MA9-02950

RPD File No. / N° de dossier de la SPR : MA9-02950 Client ID No. / No ID client : XXXXX Private Proceeding / Huis clos Application to Vacate - Demande d'annulation Applicant(s) Minister of Public Security and Emergency Preparedness Demandeur(e)(s) Protected person(s) XXXXX XXXXXX Personne(s) protégée(s) Date(s) of hearing July 17, 2014 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons July 21, 2014 Date de la décision et des motifs Panel Mélanie Daigle Tribunal Counsel for the protected person(s) Me Jeffrey Platt Conseil(s) de la (des) personne(s) protégée(s) Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Myriam Paris-Boukdjadja Conseil du (de la) ministre REASONS FOR DECISION [1] The Minister of Public Safety and Emergency Preparedness (the Minister) is requesting, in accordance with section 109 of the Immigration and Refugee Protection Act (IRPA), the vacation of the refugee status granted on April 21, 2004, to XXXXX XXXXXX (the respondent). THE FACTS [2] The respondent arrived in Canada on XX XXXXXX, 2003, from the United States, at the Saint-Bernard-de-Lacolle border crossing, and claimed refugee protection in Canada. In her interview with the immigration officer, the respondent stated that she entered the United States on XX XXXXXX, 2003, at the JFK airport from Paris, using a French passport that belonged to a third party. [3] In her Personal Information Form (PIF) submitted in support of her refugee protection claim on December 17, 2003, the respondent stated that her name was XXXXX XXXXXX, that she was born in Cameroon on XX XXXXXX, 1972, and that she had not lived, travelled or stayed in any country other than Cameroon before claiming refugee protection in Canada on XX XXXXXX, 2003. She also stated that she had never claimed asylum or protection in any other country before coming to Canada. [4] As for the reasons that led her to claim refugee protection, in her written narrative, the respondent stated that her uncles forced her to marry a man named XXXXX XXXXXX on XX XXXXXX, 1996, and that she left her country because of the abuse she suffered at the hands of her husband, her uncles and the Cameroonian police between XXXXXX 2002 and XXXXXX 2003. [5] The respondent was granted refugee protection on April 21, 2004. [6] On XX XXXXXX, 2005, the Canadian authorities received information that the respondent had lived in the United States for three years before coming to Canada to claim refugee protection. [7] On XX XXXXXX, the Canadian authorities received confirmation from the American authorities that the respondent, named XX XXXXXX XX XXXXXX XX XXXXXX, a citizen of Cameroon born on XX XXXXXX, 1972, had entered the United States on XX XXXXXX, 2000, and applied for asylum and that after her application was denied, a removal order was issued against her, which was upheld on appeal on XX XXXXXX, 2003. [8] On January 23, 2006, the respondent provided the Canadian authorities with a signed statement in which she indicated that she had applied for asylum in the United States in XXXXXX 2000. [9] Based on that information and on the fact that the respondent could not have been subjected to persecution in her country of origin as stated in her PIF, because she was in the United States at the time of the alleged problems, the Minister filed this application to vacate on February 20, 2009. THE RESPONDENT'S ADMISSIONS [10] At the outset of the hearing, the respondent admitted the following facts: * Her name is XX XXXXXX XX XXXXXX XX XXXXXX. * She left her country on XX XXXXXX, 2000, and arrived in the United States on XX XXXXXX, 2000. She lived continuously in the United States until her departure for Canada, on XX XXXXXX, 2003. * She applied for asylum in the United States about five months after she arrived in the country. Her application was denied, and she appealed that decision; however, she did not stay in the country to wait for the final decision. * Exhibits P-2 to P-7 and P-9, which she submitted in support of her refugee protection claim are fake, because they were completely fabricated in that they were modified to reflect the information in her PIF, including her name. ANALYSIS [11] The panel must first determine, under subsection 109(1) of the IRPA, whether the decision to grant the respondent refugee status resulted, directly or indirectly, from the misrepresentation or withholding of material facts relating to a relevant matter. [12] Based on the respondent's admissions, as reported above, the panel is of the opinion that the respondent misrepresented facts relating to a relevant matter-her physical presence in her country of citizenship at the time she was allegedly persecuted there at the hands of her uncles, her husband and the Cameroonian police. [13] The panel is of the opinion that if the panel that granted her refugee status had been aware of the facts that this panel is aware of, the decision would have been different. In fact, the panel would not have believed the respondent's allegations of persecution because the respondent was not in Cameroon during the years she allegedly had problems. [14] The respondent told the panel that she had experienced all of the events described in her narrative but not at the time alleged and that she was therefore still at risk if she returned to Cameroon. [15] Based on that statement, the respondent's representative told the panel that other sufficient significant and untainted evidence was considered to uphold the determination of the first panel. [16] The panel does not agree. In fact, the panel is of the opinion that these arguments rather constitute an amended version of the initial refugee protection claim. Furthermore, a hearing on an application to vacate is not a new hearing on the person's current refugee status.1 Also, although it is possible for the person who is the subject of the application to vacate to file new evidence to try to persuade the panel that he or she did not misrepresent or withhold material facts relating to a relevant matter, he or she cannot submit a "corrected version" of events.2 [17] At the hearing, the respondent also stated that she was sincerely sorry for lying. She added that she did so because she was afraid of being sent back to Cameroon and because she had followed the advice of a cousin, the only person she knew and trusted, who had told her that her claim would be rejected if she stated that she had lived in the United States and that she had applied for asylum there. [18] Although the panel does not doubt the respondent's apologies at the hearing or even the reasons she lied, because the purpose of the analysis under subsection 109(1) of the IRPA is strictly to determine whether material facts relating to a relevant matter were misrepresented or withheld and not to determine the person's motives, intention, negligence or mens rea at the time he or she made the misrepresentations,3 the panel rejects her explanations as not material. [19] The respondent's representative stated that the panel had to consider the fact that the respondent was a woman who had been forced into a marriage in Cameroon, a widespread practice in that country. [20] At the hearing, the respondent stated, in response to a question from the Minister's representative, that she had been forced to enter into a traditional marriage on XX XXXXXX or XX XXXXXX, 1997, but in her PIF, she stated that this marriage took place on XX XXXXXX, 1996. Because this is another tainted point, the panel is of the opinion that the only factor that remains, once all the tainted factors are taken out of the equation, is the fact that the respondent is a woman from Cameroon. The panel is of the opinion that this factor would not have been sufficient to justify granting her refugee protection. [21] Given all of the foregoing, the panel concludes that insufficient untainted evidence was considered at the time of the first determination to justify granting the respondent refugee protection despite the misrepresentations, as provided in subsection 109(2) of the IRPA. CONCLUSION [22] For the foregoing reasons, under section 109 of the IRPA, the panel vacates the refugee status granted on April 21, 2004, to XXXX XXXXX. Mélanie Daigle Mélanie Daigle July 21, 2014 Date IRB translation Original language: French 1 Sayed, Ahmad Noman v. M.C.I. (F.C.T.D., No. IMM-4558-99), Dawson, October 11, 2000; Ray, Samir Chandra v. M.C.I. (F.C.T.D., No. IMM-2818-99), Tremblay-Lamer, June 9, 2000. 2 Coomaraswamy, Ranjan v. M.C.I. (F.C.A., No. A-104-01), Rothstein, Sexton, Evans, April 26, 2002; 2002 FCA 153; M.S.P.P.C. v. Gunasingam, Umasangar (F.C., No. IMM-2283-07), Harrington, February 13, 2008, 2008 FC 181. 3 M.C.I. v. Pearce, Jennifer Juliet (F.C., No. IMM-3826-05), Blanchard, April 18, 2006, 2006 FC 492. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RPD.25.18 (March 31, 2014) Disponible en français RPD File No. / N° de dossier de la SPR : MA9-02950