Annalingam v. Canada (Minister of Citizenship and Immigration), 2002 FCA 281, [2003] 1 FC 586 | Cases | Cases

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2002 FCA 281

Thanaluxmy Annalingam and Annalingam Selladurai (Appellants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Annalingam v. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Desjardins, Linden and Pelletier JJ.A. --Toronto, June 10; Ottawa, July 3, 2002.

Citizenship and Immigration -- Status in Canada -- Convention Refugees -- Appellants claiming Convention refugee status on basis of incidents of persecution in Sri Lanka -- Minister asking CRDD to vacate Convention refugee status as obtained by misrepresentation contrary to Immigration Act, s. 69.2 -- Appellants admitting lying, afraid of being deported -- Minister's application allowed, appellants' Convention refugee status vacated -- Application for judicial review dismissed -- Meaning to be given to phrase "could have been based" in Act, s. 69.3(5) -- French version of s. 69.3(5) instructive: must be evidence vindicating or justifying original decision -- Evidence before reviewing panel limited to evidence before original panel -- Charter, s. 7 not requiring second hearing -- Refugee status withdrawn when reviewing panel unable to conclude applicants Convention refugees.

Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Appeal from Trial Division's dismissal of application for judicial review of CRDD's decision to vacate determination appellants Convention refugees as based on misrepresentations -- In Coomaraswamy v. Canada (Minister of Citizenship and Immigration), F.C.A. holding no constitutionally protected right to second de novo hearing in such circumstances.

This was an appeal from a Trial Division decision dismissing an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) to vacate the appellants' Convention refugee status. The appellants, who are husband and wife, each claimed Convention refugee status on the basis of incidents of persecution occurring in Sri Lanka between 1985 and 1991. Upon discovering that the appellants had left Sri Lanka for Germany in 1985 where they remained until coming to Canada in 1992, the Minister of Citizenship and Immigration initiated proceedings before the CRDD to vacate their Convention refugee status on the basis that it had been obtained by misrepresentation contrary to section 69.2 of the Immigration Act. At the review hearing, the appellants admitted that they had lied but had done so because they had been afraid of being deported. They did not originally appear before a panel of the CRDD to make their claim for refugee status. Instead, they were interviewed by a refugee claims officer who then prepared a report. At the conclusion of the review hearing, the CRDD ruled that, when the appellants' misrepresentations were set aside, there was no evidence remaining which would have led the panel hearing their claim to find that they were Convention refugees within the meaning of the Act. The Minister's application was allowed and the appellants' Convention refugee status was vacated. Immigration Act, subsection 69.3(5) permits the Refugee Division to refuse to vacate a determination that a person is a Convention refugee which was obtained by misrepresentation if there was other sufficient evidence on which the determination was or could have been based. Three issues were raised herein: (1) the meaning to be given to the phrase "could have been based" in subsection 69.3(5); (2) whether the appellants should be allowed to present new evidence at the review hearing and (3) whether the appellants should be entitled to a new CRDD hearing.

Held, the appeal should be dismissed.

(1) The English version of subsection 69.3(5) contemplates two possible scenarios where misrepresentations have been made in an application for Convention refugee status. Where the misrepresentations were not relied upon by the original CRDD panel in coming to the conclusion that the claimant was a Convention refugee, the CRDD panel hearing the Minister's application could find that, in spite of the misrepresentations, there was "other sufficient evidence on which the determination was . . . based". Where the misrepresentations were relied upon by the original panel, the CRDD panel hearing the Minister's application must decide whether, in spite of the misrepresentations, there is other "sufficient evidence on which the determination . . . could have been based". The French version of subsection 69.3(5) is instructive as to Parliament's intention in legislating as it did. It permits the panel considering the Minister's application to reject it if, after finding that the allegations of misrepresentation are well founded, it considers nonetheless that there remain sufficient elements justifying the awarding of the status of refugee. The language of the French version does not reflect the two scenarios of the English version so that the distinction between "was" and "could have been" does not arise. The French version only refers to one test, which is that there must be evidence which vindicates or justifies the original decision. The same test applies on the Review hearing as applied in the original hearing. A common sense reading of the English version leads to the same conclusion. In a case where the misrepresentation was not relied upon, the claimant obtained refugee status by meeting the statutory criteria. It would be an anomalous result if, in a case where the misrepresentation was relied upon, the claimant was allowed to retain refugee status by satisfying a criteria other than the statutory criteria.

