Chapter 13 - Applications to vacate refugee decisions

13.5.4.1. Materiality

Subsection 109(1) requires that a misrepresentation or withholding must be with respect to a material fact related to a relevant matter. In other words, the misrepresentation must be with respect to something that would have impacted the original refugee protection decision.

In Olutu,^{Footnote 46} the Minister had successfully vacated the protected person’s refugee status by submitting evidence to the effect that the individual had used three different names in order to obtain welfare assistance. There was no evidence, however, that the protected person filed two other immigration applications under different names. The Court granted the protected person’s application for judicial review because the Court held that “misrepresentations in other matters do not constitute misrepresentations for the purposes of a Convention refugee status.”^{Footnote 47} The Minister must show misrepresentation leading to the determination of the refugee status.

In Holubova,^{Footnote 48} the protected person argued that the vacation panel made a number of serious errors in the course of arriving at its conclusion that she had misled the original panel by failing to disclose her criminal convictions in the Czech Republic. The protected person maintained that she was not aware of her robbery conviction at the time of the determination hearing. The vacation panel found it was unlikely she was unaware of such convictions given she was still living in the Czech Republic at the time and an appeal was launched of those convictions. The protected person argued that the panel did not consider the fact that her robbery conviction had since been erased and that the Czech Republic was no longer seeking her extradition. The Court rejected the argument and reiterated that the main question was not whether there was any live issue about her criminality, but rather, whether there was a factual foundation for the Minister’s claim that the protected person misled the Board.

In Wahab,^{Footnote 49} the protected person, allegedly a citizen of Iraq, admitted that he had withheld information about family in Russia and efforts to procure fraudulent Russian documents, including a passport which he had used to travel; however, he alleged that he had never lied about being a citizen of Iraq. The RPD found that the Minister had presented a prima facie case that the protected person’s misrepresentations had led to his conferral of refugee status. However, the RPD went on to reject the Minister’s application under subsection 109(2). The Court quashed the decision, finding that the RPD failed to identify the nature of the misrepresentation(s) put forth by the Minister and the extent to which the misrepresentation(s) may have been material. Only after doing this could the RPD have embarked on its analysis under subsection 109(2).

In Bafakih,^{Footnote 50} the protected persons were granted refugee protection in 1999 alleging a fear in Yemen. The RPD vacated the refugee decision because the claimants had not disclosed at that time that the principal protected person was registered as a Kenyan national and that his parents were born in Kenya. The RPD held that Kenya was a “potential country of reference” that would have been explored further at the original 1999 hearing. The Court quashed the decision, finding that the text of subsection 109(1) of the IRPA required the RPD to determine that the protected persons’ failure to mention any possible connections to Kenya in 1999 led to a decision that was a direct or indirect result of withholding that information. It was insufficient for the RPD to state that the protected persons’ failure to mention Kenya could “potentially” have resulted from a withholding of “potentially” material facts. The test under subsection 109(1) is not that the disclosure of certain facts would have caused more of an inquiry. The Court certified the following question of general importance:

Before vacating a decision granting refugee protection under subsection 109(1) of the IRPA, is the [Minister] required to demonstrate, and is the RPD required to find, a misrepresentation or withholding of a material fact that would have led to a different conclusion by the original RPD panel, or is it sufficient for the RPD to find a misrepresentation or withholding of a material fact that could have led to a possible line of inquiry that may, or may not, have resulted in a denial of refugee protection by the original RPD panel?

13.5.4.2. Direct versus indirect misrepresentation or Omission

Subsection 109(1) provides that the misrepresentation or withholding of a fact may be direct or indirect. The jurisprudence in the context of a vacation application has not specifically addressed the difference between a direct or indirect misrepresentation. Nonetheless, it is helpful to consider paragraph 40(1)(a) of the IRPA, dealing with inadmissibility for misrepresentation, since it uses similar language to subsection 109(1).^{Footnote 51} In that context, the Courts have found an indirect misrepresentation to be when a third person provides, or fails to disclose, information relevant to the person’s case, with or without the subject of the proceedings’ knowledge.^{Footnote 52}

This view is consistent with Coomaraswamy^{Footnote 53} where the parents of the appellant children failed to disclose to the Board that they had in fact lived in Germany at the time the events of persecution were allegedly taking place in Sri Lanka. Although originating from the parents, the Court of Appeal held the misrepresentation affected the children’s claim. While Coomaraswamy was decided under the former Act and the applicable legislative provisions at the time did not distinguish between a direct or indirect misrepresentation, this example aligns with the interpretation the Courts have given to an indirect misrepresentation under paragraph 40(1)(a).

