Ottawa, Ontario, September 27, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
aka AMAD VALI PARVANTA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated December 7, 2005, which allowed the application of the respondent to vacate the determination that the applicant was a Convention refugee.
[2] The respondent brings a preliminary motion to remove two of the applicants from this application. As it appears from the transcript of the vacation hearing before the Board, the applicants admitted that because Zohal Dost (a.k.a. Sohal Parvanta) and Adham Parvanta (collectively, the mother and son) were Australian citizens, their refugee status should be vacated. The applicant consents to this motion and does not challenge the Board’s conclusions with respect to the mother and son. Accordingly, those two individuals will be removed as applicants to this application for leave and judicial review since they consented to the respondent’s application to vacate their refugee status.
FACTS
[3] The applicant is a citizen of Afghanistan. In 1980 or 1981, at the age of 18, he left and went to Germany to study and applied there for refugee status, which was granted to him in 1984. He was delivered a German Travel Document which was renewed from time to time and which expired in 1998.
[4] The applicant claimed refugee status in Canada in 1995 without disclosing that the mother and son were citizens of Australia and that he was recognized as a refugee in Germany and possessed a German Travel Document. He was granted refugee status in Canada in 1996.
[5] In 2002, the applicant filed an application on humanitarian and compassionate grounds for himself as well as the mother and son. At that time, the applicant disclosed having misrepresented certain facts in his first application in 1995.
[6] On November 30, 2004, pursuant to subsection 109(1) of the IRPA and section 57 of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), the respondent filed an application to vacate the decision to allow the applicant’s claim for refugee protection on the basis that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
[7] The Board found that the applicant had obtained refugee status in 1996 as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. More specifically, the Board found that the applicant Ahmad Vali Parvanta (the applicant) had withheld information regarding his status in Germany where he had been living since 1981 and where he was granted refugee status in 1984. In fact, the applicant admitted to withholding, fabricating and misrepresenting facts in his Personal Information Form (PIF) and during his refugee hearing held in 1996.
[8] The Board was also satisfied that if the Board, which had heard the refugee claim in 1996, had had this evidence before it, it could not have granted the applicant refugee status because he was excluded under Section E of Article 1 of the Convention.
ANALYSIS
[9] Sections 98 and 109 of the IRPA and section 1E of the Convention found in the Schedule to the IRPA provide as follows:
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Exclusion – Refugee Convention
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
Application to Vacate
Vacation of refugee protection
109.(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 or indirectly misrepresenting or withholding material facts relating to a relevant matter.
Rejection of application
(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.
Allowance of application
(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.
SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. |
Exclusion par application de la Convention sur les réfugiés
98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
Annulation par la Section de la protection des réfugiés
Demande d’annulation
109.(1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
Rejet de la demande
(2) Elle peut rejeter la demande si elle estime qu’il reste suffisamment d’éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l’asile.
Effet de la décision
(3) La décision portant annulation est assimilée au rejet de la demande d’asile, la décision initiale étant dès lors nulle.
SECTIONS E ET F DE L’ARTICLE PREMIER DE LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
E. Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays. |
Article 1E Analysis
[10] As is evident from the above provisions, section 98 is subject to Article 1E of the Convention. The purpose of Article 1E is to exclude persons who do not require the protection of refugee status. It therefore supports the purposes of the IRPA by limiting refugee claims to those who clearly face the threat of persecution: Kroon v. Canada (Minister of Employment and Immigration) (1995), 89 F.T.R. 236 (F.C.T.D.) at para. 10; Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 191 N.R. 170 (F.C.A.) at para. 8.
[11] The standard of review applicable to the Board’s decision in such cases is reasonable simpliciter (Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573, [2002] F.C.J. No. 767 (QL)).
[12] With respect to the burden of proof, in Hassanzadeh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1494, [2003] F.C.J. No. 1886 (QL), at paragraphs 27-30, my colleague Justice Pierre Blais conducted an extensive review of the case law pertaining to burden of proof in Article 1E cases and concluded that “once the Minister has established a prima facie case that the claimant can return to a country where he or she enjoys the rights of the nationals of that country, the onus shifts to the claimant to show why this is not possible”.
