Federal Court Decisions

 

 

 

Date: 20070420

Docket: IMM-5238-06

Citation: 2007 FC 420 

Ottawa, Ontario, April 20, 2007

PRESENT:     The Honourable Mr. Justice de Montigny

 

BETWEEN:

KASHIF MANSOOR

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated August 23, 2006, wherein the Board vacated a decision to allow Kashif Mansoor’s refugee claim.

 

THE FACTS

[2]               Mr. Mansoor arrived in Canada on November 15, 2001, and made a refugee claim shortly thereafter. He was found to have a well-founded fear of persecution in Pakistan at the hands of the Pakistan Muslim League (PML), and of the police and military government. His claim was accepted in January, 2003, though the Board’s decision was actually dated April 10, 2003.

 

[3]               According to his Personal Information Form (PIF), Mr. Mansoor’s father was a member of the Pakistan Peoples Party (PPP) and he had assisted him during the election campaign of 1997. In 1998, Mr. Mansoor joined the PPP, recruited other youths and actively took part in party meetings.

 

[4]               His problems started in April 1999, when he was beaten by gangsters from the PML as he was coming out of a PPP meeting. Then, in April of 2000, the PPP meeting which he was attending was raided and he was beaten and detained by the police for one day.

 

[5]               Mr. Mansoor’s wife passed away in December 2000. In February 2001, his wife’s best friend, Shazia, proposed to him. She had been caring for Mr. Mansoor’s children since his wife had died. Mr. Mansoor nevertheless refused her proposal, because he was still guilt-stricken and because Shazia’s father was a retired Brigadier in the army and a supporter of the PML.

 

[6]               In March 2001, Mr. Mansoor was stopped by someone named Brigadier Hayat and two PML workers. He was told to stop seeing Shazia and to quit the PPP. He was also beaten by these people. Shortly afterwards, he was stopped again by Brigadier Hayat, with the local president of the PML and some goons. He was again beaten and told they would break his legs if he continued to work for the PPP. Since he continued to see Shazia, her father beat her up and also threatened Mr. Mansoor.

 

[7]               On August 14, 2001, Mr. Mansoor took part in a gathering of the Muhib-e-Watan, a social welfare organization he had joined in 1997. After having been arrested by the police, Mr. Mansoor claimed he was beaten at the police station in front of Shazia’s father. He fled to Guranwala on November 2, 2002, after his mother told him two army men came to his home with the police and asked about him. He later fled to Lahore and then to Canada.

 

[8]               In a decision dated April 10, 2003, Mr. Mansoor was determined to be a Convention refugee. He was found to be credible, and his allegations were considered plausible in the context of the ongoing strife in Pakistan.

 

[9]               On September 23, 2003, the Minister of Citizenship and Immigration (the Minister) made an application to vacate the decision allowing Mr. Mansoor’s refugee claim.

 

THE IMPUGNED DECISION

[10]           The Minister based her application to vacate Mr. Mansoor’s refugee claim decision on new evidence indicating that Mr. Mansoor arrived in the United States on July 18, 2000 with seaman papers. This contradicted his allegation that he had suffered persecution in Pakistan on a number of occasions after July 18, 2000.

 

[11]           The main issue before the Board was whether the original decision in Mr. Mansoor’s favour was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and, if so, whether the remaining uncontradicted evidence supported the original positive decision from April 10, 2003.

 

[12]           In his PIF, Mr. Mansoor wrote he left Pakistan in November 2001. U.S. Immigration and Naturalization Service (INS) documents indicate that someone with the same name and fingerprints as Mr. Mansoor arrived in the U.S. on July 18, 2000 as a stowaway.

 

[13]           At the hearing, Mr. Mansoor admitted he entered the U.S. on July 18, 2000, but claimed he returned to Pakistan in December 2000 because his wife passed away. The Board’s analysis was almost entirely focused on determining whether Mr. Mansoor did in fact return to Pakistan in December 2000.

 

[14]           The Board requested Mr. Mansoor’s passport as proof that he was in Pakistan between December 2000 and December 2001. He was unable to produce his passport at the first day of the hearing, and stated he thought his passport was at home in Pakistan. He later said he knew he needed the passport, but thought it was a crime to send a passport through the mail. The Board nevertheless granted an adjournment and the passport was eventually produced.

 

[15]           The passport contains an entry stamp at Islamabad airport dated December 7, 2000. It was sent for a counterfeit analysis at the Canada Border Services Agency (CBSA). The analyst concluded the passport that bore the number KB613228 had been altered and that the digit 6 was originally 8. Passport KB813228 was stolen in Faisalabad in May, 2003. The analyst also found Mr. Mansoor’s identity card had been altered and the Board noted that those alterations are generally associated with fraudulent documents. Mr. Mansoor said it was possible the passport had been altered, since he had paid extra to obtain the passport quickly to get back to see his wife in Pakistan.