More recently, the applicants in Mella^{Footnote 54} argued that the RPD erred in vacating the decision granting the minor children refugee protection because they personally did not misrepresent or withhold facts. The Court recognized that the children were “wholly innocent with respect to the fraudulent refugee claim advanced by their parents.” Nevertheless, their innocence was “irrelevant” to their entitlement to refugee protection. Although subjective fear can be imputed to children from their parents, if there is no basis to confer protection then there is nothing to impute to a child. Here, the minor children should not have been granted refugee protection in the first place because the claim made on their behalf by their father depended entirely on material falsehoods.

13.5.4.3. Intention

In Zheng, the applicant argued that the RPD failed to address the issue of intent. The Court explained that a misrepresentation or the withholding of a material fact does not need to be deliberate nor does it require an inquiry as to the intention of the protected person.^{Footnote 55} In other words, the misrepresentation need not be intentional. The facts of Zheng involved a protected person who misrepresented his original entry into Canada utilizing a valid passport issued by the Commonwealth of Dominica and bearing his likeness and date of birth. He argued that the RPD should have considered that he was under the control of smugglers and under duress; therefore, he could not form the intent to withhold the true facts about the passport. The Court held that it was not necessary for the panel to consider the protected person’s intent.

In Pearce,^{Footnote 56} the Court allowed the Minister’s application for judicial review because it was irrelevant for the RPD to consider the intellectual capacity or the intention of the protected person to misrepresent or withhold material facts. The Court held that subsection 109(1) does not warrant consideration of the protected person’s “motives, intention, negligence or mens rea”.^{Footnote 57} Furthermore, the Court agreed with the Minister that it is the behaviour of the protected person in withholding material facts that is relevant to the determination of the vacation application. In that regard, the Court found that the protected person had an “obligation” to make known all material facts relevant to her refugee claim to the determination panel.

In Mella,^{Footnote 58} the applicant cited the common law defence of duress to excuse her from the consequences of any misrepresentation made by her then-husband at the time of their refugee claim. She alleged her husband provided all the information relating to their refugee claim and she simply signed the relevant forms. She did not question her husband about anything because she feared he would be physically or verbally abusive towards her if she did. The Court confirmed the RPD’s rejection of the argument, agreeing that the defence of duress is irrelevant in an application to vacate. Section 109 is concerned with whether material facts relevant to a refugee claim were misrepresented or withheld by someone seeking refugee protection. If they were, the reason this happened is irrelevant to the claimant’s entitlement to refugee protection, which is the fundamental question at issue in the application to vacate.

In Frias,^{Footnote 59} the protected person did not disclose her dated criminal record in the United States at the time of the determination hearing. At the vacation hearing, the protected person admitted to having used an alias and to having been arrested in the United States, but claimed that she sincerely replied to the questions asked in the course of her refugee claim and port of entry interview because they only referred to crimes committed in the past 10 years. The vacation panel found these explanations not credible. On judicial review, the protected person argued that the vacation panel had failed to take into account the presumption of good faith. The Court rejected such an argument qualifying it as “irrelevant” since section 109 of the IRPA does not require that the protected person intended to misrepresent the facts.^{Footnote 60}

In Coomaraswamy,^{Footnote 61} the Court of Appeal recognized that the appellant children “may have been badly served by their parents as designated representatives” when the parents lied to the determination panel about their experiences of persecution. However, the Court refused to recognize this as a reason for concluding that the children were denied a fair hearing of their refugee claim. In the Court’s view, the principle that clients generally cannot impeach a tribunal’s decision on the ground that their lawyer made mistakes applies also to errors made by a parent, or some other person, who has been designated to act as a child’s representative in refugee proceedings. The fact that a child claimant may have been badly served by their parent who acted as designated representative and lied to the Board at the hearing of their claim does not mean the child was denied a fair hearing.

