A-338-95
The Minister of Citizenship and Immigration (Appellant) (Respondent)
v.
Mohammad Farhad Bayat (a.k.a. Mohammad Zulmai Safi), Shakila Bayat (a.k.a. Shakila Safi), Marwa Bayat (a.k.a. Marwa Safi) (Respondents) (Applicants)
Indexed as: Bayatv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone, Linden and Robertson JJ.A. "Toronto, April 13; Ottawa, June 10, 1999.
Citizenship and Immigration — Status in Canada — Convention refugees — Appeal from F.C.T.D. judgment reversing in part Refugee Division's decision — Refugee Division vacating visa officer's determination respondents Convention refugees; determining respondents not Convention refugees on application pursuant to Immigration Act, s. 69.2(2) — First respondent admitting false statements in application for permanent residence — S. 69.2(2) permitting application to Refugee Division —to reconsider and vacate— determination person Convention refugee on ground determination obtained by fraudulent means, misrepresentation — S. 69.3(4) providing Refugee Division shall —approve or reject— application under s. 69.2(2) — Under s. 69.3(5) may reject application if other sufficient evidence on which application could have been based — Motions Judge setting aside portion of Refugee Division's decision respondents not Convention refugees — Appeal allowed (Robertson J.A. dissenting) — Refugee Division not limited to —vacating— determination person Convention refugee on application under s. 69.2(2), but may —reconsider, vacate— any such determination under Act, regulations — Under s. 69.3(4) may approve or reject —application— (referring to s. 69.2(2) application) — When ss. 69.3(4), 69.2(2) read together, Refugee Division authorized to —approve or reject— application to —reconsider and vacate— — —Reconsider— not limiting power of Refugee Division to dealing with prior determination of own — Power of reconsideration in addition to that of vacating determination.
This was an appeal from a Trial Division judgment reversing in part a decision of the Refugee Division. The respondents are nationals of Afghanistan. The adult respondents moved to Pakistan where their daughter was born. After an interview in Pakistan with a visa officer, the respondents were granted "Convention refugee seeking resettlement" in Canada status. Some months after his arrival in Canada, the first respondent admitted during an interview with the RCMP that he had made false statements in his application for permanent residence. The Minister filed an application with the Refugee Division pursuant to Immigration Act , subsection 69.2(2) "to reconsider and vacate" the visa officer's decision that the respondents were Convention refugees. Subsection 69.2(2) permits the Minister to apply to the Refugee Division "to reconsider and vacate" any determination that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation. Subsection 69.3(1) requires the Refugee Division to conduct a hearing where an application is made under section 69.2. Subsection 69.3(4) provides that the Refugee Division shall approve or reject the application under subsection 69.2(2) and, under section 69.3(5), may reject an application if of opinion that there was other sufficient evidence on which the determination could have been based. The Refugee Division vacated the visa officer's decision and determined that the respondents were not Convention refugees. In reversing in part the Refugee Division's decision, the Motions Judge held that on an application pursuant to subsection 69.2(2), the Refugee Division did not have jurisdiction to find that the respondents were not Convention refugees because the Refugee Division was empowered either "to approve or to reject" the subsection 69.2(2) application, particularly if the decision being vacated was that of a visa officer abroad, since the respondents would not have had the opportunity of a full hearing on the merits of their claim before the Refugee Division.
The issue was whether the Refugee Division has the statutory authority under subsection 69.2(2) to declare that a person is not a Convention refugee once it has been determined that that person made a material misrepresentation at the time the refugee status was sought and granted.
Held (Robertson J.A. dissenting), the appeal should be allowed.
Per Stone J.A. (Linden J.A. concurring): An application under subsection 69.2(2) is not limited to "vacating" a determination of a visa officer, but is rather "to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee".
Whether a person is a "Convention refugee seeking resettlement" clearly involves the determination of whether that person is a "Convention refugee". The visa officer therefore had to determine whether the respondents were "Convention refugees", and if they were, whether they otherwise qualified for resettlement in Canada. The informality of the process by which that determination was made did not absolve the adult respondents from the obligation to tell the truth at their interviews. Moreover, the false names were contained in the application for permanent residence, the content of which was solemnly declared by the first respondent to be "truthful, complete and correct".