 

[16]           The Board decided to give no probative value to the passport because of Mr. Mansoor’s wavering about where the passport was and why he had not produced it, and because a blank passport stolen in 2003 could not have been used to travel in December 2000.

 

[17]           The Board also made a negative inference from the fact that Mr. Mansoor had several different explanations about his status or lack thereof in the U.S. He stated that he made an asylum claim in the U.S. Information from the I.N.S. indicated that while Mr. Mansoor was being transported to be returned to Pakistan, on August 26, 2000, he absconded from the transportation vehicle. Based on the fact that he was running away from U.S. authorities, the Board concluded he had not, in fact, made an asylum claim in the U.S. The Board also noted that Mr. Mansoor did not inform U.S. authorities that he moved from Texas to New York and that this was inconsistent with the behaviour of a person feeling at risk for his security.

 

[18]           Mr. Mansoor brought two witnesses to the hearing to testify that they had seen him in Pakistan in December 2000. In both cases, the information provided by the witness about when they met Mr. Mansoor was inconsistent with the information he provided.

 

[19]           Based on the evidence of the stolen, altered passport and the unreliable testimony of his witnesses, the Board concluded, on a balance of probabilities, Mr. Mansoor had not returned to Pakistan in December 2000.

 

[20]           Based on this finding, the Board held that the events involving Shazia and the harassment by Brigadier Hayat could not have taken place since Mr. Mansoor was in the U.S. at the time of the alleged events. The Board also found that, once the misrepresented or withheld facts were set aside; there was not sufficient evidence to support the original panel’s determination.

 

THE ISSUE

[21]           The only issue to be determined is whether the Board erred in applying the test for vacating refugee status.

 

THE RELEVANT LEGISLATION

[22]           Section 109 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), reads as follows:

 

ANALYSIS

[23]           The parties do not dispute the proper approach to an application to vacate a decision granting refugee status. The tribunal must first conclude the decision granting refugee protection was obtained as a result of direct or indirect misrepresentations, or of withholding material facts relating to a relevant matter. Having found so, it may nevertheless deny the application if there remains sufficient evidence considered at the time of the determination of the claim for refugee protection to justify refugee protection: see, for example, Canada (Minister of Citizenship and Immigration) v. Pearce, 2006 FC 492; Naqvi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1605.

 

[24]           In the present case, the Board correctly formulated the test and concluded that Mr. Mansoor, based on the evidence before it, deliberately or indirectly misrepresented or withheld relevant material facts relating to his application for refugee status. Indeed, Mr. Mansoor does not contest that he misrepresented material facts on relevant matters. In any event, this is a finding entitled to the highest level of deference, as it was based on an assessment of Mr. Mansoor’s credibility and on the weighing of the evidence submitted by both parties.

 

[25]           In Sethi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1178, my colleague Justice Danièle Tremblay-Lamer undertook a pragmatic and functional analysis to determine the standard of review applicable to decisions made pursuant to section 109 of the IRPA. She concluded that, with respect to the first part of the test as set out in paragraph 109(1), the Board’s decisions should be reviewed against a standard of patent unreasonableness: see also Canada (Minister of Citizenship and Immigration) v. Wahab, 2006 FC 1554.

 

[26]           While not conceding that he actually never returned to Pakistan, Mr. Mansoor focused his argument on the second part of the test. He submits the Board did not properly analyze the remaining uncontradicted evidence, and claims there was still enough material evidence to support the original panel’s determination.

 

[27]           That second part of the test does not attract the same standard of review. I agree with my colleague in Sethi, above, that such a task does not entail the same kind of exercise. In determining whether there is enough evidence left to support the Board’s initial finding, the task is not so much to assess the applicant’s credibility, but to draw inferences as to whether the evidence left can be considered tainted by the misrepresentations. As Justice Tremblay-Lamer stated:

[18] However, the corollary determination made by the RPD as to whether “other sufficient evidence was considered at the time of the first determination to justify refugee protection” (under subsection 109(2)) constitutes, in my opinion, a different exercise: it is not premised, even if only in part, upon the RPD’s assessment of the refugee’s testimony and credibility at the time of the application to vacate. Rather, the inquiry required under subsection 109(2) entails deciphering whether any of the evidence cited in support of the original positive determination is left “untainted” by the fact of the newly discovered material misrepresentations (see Babar v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 301 (T.D.)(QL); Duraisamy v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1915 (T.D.)(QL)).

 

[19] The RPD is, as stressed already, by virtue of its position adept at drawing inferences regarding the plausibility of an individual’s story of persecution (Aguebor, supra) and, by the same token, judging whether misrepresentations about a relevant matter were made, based directly on the documentary and oral evidence that is submitted. But to accomplish its task under subsection 109(2), the RPD must examine the evidence from the original refugee claim hearing. The material misrepresentations having been found, this inquiry in no way depends upon the RPD’s current assessment of the refugee at the hearing.