13.5.4.4. Credibility and weighing evidence

In determining whether or not there was a misrepresentation at the time of the initial refugee status determination, the RPD must assess the credibility of the new evidence as well as, sometimes, reassess the credibility of the evidence considered at the first hearing.^{Footnote 62}

In Naqvi,^{Footnote 63} the protected persons admitted to fabricating and misrepresenting facts in their original hearing; however, they argued that there remained sufficient evidence to justify their refugee protection once the fraudulent evidence was set aside. They argued that the RPD was not entitled to re-weigh the remaining evidence. The Court rejected this argument. The RPD may re-weigh the evidence which was presented to the original panel in light of the misrepresentations. The Court stated:

Why should a prevaricator have the advantage of keeping the weight accorded to his evidence when the tribunal was still under the impression that he was an honest claimant? He simply should not; that is why it is in the interest of justice to allow the current tribunal to re-weigh the evidence which was presented to the original panel.^{Footnote 64}

In refusing to certify a question of general importance in this case, the Court stated that it is “settled law that the Board may reassess evidence at the vacating hearing.”^{Footnote 65}

In Bhatia,^{Footnote 66} the Court found that the Board’s reasons in the vacation application were “flawed and insufficient” to support the conclusion that the protected person’s wife was not credible. At the vacation hearing, the Minister had presented evidence that the protected person’s wife told a visa officer information inconsistent with the protected person’s narrative that he feared the police. The protected person’s wife testified that she had lied to the visa officer because she was afraid that the information she gave the officer would make its way to the Punjab police. The vacation panel rejected this explanation as not credible. In the Court’s view, the failure of the wife to inform the visa officer of her fear of the Punjab police was an important factor in the negative credibility determination of the vacation panel. The Court identified two areas of concern in this respect with the panel’s credibility determination. First, a panel should not infer that an individual with a real fear of persecution will necessarily indicate such fear to a visa officer when seeking a visa. Second, there was no indication or suggestion that the panel considered the wife’s evidence within its proper cultural and socio-political context before drawing conclusions as to the plausibility of that evidence. After having reviewed the decision, the Court was “unable to conclude that the [panel] did not impose western concepts on a non-western culture.”^{Footnote 67}

In Babar,^{Footnote 68} the Court granted the protected person’s application for judicial review because the “type of careful and cautious evaluation required was not conducted” by the vacation panel. Rather, the vacation panel is required to fairly determine what evidence is not tainted, whether it be the independent evidence and, indeed, related evidence given by the protected person. In this case, the panel did not show how the protected person’s misrepresentations tainted the independent evidence he produced to support his claim.

In Holubova,^{Footnote 69} the protected person argued that the vacation panel made a number of serious errors in the course of arriving at its conclusion that she had misled the original panel by failing to disclose her criminal convictions in the Czech Republic. The protected person maintained that she was not aware of her robbery conviction at the time of the determination hearing. The vacation panel found it was unlikely she was unaware of such convictions given she was still living in the Czech Republic at the time and an appeal was launched of those convictions. The Court upheld the panel’s finding that the protected person may have come to Canada to avoid having to serve her sentence.

In Masuki,^{Footnote 70} the Minister sought to vacate the protected person’s refugee status after having seized from her son’s car documents that showed her having different identities in addition to an alternative death certificate for her husband. At the vacation hearing, the Board had two incompatible death certificates for the protected person’s husband and since the circumstances surrounding the death of her husband were the central elements of her basis of claim and testimony, the Court found this misrepresentation was sufficient for the Board to vacate the decision that granted the protected person’s refugee status.

In Nur,^{Footnote 71} the protected person had claimed before the original panel to be from Somalia. At the vacation hearing, the Minister argued the protected person misled the original panel and was instead a citizen of Djibouti. The Board granted the Minister’s application on this basis, but the Court found the Board’s reasons for finding that the protected person was a citizen of Djibouti to be problematic because the Board used its specialized knowledge to make the determination. The Court impugned this approach because it held that determining nationality is a matter of foreign law, in that it is governed by the law of the country and, therefore, cannot be within the Board’s specialized knowledge. The Court contrasted knowledge of foreign law with knowledge of culture and ethnicity, which in some cases could fall into the realm of specialized knowledge; however, if this was the case, notice of reliance on such specialized knowledge would have to be given to the protected person, as well as an opportunity to respond to it. The Court noted that once the protected person’s Djiboutian nationality had been ruled out, the only ground left to find that she was not Somali was the vacation panel’s determination that she lacked credibility. However, the Court concluded that the vacation panel would not have found the protected person’s version of the facts not credible had it not made erroneous findings with respect to her Djiboutian nationality and her testimony.^{Footnote 72}

The Court came to a different result in Al-Maari^{Footnote 73} when the RPD used its specialized knowledge to identify citizenship requirements in foreign countries. The Court stated “there [was] nothing wrong with doing so”, although it found that the protected person should have been given the opportunity to respond to the RPD’s findings.^{Footnote 74}

In Bortey,^{Footnote 75} the protected person was granted refugee status on the basis that she was a single woman who would be forced into marriage. After being granted status, she married a man in Canada who had previously claimed refugee status. In her husband’s refugee documents, a person with the same name and same hometown as the protected person had been listed as his wife. The protected person alleged that this amounted to a coincidence in that her husband had previously been married to a woman with the same name. The Court upheld the RPD’s decision to grant the Minister’s application based on a finding that this was implausible.