Subsection 69.3(4) applies to the reconsideration and vacating of "any determination made under this Act or the regulations" that a person was a Convention refugee. It thus applied to a previous determination of the Refugee Division itself or of others, including a visa officer, made "under the . . . regulations". Accordingly, whether the previous determination was one made by the Refugee Division under the Act or by a visa officer under the Regulations, the power bestowed on the Refugee Division is the same. It may "approve or reject the application" in accordance with subsection 69.3(4). The Motions Judge must have had this language in mind in deciding that the power of the Refugee Division was either "to approve or to reject" the application in this case. This language in subsection 69.3(4) ought not to be divorced from its context. The "application" mentioned therein is clearly the "application" referred to more fully in subsection 69.2(2). When the two subsections are read together, it is clear that the Minister's application was to have the determination of the visa officer "reconsidered and vacated" and that it was this application that the Refugee Division was authorized "to approve or to reject". The power of the Refugee Division was not limited to merely "vacating" that determination but also included "reconsidering" it. Given the context, "reconsider" was not intended to limit the power of the Refugee Division to that of dealing with a prior determination of its own. The power of "reconsideration" is in addition to that of "vacating" the determination.
Per Robertson J.A. (dissenting): The Refugee Division's powers are limited to "reconsidering" and "vacating" a determination that a person is a Convention refugee based on a plain reading of subsection 69.2(2). The Refugee Division is empowered only "to reconsider and vacate" a determination made under the Act. In order to read in an implied authority on the part of the Refugee Division to declare that a person is not a Convention refugee, the word "vacate" must be read out.
Subsection 69.3(5) provides that even if the Refugee Division is persuaded that a claimant made a material misrepresentation, it is still open to the tribunal not to vacate that person's status as a Convention refugee, provided there is other sufficient evidence on which to find that person is a Convention refugee.
Where the claim for refugee status is made and heard in Canada, as opposed to outside Canada, different procedures apply. If the refugee claim is made outside Canada, it is unlikely that there will be a sufficient record before the Refugee Division which is not permitted to allow the introduction of new evidence. People in the respondents' position cannot obtain the benefit of subsection 69.3(5) where there is no evidence upon which the Refugee Division could determine whether they would have been declared Convention refugees, notwithstanding their material misrepresentations.
Although this interpretation of subsection 69.2(2) establishes a person's statutory right to make a second refugee claim after the first has been set aside for misrepresentation, this is what the Act allows. Moreover, it is not without precedent. If the respondents had made a refugee claim outside Canada which was rejected, they still could have come to Canada and made a second claim under section 46.01. Perhaps these lacunae are better left to Parliament.
| statutes and regulations judicially considered |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 6(1),(2), 46.01(1)(d) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 69.2(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61), (3) (as enacted idem), 69.3(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (4) (as enacted idem), (5) (as enacted idem). |
| Immigration Regulations, 1978, SOR/78-172, ss. 2(1) "Convention refugee seeking resettlement", 7(1). |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6. |
| United Nations Protocol Relating to the Status of Refugees, January 31, 1967, [1969] Can. T.S. No. 29. |
| authors cited |
| Bagambiire, Davies B. N. Canadian Immigration and Refugee Law. Aurora (Ont.): Canada Law Book, 1996. |
| Shorter Oxford English Dictionary, Vol. II, 3rd ed., Oxford: Oxford University Press, 1973. "reconsider". |
APPEAL from the Trial Division judgment (Bayat et al. v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 76 (F.C.T.D.)) reversing in part a decision of the Refugee Division on an application pursuant to Immigration Act, subsection 69.2(2) vacating a determination of a visa officer that the respondents were Convention refugees. Appeal allowed.
| appearances: |
| Claire A. Le Riche for appellant (respondent). |
| Michael F. Loebach for respondents (applicants). |
| solicitors of record: |
| Deputy Attorney General of Canada for appellant (respondent). |
| Michael Loebach, London, Ontario, for respondents (applicants). |
The following are the reasons for judgment rendered in English by
[1]Stone J.A.: This appeal is from a judgment of the Trial Division of May 15, 1995 [(1995), 96 F.T.R. 76], reversing in part a decision of the Refugee Division made pursuant to subsection 69.3(4) of the Immigration Act1 (the Act). By that decision, the Refugee Division vacated a determination of a visa officer dated April 18, 1989 at Islamabad, Pakistan that the respondents were Convention refugees and also determined that the respondents were not Convention refugees.
