Date: 20010829
Docket: IMM-5865-00
Neutral citation: 2001 FCT 959
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MARTIN HOLUB, DRAHOMIRA HOLUBOVA,
MARIE HOLUBOVA, GUSTAV TOMI
Respondents
REASONS FOR ORDER
ROTHSTEIN J.A.
[1] This is a judicial review of a November 1, 2000 decision of the Refugee Division which rejected the Minister of Citizenship and Immigration's application to reconsider and vacate the November 6, 1998 determination that the respondents were Convention refugees.
[2] The pertinent facts are:
1. July 19, 1996 the respondent Drahomira Holubova was convicted in the Czech Republic on a charge of larceny.
2. August 31, 1997 the respondents arrive in Canada.
3. October 2, 1997 Holubova completes her PIF declaring that she was never convicted of any crime or offence in any country.
4. February 10, 1998 Holubova was convicted in absentia in the Czech Republic on a 1996 charge of robbery committed in April 1996. She was sentenced to 4 years in jail for this crime and the crime of larceny, of which she had previously been convicted.
5. July 21, 1998 judgment on the robbery conviction came into legal force when Holubova's appeal was dismissed.
6. August 4, 1998 Interpol International Warrant for Arrest issued for Holubova.
7. November 6, 1998 respondents, including Holubova, found to be Convention refugees by the Refugee Division.
8. November 17, 1998 Interpol International Warrant for Arrest received by Canadian government officials.
9. October 13, 1999 leave granted to the Minister by the Chairman of the Refugee Division to bring an application to reconsider and vacate the determination that the respondents were Convention refugees.
10. November 1, 2000 decision of the Refugee Division to reject the Minister's application to reconsider and vacate.
[3] The relevant provisions of the Immigration Act are 69.2(2) and 69.3(5):
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69.2(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) 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) 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) 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] The reasons of the Refugee Division for rejecting the Minster's application were:
1. The respondents had already been found to be Convention refugees.
2. Holubova's criminal record did not have a bearing on the well-founded fear of persecution of the respondents in the Czech Republic.
3. The Minister declined to present evidence going to the issue of exclusion under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, R.S.C. 1985 (4th Supp.), c. 28, s. 34, i.e. that Holubova had committed serious non-political crimes outside Canada prior to her admission to Canada as a refugee.
4. Notwithstanding the concealment by Holubova, there was other sufficient evidence on which the Convention refugee determination was or could have been based.
5. The misrepresentation by Holubova was not related to the Convention refugee determination of the other respondents. The Refugee Division's reasons state:
In the Panel's view, since the claimants, as Roma from the Czech Republic, were already found to be Convention refugees by the Board, and since the Minister's disclosure, i.e. Drahomira Holubova's criminal record, does not have a bearing on the inclusion aspect of their claims such as the claimants' ethnicity or their well-founded fear of persecution in the Czech Republic, therefore the panel requested the Minister to present evidence as to whether the claimants were excludable, under Article 1F(b) of the Convention, because of Ms. Holubova's criminal background. The Minister refused to present evidence and insisted that since their refugee status had been obtained by concealment of material facts, therefore the decision of the Board concerning all the claimants should be vacated.
Based on the subsection 69.3(5) of the Immigration Act, the Panel dismissed the Minister's application [...]
Having declined to present evidence going to the issue of exclusion under Article IF(b), the Minister failed to provide a basis on which to vacate the positive determination with respect to Drahomira Holubova. Moreover, the panel did not find that the misrepresentation of Ms. Holubova's criminal background was relevant to the determinations of the remaining claimants.
[5] The Minister says the Refugee Division incorrectly proceeded on the basis that the issue of the respondents' well-found fear of persecution in the Czech Republic had already been decided and that the only basis upon which the Minister could succeed was to prove that Holubova was excluded under paragraph 1F(b) of the Convention.
[6] The Minister argues that the evidence before the Refugee Division was that Holubova was a fugitive from the Czech Republic justice system and that the Refugee Division should have considered whether Holubova's desire not to go to jail in the Czech Republic, and not fear of persecution, was the real reason that she and her family came to Canada.
[7] The International Warrant for Arrest is the basis for this argument. The warrant states in part:
The convicted Drahomira Holubova left with her whole family the Czech Republic for Canada even before her prosecution was finished, and namely before the judgement was pronounced, which was confirmed by her family members, her sister in particular, when it follows unanimously from her behaviour that she flees from the execution of punishment, because when she was leaving she told to her acquaintances that she would not have herself put in prison in the Czech Republic and that she would better leave for Canada with other members of Romany nationality. [...]
[8] I agree with the Minister that the Panel seems to have misunderstood the nature of the Minister's application. The Minister was not basing her application on Article 1F(b) of the Convention. Nor was she asserting, as the Panel seems to have assumed, that the other respondents would have had to have been implicated in Holubova's criminality for their Convention refugee claims to be vacated.
[9] On the contrary, the Minister's application was based on information coming to light about Holubova's criminality and the fact that she was a fugitive from the Czech Republic justice system. It was this information that, had it been before the original panel that determined the respondents to be Convention refugees, would have caused it to conclude that Holubova and her family had come to Canada so that she could avoid incarceration in the Czech Republic and not because of a well-founded fear of persecution.
[10] The Panel relied on subsection 69.3(5) that, "there was other sufficient evidence on which the determination was or could have been based". In doing so, the Panel ignored the evidence before it. It found that the respondents had already proven that they had a well-founded fear of persecution when the original Convention refugee status was determined. It did not consider that Holubova's trial for robbery and ultimate sentence in the Czech Republic was the reason for the family coming to Canada and not fear of persecution in the Czech Republic.
[11] In my respectful opinion, the Panel erred in failing to take account of Holubova's criminality and fugitive status as the reason for the family immigrating to Canada.
[12] Of course, it is not for this Court to determine whether Holubova's criminality and fugitive status would cause the credibility of the original fear of persecution evidence to come into question. That will be for a Refugee Division panel on redetermination. This Court's finding is only that the Panel ignored whether Holubova's criminality and fugitive status would have, had it been known by the original panel, caused that panel to have found that the respondents' evidence was not credible or otherwise not supportive of their refugee claims.
[13] The judicial review will be allowed and the matter remitted to a different panel of the Refugee Division for redetermination.
"Marshall Rothstein"
Judge
Ottawa, Ontario
August 29, 2001