In Aluyi,^{Footnote 76} the protected person admitted he had misrepresented the fact he had spent 10 years in the United States and had criminal convictions there. He further admitted that everything in his Personal Information Form was false, except for his sexual orientation. The RPD found that the protected person was not trustworthy but reviewed the evidence to determine if there was any independent corroboration of the protected person’s sexual orientation, independent from his testimony, and found there was none. The protected person argued that the RPD erred by first finding his testimony not credible, and then reviewing the other evidence, rather than analyzing them together. The Court upheld the decision, finding that “[I]n a case such as this one, where there is nothing to give the Board any reason to accept the credibility of the Applicant, this is the appropriate procedure to be followed.”^{Footnote 77}

In Pires Santana,^{Footnote 78} Canadian authorities had granted refugee status to the protected person based on her sexual orientation. However, the Minister successfully applied to vacate that status after submitting evidence to the effect that once the protected person arrived in Canada, she became involved in a romantic relationship with a man, which led to marriage and a child born of this union. The protected person admitted all of these allegations but maintained the truthfulness of her submissions at the refugee determination hearing. She alleged that she had been in conflict, confused and unhappy, as she wanted to have a child and had attempted to change her sexual orientation on that basis. Following this experience, the marriage failed. Given the complexity of the human race in relation to sexuality, the Court found that the RPD’s decision was patently unreasonable. The fact that the protected person had a heterosexual relationship with a man in Canada as such did not establish that she committed a direct or indirect misrepresentation or withholding of material facts.^{Footnote 79}

In Singh Chahil,^{Footnote 80} the protected person argued that by not having before it the first panel’s reasons for decision, the Board acted outside its jurisdiction by essentially conducting its own assessment of the facts and substituted the first panel’s appreciation of the evidence with its own. The Court rejected the argument because the Board had before it the tribunal record of the first hearing which included the evidence which was adduced before the first panel and thus the Board was in a position to assess the evidence adduced before the first panel against the evidence produced at the vacation hearing.

In Waraich (1),^{Footnote 81} the protected persons had presented First Information Reports in support of their claims of persecution in Pakistan. The Minister subsequently had the reports verified and when the verification indicated they were fraudulent, the Minister filed an application to vacate. The RPD recognized that the First Information Reports were fraudulent, but dismissed the application, finding there was other sufficient evidence under subsection 109(2) to justify the claim. However, the Court quashed the decision, in part because the RPD failed to assess the consequences of the misrepresentations on the remaining evidence.

In Lin,^{Footnote 82} the protected person had been accepted as a refugee on the basis of persecution at the hands of the Chinese authorities. The Minister sent certain documents to Chinese authorities for verification and, based on the results, the Minister filed an application to vacate. The RPD dismissed the application citing concerns about the Minister sending the documents to the agent of persecution for verification without taking precautions to protect the identity of the protected person. The Minister argued that instead of engaging in the analysis required by section 109 of the IRPA, the Board focused on the “entirely extraneous and irrelevant consideration” of how the Minister obtained the evidence.^{Footnote 83} Furthermore, the Minister posited that by focusing on the protected person’s privacy rights, the Board examined an issue that was not before it and was not within the scope of the Board’s duty at the vacation hearing. The Court disagreed and found it was “obvious” that the Board concluded the Minister’s evidence was insufficient to meet the requirements of section 109.^{Footnote 84} Contrary to the Minister’s submissions, the Board made it “quite clear” that it was concerned with the credibility of the Minister’s evidence, given its provenance.^{Footnote 85} The Court found that the source of the evidence “clearly has an impact” on the probative value that may be assigned to it.^{Footnote 86}

In Nasreen (2),^{Footnote 87} the Court reviewed a second RPD decision to vacate the protected persons’ refugee status after the first decision was quashed and returned for redetermination. In returning the matter back to the RPD in Nasreen (1), the Court had specifically directed that “a more systematic attempt at explaining the identification discrepancies” should be made. The Court noted that the central issue on the redetermination was the identity of the protected persons and therefore the identification documents tendered by the protected persons in making their claim for protection were relevant and required careful attention by the RPD. The Court was satisfied that the RPD gave the required careful attention to the identity documents and dismissed the application for judicial review.

