MA7-02933

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. / No de dossier de la SPR : MA7-02933 Private Proceeding Huis clos APPLICATION FOR VACATION OF REFUGEE STATUS - SECTION 109 OF THE ACT Applicant Demandeur Minister of Public Safety and Emergency Preparedness Respondent Intimé XXXXX XXXXX XXXXX Date(s) and Place of Hearing Date(s) et Lieu de l'audience March 16, 2009 Montréal, Quebec Date of Decision Date de la décision May 1, 2009 Panel Tribunal Me Alain Bissonnette Claimant's Counsel Conseil du demandeur d'asile Me Jean-François Bertrand Tribunal Officer Agent du tribunal N/A Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Mélanie Leduc, CBSA Me Sébastien Da Silva, Department of Justice Canada Me Jacques-Michel Cyr and Me Carine Merrick-Moore, CSIS INTRODUCTION [1] The Minister of Public Safety and Emergency Preparedness (the Minister) requests that the decision to allow the claim for refugee protection filed by the respondent, XXXXX XXXXX XXXXX, be vacated as per section 109 of the Immigration and Refugee Protection Act (the Act). SUMMARY OF ALLEGED FACTS [2] The Minister alleged that, on February 5, 2001, the respondent claimed refugee status and signed his Personal Information Form (PIF) stating that he has a well-founded fear of being persecuted and of being subjected to a risk to his life in India1 and that, on July 5, 2001, his claim for refugee protection was allowed by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB).2 [3] The Minister alleged that, on October 19, 2005, the respondent was questioned by an immigration officer, Stewart Mackay, and that, during that interview, the respondent stated that the narrative in his PIF was false and had been fabricated by someone he had met in a XXXXX in Lasalle, one XXXXX XXXXX.3 The Minister also alleged that the respondent willingly made a solemn declaration in which he stated that the narrative presented in support of his refugee protection claim was not true and that he had come to Canada for economic reasons.4 [4] The Minister alleged that, based on that new information, it was clear that the respondent made misrepresentations before the RPD and in his PIF. [5] The Minister alleged that, in the evidence filed at the first hearing, there was no other evidence to warrant a favourable decision by the panel. [6] The respondent alleged that his statements indicating that his story, account or narrative was false were obtained fraudulently, by force based on threats and false promises made by Canadian officials. ANALYSIS [7] The two determinative issues in this case are whether the decision granting the respondent refugee protection was obtained as a result of direct or indirect misrepresentations, or of withholding material facts relating to a relevant matter, and, having found so, whether there remains sufficient evidence considered at the time of the initial determination to justify refugee protection.5 PRELIMINARY MOTIONS [8] The respondent's lawyer filed two preliminary motions that were discussed during a preparatory conference held just before the start of the hearing. The first motion asked the panel to exclude the evidence that tends to establish that the respondent admitted, at some point, that his story, account or narrative was false, because that evidence was obtained illegally, through false promises and threats.6 The second motion asked the panel to, if it could not allow the first motion, order all individuals present during the interview that took place on June 18, 2002, to testify before the panel and to disclose, at least 10 days before the hearing, all of the documents from Citizenship and Immigration Canada (CIC), the Canadian Security Intelligence Service (CSIS) and the Canada Border Services Agency (CBSA) regarding the respondent, as well as any other document that may have affected the respondent's decision to state that his narrative was false.7 [9] After hearing the submissions of the respondent's lawyer and those of the Minister's representative, as well as those of the representative of the Department of Justice Canada and those of the CSIS representatives, the panel decided to reserve judgment on those motions and to proceed with the hearing, explaining that an interlocutory decision would be made and sent to the parties in relation to each of those motions. The panel also explained that, if that interlocutory decision accepted either of the respondent's motions, in whole or in part, the hearing would then continue, taking into account that decision but that, if that interlocutory decision rejected all of the respondent's motions, that decision would be included in the panel's final determination. [10] After both hearing the submissions made during the hearing and reading the written submissions made by the Minister's representative and the respondent's lawyer,8 the panel denies both of the respondent's preliminary motions.9 [11] In terms of the first preliminary motion seeking to exclude the evidence that tends to establish that the respondent admitted, at some point, that his story, account or narrative was