(2) The appellants also argued that a claimant should be allowed to introduce evidence of current conditions at the review hearing. However, it has previously been decided, and has now been confirmed by this Court, that the evidence which the reviewing panel can consider is limited to the evidence before the original panel. New evidence to support a Convention refugee determination is not contemplated by subsection 69.3(5) of the Act. The review panel is required to apply the same standard to the evidence as did the original panel. Refugee status is withdrawn when the reviewing panel is unable to find evidence which would satisfy a panel that the applicants are in fact Convention refugees.

(3) The appellants submitted that section 7 of the Charter, which guarantees the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice, requires that a second hearing be granted. In Coomaraswamy v. Canada (Minister of Citizenship and Immigration), this Court ruled that there is no authority for the proposition that section 7 guarantees a second de novo hearing by the Immigration and Refugee Board to those who had obtained a favourable determination of their refugee claims as a result of their misrepresentations. Finally the appellants argued that, even in the absence of a constitutionally protected right to a hearing, they could still be entitled to a hearing although the review panel had vacated their refugee status because it had not explicitly declared that they were not refugees. It may be inferred from the fact that refugee status is withdrawn that a claimant is not in fact a Convention refugee. The claimants were given an oral hearing to allow them to put their case before the CRDD. If they chose to use that hearing to deceive the CRDD, they could hardly claim that they have not had a hearing when their deception was discovered. This is not a question of punishing liars, but a question of not creating circumstances in which claimants have an incentive to lie. If the appellants had disclosed the truth about their stay in Germany, they likely would not have been eligible for the expedited process. Having been spared the necessity of an oral hearing on the strength of their dishonest stories, the appellants could not claim that they had a right to the hearing that they would have received had they told the truth.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7.

Immigration Act, R.S.C., 1985, c. I-2 , ss. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 69.2 (as enacted idem, s. 18; S.C. 1992, c. 49, s. 61), 69.3(5) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 114(2) (as am. by S.C. 1992, c. 49, s. 102).

cases judicially considered

applied:

Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; (1997), 142 D.L.R. (4th) 385; 41 C.R.R. (2d) 240; 207 N.R. 171; 97 O.A.C. 161; Ray v. Canada (Minister of Citizenship and Immigration) 2000 CanLII 15647 (FC), (2000), 191 F.T.R. 316 (F.C.T.D.);Guruge v. Canada (Minister of Citizenship and Immigration) 1998 CanLII 8979 (FC), (1998),160 F.T.R. 297; 47 Imm. L.R. (2d) 213 (F.C.T.D.); Coomaraswamy v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153 (CanLII), [2002] 4 F.C. 501; (2002), 213 D.L.R. (4th) 285; 21 Imm. L.R. (3d) 161; 289 N.R. 137 (C.A.).

referred to:

Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854; (1996); 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1; Halifax Longshoremen's Assn., Local 269 v. Offshore Logistics Inc. (2000), 25 Admin. L.R. 224; 257 N.R. 338 (F.C.A.); Singh et al. v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.

authors cited

Robert & Collins Super Senior: Grand Dictionnaire Franšais-Anglais/Anglais-Franšais, 2nd ed. Paris: Dictionnaire Le Robert, 2000.

APPEAL from a Trial Division decision ((2000), 6 Imm. L.R. (3d) 316) dismissing an application for judicial review of a decision of the Convention Refugee Determination Division to vacate the appellants' Convention refugee status. Appeal dismissed.

appearances:

Raoul S. Boulakia for appellants.

Jeremiah Eastman for respondent.

solicitors of record:

Raoul S. Boulakia, Toronto, for appellants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

[1]Pelletier J.A.: When the appellants, who are husband and wife, applied for refugee status in 1992, they applied separately, each claiming to have lost touch with the other during the hostilities in their native Sri Lanka. In addition, each claimed Convention refugee status (as defined in subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act) on the basis of incidents of persecution occurring in Sri Lanka between 1985 and 1991. When it was discovered that they had left Sri Lanka for Germany in 1985 where they remained until coming to Canada in 1992, the Minister of Citizenship and Immigration (the Minister) initiated proceedings before the Convention Refugee Determination Division (CRDD) to vacate their Convention refugee status on the basis that it had been obtained by misrepresentation, contrary to section 69.2 [as enacted idem, s. 18; S.C. 1992, c. 49, s. 61] of the Immigration Act, supra.

[2]At the hearing held to decide if their Convention refugee status should be vacated (the Review Hearing), the appellants admitted that they lied but said they did so because they were told by friends that if truth about their stay in Germany were known, they would be deported. They argued that, notwithstanding their lies, they were entitled to be considered Convention refugees on the basis of the documentary evidence which showed that Jaffna Tamils like them were targeted by both the security forces and the Tamil Tigers. They claimed that the documentary evidence which was before the original panel provided a basis on which they could have been found to be Convention refugees. They tendered to the CRDD a series of its own decisions showing the extent to which refugee status had been granted to persons in similar circumstances. The CRDD refused to consider these cases on the ground that they were tendered as evidence of facts on which Convention Refugee status had been granted and not as jurisprudence illustrating the legal principles according to which Convention refugee status was granted. The Review Panel's view was that it could only consider evidence which was before the original panel.

[3]In fact, there was no original panel in the usual sense. The appellants' s applications were processed through the expedited process. In those cases where a claimant's profile and personal information form suggested a likelihood that refugee status would be granted, the claimants were interviewed by a refugee claims officer who would then prepare a report. If the report concluded that the individual's claim was legitimate, an order would be made granting refugee status without a formal hearing being held. So these appellants did not originally appear before a panel of the Convention Refugee Determination Division to make their claim for refugee status. The decision was made on the basis of their personal information form, documentary evidence as to country conditions, and the refugee claims officer's report.

[4]At the conclusion of the review hearing, the CRDD ruled that when the appellants' misrepre-sentations were set aside, there was no evidence remaining which would have led the panel hearing their claim to find that they were Convention refugees within the meaning of the Act:

This panel believes that a previous panel in 1992 relying only on the Standard Country File to determine a serious possibility of persecution to claimants not in Sri Lanka, might well have scrutinized the documents to assess the risk to a married couple (with children) who in 1992 were 42 and 40 years of age. We are not persuaded that the then claimants would have been found to be Convention refugees given their profiles. We are not persuaded that their profiles and an assessment of IFA would have nevertheless led to a positive determination on their behalf.

[5]Consequently, the Minister's application was allowed and the appellants' Convention refugee status was vacated.

[6]The appellants brought an application for judicial review arguing that the CRDD erred in asking itself if the evidence remaining after their misrepresentations were discarded would have lead to a finding that they were Convention refugees when the legislation merely required them to consider whether they could have been found to be Convention refugees. Their position was that when Parliament used the word "could" in the legislation, it meant to refer to evidence according to which they might have been considered Convention refugees as opposed to evidence which would necessarily result in a finding that they were Convention refugees. The appellants also challenged the CRDD's refusal to consider fresh evidence.

[7]Muldoon J. dismissed their application for judicial review.1 He found that even though the CRDD used "would" instead of "could" in its decision, it still applied the right test. In his view [at paragraph 18]:

The standard to which the impugned claimant's evidence must measure up, in essence, is that which is normally applicable in refugee hearings.

[8]At the request of counsel for the appellants, Muldoon J. certified the following question [at paragraph 23]:

In applying s. 69.3 (5) of the Immigration Act, how should the terms [sic] "could have been based" be interpreted and applied?

[9]The appellants' memorandum sets out the following issues:

Issue 1:

In applying subsection 69.3(5) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act, how should the term "could have been based" be interpreted and applied?

Issue 2:

Whether subsection 69.3(5) of the Immigration Act violates section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Apppendix II, No. 44]] by permitting a current demonstration that a person is not a Convention refugee, without permitting the person to present any new evidence.

Issue 3:

Whether a CRDD decision which vacates Convention refugee status, but fails to specifically reconsider Convention refugee status, entitles the refugee claimant to a new CRDD hearing.

[10]Subsections 69.2(2) and 69.3(5) of the Act provide 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.

. . .

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.

[11]The appellants served a notice of constitutional question with respect to the issue of the invalidity of subsection 69.3(5). The difficulty is that this issue was raised for the first time in this Court. There is authority in this Court and in the Supreme Court of Canada that constitutional questions should not be raised for the first time before an appellate court. See Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at page 883; Halifax Longshoremen's AssN., Local 269 v. Offshore Logistics Inc. (2002), 25 Admin. L.R. 224 (F.C.A.). The rationale for such a rule was set out by Sopinka J. in Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 where he said [at paragraph 48]:

While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1 [of the Charter], this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise.

[12]Counsel for appellants argued that notice of a constitutional question could not have been given earlier because the constitutional question was raised by the decision of Madam Justice Tremblay-Lamer in Ray v. Canada (Minister of citizenship and Immigration) 2000 CanLII 15647 (FC), (2000), 191 F.T.R. 316 (F.C.T.D.) in which she dismissed an application to have the CRDD set a date for a refugee determination hearing for a person whose refugee status had been vacated. The learned Judge held that it could be inferred from a decision vacating a person's refugee status that the person was not in fact a Convention refugee. Prior to that decision, it had been assumed that a claimant whose Convention refugee status had been vacated would have the opportunity to make his refugee claim in a second hearing before the CRDD. That was the basis of the application in Ray to fix a date for this second hearing. The Ray decision closed the door on the right to a fresh hearing, which made the issue of receiving fresh evidence at the CRDD hearing critical. Ray was decided on June 9, 2000 while this matter was argued before the CRDD on April 8, 1999 so that the issue could not have been raised before the CRDD. Given the particular circumstances and the absence of any indication from the Minister that he wished to raise a section 1 argument, the Court agreed to hear the constitutional argument. However, cases in which there is a departure from the usual practice will necessarily be rare.

[13]The first issue is the meaning to be given to the phrase "could have been based" where it appears in subsection 69.3(5) of the Act:

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.

[14]The appellants noted that the French expression "éléments justifiant la reconnaissance du statut" is vaguer and different from "other sufficient evidence on which the determination was or could have been based". In their memorandum, the appellants conclude that:

It is submitted that the French version, being less precise about what it is referring to, should be read as consistent with and clarified by the English version.

. . .

It is submitted that if the English version is more liberal, refugees should be entitled to rely upon the more liberal provision.

[15]The conclusion which emerges is that, having raised the difference between the English and the French versions of the Act, the appellants have decided that the difference does not help them and therefore they are content to rely upon the English version. Unlike the appellants, I find that the French version of subsection 69.3(5) is instructive as to Parliament's intention in legislating as it did.

[16]It is plain from the English version of the statute that subsection 69.3(5) contemplates two possible scenarios where misrepresentations have been made in an application for Convention refugee status. The two cases are:

1. The misrepresentations were not relied upon by the original CRDD panel in coming to the conclusion that the claimant was a Convention refugee. In such a case, the CRDD panel hearing the Minister's application could find that, in spite of the misrepresentations, there was "other sufficient evidence on which the determination was . . . based".

2. The misrepresentations were relied upon by the original panel. In that case, the CRDD panel hearing the Minister's application must decide whether, in spite of the misrepresentations, there is "other sufficient evidence on which the determination . . . could have been based".

[17]The French version of the text permits the panel considering the Minister's application to reject it if, after finding that the allegations of misrepresentation are well founded, it considers nonetheless ("estime par ailleurs") that there remain sufficient elements justifying the awarding of the status (of refugee) ("qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut."). Le Robert & Collins Super Senior: Grand Dictionnaire Franšais-Anglais/Anglais-Franšais, 2000, defines justifier (of which justifiant is the present participle) as "to justify", "to bear out, vindicate" "to prove". To the extent that one is dealing with a pre-existing determination, all of these possible meanings would suggest that the remaining elements would be a sufficient basis for the decision.

[18]The language of the French version does not reflect the two scenarios which arise on the English version of the text so that the distinction between "was" or "could have been" does not arise. The French version only refers to one test, which is that there must be evidence which vindicates or justifies the original decision. The original decision was to the effect that the claimant satisfied the statutory definition of Convention refugee. Evidence sufficient to vindicate or justify that decision must be capable of satisfying the same test. In other words, the same test applies on the Review hearing as applied in the original hearing.

[19]A common sense reading of the English version leads to the same conclusion. The CRDD is authorized to dismiss the Minister's application in either of the cases contemplated by subsection 69.3(5), that is where the misrepresentations were not relied upon, and in the case where they were. The dismissal of the Minister's application means that the claimant retains his Convention refugee status. In a case where the misrepresentation was not relied upon, the claimant obtained refugee status by meeting the statutory criteria. It would be an anomalous result if, in a case where the misrepresentation was relied upon, the claimant was allowed to retain refugee status by satisfying a criteria other than the statutory criteria. There is no reason in law or in common sense to come to that conclusion.