13.5.5.1. Assessing the remaining evidence

Once the RPD concludes that the protected person made a misrepresentation or withheld material facts at the first determination, the RPD must then move on to the second step which is to assess the other, untainted evidence, considered at the time of the first determination to determine if sufficient evidence remains that justify protection.

For a discussion of this step where exclusion is raised, see the next section.

Without evidence indicating that the person’s particular circumstances or profile put them at risk, the RPD cannot justify allowing the refugee claim. The existence of documentary evidence concerning a country’s general situation is not enough in itself to justify the granting of refugee protection.

For instance, in Naqvi,^{Footnote 88} the protected persons admitted to fabricating and mispresenting facts in their original hearing; however, they argued that there remained sufficient evidence to justify their refugee protection once the fraudulent evidence was set aside. The Court noted that when there is “no remaining credible evidence upon which a panel can make a positive determination that a person is a Convention refugee, it can certainly be inferred that an applicant is not a Convention refugee.”^{Footnote 89} The Court reiterated that documentary evidence alone is not sufficient to allow the RPD to reject the Minister’s application to vacate.

Similarly, in Fouodji,^{Footnote 90} the Minister applied for judicial review of the RPD’s vacation decision that found there remained relevant evidence to justify the refugee status of the protected person despite misrepresentations. The Court held that the RPD provided “no analysis of the evidence filed by the Minister” nor was there any “reference to the most significant misleading statements or misrepresentations.”^{Footnote 91} The Court was of the view that the RPD did not identify the contradictions nor did it weigh the evidence or analyze the credibility of the protected person. In addition, the Minister had argued that the RPD erred in finding that there was sufficient remaining evidence to justify the refugee status of the protected person. The Court agreed with the Minister and held that the existence of documentary evidence regarding the general situation of a country is not in itself sufficient to justify a person’s refugee protection.^{Footnote 92}

In Sethi,^{Footnote 93} the protected person had been granted refugee status based on allegations of domestic violence at the hands of her husband. The Court found that there was “no question” that misrepresentations were made and that the Board did not err in finding that the original decision was obtained as a result of misrepresenting or withholding material facts relating to a relevant matter.^{Footnote 94} In particular, the misrepresentations related to the whereabouts of the protected person’s husband, whom she only saw occasionally due to his travels, in contrast to her evidence at the original hearing that she had been residing with him in Pakistan. The “critical issue”, however, related to whether there remained other sufficient evidence to justify refugee protection.^{Footnote 95} At her original hearing, the protected person had filed medical reports from Pakistan describing the injuries suffered as a result of domestic violence as well as pictures depicting the injuries. According to the Court, this evidence showed “clearly” that domestic violence had occurred and none of the misrepresentations undermined this evidence, nor did any of the evidence filed by the Minister contradict these findings.^{Footnote 96} The Court concluded that the RPD failed to meaningfully assess whether this constituted sufficient untainted evidence to support the original determination, despite the misrepresentations.

In Arumugam,^{Footnote 97} the Court recognized that, once the misrepresented and withheld evidence relating to the persecution experienced by the protected person was discounted, the only evidence that was before the original panel that granted refugee protection related to general country conditions, the protected person’s gender, marital status and age and the fact that she was a Tamil from Sri Lanka who had at one time lived in the northern part of that country. While the Court noted that it would “undoubtedly” have been preferable for the vacation panel to be “more fulsome” in its dealing with the remaining evidence, it found that the panel did not commit a reviewable error in summarily rejecting this evidence as a sufficient basis to justify granting refugee protection.^{Footnote 98}

In Oukacine,^{Footnote 99} the protected person was a Berber with Algerian citizenship who had been granted refugee protection because he was a conscientious objector to military service. The protected person later admitted to having provided misleading facts to the Board. The Minister successfully vacated the protected person’s refugee status. On judicial review, the protected person contested the vacation panel’s conclusion that there was no other sufficient evidence to justify refugee protection. Specifically, he argued that by virtue of the residual fact that he was a Berber, he faced risk of persecution in the Algerian Army. In the Court’s view, the panel was entitled to find that lack of credibility of the protected person affected the weight of the other evidence submitted, other evidence which was to a large extent based on his testimony. Further, the Court accepted that the documentation did not support the protected person’s claims regarding the treatment of Berbers.