false, because that evidence was obtained illegally, through false promises and threats, the panel is of the opinion that, at this point, it is premature to exclude evidence when the respondent's credibility has not yet been assessed in the context of this case. The panel is also of the opinion that the court judgments presented by the respondent's lawyer in support of this first preliminary motion cannot be applied in an application to vacate because those decisions refer to principles of criminal law.10 In addition, based on Federal Court of Appeal and Federal Court of Canada rulings, the panel is of the opinion that section 7 of the Canadian Charter of Rights and Freedoms does not apply in an application for vacation of refugee status.11 Finally, the panel is satisfied that, based on its decision is this matter, the respondent will still be able to apply to a court of competent jurisdiction if he feels that his fundamental rights and freedoms have been infringed or denied through the use of evidence that, in his opinion, bring the administration of justice into disrepute. Consequently, the panel denies the respondent's first preliminary motion. [12] In terms of the second preliminary motion seeking to order all individuals present during the interview of June 18, 2002, to testify before the panel and to disclose, at least 10 days before the hearing, all of the documents from CIC, CSIS and the CBSA regarding the respondent, as well as any other document that may have affected the respondent's decision to state that his narrative was false, the panel must first consider the fact that the production of all of those documents would raise questions of national security, as the CSIS representatives indicated to him during the preparatory conference. In that connection, the jurisprudence stipulates that, where competing interests are at play, when it comes to determining which documents should be disclosed, an all-or-nothing approach is not appropriate, because the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure.12 In the present case, the panel is of the opinion that it will be possible to provide a full and proper hearing using the documents that are already part of the record. In other words, the panel's preliminary view is that it is neither relevant nor necessary for it to use its power to summon the witnesses suggested by the respondent nor to require them to produce the documents suggested by the respondent when it can perform, in a detailed manner, the inquiry that must be performed during this hearing using the documents that are already part of the record.13 Consequently, the panel denies the respondent's second preliminary motion. TESTIMONY OF THE RESPONDENT AT THE HEARING, CREDIBILITY AND PROBATIVE VALUE GIVEN TO HIS VARIOUS STATEMENTS [13] When asked, during his testimony at the hearing, why, during the interview in 2005, he stated that his story was false, the respondent replied that the official who interviewed him told him that he had all the details of the previous interview, held in 2002, that he therefore did not have to bluff, since, in 2002, he admitted that his story was false. The respondent added that the official also asked him to sign the document. [14] When asked why, during that interview in 2005, he did not tell the official that he lied in 2002, the respondent answered that he did not do so because the official told him that he did not need all the details, that he knew everything. When asked to explain why, in 2005, he did not take the opportunity to say what he stated today in 2009, the respondent replied that he did not think it was relevant or necessary to discuss all of that with people from the same office as the people who interviewed him before and that those people did not want to believe him. When asked to explain why he did not think it was necessary to say in 2005 what he was saying today, in 2009, the respondent replied that he thought that person already had all the details he provided before. [15] When asked why, between 2005 and 2009, he did not approach the Department to admit that he ultimately lied during the interview in 2005, the respondent stated that he provided the details to his lawyer. When asked where it was written in the notes from the interview in 2005 that the official referred to the interview from 2002, the respondent stated that he was not responsible for what the official wrote. When confronted with the fact that nothing in the notes from the interview in 2005 indicates that the official referred to what the claimant allegedly said in 2002,14 the respondent replied that the official told him to stick to all the details, that he could not lie, and that he could not rectify the statement that he made in 2002. When asked whether, since it is written in the interview notes15 and in the statement he signed on October 18, 2005, he was asked to voluntarily sign and that he did indeed sign a solemn declaration,16 the respondent replied that the official forced him to sign that declaration, telling him that he wanted him to put in writing what he had stated