Date: 20030224
Docket: IMM-2853-02
Neutral citation: 2003 FCT 216
CALGARY, Alberta, Monday, the 24th day of February, 2003.
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
MUHAMMAD BABAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated June 6, 2002, wherein the CRDD allowed an application by the Minister to vacate the Applicant's Convention refugee status pursuant to s. 69.1(9.1) of the Immigration Act and determined that there is no credible basis for his refugee claim.
[2] The Applicant is a citizen of Pakistan. He applied for Convention refugee status in 2000, claiming a well-founded fear of persecution based on his membership in the United Kashmir Peoples National Party (UKPNP). His application was accepted; on March 13, 2001, he was declared to be a Convention refugee.
[3] In September 2001, the Minister of Citizenship and Immigration (the "Minister") filed a motion to vacate the Applicant's refugee determination on the basis of misrepresentation by the Applicant. The relevant sections applied by the CRDD are s.69.2(2) and s.69.3(5) of the Immigration Act:
69.2(2) Application to vacate
(2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
69.3(5) Rejection of otherwise established application
(5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.
69.2(2) Demande d'annulation
(2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers.
69.3(5) Rejet de la demande d'annulation malgré preuve de la fraude
(5) La section du statut peut rejeter toute demande bien fondée au regard de l'un des motifs visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut.
[4] On the evidence presented by the Minister, the CRDD had no difficulty finding that the original positive Convention Refugee Determination was obtained by significant misrepresentation. In fact, the Applicant admitted this to be so. As to the effect of the misrepresentation, the CRDD made this critical finding:
The Panel determined the misrepresentations and concealment the Respondent has now admitted go to the heart of his claim, and the Panel finds his credibility as being so seriously undermined as to cause the Panel to make a general finding of lack of credibility. (Decision, p.6)
[5] The evidence produced before the original panel concerning the Applicant's refugee claim is a combination of his own evidence and independent evidence emanating from other sources. I can understand how the significant misrepresentations the Applicant made in his original hearing can properly result in the finding that his own evidence is tainted. But this does not answer the question of how his misrepresentations tainted the independent evidence he produced to support his claim.
[6] In fact, it might very well be that, on careful analysis, the independent evidence would cause a decision maker to re-evaluate the view that the Applicant is not to be believed on his entire story. That is, in a case such as the present one, independent evidence going to prove anti-government activity by an Applicant, a cautious evaluation might result in certain parts of the Applicant's story being accepted as true.
[7] The Minister argues that I must accept that such an evaluation was conducted as evidenced by the following words of the CRDD:
The panel concluded his credibility is so lacking that, if his misrepresentations and concealment were set aside there is "insufficient credible evidence" left before the original panel on which it could have determined the respondent to be a Convention refugee. (Decision, p. 7)
[8] In my opinion, this passage allows the reasonable conclusion to be drawn that the CRDD's thinking about the "independent" evidence, and the possible re-evaluation of the Applicant's evidence, was so dominated by the Applicant's misrepresentations that there was no point in engaging in an earnest evaluation exercise.
[9] Thus, I find that the type of careful and cautious evaluation required was not conducted. In my opinion, to correctly apply the provisions quoted above, such an evaluation is required to fairly determine what evidence is not tainted, whether it be the independent evidence and, indeed, related evidence given by the Applicant.
[10] As a result, I find the CRDD's decision was made in reviewable error.
O R D E R
Accordingly, I set the CRDD's decision aside and refer the matter back for redetermination by a different panel.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
February 24, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030224
Docket: IMM-2853-02
BETWEEN:
MUHAMMAD BABAR
Applicant
- and -
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2853-02
STYLE OF CAUSE: MUHAMMAD BABAR v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Friday, February 21, 2003
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: Monday, February 24, 2003
APPEARANCES:
Mr. Birjinder P. S. Mangat FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Birjinder P. S. Mangat
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT