TB8-11918

IMMIGRATION AND REFUGEE BOARD - REFUGEE PROTECTION DIVISION - APPLICATION TO VACATE - DECISION - Record of a Decision under the Immigration and Refugee Protection Act, concerning XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX HEARING: PRIVATE HELD AT: Toronto, Ontario DATE: May 28, 2019 BEFORE: Y. Rozenszajn - Member APPEARANCES: XXXX XXXX XXXX XXXX et al - Protected Person N/A - Counsel Roger Wyse - Minister's Counsel C. Warda - Interpreter DECISION MEMBER: So, this is a decision concerning an application by the Minister of Public Safety and Emergency Preparedness. The application, which is found in Exhibit 2 of the record, is dated or at least was served on May 11th, 2018 in its latest form, although there's a history to it which I will explain in short form, later on. But, this is really an Application to Vacate the Convention refugee status of the XXXXFamily and what we're talking about here is, XXXX XXXX XXXX XXXX, who is the principal respondent, his ex-wife XXXX XXXX, their American-born son, XXXX XXXX and their Yemeni-born son, XXXX XXXX, who is actually in person in front of me today, all of which is brought pursuant to Section 109 of the Immigration and Refugee Protection Act, which I'm just going to refer to as, IRPA, from now on cause it's easier to say and this decision is being rendered from the Bench. An audio recording on a CD-ROM will be created and provided to the parties and the audio recording is the determinative version. A transcription will also be produced in paper form but the transcription does not get reviewed for any spelling errors or missing words. So, regard must be had to the audio recording which is the determinative version. There is no issues as to service in this case, at least as of today. I have two lawyers here representing two respondents, the ex-wife, XXXX and the Yemeni-born son, XXXX. There is, XXXX, the principal respondent is unrepresented but otherwise present by phone and the American-born son, XXXX is just not responding at all to this application. There's really no issues of service of documents, any problems of that sort, at least by January, the sitting of 2019 and by today, in May of 2019. There's an interesting history to this application. In 1999, the respondents were found to be Convention refugees, as citizens of Yemen and that was due to a story of harassment and persecution of a sister of the respondents who was being harassed by an important government figure. Shortly after 1999, in March of 2002, the Minister commenced a similar application to vacate under the Immigration Act as it existed back then and that was because the Minister intercepted a package of Kenyan identity documentation for both adult claimants. The Minister then sent the biometrics that he collected from the claimants for the refugee process to Kenya, in the early 2000s and the biometrics match result arrived from Kenya revealing that they are duly registered nationals of that country as of the mid 1990s and in fact, that they were even born in Kenya, all of which was contrary to what was declared in the Personal Information Forms in the Canadian refugee applications. In 2006, the Minister's Application to Vacate was abandoned or set aside because the respondents were not in the country and there was, therefore, no way to properly serve them, based on the law as it was back them. Now, this application appears to have been resuscitated in 2017, once the Yemeni-born son, XXXX, the respondent, came into Canada from the United States and provided an address for service and this really then created the 2018 application, the ability to serve everybody and, of course, the two respondents getting counsel and the various documentary responses that were provided to the Board, which creates the record that we have today, which is quite serious and a good 13 exhibits that we have, which is quite unusual for most vacation applications. Now, after the first sitting before me in January of 2019, the respondent, through an affidavit of his parents, the parents of XXXX, disclosed for the first time in apparently his immigration history, that his parents, XXXX parents, were born in what is now known today as, the State of Kenya, although back then, it was a British colony when these people were born, like, Yemen or perhaps it may have been called, a <inaudible> Kenyan birth certificates were then provided by the respondents for these two grandparents, the parent of XXXX, the principal respondent and they're in the record now and they appear to have been issued in 1991 from Kenya. Section 109 of the IRPA states as follows: "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 or indirectly misrepresenting of withholding material facts relating to a relevant matter." And Section109(2) states: "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." This is really a two-prong test. First, I have to determine whether there was a material misrepresentation or withholding of material facts relating to a relevant matter and the second step of the test, second part of the test, I have to determine whether there is any other sufficient evidence as of the original hearing, in 1999, that would have justified granting refugee protection. I've also considered the case of Guanasingham(sp) 2508FC181, which also pertains to the, how to assess Section 109 of IRPA. By way of determination, I find that the Minister has properly discharged his burden and the application meets both parts of the test for vacation and that the vacation application ought to be granted, for the following reasons: First, there is no dispute or contest that the respondents did not disclose in 1999, any connection whatsoever to Kenya. They did not disclose that they were trying to obtain documentation to be citizens of Kenya in 1994, before problems with the sister, XXXX(sp), arose and the man who was harassing her. They did not also disclose up until May of 2019, that the principal respondent's parents were both born in Kenya. In fact, the word "Kenya" does not appear anywhere in the Personal Information Form. The principal respondent that he knew at the time that his parents were born in Kenya and that he made the arrangements for Kenyan documents but, as of 1999 when he was, when they were pursuing the claim in Canada, those documents had not yet been received. A number of explanations were provided for all these omissions. For example, that these facts were not important, that having the parents being Kenyan born was something that was far out of the minds of the personal respondent. Also, cultural factors such as perhaps being a citizen of an African country is not something that's being sought after socially or culturally by Yemenis people or by the family of these respondents and that none of these facts are relevant at all to the issues with the sister, XXXX, which motivated the fleeing and setting up of the claim in Canada and they also explained that the civil war ended quickly and so they wanted to live normally. All this was really provided by way of explanation by the personal respondent. XXXX, the ex-wife, doesn't appear to remember much if anything at all about these issues and she says she was just told what to do by her ex-husband, XXXX. I find that I reject all these explanations as unreasonable because I would observe that the existence of potential countries of reference and attempts to obtain citizenships from potential countries of reference where the principal respondent has an actual descent by parentage, that I find goes to the very core of refugee protection, which, as is well-known, is only surrogate protection and that every refugee claimant is required to exhaust all of their avenues against each and every country of reference and disclosure is also required for potential country of reference to allow a refugee status determination <inaudible> tribunal like the RPD to determine that in fact, Yemen, is the only country of reference for these people. The fact that other people in the Middle East the way XXXX explained to me in Africa engaged in corrupt attempts to obtain Kenyan citizenship as is found in Exhibit 11, does not excuse the respondents from failing to disclose these attempts to gain Kenyan citizenships, especially when they have a personal connection to that country by way of the personal respondent's both parents being born there. The fact, as is stated in the grandparents' affidavits that they appear to have had no interest in obtaining Kenyan citizenship makes no difference to the duty of the respondents to disclose these facts. Now the fact that the grandparents disclosed these facts in their own applications and Canada appears to have accepted their applications and did not prevent them from getting refugee, permanent residence or citizenship, I find, does not help the claimants because these complied with their duty of disclosure. They disclosed their potential country of reference which would have allowed, at the time, the disclosure for Canada, the authorities, to analyze the situation at the time and to make a determination. I'm not privy to the analysis of the determination of potential country of residence for the grandparents by Canada in that time period and at any rate, it would be of no assistance to the claimants - sorry - to the respondents because that analysis would be informed by the state of foreign law at the time of the disclosure and that would different for every type of application at every time. In the respondents' case, in 1999, it could very well have been different from any of the other applications of the grandparents in Canada for citizenship or permanent residence. Now, given that there is some evidence by the Minister that the personal respondent and perhaps everyone else but really, the principal respondent, could have obtained Kenyan citizenship by descent, makes this material information that should have been presented to the initial RPD panel in 1999. It is not for me to analyze now in May of 2019, the law of Canadian citizenship for Kenya as it was back then in 1999 and it is not for me, as the RPD in 2019, to ask the Minister of the respondent to hunt for documents from various family members to determine if they lost their citizenship to Kenya and if so, how the respondents could have been able to re-obtain their citizenship to Kenya, as of 1999. All of this should have happened in 1999 properly with proper disclosure. The respondents, I find, withheld the parentage of the principal respondents and ties to Kenya both by reason of his blood, his family and also they withheld the personal respondents own personal efforts to obtain citizenship documents from Kenya, directly and these are really either all material misrepresentations or withholding of material facts according to a relevant matter with is identity, nationality and potential countries of reference, which goes to the core of refugee protection. I find that I draw adverse inferences to the credibility of the permanent residence of the principal respondent from his withholding of material facts about potential countries of reference in his own efforts to obtain citizenship from the same potential country of reference, that being, Kenya and I find that it's proper to apply the same adverse inferences to credibility for the rest of the respondents. Now, Counsel provided a lot of submissions on the reliability of the Kenyan documents that the Minister provided which are now in Exhibit 12 in slightly better format of photocopying. Without contesting that these are clearly photos of the claimants and that the fingerprints, as far as biometrics are in fact confirmed and there's no contest as to the biometrics match did occur and XXXX freely admits that he provided signatures and with his wife and also him and his wife at the time, did provide their fingerprints. There's no contest about those facts. There is still a number of complaints about the reliability of these documents and really, the complaints are about inconsistencies in the reference numbers for the grandparents, birth certificates from Kenya. Certain information appears to be simply inaccurate. For example, the two adult claimants being single, as opposed to them being married as they clearly were at the time and the submissions is really that these are not reliable documents and I actually prefer the Yemeni documents. I will accept the