In Davidthamby Chery,^{Footnote 100} the Minister demonstrated that the protected person had made misrepresentations, as he was in Switzerland during some of the alleged incidents in Sri Lanka. However, the RPD dismissed the vacation application, finding that there was sufficient evidence remaining justifying protection, due to a history of earlier, uncontradicted incidents that had been found credible by the first panel. The Minister contested the decision but the Court noted that it was clear that the Board “considered the misrepresentation, placed it in the context of the whole statement and still found enough material that was considered by the first [panel] to grant refugee protection.”^{Footnote 101}

In Shahzad,^{Footnote 102} the protected person presented a First Information Report (FIR) from Pakistan at his determination hearing to support his allegations of persecution in Pakistan. The RPD accepted the claim, but in doing so stated that while generally there is adequate state protection in Pakistan, it would “award the benefit of the doubt” to the claimant “especially in the absence of any major discrepancies in his testimony.”^{Footnote 103} An employee from the Canadian embassy in Pakistan subsequently made verifications and determined the FIR was fraudulent. On this basis, the RPD allowed the Minister’s application to vacate, finding that had the original panel known about the fraudulent documents, it would have evaluated his credibility differently. The Court upheld the decision and reiterated that within the context of subsection 109(2) of the IRPA, it is up to the Board to assess the credibility of residual evidence. In addition, the fraudulent documents could have impacted the RPD’s analysis of the availability of state protection. The only evidence remaining before the initial panel was the objective country conditions evidence showing sectarian violence between Sunni and Shia groups. In the Court’s view, the Board correctly found that the existence of objective country conditions evidence is not by itself sufficient to justify a person’s claim for refugee protection.

In Mansoor,^{Footnote 104} the protected person admitted to having made misrepresentations about the time he spent in the United States; however, he argued that the Board did not properly analyze the remaining uncontradicted evidence which in his view was sufficient to support the original panel’s determination. After having identified the misrepresentations, the Board did not conduct any specific analysis pursuant to subsection 109(2) of the IRPA. The Court considered this insufficient as there were still material elements that could support the determination made by the original panel. In particular, there was evidence of arrests and detention prior to his coming to the United States, as well as evidence of membership in the Pakistan Peoples Party. The RPD should have explained why the remaining evidence was not sufficient. The Court restated that it is “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.”^{Footnote 105}

In Gunasingam,^{Footnote 106} the RPD had found that the protected person misrepresented his presence in Sri Lanka during the period he was allegedly persecuted. Nevertheless, the RPD accepted his testimony at the vacation hearing that the incidents happened as alleged on different dates and held there was sufficient untainted evidence to let the original decision stand. The Court quashed the decision on review. In the Court’s view, the new dates were irrelevant and the incidents could not be considered once it was established they could not have happened on the dates alleged. The Court found that the RPD erred in allowing the protected person to present a “corrected” version of events, contrary to the bar on the admissibility of new evidence under subsection 109(2) of the IRPA.^{Footnote 107}

In Otabor,^{Footnote 108} the Court upheld the RPD’s decision allowing the Minister’s application to vacate. The protected persons argued that the RPD erred by not analyzing whether the remaining untainted evidence was sufficient to accept the claim. They argued that although the new evidence showed that they were in the United States during much of the time they alleged being persecuted, some of the incidents occurred while they were still in Nigeria, and some of the incidents happened on different dates. The Court rejected these arguments. Although it may have been preferable for the RPD to have explained its analysis under subsection 109(2) of the IRPA in more detail, it was implicit in its reasons that the RPD considered the untainted evidence and found it was insufficient. Insofar as the protected persons alleged that the incidents were genuine but happened on different dates, the RPD was not required, nor indeed permitted, to consider a new version of events in which the protected persons had simply changed the dates of the incidents that had happened to them.^{Footnote 109}

