VB4-00059

RPD File No. / N° de dossier de la SPR : VB4-00059/VB4-00060/VB4-00061 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Vacate - Demande d'annulation Applicant The Minister of Citizenship and Immigration Demandeur(e) Respondent(s) XXXX XXXXX XXXXX Personne(s) protégée(s) aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX Date(s) of Hearing October 16, 2014 Date(s) de l'audience Place of Hearing Lieu de l'audience Date of Decision October 21, 2014 Date de la décision Panel Daniel Tucci Tribunal Counsel for the Tien Tran Conseil(s) de la (des) Protected Person Barrister and Solicitor personnes protégée(s) Tribunal Officer Agent(e) des tribunaux Designated Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Jane S. Connell and Sean Carey Conseil du ministre RPD File No. / N° de dossier de la SPR : VB4-00059/VB4-00060/VB4-00061 REASONS FOR DECISION [1] This is the decision in the vacation application from the Minister of Public Safety Canada (the applicant) pursuant to Section 109 of the Immigration and Refugee Protection Act (the "Act").1 The application from the Minister of Public Safety Canada is to vacate the refugee status of XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX, XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX, and XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX aka XXXX XXXXX XXXXX (the respondents). XXXX XXXXX XXXXX and XXXX XXXXX XXXXX are citizens of Iran. XXXX XXXXX XXXXX is a citizen of the United States. The hearing was held on October 16, 2014. The respondents were represented at the hearing by counsel. Section 109 states the following: (1) The Refugee Protection Division, may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly and indirectly misrepresenting or withholding material facts relating to a relevant matter: (2) 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. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. THE ALLEGATION [2] The applicant submits that the respondents in the case at hand have directly or indirectly misrepresented material facts or withheld material facts relating to a relevant matter and that there is no remaining credible and trustworthy evidence on which the original panel could have conferred refugee protection on the respondents. The applicant is seeking an order that the refugee status conferred on the respondents be vacated and that the decision be nullified. The Facts [3] The respondents arrived in Canada in XXXX 2004. They made a refugee claim in Canada. They submitted their respective Personal Information Forms (PIFs) to the Immigration and Refugee Board (IRB). The PIFs were received by the IRB on May 17, 2004.2 They had a refugee hearing on November 8, 2004. XXXX XXXXX XXXXX was appointed as the designated representative of his minor son, XXXX XXXXX XXXXX. The respondents were found to be Convention Refugees (CR) by the IRB on that same day. A copy of the Notice of Decision is found at Exhibit 9. [4] The respondents outlined in their PIFs their reasons for fleeing Iran and travelling to Canada to seek Canada's protection. The respondents provided a detailed narrative that outlined their activities in Iran as members of the XXXX XXXXX XXXXX, a student group. XXXX XXXXX XXXXX explained that as a result of his activities with XXXX XXXXX XXXXX, he was arrested, detained and tortured on four occasions including one detention in 1999 and one in 2000. The respondents explained that they fled Iran in 2004 and made their way to Canada via Turkey and Europe and that they traveled on fraudulent Spanish passports. [5] After being granted CR status in 2004, the respondents applied for Permanent Residency (PR) in Canada. The respondents have not been granted PR status. In the process of applying for PR status, the respondents submitted their identity documents to the Department of Citizenship and Immigration Canada (CIC). The Department was not satisfied with the identity documents submitted by the respondents. The identity documents were sent to the CBSA document analysis lab which determined that the documents submitted by the respondents were counterfeit and showed signs that they had been tampered with.3 [6] The matter was then turned over to CBSA for further investigation. CBSA investigated the matter which led to the filing of this application which was received by the Refugee Protection Division on January 7, 2014. Preliminary Issue [7] Counsel for the respondents advised the panel at the outset of the hearing that he would be making an abuse of process application in this matter. Counsel stated that he would make the application following the applicant's presentation of their case and their questioning of XXXX XXXXX XXXXX. [8] Counsel for the respondents stated that the abuse of process argument he is making is based on three points. Counsel argues that the applicant engaged in an abuse of process because the Minister failed to consider the factors outlined in the Enforcement Manual4 prior to filing the application. Counsel directed the panel to the page of the Manual and he noted five factors that an Officer must consider before filing an application to vacate. Counsel stated that the applicant failed to consider three of the five factors in the Manual. Counsel argued that the applicant failed to consider the appalling human rights record of the government of Iran and if the applicant had indeed considered the human rights record of the government of Iran, the application would not have been filed. [9] Counsel further argued that the applicant failed to consider whether there remained enough credible evidence to determine that respondents should still be considered Convention Refugees despite