[13] The respondent submits that the point in time at which to determine the applicant’s status in Germany, and whether he is excluded by Article 1E, is at the time of his application for refugee status to Canada, that is 1995/1996, and not at his vacation hearing in 2005. I agree with the respondent. The question of exclusion under Article 1E is to be assessed at the time of the claimant’s admission to Canada. This position is supported by the Federal Court of Appeal’s decision in Mahdi, above, at paragraph 12:
… the real question that the Board had to decide in this case was whether the respondent was, when she applied for admission to Canada, a person who was still recognized by the competent authorities of the United States as a permanent resident of that country. [Emphasis added]
[14] In Canada Choovak, above, the claimant argued that the relevant time for consideration of the right of her re-entry to Germany was at the time of the hearing and that, at that time, her right to temporary resident status was null and void. Justice Rouleau cited the above passage from Mahdi and wrote as follows at paragraph 37:
I must admit I have difficulty with the respondent's submission since this would yield the manifestly absurd result that counsel may indefinitely postpone the hearing of a refugee claim so as to cause the residence status of the claimant to expire, thus rendering the exclusion clause of Article 1E of the Convention inapplicable. Article 1E must be read in a more purposive light so as to provide safe haven to those who genuinely need it, not to give a quick and convenient route to landed status for immigrants who cannot or will not obtain it in the usual way.
[15] In the present case, the fact that the applicant allowed his permanent resident status in Germany to expire by the time of the hearing of his refugee claim cannot avail to his benefit.
[16] The applicant relies on a stream of case law which provides that in order to be excluded under Article 1E in the second country (in this case, Canada), the claimant must enjoy the same fundamental basic rights of nationals in the first country (in this case, Germany): Kroon, above, at para. 10; Choovak, above, at para. 34; Hassanzadeh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1494, [2003] F.C.J. No. 1886 (QL) at paras. 19-21.
[17] The applicant also points to the case of Choezom v. Canada (Minister of Citizenship and Immigration), 2004 FC 1329, [2004] F.C.J. No. 1608 (QL) where Justice Konrad Von Finckenstein held that an Article 1E exclusion analysis requires that the Board examine all of the circumstances of the case, including: a) the right to return to and reside for an unlimited period of time in the country of residence; b) the right to study; c) the right to work; and d) the right to access basic social services in that country (at para. 9).
[18] Accordingly, the applicant submits that the question that should have been answered by the tribunal was whether there was clear and equivocal evidence that the applicant enjoyed all of the rights of a national of Germany. The applicant submits that there was no clear and convincing evidence that the principal applicant enjoyed all of the rights of a national of Germany.
[19] However, the applicant admitted that he was granted refugee status in Germany, he has the right to study and work therein, he could live wherever he wanted in Germany, he was delivered a renewable travel document with which he could travel outside Germany and that he did not apply for German citizenship. The only restriction mentioned by the applicant was the fact that as a permanent resident, he could not vote.
[20] While the language used in the decision could have been clearer, I am satisfied that the evidence demonstrated, without a doubt, that when he applied for refugee status in 1995/96, he did have the same basic rights of status as German nationals and therefore he could not have been granted refugee status by the Board at that time because he was excluded under section E of Article 1 of the Refugee Convention. As a result, there would be no point to send it back to the Board because the outcome could not be different (Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.)).
Section 109 analysis
[21] I rely on the analysis in Bortey v. Canada (Minister of Citizenship and Immigration), 2006 FC 190, [2006] F.C.J. No. 246 (QL), to determine that the applicable standard of review in a 109(1) of the IRPA determination is patent unreasonableness.
[22] The applicant further submits that the tribunal failed to consider subsection 109(2) of the IRPA and to evaluate whether or not there was other sufficient evidence at the time of the first determination to justify refugee protection, despite the misrepresentation. The applicant submits that in the present case, despite numerous admissions of facts that were in fact misrepresented, a number of important facts found in the applicant’s PIF, and confirmed by his testimony during the vacation hearing, remained. I disagree with the applicant.
[23] Once the Board concluded that the applicant was excluded under Article 1E, it did not have to examine the remaining evidence with regard to the application of subsection 109(2) of the IRPA since it could not, pursuant to section 98, grant him refugee status or determine that it is a person in need of protection. (See: Aleman v. Canada (Minister of Citizenship and Immigration), 2002 FCT 710, [2002] F.C.J. No. 955 (QL), Thambipillai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1166 (T.D.)(QL).
[24] In my opinion, it would be entirely nonsensical and clearly unnecessary for the Board to engage in an analysis of a claim for refugee protection once it has determined that the claimant is excluded from the Convention refugee or person in need of protection definitions. As a result, the application for judicial review is dismissed.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-266-06
STYLE OF CAUSE: MOHAMMAD WAKIL PARVANTA
Aka AMAD VALI PARVANTA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 18, 2006
REASONS FOR JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
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Me Nataliya Dzera
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Me Normand Lemyre
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SOLICITORS OF RECORD:
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Waïce Ferdoussi, Avocats 1550 Metcalfe Street, Suite 903 Montreal, Quebec H3A 1X6
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John H. Sims, Q.C. Deputy Attorney General of Canada Montreal, Quebec
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