In Waraich (1),^{Footnote 110} the protected persons had presented First Information Reports in support of their claims of persecution in Pakistan. The Minister subsequently had them verified and when the verification indicated they were fraudulent, the Minister filed an application to vacate. The RPD accepted that the First Information Reports were fraudulent, but dismissed the application, finding there was other sufficient evidence under subsection 109(2) to justify the claim. The RPD declined to consider the fact that the protected person had returned twice to Pakistan, since it was not before the first determination panel. The Court quashed the decision. It found the RPD erred by not indicating what remaining evidence supported the claim and by not analyzing the consequences of the false information on the protected persons’ credibility. Additionally, the Court seemed to accept the Minister’s submissions that the RPD should have considered the credibility of the protected person’s original claim that she was being sought by the army and police, in light of the fact that she returned to Pakistan for lengthy visits. Finally, the Court held that insofar as the RPD may have taken a negative view of the length of time it took to verify the documents, this was an error as the “Court does not impose a time limit and the discovery of fraud depends on many imponderable factors beyond the applicants’ control.”^{Footnote 111}

When the matter was returned to the RPD for redetermination, the RPD allowed the Minister’s application. In Waraich (2),^{Footnote 112} the Court upheld that decision and found that the RPD may consider the fact the protected persons had returned to Pakistan as part of the first step of the analysis – i.e. whether there was a misrepresentation made at the first hearing. Due to the principal protected person’s “unsatisfactory explanations” when confronted with the fact that she had submitted false documents, in addition to the fact that the protected persons had later returned to Pakistan twice without being bothered by the authorities, the RPD could reasonably conclude that the decision to grant the protected persons refugee status was the direct result of the misrepresentation or withholding of material facts relating to a relevant matter.^{Footnote 113}

In Singh Gondara,^{Footnote 114} the Court dismissed the Minister’s application for judicial review finding that the Board reasonably applied section 109 of the IRPA. The protected person had been granted refugee protection pursuant to the RPD’s Expedited Policy in force at the time. The Minister applied to vacate his refugee status arguing that two of the identification documents submitted by the protected person were fraudulent. The RPD found those documents were indeed fraudulent and that there was in fact a misrepresentation by the protected person. However, the RPD dismissed the application to vacate concluding that there remained sufficient identification documents from the first determination panel to establish the protected person’s identity. In particular, the RPD considered whether the evidence relative to the fraudulent documents undermined the authenticity of the remaining identity documents but found that the remaining identity documents were not misrepresentations. The Court held the RPD did not err by declining to reweigh the other identification documents as those did not arise from misrepresentations.

13.5.5.2. Exclusion

The Courts have held that where the misrepresentation or withholding of a material fact relates to exclusion such that the protected person would have been excluded at the original determination, it is not necessary to proceed to the analysis under subsection 109(2).

In Parvanta,^{Footnote 115} the protected person withheld information regarding his status in Germany where he had been living since 1981 and where he was granted refugee status in 1996. The Board was of the view that if the determination panel had this evidence before it, the protected person would not have been granted refugee status because he would have been excluded under Article 1E of the Refugee Convention. The Court held that once the Board concluded that the protected person 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 he is a person in need of protection.

In the Court’s view, 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.”^{Footnote 116}

Where Article 1E forms the basis for exclusion at the vacation hearing, earlier decisions of the Court indicated that the time at which to determine the person’s status and whether they would have been excluded is at the time of their admission to Canada or application for refugee status.^{Footnote 117} However, these cases should be read in light of the reformulated test set out in the Court of Appeal decision of Zeng.^{Footnote 118}

In Sajid,^{Footnote 119} the Court concurred with the RPD that the protected person misrepresented or withheld material facts relevant to his refugee protection claim, namely, facts directly related to alleged criminal activities in the United States. The RPD held that the outcome of the refugee protection claim might have been different had these omissions been known since they were “directly related to an exclusion” for refugee protection pursuant to section 98 of the IRPA. In particular, the RPD found that there were serious reasons for considering the protected person had committed serious non-political crimes in the United States and that had the initial panel been aware of the investigation, it would have found in favour of an exclusion pursuant to Article 1F(b). As a result, the RPD concluded that it was not necessary to proceed to an analysis under subsection 109(2) of the IRPA. The Court upheld the RPD’s analysis.

In Omar,^{Footnote 120} the protected person misrepresented her alleged persecution in Somalia as she was instead living in the United States at the time the events allegedly occurred. While in the United States, the protected person was convicted of an offense not disclosed to the Canadian authorities when she later sought refugee status. The Minister argued that the protected person was not a Convention refugee or person in need of protection because the offense committed in the United States was a serious non-political crime pursuant to Article 1F(b) and excluded her by application of section 98 of the IRPA. The RPD concurred with the Minister and declined to consider if there would be other sufficient evidence before the determination panel to justify refugee protection as per subsection 109(2) of the IRPA.