Background
[2]The respondents are nationals of Afghanistan. Four months prior to the date of the visa officer's determination, the first respondent moved to Pakistan. He was soon joined by his wife, the second respondent. Their daughter, the third respondent, was born there. The record suggests that the adult respondents experienced some degree of discomfort even while residing in Pakistan, where the first respondent was able to practice his profession as a medical doctor.
[3]Evidence of the circumstances upon which the visa officer based his determination of April 18, 1989 is somewhat scant. It seems apparent, however, that what each of the respondents sought and achieved was the status of a "Convention refugee seeking resettlement" in Canada. At the time the determination was made, the definition of "Convention refugee seeking resettlement", appearing in the Immigration Regulations, 19782 (the Regulations) read as follows:
2. (1) . . .
| "Convention refugee seeking resettlement" means a Convention refugee who has not become permanently resettled and is unlikely to be voluntarily repatriated or locally resettled; |
[4]Subsection 7(1) of the Regulations read:
7. (1) Where a visa officer has determined that a person is a Convention refugee seeking resettlement, the visa officer, for the purpose of determining whether that Convention refugee and his dependants will be able to become successfully established in Canada, shall take into consideration
| (a) each of the factors listed in column I of Schedule I; |
| (b) whether any person in Canada is seeking to facilitate the admission or arrival in Canada of that Convention refugee and his accompanying dependants; and |
| (c) any other financial or other assistance available in Canada for such Convention refugees. [Emphasis added.] |
[5]The parties agree that subsections 6(1) and (2) of the Act provide the basic statutory framework for the admission to Canada of persons such as the respondents. Those subsections read:
6. (1) Subject to this Act and the regulations, any immigrant including a Convention refugee, a member of the family class and an independent immigrant may be granted landing if the immigrant is able to establish to the satisfaction of an immigration officer that he meets the selection standards established by the regulations for the purpose of determining whether or not an immigrant will be able to become successfully established in Canada.
(2) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission subject to such regulations as may be established with respect thereto and notwithstanding any other regulations made under this Act.
[6]Although the Regulations were subsequently amended,3 the basic concept of a "Convention refugee seeking resettlement" appears to have remained unchanged. That concept has been explained as follows:4
Another way a claimant may acquire or be accorded Canadian protection is by proving that he or she falls in a category of persons classified as "Convention refugees seeking resettlement". This is a category which may be defined as consisting of those persons who meet the definition of "Convention refugee", are in a country of first asylum, have not been settled or integrated in that country, and are awaiting resettlement in a third country such as Canada.
Convention refugees seeking resettlement are the equivalent of Convention refugees seeking protection from within Canada, except that the former would be in a third country which is either without the resources and ability to settle them, is not a party to the Convention, or, as in the case of Italy, does not accept refugees emanating from certain parts of the world.
The admission and landing of Convention refugees seeking resettlement is governed by s. 6(1), (2), (3) and (4) of the Immigration Act, and s. 7 of the Immigration Regulations, 1978. The applicant must be in a third country seeking resettlement, and able to become successfully established in Canada.
In order to determine the degree to which an applicant is able to become successfully established in this country, s. 7 of the regulations requires that the applicant be subjected to evaluation and assessment on the basis of the point system set out for independent immigrants in Schedule I of the regulations. The section requires as well that there be available both financial resources and persons financially qualified, willing and able to execute an undertaking to assist the refugee with the resettlement process, once he or she gets to Canada. [Emphasis added; footnotes omitted.]
[7]At his interview by the visa officer on April 18, 1989, the first respondent presented a completed application for permanent residence in Canada containing pertinent personal information. That document includes a signed declaration of the first respondent permitting the "release to the Canadian Immigration authorities [of] all records and information concerning any investigations, arrests, charges, trials, convictions or sentences" for use in evaluating his "suitability for admission to Canada". The authorization includes a consent to the release of medical information to a visa officer and others. It ends with the following:
I also understand and agree that
| " any false statements or concealment of a material fact may result in my permanent exclusion from Canada, and even though I should be admitted to Canada for permanent residence, a fraudulent entry on this application could be grounds for my prosecution and/or removal from Canada; and |
| " should my answers to questions 9, 27 and 31 change at any time prior to my departure for Canada, I must report such change and delay my departure until I have been informed in writing, by the office dealing with my application, that I may proceed to Canada. |
I further declare that
| " I understand all the foregoing statements, having asked for and obtained an explanation on every point which was not clear to me; and |
| " the information I have given in this application is truthful, complete and correct, and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath. |
[8]Only the very brief notes of the visa officer's interview of the adult respondents appear in the record, on a form entitled "Eligibility Determination". The notes appear immediately under the following statement: "I consider the applicant is/is not a Convention Refugee according to the UN definition for the following reasons". The actual determination of the respondents' status is not indicated on the form itself. The notes indicate that the first respondent had been in Pakistan for four months, that his work place had been damaged by bombs, that he had not been arrested or detained, that he had left because of damage to his work place and separation from his family and that the people in his village knew he was "working as a medic for Muji".
[9]By letter of June 28, 1989, the Visa Section at the Canadian Embassy in Islamabad informed the International Committee for Migration in the same city, as follows:
Attached is a list of names of persons who have been accepted for resettlement in Canada and have been issued with Canadian Immigration Visas. As these persons are considered by Canada to be refugees they are not required to have any travel documents to enter Canada. [Emphasis added.]
The names of the respondents as they appeared in the application for permanent residence were included in the list attached to that letter.
[10]That the first respondent made false statements in his application for permanent residence and during his interview with the visa officer first came to light in the course of his interview by the RCMP some months after his arrival in Canada. In a statement to the RCMP he said, inter alia, that he had been asked by the visa officer at Islamabad on April 18, 1989 "my reasoning for leaving Afghanistan". His recollection of what he told the visa officer included: "I was a student in the medical school in Afghanistan and since they were arresting students and we were under pressure by the government so I escaped from Afghanistan". He also mentioned his "assistance to Mojahadeen in medical field". The respondent admitted that such statements were false as, indeed, was the entire story told to the visa officer. In this connection, during his interview by the RCMP he stated:
Of course from the beginning to the end everything was false, when we went to have an interview at the Canadian Embassy. For instance, false names, false birthdays, false place of birth, where I went to school.
Decision of the Refugee Division
[11]On September 20, 1993, with the consent of the Chairperson of the Refugee Division given February 17, 1993 pursuant to subsection 69.2(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61] of the Act, the appellant filed an application with the Refugee Division "to reconsider and vacate the decision of the visa officer of 18 April 1989" that "[the respondents] are Convention refugees" on the ground that they had "obtained their status by misrepresentation and concealment of material facts".
[12]By a majority decision of October 12, 1994, the application was granted in the following terms:
The Minister's application is GRANTED and the Refugee Division determines that the claimants ARE NOT CONVENTION REFUGEES.
In so concluding, the majority was of the view that once the false evidence was disregarded the remaining evidence before the visa officer was insufficient to support a determination by him that the respondents were Convention refugees. The majority was thus unable to reject the Minister's application under subsection 69.2(2). Furthermore, the majority declined to receive evidence that was not before the visa officer on April 18, 1989.5 The majority stated in the written reasons:6
I am not persuaded by counsel's submissions that the Board by narrowly interpreting this section and rejecting the new evidence is not upholding its humanitarian tradition. I do not believe the intention of the Act is to allow persons to enter Canada on a false pretence from a country of refuge where they were provided international protection for approximately 3 years. Furthermore, I do not believe the intention of the Act is to protect persons entering Canada on false identities who after entering Canada, a country of safe haven where protection is afforded to them, did not come forth to seek Canada's protection under their real identities although residing in Canada for a period of 4 years; that their true identities were revealed only after an investigation into a murder in Canada was undertaken by the RCMP. It is clear that the respondents' intent was not to come to Canada and seek refugee status but rather to immigrate, as their actions in Canada are contrary to their well-founded fear of persecution. I do not believe the intention of section 2(1) of the Immigration Act and the Refugee System is to give a quick and convenient route to landed status for immigrants who cannot or will not obtain it in the usual way. [Footnotes omitted.]
