TB6-07569

RPD File No. / N° de dossier de la SPR : TB6-07569 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Vacate - Demande d'annulation Applicant(s) The Minister of Public Safety and Emergency Preparedness Demandeur(s) Respondent(s) XXXX XXXX L'intimé(e)(s) Date(s) of Hearing June 13, 2019 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision and reasons August 2, 2019 Date de la décision et des motifs Panel M. Wakim Tribunal Counsel for the Respondent Robert I. Blanshay Conseil(s) de l'intimé (e)(s) Designated Representative(s) N/A Représentant(e) désigné(e) Counsel for the Minister Katherine Whitelock Conseil du (de la) ministre REASONS FOR DECISION BACKGROUND [1] On June 21, 2005, XXXX XXXX (the respondent), had a hearing in Montreal, P.Q. The respondent was granted protection in Canada as a Convention Refugee by a panel of the Refugee Division of the IRB on July 11, 2005. The respondent alleged that he had fled Sri Lanka in May, 2004 fearing persecution on the basis of his Tamil ethnicity, fear of the LTTE conscription practices, the Sri Lankan Army, and the police. He was also afraid of the PLOTE and EPDP militants. MINISTER'S APPLICATION FOR VACATION [2] On February 26, 2016, the Minister made an application pursuant to section 109(1) of the Immigration and Refugee Protection Act (IRPA) for vacation of the respondent's status as a Convention Refugee.1 [3] According to the Minister, the respondent had acquired refugee protection as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. There is other insufficient evidence considered at the time of the first determination to justify refugee protection, such that the claim should be deemed rejected and the decision that led to the conferral of refugee protection nullified. EXHIBITS ENTERED AT APPLICATION TO VACATE HEARING * Original file MA4-05365; * Minister's Application to Vacate dated February 23, 2016 and Documents - 35 pages; * Counsel's Identity documents - 2 items; and * National Documentation Package (NDP) for Sri Lanka, Version 29 March 2019. DETERMINATION [4] The Minister's application for vacation of the respondent's status as a Convention refugee, pursuant to section 109(1) of the IRPA, is allowed as the respondent is a person described under section 109(2) and his claim is deemed to be "rejected" in accordance with section 109(3) of the IRPA. [5] The Minister has the burden on the balance of probabilities of proving that the respondent directly or indirectly misrepresented or withheld material facts to a relevant matter. [6] Section 109 of the Immigration and Refugee Protection Act states: 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 or withholding material facts relating to a relevant matter. 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. 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. [7] The Federal Court has stated in a case called Gunasingam,2 A decision must be made with respect to sub-section 109(1), before consideration is given to sub-section 109(2). There are three elements to sub-section 109(1): a) there must be a misrepresentation or withholding of material facts; b) those facts must relate to a relevant matter; and c) there must be a common connection between the misrepresenting or withholding on the one hand and the favourable result on the other. MINISTER'S SUBMISSIONS [8] The Minister's evidence demonstrates that the respondent's refugee status was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to his name, date of birth, residency history and work history, which relates to the relevant matters of identity and credibility. Summary of Facts [9] The respondent made a claim for refugee protection at P.E. Trudeau International Airport on August 29, 2004, in the name of XXXX XXXX (d.o.b. XXXX XXXX, 1975). [10] The respondent declared that he had not used or been known by any other name. [11] The respondent declared that he lived only in Northern Sri Lanka (i.e. XXXX, XXXX, XXXX and XXXX). [12] The respondent declared that from 1990-2004 he worked as a farmer only. [13] According to his Personal Information Form (PIF) narrative: * The LTTE extorted him in 1991; * In 1992, his brother XXXX was taken against his will by the EPDP. XXXX died when he was thrown from a lorry when he refused to go with the EPDP; and * In XXXX 2001, the LTTE attacked an army vehicle in his village, in retaliation for which the army arrested the respondent along with the others of his village. He was taken to an army camp where he was beaten and burned with a cigarette. A bribe was paid for his release following which he moved from his village to XXXX. [14] The refugee claim of XXXX XXXX was accepted on July 11, 2005. Misrepresentation [15] On May 22, 2013, the respondent provided a Statutory Declaration through his solicitor stating that: * His name was XXXX XXXX (d.o.b. XXXX 1972); * When he entered Canada his name and date of birth were recorded as XXXX XXXX (d.o.b. XXXX XXXX, 1975); and * On all his immigration documents his name and date of birth have been recorded as XXXX XXXX (d.o.b. XXXX XXXX, 1975). [16] The respondent was interviewed by Citizenship and Immigration Canada Officer XXXX XXXX XXXX XXXX XXXX on April 24, 2013, at which time he declared the following: * He is XXXX XXXX; * He moved to XXXX when he was 28 years old (circa 2000); * He worked in a XXXX store in Sri Lanka; * He was pressured to join and taken against his will to construct bunkers once in 1995, but otherwise he had no connection with the LTTE; * His brother's death was not the result of being taken against his will by the EPDP. His brother died when he travelled to Colombo with his mother where he was hit by a truck at the age of 14; and * A smuggler told him to lie. [17] The Minister has made a prima facie case demonstrating that the respondent's refugee status was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. [18] The respondent's refugee status was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to his name, date of birth, including a statutory declaration he provided through his solicitor in which the respondent admitted that an assumed identity appears on all his immigration documents. [19] The respondent was granted refugee protection under a false identity. Identity is fundamental to any refugee claim. [20] The respondent misrepresented his work history, his interaction with the LTTE, the true circumstances of his brother's death and the fact that he moved to XXXX around 2000. [21] The Minister submits that he was probably not arrested by the Sri Lanka Army along with other villagers in XXXX 2001, because he had moved to XXXX and was not living in Northern Sri Lanka at the time. [22] The Minister submits that the misrepresentations impugn his credibility and it is more likely than not that the panel of the first instance would not have found the respondent to be a credible witness had it known that he was lying at the suggestion of a smuggler. [23] The Minister submits that there is a casual connection in this case between the misrepresentations or withholding of material facts on the one hand (concealed identity and misrepresentation of the facts of his claim), and the favourable result on the other (acceptance of identity and positive determination of the claim). [24] Section 106 of the IRPA provided that the Refugee Protection Division must take into account whether or not the claimant possesses acceptable documentation establishing identity, and if not whether they have provided a reasonable explanation for the lack of documentation. [25] The Minister submits that the respondent lacked any documentation capable of establishing his true identity. He provided the first panel with identity documents not properly issued to him. [26] The respondent presented a somewhat tattered photocopy of a birth certificate issued in Colombo in 2012 and a Sri Lankan National Identity Card (NIC) that was issued in 1989.3 The photocopy of the birth certificate was issued after the respondent came to Canada. The National Identity Card (NIC) was issued in 1989, some thirty years ago. The documents do not confirm the respondent's identity. The respondent has not established that he is who he says he is. [27] The Minister submits that a vacating panel is limited in its assessment to what "old" evidence remains untainted by the withholding or misrepresentation and cannot consider new evidence produced by either party when exercising its discretion pursuant to section 109(2). [28] The Minister submits that country conditions alone cannot sustain protected status. To quote Mr. Justice Harrington in Gunasingam, a judicial review of a vacation application of a young Tamil male from Sri Lanka: [1] One may be a liar and a refugee both. But if one was determined to be a refugee as a result of misrepresenting or withholding material facts, that decision may be set aside. [18] Whether considered under subsections 109(1) or 109(2), the member was wrong in concluding that country conditions alone justified the granting of refugee status. The claim must be personalized (Taj v. Canada (Minister of Citizenship and Immigration), 2004 FC 707, [2004] F.C.J. No. 880, Canada (Minister of Citizenship and Immigration) v. Fouodji, 2005 FC 1327, [2005] F.C.J. No. 1614 and Coomaraswamy, above. [Emphasis added] [29] The Minister submits that the respondent's claim, as presented to the first panel, could not have been properly personalized because the respondent is not who he claimed to be. The Minister asks that the application be allowed. ORAL TESTIMONY AT APPLICATION TO VACATE HEARING [30] The respondent conceded to the misrepresentations. He used his brother's identity and his brother's information with respect to his wife and children. Initially he said that he dug bunkers for the LTTE on one occasion in 1995. He gave confusing evidence with respect to time lines of events that allegedly took place in 1991, 1998 and 1999. He told of other events that were not included in his PIF narrative. He amended responses when questioned by counsel. He was not a credible witness. COUNSEL'S SUBMISSIONS [31] Counsel for the respondent acknowledges that the respondent used his brother's identity. Counsel requests that the panel refuse to accept the application on the basis that there was sufficient evidence at the time of the RPD hearing to justify refugee protection. Counsel cited the two identity documents.4 Counsel submitted that he was following the instructions of the agent, he was terrified and he would not have knowledge of laws in Canada. [32] Counsel also stated that despite the misrepresentations, there are a number of factors left, such as ethnicity, the fact of being from the Northern part of Sri Lanka, and being a failed asylum seeker from Canada where there is a large Tamil diaspora. [33] Counsel referred to case law5 to support her position. However, the panel finds that this case law is not applicable. MINISTER'S REPLY [34] The Minister's Representative replied stating that there are some incorrect conclusions. Profile alone cannot be a basis for section 109(2) of the IRPA. The fact that the respondent relied on his PIF narrative and that it was misrepresented means that the decision cannot stand. His profile that he is a Tamil and a failed asylum returnee is not the issue. The latter is a Humanitarian and Compassionate Consideration that is not the mandate of the Refugee Protection Division. CONCLUSION [35] For the reasons above, the Minister's application for vacation for the respondent's status as a Convention refugee is allowed, and the respondent's claim for refugee protection is deemed to be rejected and the decision that led to the conferral of refugee protection to the claimant is nullified, pursuant to s. 109(3) of the IRPA. (signed) "M. Wakim" M. Wakim " August 2, 2019" Date 1 Exhibit 2, Application to Vacate Refugee Protection dated February 23, 2016. 2 Gunasingam: M.P.S.E.P. v. Gunasingam, Umasangar (F.C., no. IMM-2283-07), Harrington, February 13, 2008, 2008 FC 181; para. 7. 3 Exhibit 3, Photocopy of B.C. dated 2012 and issued in Colombo, Sri Lanka; NIC issued in 1989. 4 Exhibit 3. 5 Jeyakumar v. Canada (Citizenship and Immigration), IMM-2608-18, Russell, January 22, 2019, FC 87; Jesuthasan v. Canada (Citizenship and Immigration), IMM-831-17, IMM-538-17, February 7, 2018, FC 142. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.25.18 (2014.11.10) RPD File No. / N° de dossier de la SPR : TB6-07569