are far-fetched and lacking any sense. First, the last explanation contradicts his previous testimony, in which he claimed that he had gone to Switzerland to find his brother and that he had gone to the refugee camp in the first few days of his stay. He did not explain why he was already known to the Swiss authorities. [49] But what is even more intriguing is the choice of name. When asked what had motivated him to choose that name in particular, the male respondent answered that he was inspired by his son's name. It was pointed out to him that his son's name is XXXX XXXX XXXX XXXX XXXX, not XXXX XXXX XXXX; he answered that the name XXXX is the same. [50] Furthermore, when asked, before Ms. Langelier, who in fact is XXXX XXXX XXXX, he answered: [translation] "I do not know, she [he referred to his spouse, Ms. XXXX] is the one who suggested it." The question was repeated, and that is when he added that [translation] "he is my wife's deceased husband; it is my son's everyday name." [51] Having considered all of the male respondent's explanations, I find that they are not credible. I do not believe his version of the facts at all. His reasons for having given a [translation] "false" name when he applied for asylum in Switzerland and his choice of name are unreasonable. These considerations, while not determinative by themselves, cast doubt on the male respondent's alleged identity. I do not believe that one would spontaneously give the name of one's spouse's late husband as an alias to the authorities of a country, especially the name of an individual one hardly knew. Also, the male respondent changed his testimony from question to question. Again, all of this serves to further undermine the credibility of Ms. XXXX allegations and Mr. XXXX overall credibility. [52] In short, this whole story about the alias XXXX XXXX XXXX reinforces my belief that this man is a pure invention of the respondents. This further demonstrates that there were significant misrepresentations among the central allegations of Ms. XXXX refugee protection claim. Alleged Guinean children [53] It should be noted that during her refugee status hearing in 2001, the female respondent testified that she had left her three children in the care of a friend, Mr. XXXX; as a result, her in-laws could not get hold of them, and they were safe.26 She added that she could not bring her children with her because she did not have the money.27 [54] Yet when Ms. XXXX applied for and was granted permanent residence in Canada, she did not include her three children who had remained in Guinea in her application for residence, and she never sponsored them subsequently. This matter was addressed at length during the vacation hearing with Ms. Langelier. The female respondent confirmed in response to the Minister's questions that she could not sponsor them because she did not have access to the children, who were living with her in-laws. She testified that she had never been able to contact them and did not even know where they were; in these circumstances, her lawyer at the time had suggested that she not include them in her permanent residence application because that would slow down the process. [55] This allegation contradicts her statement at the time of her refugee protection claim that when she left Guinea, she had entrusted her children to a friend, Mr. XXXX, and that she was in regular contact with them but that she could not bring them to Canada because she did not have the money.28 [56] This apparent contradiction was brought to the respondents' attention by the Minister in his written submissions to their lawyer and presented to the panel on February 29, 2012. Respondent XXXX answered that her children had been entrusted to a friend when she left, but that her in-laws subsequently took them back.29 [57] I do not accept that explanation because I find it vague and imprecise. In my opinion, the female respondent adjusted her testimony when confronted with contradictions. This contradiction casts additional doubt on the overall credibility of the female respondent and her allegations. [58] In addition, respondent XXXX had enormous difficulty remembering very simple information: when asked her children's ages at the time of the hearing before Ms. Langelier, she hesitated for a long time and had great difficulty remembering their ages. As for the age of her husband on his death, she answered: [translation] "In his forties, I do not remember." Regarding her husband's birthday, she stated: [translation] "I am really confused." First, it is reasonable to believe that a mother would know how old her children are. Second, her allegedly deceased husband was born in 1970, and at the time of his death in 2002, he would have been 32 years old, not in his forties. These additional contradictions and implausibilities further undermine the credibility of her initial allegations. [59] The Minister's representative, in these most recent submissions, those from October 17, 2013, points out that the existence of these Guinean children has been questioned since the start of this vacation application process in 2011. Ms. Langelier raised this point in her decision of July 2012. Yet since that time, the female respondent has made no effort to provide more solid evidence of the existence of these children. Her explanation, with respect to the contradiction identified above, namely about whom they are with today, is still vague. The female respondent has submitted no photograph or document other than those from 2003 (documents that can be fabricated by anyone) to establish their existence. She maintains that she has not found anything and that she has lost track of them. It is difficult for me to believe that a mother would throw up her hands and just give up looking. I question these explanations and find them to be hardly credible. [60] In light