their misrepresentation or withholding of material facts. Counsel argued that there was sufficient credible and trustworthy evidence to determine that the claimants were still Convention Refugees. [10] Counsel also argued that the nature and importance of the false declarations or withholding of facts must be viewed in light of the circumstances of the case. Counsel argued that the claimants were students that opposed the government and they were targeted as a result. Counsel stated that the applicant failed to weigh the false declarations in light of the respondents' profile as student dissidents opposed to the regime in Iran. [11] Counsel's second argument with respect to the abuse of process application is that the Minister has imposed a quota based on the Operational Bulletin that was issued in December 2013.5 In that bulletin, the Minister makes mention that 875 cases involving cessation and vacation are to be submitted to the RPD in the coming year. Counsel argues that this number constitutes a quota and that the number far exceeds the number of cases brought forward by the Minister in the past. Counsel further argues that this quota fetters the discretion of the officers that are filing the cases on behalf of the Minister to the RPD. Counsel notes that this case dates back to 2004 and that it was brought forward after the operational bulletin was issued by the department. Imposing a quota and removing the officer's discretion is an abuse of process according to counsel. [12] Counsel's final argument on abuse of process is based on delay. Counsel argues that the applicant delayed nine years in filing the application to vacate. He notes that the respondents were found to be Convention refugees in 2004 but the applicant did not file the application to vacate until December 2013. Counsel argues that the applicant had the opportunity to question the respondents at the hearing in 2004 and that the issue regarding the identity documents was known to the applicant in 2006 yet the application did not get filed for another seven years. Counsel further argues that the applicant seized some identity documents belonging to the respondents in 2008 from a third party and despite this seizure, did not file this application for another five years. Counsel states that the applicant's lengthy delay in filing this application constitutes an abuse of process. [13] The panel rejects counsel's application to dismiss this matter on the basis that the application for vacation of the respondents' status constitutes an abuse of process on the part of the applicant. In order for the panel to find that this application is an abuse of process, it must be satisfied that the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.6 The principles enunciated in Blencoe on abuse of process were adopted and refined in Parekh.7 The Courts note that cases involving an abuse of process will be rare and will only occur when the process has become unfair to the point that they are contrary to interests of justice. The Court provides examples where bringing a case forward can be an abuse of process. One example would be undue delay which results in the memories of witnesses having faded or witnesses becoming unavailable to testify. [14] The panel finds that the delay in bringing this case forward while lengthy does not reach the level of being undue and thus does not constitute an abuse of process. The respondents were found to be Convention Refugees in 2004 and the application to vacate their refugee status was filed in December 2013. On its face this may appear to be an undue delay but the applicant explained at the hearing that there was a long investigation required to gather the necessary evidence before filing the application with the RPD. The panel notes that the file was not transferred to the CBSA until 2006 when CIC determined that the identity documents submitted by the respondents with their PR application were analyzed and determined to have been fraudulent and tampered with. [15] The panel also notes that the applicant seized a number of identity documents belonging to the respondents from a third party in 2008 in the course of a Port of Entry Examination. These documents revealed new information that was not in the possession of the applicant such as the fact that the respondent's child, XXXX XXXXX XXXXX was born in the United States and not in Iran as declared by the respondents in their refugee documents and at their refugee hearing. The panel accepts that this information required the applicant to conduct a further investigation. This investigation required the cooperation of the U.S authorities and the panel understands that these types of investigations can take a significant amount of time. The panel notes that the applicant disclosed information in this matter via a letter dated October 1, 2014. The documents related to the respondent's spousal sponsorship application and its withdrawal. The panel therefore finds that the applicant did not unduly delay the filing application for vacation and whatever delay there may have been does not rise to the level of constituting an abuse of process. [16] The panel also rejects counsel's argument that the applicant failed to consider ENF 24 in proceeding with this application. The panel finds that it does not have the jurisdiction to look behind the applicant's motivation or the process that led up to the filing of the application. The panel further notes that counsel for the applicant stated that the respondents have a residual claim despite their misrepresentation. It is clear from the applicant's position that the respondents do not have a residual claim. The issue of a residual