 

[20] In other words, the RPD is not in a privileged position relative to this Court to undertake this exercise and determine whether other sufficient evidence in support of the initial grant of refugee status remains. Thus the standard of reasonableness simpliciter should in my view apply in respect of determinations made pursuant to subsection 109(2).

 

 

[28]           In the present case, the Board did not conduct any specific analysis pursuant to subsection 109(2). After having reviewed the evidence surrounding the circumstances of Mr. Mansoor’s stay in the U.S., the Board merely found he had lied and never returned to Pakistan in December 2000. The Board then stated, in the concluding part of its reasons:

The tribunal concludes that the respondent deliberately or indirectly misrepresented or withheld relevant material facts relating to his application for refugee status. Once the tribunal has set aside the misrepresented or withheld relevant material facts, there is not sufficient evidence to support the determination made by the original panel on January 24, 2003.

 

 

[29]            Can that be considered sufficient, for the purposes of the analysis required by subsection 109(2)? I do not think so. It could have been enough if the only evidence left had been the general country conditions, as was the case in Arumugam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1449, and in Coomaraswamy v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153. Here, there were still material elements that could support the determination made by the original panel – the fact that Mr. Mansoor was a member of the PPP, that he was assaulted and threatened by the rival PML in April 1999, that he was arrested, detained and beaten. It is not at all clear whether, and if so why, this evidence must be considered unreliable as a result of his misrepresentations with respect to his stay in the U.S.

 

[30]           The Minister tried to argue that the three-month delay until Mr. Mansoor left his country, his failure to claim protection in the U.S. despite a 16-month sojourn and his attempt to abscond from immigration officials, were all relevant factors that impugned his overall credibility. This behavior, according to the Minister, demonstrates a lack of subjective fear, a fundamental and determinative element of a refugee claim and a “relevant matter” under the terms of subsection 109(2) of the IRPA.

 

[31]            The problem with this submission is that it is purely speculative. There is no precise indication in the Board’s reasons as to why the remaining evidence was found insufficient to support the initial determination. If the Board felt there was no evidence left untainted, it should have explained how the allegations about persecution before July 2000 no longer suggested Mr. Mansoor needed refugee protection. Absent such an explanation, it is not self-evident that Mr. Mansoor’s misrepresentations about his stay in the U.S. necessarily imply his whole story is a tissue of lies.

 

[32]           It is simply not sufficient to simply say there is no evidence left to support the determination made by the original panel when there remain allegations, found to be credible at the first hearing, that have not been shown to be misrepresentations. In my opinion, the Board failed to apply the test that it set out at the beginning of its analysis, and should have considered whether there was other untainted evidence considered at the time of the first determination which would justify granting refugee protection to Mr. Mansoor. This finding therefore constitutes a reviewable error, as it “is not supported by any reasons that can stand up to a somewhat probing examination” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56).

 

[33]           For these reasons, I would accordingly grant this application for judicial review and return the matter to the Board for a new determination before a differently constituted panel.

 

[34]           Counsel for Mr. Mansoor submitted the following question for certification: In the context of section 109(2), when the Board member concluded to misrepresentation and when credibility is questioned, is the Board member obliged to assess “other sufficient evidence”?

 

 

[35]           I agree with the respondent that this is not a question of general importance that transcends the interests of the immediate parties. First of all, I do not think there is any ambiguity in the interpretation of subsections 109(1) and (2). The two-pronged test applied by the Board has been consistently followed by this Court, and the respondent does not dispute that it is the correct approach. The Minister’s position is rather that the Board did apply that test and properly came to the conclusion that, once the evidence affected by the misrepresentations was set aside, there was insufficient evidence to justify granting refugee protection to Mr. Mansoor. The outcome of this case, therefore, turns on the application of what is clearly the law to the particular facts of this case. As such, it does not warrant the certification of a question.

 

JUDGMENT

 

THIS COURT ORDERS that this application for judicial review is granted. There will be no certified questions.

 

 

 

“Yves de Montigny”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-5238-06

 

STYLE OF CAUSE:                          Kashif Mansoor 

v.

The Minister of Citizenship and Immigration

 

 

 

PLACE OF HEARING:                    MONTREAL, Quebec

 

DATE OF HEARING:                      March 27, 2007

 

REASONS FOR JUDGEMENT

AND JUDGEMENT BY:                  JUSTICE DE MONTIGNY

 

DATED:                                             April 20, 2007

 

APPEARANCES:

 

Dan M. Bohbot	FOR THE APPLICANT
Gretchen Timmins	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Dan M. Bohbot Barrister and Solicitor 4979-A Cote-Sainte-Catherine Street Montreal, Quebec  H3W 1M5	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT