MA5-06707

Immigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File # / No. dossier SPR : MA5-06707 Private Proceeding Huis clos APPLICATION TO VACATE Applicant Demandeur The Minister of Citizenship and Immigration Respondent Intimé XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience December 18th, 2007 Place of Hearing Lieu de l'audience Montréal, Québec Date of decision Date de la décision January 17th, 2008 Panel Tribunal Me Michael Hamelin Claimant's Counsel Conseil du demandeur d'asile Me Dan M. Bohbot Tribunal Officer Agent du tribunal N/A [Deposit of documents] Designated representative Représentant désigné N/A Minister's Counsel Conseil du ministre L. Séguin APPLICATION TO VACATE The Applicant ("the Minister of Public Safety and Emergency Preparedness") on November 8th, 2005 pursuant to Section 109 of the Immigration and Refugee Protection Act, Section 57 of the Rules of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), has requested the IRB vacate the determination of refugee status granted on May 7th, 2003 to XXXXX XXXXX XXXXX. ALLEGATIONS The Applicant alleges the following: The Respondent presented a Notification to Claim to be a Convention Refugee on May 18th, 2001. He stated at the time that he entered Canada on May 9th, 2001 and that he had left his country of citizenship (Sri Lanka) on XXXXX XXXXX, 2001.1 That further claimant confirmed said information in his Personal Information Form (PIF) filed at the IRB on July 17th, 2001.2 Prior to the hearing of May 7th, 2003, the Immigration and Refugee Board (IRB) received a letter indicating that the claimant had lived in Switzerland for two years.3 The latter was raised to the claimant during his hearing of April 30th, 2003. He denied said information. At the time, the CIC had also received a written denunciation letter confirming, essentially, the same facts - that the claimant would have lived in Switzerland for two years. 4 The claimant was determined to be a Convention refugee on May 7th, 2003.5 Subsequent to that time, an investigation by CIC, including the Swiss authorities, revealed the following:6 - That an individual matching the same fingerprints as the claimant entered Switzerland on XXXXX XXXXX, 2000 under the name of XXXXX XXXXX XXXXX (D.O.B. XXXXX XXXXX 1982); - That further the latter would have made a refugee application that would have been refused on XXXXX XXXXX 2001; During the course of his refugee hearing on April 30th, 2003, the claimant would have been confronted with the application letter received at the IRB.7 He would have denied that he would have been in Switzerland at the time. Further, the claimant would have again denied having been in Switzerland on XXXXX XXXXX, 2005. The Applicant alleges that there is prima facie evidence to establish that the claimant was not in Switzerland from XXXXX XXXXX, 2000, and further that several of the allegations made in his Personal Information Form (PIF)8 relating to other identities, his residence and time spent in Switzerland, and events occurring from XXXXX XXXXX, 2000 would have been false; and, as a consequence of same, there is no remaining credible and trustworthy evidence available at the first determination to justify refugee protection. The Applicant requests the RPD vacate the refugee status granted to the Respondent. ANALYSIS The issues before the tribunal are whether the Respondent was granted "Convention refugee" status as a result of directly or indirectly misrepresenting or withholding material facts related to relevant matters and if the determination of Convention refugee status was so obtained whether or not sufficient evidence could be considered at the Convention refugee determination to justify refugee protection. The Respondent through his counsel admitted essentially the allegations as set out in the Minister's Application to Vacate. Hence, the Respondent states that he did not give the correct information concerning his time spent in Switzerland, nor his refugee application there. The Respondent alleges that he feared that he would have been deported back to Switzerland and, ultimately, to Sri Lanka after his arrival in Canada. Counsel for the claimant argued that there is sufficient evidence remaining before the original panel to maintain the determination of refugee status; - for example, the claimant is still a citizen of Sri Lanka from the XXXXX northern region of XXXXX. Further, that while the incidents subsequent to XXXXX XXXXX 2000 (more particularly, the arrest and detention in Colombo of XXXXX 2001) did not occur, there still is a history of allegations of abuse at the hands of both the Sri Lankan Armed Forces, and the LTTE, which the claimant would have testified at the time of his first hearing and in which he would have been found credible by the panel. In these circumstances the panel determines that there is sufficient evidence available to justify the original decision. The panel does not believe in these circumstances that the Applicant has made his case to justify a Vacation of this Convention refugee determination. CONCLUSION For these reasons, the tribunal rejects the application filed by the Applicant to vacate the decision to allow the claim for Convention refugee status. The decision of the granting of refugee status to Mr. XXXXX XXXXX XXXXX of May 7th, 2003 is maintained. Me Michael Hamelin Me Michael Hamelin January 17th, 2008 Date /kd 1 Exhibit M-1, Copy of Notification of Claim to be a Convention refugee and copies of passport completed upon arrival in Canada by the Respondent. 2 Exhibit M-2, Copy of Personal Information Form (PIF) dated July 17th 2001, concerning XXXXX XXXXX, XXXXX XXXXX XXXXX. 3 Exhibit C-2, Letter. 4 Exhibit M-4, Copy of Denunciation received on XXXXX XXXXX, 2002. 5 Exhibit M-3, Copy of Notice of Decision from IRB dated May 7th, 2003, concerning XXXXX, XXXXX XXXXX. 6 Exhibit M-5, Copy of Electronic mail received from Migration Integrity Officer, Canadian Embassy in Paris, France, dated XXXXX XXXXX 2005. 7 Exhibit C-1, Letter. 8 See note 2. REFUGEE PROTECTION DIVISION / ABANDONMENT / REFUGEE STATUS / MINISTER'S INTERNVENTION / FRAUDULENT MISREPRESENTATION / SOJOURNING / GUERILLA WARFARE / WELL-FOUNDED FEAR OF PERSECUTION / MALE / NEGATIVE / SRI LANKA --------------- --------------- --------------- --------------- RPD File # / No. dossier SPR : MA5-06707 1