submissions. I will prefer the documents from Yemen as submitted. I find that, on a balance of probabilities, the adult claimants were born in Yemen, not in Kenya, given the mountain of what appears to be reliable Yemeni documents that has been provided to me which I will not contest. Nevertheless, I find that this does not assist the respondents because there is evidence that the Kenyan government still recognized the adult respondents by the President's office, confirmed by biometrics, notwithstanding the clear irregularities on the record of these applications and there's good reason to understand and to believe why that happened for the simply reason that the principal respondent appears to be, in fact and without contest, descended from people who were born in Kenya. There may have been at the time all sorts of reasons as to the inconsistencies, such as, a different birth certificate for the grandfather, listing the adults as single as opposed to married but the problem is that all of these concerns should be have been brought out and analyzed in 1999, not now in 2019 and the Minister should have been given a chance and the Board should have been given a chance to review these issues and to determine what the practices were at the time in Kenya. For example, is the creation of birth certificates, the creation of birthplaces in Kenya, even though perhaps not factually correct, whether they had an legitimate purpose or not. It's not - in other words - it's not my job to determine now, in 2019, why these documents say what they say. All of this should have been happening in 1999 and I also observed that there's nothing inconsistent or problematic about the principal respondent pursuing, with the use of a broker or an agent with sketchy connections and dubious methods, to get Kenyan citizenship without being too concerned or interested in pursuing a legitimate application from Kenya, based upon the descent from his parents, due to various cultural factors, such as, not wanting to ask his mom about it because they didn't like to talk about Kenya and the fact that Kenya is an African country and it was not a sought after place to be a citizen of. The fact that the principal respondent chose to try to obtain documents in a strange and perhaps, somewhat illicit way, does not mean that he was otherwise not entitled to obtain these documents in actual, legitimate means and reasons. I find that all of this establishes is just that the principal respondent chose to proceed in a corrupt fashion due to his own feelings and pressures at the time. The principal respondent also provided a letter issued recently, according to him, XXXX 2019, from the Kenyan Immigration Department saying that, probably, he is not one of our people and I quote here: "Probably not one of our people." But the problem is that this XXXX 2019 letter is from a different department of the government of Kenya. It's not from the President's Office and it does not appear to be backed by biometrics even though, it may very well be that a real employee from Kenya wrote this letter. I find that, just the fact that it is from a different department and it is not backed by biometrics or even concerned with checking biometrics, makes it a less of a reliable letter than the Minister's response from Kenya, which I believe is in page 37 of the Minister's documents in Exhibit 2. There's also a strange use of a Gmail e-mail address from this XXXX 2019 letter which really means that anybody could have set it up and that is strange that, given that Kenya is an organized country and it has sophisticated access to biometrics information, as early as the early 2000s. At the very least, it looks like the author of this letter is not privy to all the databases and biometrics information and resources of the government of Kenya. All of this I find reduces the reliability of this document. The fact that the permanent respondent - sorry - the principal respondent has access to agents or brokers who were able to obtain all sorts of documents in what he says are illicit ways, also reduces the reliable of this document, which really originates from him because we don't have any independent evidence that it did come from the government of Kenya. It's simply based on his own testimony where he says that it did. He did provide it. It was provided from him at the Consulate after making various requests and then it came to the Consulate in Jeddah, Saudi Arabia, from the government of Kenya in Kenya proper. So, I find that, even that reduces the reliability of the letter. I find it has really <inaudible> sufficient weight. I provide only - I assign only a little evidentiary weight to this letter and I find that, at any rate, this letter is not determinative because it still leaves the withholding of the principal respondents parentage information from Kenya in the initial PIF and documents in the 1999 claim and that's simply undisturbed and I find that even if I were to assign a lot of evidentiary weight to this letter which would indicate that the ID is simply not registered right now, it still doesn't mean that the claimant, the principal respondent is not entitled to citizenship by way of his parentage. It's simply not responsive to that particular misrepresentation or withholding. It does not assist the respondents in meeting that case. The 1999 panel, K. Wamar(sp), who was the presiding Member and James Waters, who rendered a decision on June 9, 1999, pursuant to Exhibit 1, the first page, were all unaware of all these facts and at the very least, the principal respondent's ability to obtain with fair ease, improperly obtained Kenyan documents, should have at the very least raised some suspicions about his other documents from Yemen at the time and caused some more enquiries as to the facts of his claim, at the very least and I find also, that disclosure of Kenya as a country of potential nationality, whether it be from the principal respondent's own efforts in 1994 or the fact that his parents were born in Kenya, I find all of which would have cause much more of an enquiry into this case, perhaps even a Ministerial intervention and it simply would not have been the same type of hearing or the same type of case and there would have been analysis of whether he is able to obtain that sort of nationality and pass it on to the rest of the family and it would have been a potential country of reference. I find that the first prong of the Section 109 test is met and there is a misrepresentation by withholding or concealing material information, more specifically, as the words are in the Act. I find that you directly or indirectly misrepresented or withheld material facts relating to a relevant matter. One may say that, he indirectly misrepresented that in fact by 1999 he probably had - was registered as a Kenyan national so that's really indirect misrepresentation or withholding but I find that he directly withheld the fact that his parents were born in Kenya and all that goes to the relevant, important matters of ID, nationality and country of reference. So, I find that the first prong is met. In my view, Kenya was a potential country of reference for the principal respondent in 1999 and I find also, it would have been a potential country of reference for the rest of the respondents as members of his family and as descendants of him, as well and, of course, being married to him, all of which would have been important to deal with as potential countries of reference and perhaps even exclusion under Article 1E for the wife, perhaps. Again, we don't have the full information as to the law at that time but I find all that should have been in1999, not in 2019. Now, in terms of the second prong, whether there is sufficient evidence at the time in 1999 that would have justified granting refugee protection, I find that the second prong ultimately also goes in favour of the Minister because there's no other sufficient evidence in 1999 that goes towards any claim against Kenya. There's nothing. Kenya does not get mentioned even in a single passing word in the Personal Information Form. There's nothing about Kenya in Exhibit 1. There's really nothing upon which the panel, in 1999, could have evaluated a claim against Kenya or the potential for Kenya to be a country of reference and I find that ultimately leads to the Minister meeting the second prong of the test. Now, Counsel provided submissions on, XXXX, the Yemeni-born son who was a toddler at the time of the 1999 claim and basically, the submission is that he's not responsible and that vestiges of the child asserted for him and analyzed and that the UN Convention of the Rights of a Child provides all these rights. I would dismiss all these submissions because it is clear that none of the concerns are recognized in Canadian law in applications for vacation under Section 109 of IRPA. It is trite law that children are bound by their parents' misrepresentations, in this case, XXXX and his father, especially when they affect the entire proceeding and are so dramatic. I find that, XXXX, is ultimately bound by the misrepresentations and withholding and concealment of his father, the principal respondent. I find that it is a potential country of reference for him, as well and also for, XXXX, the American-born son, as well. I find that these people, also the wife, XXXX, is also bound by the credibility findings and the misrepresentations of the principal respondent and his concealment and withholding, however, unfair it may seem to these respondents, since they appear to either have no memory or no knowledge of a lot of these misrepresentations, such as, the wife, for example, who asserts what sounds like, basically, a reliance upon the gender guidelines that she did what she had to do as a wife. I find that in the absence of a constitutional challenge of Section 109, I find that I cannot depart from the established jurisprudence, however, sympathetic are the facts. Simply stated, Section 109 of the IRPA is not concerned with mala fides or intentions to deceive necessarily. Innocent misrepresentations are equally caught and actionable by the Minister, as well as, misrepresentations by guilty mind. The fact is that everyone was joined to the principal respondent's claim and he misrepresented the country of reference for the entire family and I would also note that at least, XXXX, did have some knowledge of at least some of the personal efforts of the principal respondent to obtain the Kenyan citizenship. So, I find that she's not as innocent as she necessarily says that she is. But again, none of this is determinative and none of this really matters or relevant because ultimately there was a misrepresentation. There was a withholding of material facts. It went to the core of the claim and that is sufficient for a first prong and because of that, because there was a potential country of nationality, country of reference, which was withheld from the original panel, that means that there is simply no other evidence that relates to it, in 1999, that could have formed a positive decision against Kenya. So, unfortunately, this simply does not assist the claimants. Accordingly, the claims of the entire family, all the respondents, are, therefore, rejected. After considering all the evidence and especially given the, when one looks at the de novo misrepresentation or revealment of the holding of the XXXX parents parentage in these proceedings, which only came to my attention in May of 2019 and apparently also to the attention of the Minister only also in May of 2019, especially. I find that all of that justifies granting the Minister's application pursuant to Section 109 of the Immigration and Refugee Protection Act. I determine that the decision of the Refugee Protection Division conferring refugee protection on the respondents, dated June 9, 1999, is hereby nullified and of no force and effect. The claims are, hereby, vacated. Thank you for all the submissions and for appearing by phone and in person and providing testimony. This concludes today's proceedings. ---------- REASONS CONCLUDED ---------- I HEREBY DECLARE THAT THIS IS A TRUE TRANSCRIPT OF THE RECORDING AND THAT I HAVE SWORN THE OATH OF SECRECY _______________________________________ Elizabeth Stavert, Transcriptionist For DigitScribe Inc. Security# XXXX June 2, 2019 - 2 - TB8-11918 TB8-11919 TB8-11920 TB8-11921