[13]The dissenting member concluded that subsection 69.3(5) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] permitted the reception of new evidence. Accordingly, he would have rejected the subsection 69.2(2) application in the light of that evidence.
The judgment below
[14]As indicated above, the Motions Judge reversed in part the decision of the Refugee Division. Specifically, he set aside the portion of the decision of October 12, 1994 by which the respondents were determined not to be Convention refugees. In doing so he stated:7
. . . on an application by the Minister pursuant to s. 69.2(2) to vacate a previous decision determining the applicants to be Convention refugees, the Refugee Division does not have the jurisdiction to find the applicants not to be Convention refugees, particularly if the decision being vacated is that of a visa officer rendered abroad.
After reciting the text of subsection 69.3(4), the Motions Judge continued:8
Thus, on an application pursuant to s. 69.2(2) the Refugee Division has two alternatives: either to approve or to reject the application to vacate the earlier decision. The language of the provision is clear, the Refugee Division does not have the jurisdiction to find the applicants not to be Convention refugees. In my view, this is particularly so when the decision involved is that of a visa officer abroad, since the applicants in such an instance would not have had the opportunity of a full hearing on the merits of their claim before the Refugee Division.
[15]The Motions Judge was concerned that the determination of the Refugee Division of October 12, 1994 had the effect of rendering the respondents ineligible, under subsection 46.01(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36] of the Act, to make a fresh claim for Convention refugee status in Canada. He found, indeed, that a senior immigration officer had so decided, a decision he regarded as perhaps "moot" on the basis that the Refugee Division had "purported to find the applicants not to be Convention refugees". By paragraph 46.01(1)(d ) of the Act, a person who claims to be a Convention refugee "is not eligible to have the claim determined by the Refugee Division if the person . . . has been determined under this Act or the regulations, to be a Convention refugee". The construction of that paragraph is not directly in issue in this appeal.
Issue
[16]The issue before this Court is whether the Motions Judge erred in law in his interpretation of the relevant statutory provisions such that his judgment setting aside the Refugee Division's determination of the respondent's refugee status should be set aside.
Relevant statutory provisions
[17]The statutory provisions directly relevant to the issue in this appeal are subsections 69.2(2) and (3) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61] as well as subsections 69.3(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18], 69.3(4) [as enacted idem] and 69.3(5) of the Act. Those subsections read:
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.
(3) An application to the Chairperson for leave to apply to the Refugee Division under subsection (2) shall be made ex parte and in writing and the Chairperson may grant that leave if the Chairperson is satisfied that evidence exists that, if it had been known to the Refugee Division, could have resulted in a different determination.
. . .
69.3 (1) Where an application to the Refugee Division is made under section 69.2, the Refugee Division shall conduct a hearing into the application, after having notified the Minister and the person who is the subject of the application of the time and place set for the hearing, and shall afford the Minister and that person a reasonable opportunity to present evidence, cross-examine witnesses and make representations.
. . .
(4) The Refugee Division shall approve or reject the application and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the Minister and the person who is the subject of the 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.
Analysis
[18]The Motions Judge was of the view that the Refugee Division lacked jurisdiction under the Act to determine the respondents not to be Convention refugees because, as he put it, the Refugee Division was empowered either "to approve or to reject" the subsection 69.2(2) application. It must be pointed out, however, that an application under that subsection is not limited to "vacating" a determination of a visa officer but rather "to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee".
[19]Whether a person is a "Convention refugee seeking resettlement" appears clearly to involve at its core the determination of whether that person is a "Convention refugee" as defined in the 1951 Convention9 and the 1967 Protocol,10 and in the Act. The visa officer had, therefore, to determine on April 18, 1989 whether the respondents were "Convention refugees" as so defined and, if they were, whether they otherwise qualified for resettlement in Canada under the laws of this country. Indeed, the respondents agree that this was so. The second decision could be addressed by the visa officer only after he had first determined the respondents to be "Convention refugees".