The Court shared the view of the RPD and found “one never reaches subsection 109(2) if the person cannot claim to be a Convention refugee or a person in need of protection.”^{Footnote 121} The consideration of whether there is sufficient evidence at the time of the first determination to justify refugee protection simply does not arise. Therefore, the Court said there was “no need to consider whether being a Somalian woman is sufficient to grant refugee status as the applicant was disqualified by the operation of section 98.”^{Footnote 122}

In Thambipllai,^{Footnote 123} the vacation panel looked at the evidence and determined that there were serious reasons for considering that the protected person had committed a crime against humanity pursuant to Article 1F(a). Therefore, the Court stated the vacation panel was not required to engage in an assessment of the evidence as it applied to the inclusionary aspects of the Convention refugee definition.

In Yaqoob,^{Footnote 124} the Court dismissed the Minister’s application for judicial review and confirmed the RPD’s findings that there was sufficient evidence to justify the refugee protection of the protected person despite him having misrepresented his knowledge of violent acts committed by the organization of which he was a member. The Minister argued that once the RPD found the protected person misrepresented material facts, it was bound to consider “all of the evidence available” to determine the issue of exclusion.^{Footnote 125} The Court held that the RPD considered the new evidence adduced by the Minister and relied upon it to establish the protected person’s misrepresentation of material facts at the original hearing. In making the determination that there was other sufficient evidence to justify a positive refugee determination, the RPD was restricted by the terms of subsection 109(2) of the IRPA to the evidence that was before the original tribunal. The Court was of the view that the RPD did not err in referring solely to that evidence and not to the new evidence adduced by the Minister in making that finding.

In Holubova,^{Footnote 126} the protected person argued that the vacation panel made a number of serious errors in the course of arriving at its conclusion that she had misled the original panel by failing to disclose her criminal convictions in the Czech Republic. The protected person maintained that she was not aware of her robbery conviction at the time of the determination hearing. The vacation panel found it was unlikely she was unaware of such convictions given she was still living in the Czech Republic at the time and an appeal was launched of those convictions. The Court upheld the vacation panel’s conclusion that had the Minister been made aware of her convictions, they might well have sought to exclude her from the refugee claim process under Article 1F(b) for having committed a serious non-political crime.

13.5.5.3. Which law should apply

In Duraisamy,^{Footnote 127} the Convention Refugee Determination Division (CRDD) granted in 1999 the Minister’s application to vacate wherein the Minister alleged that the protected persons misrepresented their circumstances when applying for and ultimately receiving Convention refugee status in Canada in 1993. The Board found that at the time that they were claiming to be victims of persecution in Sri Lanka, the protected persons were living in Switzerland as permanent residents, and therefore that the protected persons would have been excluded under Article 1E at the time their claims were decided. In so doing, the Board applied the jurisprudence as it was on the date of the original hearing. The protected persons argued that the Board erred by limiting its consideration of the exclusion clause to the legal landscape which existed in 1993-1994. The Court agreed, finding that the Board erred by considering only the case law that existed at the time of the original hearing and ignoring subsequent jurisprudence. The Court wrote that there is “no impediment to the Board considering current law which has developed since the initial hearing.”^{Footnote 128}

In determining whether to allow or reject the Minister’s application to vacate when exercising its discretion under section 109(2) of the IRPA, the RPD should consider the grounds in both section 96 and 97 of the IRPA, regardless of whether protection was conferred only under section 96, provided evidence relevant to section 97 was presented at the hearing of the claim.

For example, in Selvakumaran,^{Footnote 129} the claims were accepted by the CRDD in 1997 under the former Act. At the time, the Board only had jurisdiction to determine if a claimant was a Convention refugee (the equivalent to section 96 of the IRPA) and not whether the claimant was a person in need of protection (the equivalent to section 97 of the IRPA). The Minister made an application to vacate that decision after the IRPA came into force in 2002. At the judicial review of the Board’s decision to vacate, the protected persons argued that they were denied an opportunity to put forth evidence under section 97. The Court held that when the Board is considering the second branch of the test under subsection 109(2), it may consider all of the grounds on which refugee protection may be granted. However, also pursuant to section 109(2), it cannot receive new evidence; it must base its decision on the evidence that was considered at the time of the first determination. Therefore, the Court rejected the protected person’s argument, reiterating that the Board may consider if section 97 applies, but cannot receive new evidence in doing so.