of the new evidence, the panel finds that, on a balance of probabilities, the Minister has established that these three children in Guinea are nothing more than pure fiction. [61] This allegation was relevant because it established the existence of a first husband for the female respondent and all the persecution that allegedly resulted from it. The falsity of that allegation adds to the evidence confirming this refugee protection claim's serious lack of credibility. Prescription dated XXXX XXXX, 2002 [62] Before me, the female respondent alleged that she fled from her in-laws to take refuge in Dakar, Senegal on XXXX XXXX, 2002. However, in her refugee protection claim file from 2003, she provided a medical prescription from a pharmacist in Dakar30 dated XXXX XXXX, 2002. On that date, according to her narrative, respondent XXXX was supposedly still in the clutches of her in-laws in Guinea. [63] This question was addressed at the time of her refugee protection claim hearing; the panel did not hold this fact against Ms. XXXX, and as it wrote, it found all of her testimony credible. However, in light of the new information presented, that prescription suggests that the female respondent was in Senegal on XXXX XXXX XXXX 2002. Confronted during the vacation hearing with this contradiction, respondent XXXX answered that the prescription also mentions the date of XXXX XXXX, 2002, and that is the date that should be accepted. XXXX XXXX refers to the date when she was in the hospital in Guinea. [64] Yet, at her initial hearing, the female respondent alleged that the prescription had been given to her at the hospital in Guinea to buy the medication from that pharmacist in particular. [65] The respondents' counsel, Mr. Gobeil, argued that the ruling of the first panel, which accepted the explanation given by the female respondent (the claimant at the time), cannot be called into question. I must reject that argument: the first panel did not have all the information that I have about the female respondent's situation, and this panel must reassess the evidence that was before the first panel in the light of all the facts, including the new facts presented by the Minister. This is consistent with the recent case law in the matter.31 [66] For that reason, this panel is entitled to reconsider the contradictions and implausibilities in the female respondent's evidence, even if they had not been held against her at the time. [67] Accordingly, I cannot accept the female respondent's explanation about the fact that she obtained, in XXXX, on XXXX XXXX XXXX 2002, a valid prescription for a pharmacy in Dakar. That explanation is not plausible at all, as the attending physician would have no way of knowing that the female respondent would flee her country and stay in Dakar. [68] This evidence tends to demonstrate that the female respondent was already in Dakar on XXXX XXXX XXXX 2002, which casts doubt on her narrative, in which she indicated that at the time, she was under the control of her deceased husband's brother. [69] Once again, the new evidence in the file and this portion of Ms. XXXX testimony demonstrate to what extent this story of a deceased husband and a forced marriage is one that has been invented for the purpose of obtaining refugee protection in Canada. Conclusion [70] Consequently, this panel finds that respondent XXXX story is completely fictional. In light of the evidence as a whole, on a balance of probabilities, I find that none of these allegations (marriage to XXXX XXXX XXXX, his death, children in Guinea, forced marriage, fleeing to Senegal on XXXX 22, 2002) are believable. In short, there remains no other credible evidence that could justify granting refugee protection. [71] Accordingly, after considering all of the evidence, and for the reasons I have just explained, I find that if the panel who allowed the refugee protection claim had been aware of the facts known by the present panel, the determination would have been different. [72] Finally, I conclude that, since the new evidence adduced by the Minister demonstrates that the allegations in the refugee protection claim were misrepresentations, there is insufficient evidence, among what was considered at the time of the first determination in respect of Ms. XXXX, to justify refugee protection, in accordance with subsection 109(2) of the IRPA. Vacation of refugee protection granted to Mr. XXXX XXXX [73] In light of all of this new evidence and the analysis of the respondents' testimony, it is clear that Mr. XXXX played a decisive role in falsifying Ms. XXXX refugee protection claim. His overall credibility is undermined as a result. As was demonstrated above, his explanations in his testimony relating to this alias, XXXX XXXX XXXX, and his relationship with Ms. XXXX were often contradictory, changing and lacking in plausibility. I clearly explained why I attached more probative value to the Swiss decision than to these shaky explanations provided by Mr. XXXX. [74] Mr. XXXX stated to the Swiss authorities that he had come to Canada to work as a XXXX, not by reason of any alleged political persecution. Confronted with this statement, he changed his testimony as he went along. As I explained above, he began by maintaining that he had said nothing to the Swiss authorities and that this was invented by the Swiss judges. He then acknowledged that he had conversed with some police officers informally and that his words had been misinterpreted and misreported. He testified as well that one of the police officers suggested that he should have gone XXXX XXXX-hence, the error in the decision. And then finally, he changed his testimony again, stating that, at the trial, he answered the judge's questions. [75] This testimony, which changed as it went along to adapt to the questions that were asked, is simply not credible. For that reason, I give far more weight to the statements reported in that decision-statements made before a totally disinterested authority-than to Mr. XXXX testimony. [76] Furthermore, nowhere in that decision is it mentioned that the male respondent had any political problems in Guinea. In Switzerland, he used a false name, associated with dubious people and sold cocaine. Such delinquent behaviour is certainly not that of an individual fearing deportation to his country of origin. Confronted with this, the male respondent testified that he regretted those choices. However, the fact remains that playing with fire in such a way is not the behaviour of a man purporting to be in danger in his country of origin. [77] Thus, in light of all of the evidence and on a balance of probabilities, I find that the Minister has demonstrated clearly that Mr. XXXX never had political problems in Guinea. [78] Consequently, after considering all of the evidence, and for the reasons set out above, I am of the opinion that, in the case of respondent XXXX, had the panel who allowed the refugee protection claim been cognizant of the facts known by the present panel, the determination would have been different. [79] Moreover, given the respondents' misrepresentations, which extend to all of their allegations of persecution, there is insufficient evidence, among what was considered at the time of the first determination in respect of Mr. XXXX, to justify refugee protection, in accordance with subsection 109(2) of the IRPA. Determination with respect to Ms. XXXX and Mr. XXXX refugee protection claims [80] I determine that the respondents obtained refugee status by misrepresenting material facts relating to a relevant matter concerning their claims. For that reason, I vacate the refugee status granted to XXXX XXXX XXXX and XXXX XXXX XXXX. Their claims are deemed to be rejected, and the decision that led to the conferral of refugee protection is nullified. Cessation of male respondent's refugee protection under paragraph 108(1)(a) [81] Even if I had not determined that Mr. XXXX refugee protection claim should be vacated, I am of the view that his refugee status would have still ceased under paragraph 108(1)(a) of the IRPA.32 [82] Indeed, persons who voluntarily reavail themselves of the protection of their country of nationality lose their refugee protection. The male respondent was granted refugee status on January 16, 2001. He received a passport from Guinea on XXXX XXXX XXXX 2002.33 The Minister alleged that this passport was not obtained at the request of the Canadian authorities for the purpose of obtaining permanent residence, but rather for personal use. He was leaving for Africa a few days later (a stamp shows that he returned to Senegal, a country neighbouring Guinea, with that passport on XXXX XXXX XXXX 2002). Accordingly, the Minister based the application to cease refugee protection on paragraph 108(1)(a) of the IRPA. [83] Questioned on this subject in numerous hearings, respondent XXXX testified that he had applied for this passport in response to a request from Immigration Canada for the purpose of obtaining his permanent residence. Unable to obtain the passport in time, he alleged that he managed to obtain a travel document from the Guinean embassy. He testified that he let the passport application proceed, and it was issued in XXXX 2002. But the important point, Mr. XXXX insisted, is that the intention behind applying for this passport was to obtain his permanent residence; it was not for personal use. [84] The Minister asserted that the male respondent was lying. He called attention to the information gathered in FOSS,34 which shows the Guinean document he used to obtain his permanent residence: 1) A completed permanent residence application was received on September 6, 2001, that is, more than 200 days after obtaining refugee status; 2) As the application could not be processed in the refugee class, it was processed on humanitarian and compassionate grounds. Accordingly, Mr. XXXX had to provide a passport; and 3) A Guinean passport valid until XXXX XXXX XXXX 2001, was produced. [85] Given this information, the Minister contended that the passport issued in XXXX 2002 was very likely requested for personal reasons. [86] Confronted with this information, the male respondent denied that he had a valid passport in the summer of 2001 or even when he entered Canada in 2000. He repeated that he had obtained a document from the embassy, which served as a travel document. He had no copy of that document. [87] When he was questioned about the journey to Senegal in XXXX 2002, the male respondent's answer was vague. He stated that he did not recall his date of departure. He allegedly went because his grandmother had died. It should be mentioned that this XXXX 2002 trip is the one where he returned at the same time as Ms. XXXX XXXX He alleged that this was a pure coincidence. I did not believe him.35 [88] I reject the male respondent's explanations, which are vague, evasive and implausible. I will give more weight to the detailed FOSS notes than to Mr. XXXX evasive explanations. [89] The male respondent hastened to add that, had he known he might lose his refugee status by applying for a new passport from his country, he would never have done it. He stated that he did not understand the logic of that legislative provision. The male respondent's ignorance of that legal rule is not a valid explanation. Moreover, the logic is quite simple: a person who fears persecution by the government of his country and is considered an enemy of the regime should not want to recover his citizenship from that country and reavail himself of its protection. The male respondent's behaviour stands in contradiction with his initial allegations, in which he states that the country is persecuting him and wishes to kill him. If he is acting in this way, one presumes he no longer feels in danger. His explanations did not rebut that presumption. [90] In light of the case law36 and all of the evidence, it is clear to this panel that he obtained this Guinean passport voluntarily, for personal use, without fear, and not for administrative reasons related to the Canadian government. [91] For all of these reasons, the panel concludes that the Minister has established that the male respondent voluntarily reavailed himself of the protection of his country of nationality by applying for and obtaining a passport from that country after being granted refugee status against that same country. CONCLUSION [92] For the reasons set out above, the panel vacates the refugee status granted to XXXX XXXX XXXX and to XXXX XXXX XXXX. [93] And even if I had not vacated Mr. XXXX refugee status, I am of the opinion that, in his case, refugee protection has ceased under paragraph 108(1)(a). Paule Robitaille Paule Robitaille November 29, 2013 Date IRB translation Original language: French 1 In the applications to vacate concerning the two respondents, the Minister, the applicant in this case, was identified as the "Minister of Public Safety and Emergency Preparedness." The name of this department has since changed, but its designation in the IRPA has not changed, which is why the panel has chosen to use this name in this decision. Note that the Minister submitted to the panel two separate applications to vacate, one for each respondent, and filed separate exhibits for each application, but since they were assigned the same numbers, when I refer to a specific exhibit, I will indicate which application the exhibit goes with. 2 See Exhibit M-1: [Translation] "Notification of claim to be a Convention refugee," in the application to vacate concerning Mr. XXXXXX. 3 See Exhibit M-3 in the application to vacate concerning Mr. XXXXX. 4 See the positive decision for the refugee protection claim filed by Mr XXXXXX, submitted as Exhibit M-4 in the application to vacate concerning him; the reasons for the positive decision are found at pages 60 to 63 of the transcript from his hearing, submitted into evidence. 5 See Exhibit M-17: male respondent's passport, at page 91. 6 See the statement from Ms. XXXXX on form IMM-5474, Schedule 1, in answer to question C, submitted as Exhibit M-11 in the application to vacate concerning respondent XXXXX. 7 See respondent XXXXX PIF, in answer to question 13, submitted as Exhibit M-3 in the application to vacate concerning her. 8 Exhibit M-3 in the application to vacate concerning Ms. XXXXX, question 15. 9 This information was taken from the Personal Information Form, submitted as M-3 in the application to vacate concerning Ms. XXXXXX. 10 See the positive decision submitted as Exhibit M-4 in the application to vacate concerning Ms. XXXXX; the reasons were rendered from the bench and are reproduced at pages 38 to 40 of the transcript from her hearing, which was submitted into the evidence. 11 See the reasons for the positive decision for Ms. XXXX, at pages 38 to 40 of the transcript from her hearing, a copy of which was sent to the parties. 12 See Exhibit M-16 FOSS record for Ms. XXXX. 13 See exhibits M-6 to M-9 of the application to vacate concerning respondent XXXX. 14 The Swiss decision, dated June 30, 2005, was submitted as Exhibit M-10 in support of the application to vacate concerning respondent XXXXX; in particular, see paragraph E, at pages 40-41. 15 See Exhibit M-3, page 29, in the application to vacate concerning Ms. XXXXX. 16 See Exhibit M-3, pages 31 to 32, in the application to vacate concerning Ms. XXXXX. 17 Exhibit T-1. 18 See the transcript filed after the hearing, at pages 38 to 40; the parties were invited to make additional arguments following this disclosure, and both did so. 19 See Exhibit D-3: birth certificate for XXXXX XXXXXX. 20 See [translation] "submission" filed on January 24, 2012. 21 The hearing transcripts were entered in the record: the decision for Ms. XXXX is found at pages 38 to 40 of the transcript from her hearing, and the decision for Mr. XXXXXX is found at pages 60 to 63 of the transcript from his hearing. 22 See Exhibit M-17: Mr. XXXXXX passport, at pages 87-89. 23 See Exhibit M-17, at page 91. 24 See Exhibit M-1: Ms. XXXXX initial refugee protection claim form, dated November 24, 2002; more specfically, see page 7, XXXXX by an immigration officer. 25 See Ms. XXXXXX customs declaration, submitted as Exhibit T-2. 26 See the transcript mentioned previously, at pages 9 and 24. 27 See the transcript mentioned previously, at page 27. 28 See the transcript from the female respondent's hearing. 29 See the affidavit from the female respondent dated March 14, 2012, submitted as S-2. 30 The prescription was submitted to the panel in the present matter as Exhibit T-1. 31 See Waraich v. Canada, (F.C., No. IMM-171-10), Shore, December 9, 2010; 2010 FC 1257. 32 108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: o (a) the person has voluntarily reavailed themself of the protection of their country of nationality; o (b) the person has voluntarily reacquired their nationality; o (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or o (e) the reasons for which the person sought refugee protection have ceased to exist. Marginal note: Cessation of refugee protection (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). Marginal note: Effect of decision (3) If the application is allowed, the claim of the person is deemed to be rejected. Marginal note: Exception (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. 33 Exhibit M-17. 34 Exhibit M-20. 35 See paragraphs 36 to 40 of that decision. 36 Particularly Cadena, (2012) FC 67. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RPD.29.01 (December 15, 2012) Disponible en français RPD File No. / N° de dossier de la SPR : MA9-07860 MA9-07565