[20]The process by which that determination was made was most informal. So far as can be discovered from the record it consisted mainly of the face-to-face interviews of the adult respondents. The purpose of the interviews was manifestly to elicit information that either supported or negated their claims to be "Convention refugees" fleeing from Afghanistan and their eligibility to be resettled in Canada. It is true, as the Motions Judge noted, that the process before the visa officer in Islamabad does not provide the same opportunity of a full hearing as would be the case of a claim for refugee status heard and determined by the Refugee Division. The fact that this informal process might result in some disadvantage to the refugee claimant seems to have been anticipated by Parliament in subsection 69.3(5). That subsection was obviously designed to assist a claimant despite the fact that he or she may have presented false information to the visa officer. In my view, however, the informality of the process did not absolve the adult respondents from the obligation to tell the truth at their interviews. Moreover, the false names were contained in the application for permanent residence, the content of which was solemnly declared by the first respondent to be "truthful, complete and correct".
[21]I am unable to interpret the provisions of subsection 69.3(4) of the Act as limiting the Refugee Division's jurisdiction to the extent indicated by the Motions Judge. The subsection was intended to apply to the reconsideration and vacation of "any determination made under this Act or the regulations" that a person was a Convention refugee. It thus applied to a previous determination of the Refugee Division itself or of others including a visa officer made "under . . . the regulations". Accordingly, whether the previous determination was one made by the Refugee Division under the Act or by a visa officer under the Regulations, the power bestowed on the Refugee Division is the same. It may "approve or reject the application" in accordance with subsection 69.3(4). The Motions Judge must have had this language in mind in deciding that the power of the Refugee Division was either "to approve or to reject" the application in this case.
[22]In my view, this language in subsection 69.3(4) ought not to be divorced from its context. The "application" mentioned therein is clearly the "application" referred to more fully in subsection 69.2(2). When the two subsections are read together it becomes clear that the Minister's application was to have the determination of the visa officer dated April 18, 1989 "reconsidered and vacated" and that it is this application that the Refugee Division is authorized "to approve or to reject". Thus, the power of the Refugee Division was not limited to merely "vacating" that determination but also of "reconsidering"11 it. Given the context in which it appears, I do not think the word "reconsider" was intended to limit the power of the Refugee Division to that of dealing with a prior determination of its own. The intent appears to be that the Refugee Division should be able to take up the impugned determination for renewed consideration with a view to reversing and vacating it. In my view, the power of reconsideration is in addition to that of "vacating" the determination.
[23]I would allow the appeal and would vary the judgment of the Trial Division by deleting paragraphs 2 and 3 thereof.
Linden J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[24]Robertson J.A. (dissenting): I have had the advantage of reading the reasons for judgment prepared by my colleague, Justice Stone. With great respect, I cannot subscribe to them.
[25]The only issue which arises on this appeal is whether the Refugee Division has the statutory authority under subsection 69.2(2) of the Immigration Act to declare that a person is not a Convention refugee once it has been determined that that person made a material misrepresentation at the time refugee status was sought and granted. Like the Trial Judge below, I am of the respectful opinion that the Refugee Division's powers are limited to "reconsidering" and "vacating" a determination that a person is a Convention refugee. This interpretation is based on a plain reading of the Act. Subsection 69.2(2) reads as follows:
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. [Emphasis added.]
[26]In my respectful view, nothing turns on the Refugee Division's obligation to "reconsider" an earlier determination. Specifically, I do not see how the term "reconsider" empowers that tribunal not only to vacate a refugee determination, but also to declare that a claimant who has lied is not a Convention refugee. The Refugee Division is only empowered "to reconsider and vacate" a determination made under the Act. In my respectful view, in order to accept my colleague's understanding of the meaning to be attributed to the word "reconsider", one has to read out the word "vacate". In short, in order to read in an implied authority on the part of the Refugee Division to declare that a person is not a Convention refugee, one has to read out the word "vacate". Admittedly, if the word "vacate" were deleted from subsection 69.2(2), the word "reconsider" could be reasonably interpreted to encompass a broad power on the part of the Refugee Division to declare a person not to be a Convention refugee. As reformulated, subsection 69.2(2) would read "the Refugee Division may reconsider any determination made under this Act". However, it is one thing for a court to read words into an Act on the basis that they arise by necessary implication. It is quite another to read words out in order to make an inference which is thought to be necessary.
[27]I acknowledge that an interpretation which limits the powers of the Refugee Division is open to criticism if attention focusses on subsection 69.3(5). That provision provides that even if the Refugee Division is persuaded that a claimant made a material misrepresentation, it is still open to the tribunal not to vacate that person's status as a Convention refugee, provided there is other sufficient evidence on which to find that that person is a Convention refugee. Subsection 69.3(5) reads as follows:
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. [Emphasis added.]
[28]It does not make sense that a person who has lied to obtain Convention refugee status and whose determination is vacated because the remaining evidence is insufficient to support the original refugee claim should be able to turn around and make another refugee claim. Arguably, from an administrator's point of view (and likely most Canadians'), the thought of a person gaining admission to Canada by fraudulent means and then restarting the refugee process is not only an absurdity, but an abuse of the refugee process and a strain on Canada's financial resources. Although this line of reasoning is compelling, I am not persuaded that this is an appropriate case in which to depart from the plain meaning of subsection 69.2(2) by holding that the Refugee Division has the implied authority to declare a person not to be a Convention refugee. Let me explain.
[29]Where the claim for refugee status is made and heard in Canada, as opposed to outside Canada, different procedures apply. We are all aware of the due process which refugee claimants enjoy in Canada. Claimants are entitled to a hearing and to be represented by counsel or a spokesperson. Interpreters are provided, and there is an opportunity to adduce documentary evidence and witnesses. If, however, the refugee claim is made outside Canada, it is unlikely that there will be a sufficient record before the Refugee Division, which is not permitted to allow the introduction of new evidence. In the present case, the respondents gained admission to Canada as "Convention refugees seeking resettlement" after being interviewed by a visa officer abroad. Notes taken by the officer during the interview are described as "brief". The documentary evidence consists of a completed "Application for Permanent Residence in Canada", which authorizes the release of all records pertaining to the respondents' "suitability for admission to Canada", as well as a consent to the release of medical information to a visa officer.
[30]Against this backdrop, it is apparent that people in the respondents' position cannot obtain the benefit of subsection 69.3(5) where there is no evidence upon which the Refugee Division could determine whether they would have been declared Convention refugees, notwithstanding their material misrepresentations. This is one of the reasons why I am not prepared to extend the plain meaning of subsection 69.2(2) by holding that the Refugee Division has the authority not only to vacate a refugee determination, but also to declare that a person is not a Convention refugee. Finally, I must confess that it does not bother me that my interpretation of subsection 69.2(2) establishes a person's statutory right to make a second refugee claim after the first has been set aside for misrepresentation. That is what the Act allows. Moreover, it is not without precedent. If the respondents had made a refugee claim outside Canada which was rejected, they still could have come to Canada and made a second claim, at least according to my reading of section 46.01 of the Act. Perhaps these lacunae are better left to Parliament. Accordingly, I would dismiss the appeal and answer the following certified question [at page 80] in the negative:
Does the Refugee Division have the jurisdiction pursuant to an application pursuant to subsection 69.2(2) of the Immigration Act to determine that a person is not a Convention refugee on the basis that this jurisdiction is implied in the granting of an application to vacate?
1 R.S.C., 1985, c. I-2 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18].
2 SOR/78-172, February 24, 1978.
3 SOR/97-182, April 8, 1997; SOR/97-184, April 30, 1997; SOR/98-270, April 30, 1998.
4 Davies B. N. Bagambiire, Canadian Immigration and Refugee Law (Aurora: (Ont.) Canada Law Book, 1996), at p. 244.
5 This feature of the decision was not questioned in the Trial Division.
6 Appeal Book, vol. 1, at pp. 20-21.
7 (1995), 96 F.T.R. 76 (F.C.T.D.), at p. 79.
8 Ibid.
9 United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.
10 United Nations Protocol Relating to the Status of Refugees, January 31, 1967 [1969] Can. T.S. No. 29.
11 The Shorter Oxford English Dictionary, 3rd ed. (Oxford: Oxford University Press, 1973), defines the verb "reconsider" as: "To consider (a decision, etc.) a second time with a view to changing or amending it".