claim is a matter to be decided by the panel at the hearing after giving the parties an opportunity to be heard. The panel does not have jurisdiction to decide whether the applicant properly assessed a residual claim in advance of hearing the parties. Moreover, the panel finds that the respondents have not provided sufficient credible and trustworthy evidence to establish that the applicant's conduct in bringing this case forward constitutes an abuse of process. [17] The panel also rejects counsel's argument that the Operational Bulletin8 stating that the applicant will bring 875 cases of vacation and cessation constitutes an abuse of process because it fetters an officer's discretion when deciding which cases to bring forward for cessation or vacation. The panel must assess each case on its own merits. The panel finds that the respondents have not provided sufficient credible and trustworthy evidence to establish that the applicant's representative acted in a manner that constitutes an abuse of process. In his submissions, the applicant's representative stated that the case was assessed on its own merits and that the Operational Bulletin played no role in the filing of this case. Counsel for the respondent has not presented any evidence to contradict the submission from the applicant on this point. The panel therefore dismisses counsel's abuse of process application. [18] Having dismissed counsel's application for abuse of process, the panel must now assess whether the Minister has satisfied the required elements under Section 109 to vacate the status of the respondents. It is trite law that the applicant has the onus of establishing the required elements to vacate the status of the respondent. In order for the applicant to vacate the status of the respondent, the applicant must establish that the respondents misrepresented or withheld a material fact of a relevant matter from the original panel and that this misrepresentation or withholding of a material fact could have resulted in a different decision. The panel finds that the applicant has established that the respondents have misrepresented and withheld material facts of a relevant matter from the original panel. [19] There were numerous materials facts that were withheld and misrepresented by the respondents. The panel will not outline all of them but will refer to the most important ones. XXXX XXXXX XXXXX testified at this hearing and admitted that he and his wife left Iran in XXXX 1998 and they traveled to the United States. He further testified that he and his wife remained in the United States until 2004. In 2004, the respondents traveled to Canada and crossed into the country on foot. Mr. XXXXX was asked about the narrative portion of his Personal Information Form.9 He admitted that paragraph 14 to paragraph 23 of the narrative portion of his PIF were fabricated with the assistance of Mr. XXXXX, whom he described as his sister's ex-husband's father. The panel asked Mr. XXXXX about his imprisonment in 1999 and 2000 in Iran. He admitted that he was not imprisoned in 1999 and 2000 as he was in the United States at this time. [20] Mr. XXXXX also admitted that the respondents lied about their travel to Canada. In their respective PIFs, the respondents stated that they traveled to Turkey, then Europe then Canada on false Spanish passports. At the hearing Mr. XXXXX admitted that he made arrangements with Mr. XXXXX to enter Canada illegally on foot. [21] Mr. XXXXX admitted that he lied about his son being born in Iran. He admitted at the hearing that his son was born on XXXXX, 2000 in San Diego, California. The applicant made reference to the respondent's PIF10 and noted that he provided false information to many of the questions.11 The panel finds that the applicant has established that the respondents misrepresented or withheld material information from the original panel and that misrepresentation and withholding of material facts could have led to a different decision. [22] The panel finds that the misrepresentation and withholding of material facts was extensive and significant. The respondents' actions were elaborate and significant and the panel finds that the respondents knowingly deceived the original panel to put forward refugee claims that were clearly fabricated. The panel notes that Mr. XXXX attempted to place the blame for the misrepresentation and withholding of material facts on Mr. XXXXX as he stated that he did what Mr. XXXXX told him. That may be case, but the respondents were fully aware that they were putting forward information under oath that they knew to be false. Moreover, the misrepresentation or withholding of material facts can be direct or indirect. Even if the information was provided by Mr. XXXXX, the first part of the test under Section 109 would be satisfied by the applicant. In the case at hand, the panel finds that the respondents were willing participants in the misrepresentation and withholding of material facts. The panel therefore finds that the Minister has established that the respondents misrepresented and withheld materials facts from the original panel that could have led to a different determination. [23] The panel must now assess whether there is any credible and trustworthy evidence to establish that the original panel would have determined the respondents to be Convention refugees despite the misrepresentation and withholding of material facts. The panel finds that there is insufficient credible and trustworthy evidence remaining that would have led the original panel to finds the respondents to be Convention Refugees. [24] With respect to XXXX XXXXX XXXXX, the panel finds that the original panel would have rejected his claim against Iran given that he had U.S. citizenship at the time of the hearing. XXXX XXXXX XXXXX acted as the designated representative of his son XXXX XXXXX XXXXX. He made no claim against the United States for his son. The panel finds that given the misrepresentation by the designated representative regarding his son's citizenship and the lack of a claim against the United States, the panel grants the Application to vacate the refugee status of XXXX XXXXX XXXXX and further finds that there is no remaining credible and trustworthy evidence on which the original panel could have found him to be a Convention Refugee. Therefore the refugee claim of XXXX XXXXX XXXXX is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. [25] Counsel for the respondents argues that there remains sufficient credible and trustworthy information for the respondents (Mr. XXXX and Ms. XXXXX) that the original panel would have still found them to be Convention Refugees despite the misrepresentation and withholding of material facts. The panel disagrees. [26] Counsel argues that the respondents misrepresented the facts of their case from November 18, 1998 until their arrival in Canada. Counsel submits that the applicant has not provided any evidence to doubt the credibility of the respondents prior to November 18, 1998, and therefore that evidence should be accepted as credible. Counsel also argues that there is documentary evidence on file that has not been impugned and therefore it remains credible and trustworthy. Counsel therefore argues that there is sufficient credible and trustworthy evidence remaining that the original panel would have found the respondents to be Convention Refugees. [27] The panel disagrees with the assessment made by the respondents' counsel. There was a significant and important level of misrepresentation of material facts by the respondents. They withheld information about being in the United States from 1998 until 2004. They lied about their travel to Canada suggesting that they flew to Canada on false Spanish passport after escaping from Iran. They knowingly submitted fraudulent and tampered identity documents. They claimed to be incarcerated and tortured in Iran when they were in the United States. They claimed their son was born in Iran when he was in fact born in the United States. The panel finds that the respondents engaged in an elaborate and significant ruse to put forward a claim that was fraudulent. The panel simply cannot parse the evidence from the respondents and accept as true one portion of the claim to a certain date and accept as fraudulent everything after that date. Given the level of misrepresentation, all the evidence provided by the claimants is tainted and therefore not credible.12 [28] The panel finds that had the original panel know that the identity documents were fraudulent and tampered with, it would have cast a doubt on the authenticity of all the documents submitted by the respondents including the university identity card, the military card and the summons issued by the Revolutionary Court. At a minimum, the original panel would have questioned why a summons was issued in 2003 when the claimants left Iran in 1998. The panel finds that all the documents submitted by the respondents at the original hearing would have been put into question and the panel finds that the original panel would have given all of the respondents' documents little or no weight. [29] The panel further finds that had the original panel been aware that the respondents fabricated the story that they put forward from 1998 to 2004, the original panel would have found the respondents to be completely lacking in credibility and they would have given the respondents' testimony little or no weight. The panel finds that given the seriousness of the misrepresentation and withholding of material facts on the part of the respondents, the original panel would have found that there was insufficient credible and trustworthy evidence for the panel to conclude that the respondents are Convention Refugees. [30] The panel therefore allows the applicant's application under Section 109(3) of the Immigration and Refugee Protection Act as the panel finds that the applicant has established that the respondents misrepresented or withheld material facts from the original panel that could have led to a different determination. Moreover the panel finds that given the respondents' complete lack of credibility and the fact that the documents provided by the respondents are given no weight, the panel finds that there is insufficient credible and trustworthy evidence for the original panel to have justified refugee protection. [31] The Convention Refugee claims of XXXX XXXXX XXXXX, aka XXXX XXXXX XXXXX, aka XXXX XXXXX XXXXX, and XXXX XXXXX XXXXX, aka XXXX XXXXX XXXXX, aka XXXX XXXXX XXXXX are deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. (signed) "Daniel Tucci" Daniel Tucci October 21, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibits 1, 2 and 3. 3 Exhibit 10, Tab F, p. 133-142. 4 ENF 24 found at Exhibit 14. 5 Exhibit 13. 6 Blencoe v. British Columbia Human Rights Commission, 2000 SCC 44. 7 Canada (Citizenship and Immigration) v. Parekh, 2010 FC 692. 8 Exhibit 13. 9 Exhibit 1, Question 31. 10 Exhibit 10, Tab C. 11 Question 2(b), 3, 69a), 11, 12, 13, 15, 16, 17, 18(c), 20(a)(d)(e)(f), 22, 23, 24(a) as well as major portions of the narrative at Question 31. 12 Sheikh v Canada (Minister of Employment and Immigration), [1990] 3 FC 238, [1990] FCJ No 604 (FCA), para. 7-9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 3 RPD File No. / N° de dossier de la SPR : VB4-00059/VB4-00060/VB4-00061 1