verbally. The solemn declaration signed by the respondent indicates that this declaration was made even though the signatory knew that it was true and that it has the same force and effect as if made under oath. His testimony at the hearing was also made under oath. These two statements could not contain two more different versions of the facts. [16] When asked whether, in his affidavit dated February 12, 2009,17 he indicated that the signature placed under the declaration of October 2005, was obtained by force, the respondent was hesitant but finally responded yes. Paragraphs 69 to 77 of that affidavit refer to the interview conducted in October 2005. After carefully reading each of those paragraphs, the panel notes that the respondent states in it that he thought it was to his advantage, in front of that official, to claim that the narrative in his PIF was false, remaining consistent with what he apparently stated in the interview conducted in 2002.18 Paragraph 77 of this affidavit indicates that the respondent offered no resistance when he was told to write his confession on a piece of paper and that he signed it.19 The panel is of the opinion that this statement does not amount to have stated that the declaration was obtained through the use of force and that there is a contradiction here with his testimony at the hearing. Faced with the contradiction between the respondent's statements made verbally at the hearing and the vagueness of his statement in the affidavit dated February 12, 2009, the panel is of the opinion that the respondent has given different versions of what happened at the interview in 2005 and that the differences undermine his credibility on the matter of whether the declaration signed by him was or was not made freely and voluntarily. [17] During the hearing, the respondent was asked to reread paragraphs 16 and 22 of the affidavit he signed on May 23, 2007, as part of a proceeding before the Federal Court of Canada.20 Paragraphs 16 and 22 of this affidavit contain information indicating that the claimant knew, in October 2003 and in November 2004, that an application for vacation of his refugee status was possible and was being considered by the Canadian authorities. When asked why, during the interview in 2005, when he knew about this possibility of an application for vacation of his refugee status, he repeated the same things he said in 2002, the respondent replied that he did not know what sort of power the official had, or which department he worked for, and that he, the respondent, thought he was dealing with the same people. When asked why he did not consult his lawyer before signing the declaration in October 2005, the respondent first replied that, by going to that interview, he did not know that he was going to be asked to sign such a declaration. He then responded that he did not ask that, then responded that he was not given the opportunity to talk to his lawyer, that the official told him to sign right away. The panel finds it implausible that the respondent, having been represented by the lawyer for a long time and knowing that there was a possibility that his status would be vacated, would feel forced to make a false written admission that his story was false. Therefore, the panel finds that the statement signed by him in October 2005 must receive greater probative value than the subsequent statements made by the respondent, which attempt to show that that statement was not free and voluntary. [18] By giving greater probative value to this statement signed by the respondent in October 2005, the panel must take into consideration the fact that the respondent stated that his refugee protection claim was not true and that he came to Canada to improve his economic situation and to live a better life. In the face of that new information, the panel considers that the respondent made misrepresentations before the RPD and in his PIF when he claimed refugee protection on the essential element of that claim-his story or account of all the significant and personal events relating to his fear of persecution.21 The argument put forward by the respondent's lawyer to the effect that the Minister presented no evidence of what is false, important and relevant in the respondent's story is completely wrong, since the respondent admitted in a voluntary declaration that his refugee protection claim was false, and that he did so after an interview during which, according to the notes taken by the official, the respondent stated that the narrative in his PIF was not true and that was fabricated by someone he met at a Sikh temple. CONCLUSION [19] In light of all of the respondent's testimony and of all of the evidence adduced, the panel concludes that the Minister established, on a balance of probabilities, that the decision granting the respondent refugee protection was obtained as a result of direct or indirect misrepresentations relating to a relevant matter-his story, which relates to his entire claim for refugee protection, which could not be more relevant. [20] In response to the question of whether there were other elements of proof in the evidence submitted at the first hearing that could have justified a favourable decision from the panel, the respondent's counsel asked for an additional month to prepare an answer to that question. In those written submissions, introduced more than a month after the hearing, the claimant did not present any element of proof that, in the evidence submitted at the first hearing, could have justified a favourable decision from the panel. The panel finds that the declaration signed by the respondent in October 2005 leaves no margin for interpretation as to whether there are other elements of proof that could justify a favourable decision from the panel. The decision made by the RPD on July 3, 2001, centres on the issue of whether the claimant's alleged fear of persecution is based on credible facts related to one of the five Convention grounds.22 Since the refugee protection claim is false, since his story or narrative is false because all of the important and personal events associated with his fear of persecution were invented by another person, and since the general situation of a country alone does not justify accepting a refugee protection claim,23 the panel finds that there were no other elements of proof that could have justified a favourable outcome in the decision rendered by the RPD in July 2001. [21] For these reasons, the panel determines that the decision to allow the claimant's refugee protection claim is vacated. Under subsection 109(3) of the Act, this vacation means that the respondent's refugee protection claim is deemed to be rejected. Me Alain Bissonnette May 1, 2009 Date REFUGEE PROTECTION DIVISION - MALE - APPLICATION TO VACATE REFUGEE STATUS - IRPA - SECTION 109 - DOCUMENTARY EVIDENCE - CONTRADICTIONS - CREDIBILITY - FAVOURABLE - INDIA 1 Paragraphs 1 and 2 of the application for vacation of status and documents filed as Exhibit M-1. 2 Paragraph 3 of the application for vacation of status and documents filed as Exhibit M-2. 3 Paragraphs 4 and 5 of the application for vacation of status and documents filed as Exhibit M-3. 4 Paragraph 6 of the application for vacation of status and documents filed as Exhibit M-4. 5 Mansoor Kashif v. Canada (Citizenship and Immigration), IMM-5238-06, de Montigny, April 20, 2007; 2007 FC 420, au paragraph 23. 6 Paragraphs 1 to 3 and 10 to 14 of the motions filed by the respondent. 7 Paragraphs 4 to 8 of the motions filed by the respondent. 8 Mélanie Leduc, Counsel for the Minister, Canada Border Services Agency, Observations écrites suite à une audience, dated March 18, 2009, and received by the IRB the same day, 5 pages. Bertrand, Deslauriers, Observations écrites, dated April 21, 2009, and received by the IRB the same day, 8 pages. 9 Contrary to the statement made by the respondent's lawyer at paragraph 9 of his written submissions, the panel did not make this decision before receiving these written submissions. 10 R. v. Spencer, 2007 CSC 11; R. v. Oickle [2000] 2 R.C.S. 3 and R. v. Singh, 2007 CSC 48. 11 Logeswaren c. Canada (Minister of Citizenship and Immigration), IMM-2970-04, Snider, March 29, 2005; 2005 FC 419, at paragraph 19 and Coomaraswamy v. Canada (Minister of Citizenship and Immigration), A-104-01, Rothstein, Sexton and Evans, April 26, 2002; (C.A.) [2002] 4 FC 501, at paragraphs 23 and 24. 12 Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, IMM-3443-05, Tremblay-Lamer, July 19, 2005; 2005 FC 1000, at paragraph 37. 13 Idem, paragraphs 21 to 25. 14 Exhibit M-3: Copy of Interview Notes completed by Stewart MacKay, Investigation and Removals Officer, Canada Border Services Agency, in Montréal, dated October 19, 2005, concerning the Respondent (pp. 20-22). 15 Exhibit M-3: last page (p. 22). 16 Exhibit M-4: Copy of Declaration completed and signed by the Respondent on October 18, 2005 (pp. 23-24). 17 Exhibit R-1: Affidavit of XXXXX XXXXX XXXXX dated February 12, 2009, particularly at paragraphs 69 to 77. 18 See especially paragraph 76 of this affidavit: "I was afraid that if I recanted my 'confessions' of 2002, at this interview of 2005, not only would immigration not believe my recant, but I risked losing whatever capital of sympathy I concluded they had kept for me." 19 Paragraph 77 reads as follows: "So, I stuck to my 'confession' with this officer. I also did not offer any resistance when I was told to write it on a piece of paper and sign it." 20 Affidavit of XXXXX XXXXX XXXXX, Federal Court IMM-1498-07. This document was one of the annexes included in Exhibit R-2: Affidavit of XXXXX XXXXX dated February 19, 2009, which included 10 annexes. 21 To which the respondent should have referred to in response to question 37 in his PIF. Exhibit M-1: Copy of the Personal Information Form (PIF) completed and signed by the respondent on February 19, 2001 (pp. 1-18). 22 Decision MA1-00803 on the record. 23 Minister of Public Safety and Emergency Preparedness v. Umasangar Gunasingam, IMM-2283-07, Harrington, February 13, 2008; 2008 FC 181, at paragraph 18. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA7-02933 9