[20]This leads to the appellants' next argument to the effect that a claimant should be allowed to introduce evidence of current conditions at the review hearing. However, it has previously been decided, and has now been confirmed by this Court, that the evidence which the reviewing panel can consider is limited to the evidence before the original panel. Rothstein J. (as he then was) came to that conclusion in Guruge v. Canada (Minister of Citizenship and Immigraiton) 1998 CanLII 8979 (FC), (1998), 160 F.T.R. 297 (F.C.T.D.), at paragraph 12:

Subsection 69.3(5) is not a provision under which the Refugee Division is given a fresh mandate to declare an individual to be a Convention refugee. Yet, if additional evidence to support a Convention refugee determination was to be allowed, that is what subsection 69.3(5) would become. I agree with Richard J. in Bayat that the evidence referred to in subsection 69.3(5) must be evidence that was before the original panel. New evidence to support a Convention refugee determination is not contemplated by the provision.

[21]This conclusion was confirmed by this Court in Coomaraswamy v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153 (CanLII), [2002] 4 F.C. 501; 7; [2002] F.C.J. No. 603 (C.A.) (QL) where Evans J.A., writing for the Court held that [at paragraph 14]:

In my opinion, the phrase, "there was other sufficient evidence" (underlining added), in the English text suggests that Parliament intended to confine the Board at the vacation hearing to considering the material that had been put before the Board when it determined the refugee claim. Further, if counsel for the appellant were correct, Parliament would be using the word "evidence" in two different senses: that is, evidence adduced in the determination hearing "on which the decision was based", and material that was not adduced before the Board (and thus not evidence in the first sense), but was material "on which the decision could have been based". An interpretation that gives the same word in a statutory provision the same meaning is generally to be preferred to one that would assign different meanings, (R. Sullivan, ed. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994, at pages 163-164), especially where, as here, the word in question, "evidence", is not actually repeated in the text. [Underlining in original.]

[22]Interestingly enough, it appears from the reasons of Muldoon J., supra, that the appellants had originally conceded this point before him [at paragraph 7]:

It is not disputed that when making a determination under subsection 69.3(5) of the Act, the CRDD may assess only evidence which was before the previous panel of the Refugee Division.

The appellants cannot succeed on this point.

[23]The combination of the test to be applied and the restricted evidence to which it can be applied is the foundation for the appellants' argument that section 7 of the Charter requires a second hearing to be granted. The decision in question is one which will decide the claimant's refugee status. In Singh et al. v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R.177, the Supreme Court decided that section 7, which guarantees the right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice, required that refugee claimants receive an oral hearing. Since the decision being made under subsection 69.3(5) is effectively a decision on refugee status, it engages the same constitutional protection.

[24]This argument was also rejected in Coomaraswamy, supra, where Evans J.A. said [at paragraph 24]:

I cannot accept this argument. There is no authority for the proposition that section 7 guarantees a second de novo hearing by the Board to those who had obtained a favourable determination of their refugee claims as a result of their misrepresentations. Further, the Board's decision to vacate its earlier decision does not necessarily mean that the appellants will be deported. Accordingly, their section 7 rights are not yet engaged: Jekula v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 9099 (FC), [1999] 1 F.C. 266 (T.D.), at paragraphs 31-33; affirmed (2000), 266 (T.D.) N.R. 355 (F.C.A.). The appellants will have other opportunities to attempt to satisfy the Minister, on the basis of fresh evidence, that they should not be removed to Sri Lanka because there is a real likelihood that, if returned, they will be at risk.

[25]The other opportunities to which Evans J.A. makes reference include an application for humanitarian and compassionate treatment under subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Act.

[26]The appellants' final argument is that, even in the absence of a constitutionally protected right to a hearing, they could still be entitled to a hearing in a case where the review panel vacates their refugee status but does not explicitly declare that the claimants are not refugee claimants. This argument proceeds on the basis that there is a difference between depriving the appellants of a status which they have obtained by fraud, and declaring that they are not entitled to that status at all. This argument would have more force if it were not for the fact that the review panel is required to apply the same standard to the evidence as did the original panel. Refugee status is withdrawn when the reviewing panel is unable to find evidence which would satisfy a panel that the applicants are in fact Convention refugees.

[27]It is for this reason that Tremblay-Lamer J. concluded, as she did in Ray, supra, that it could be inferred from the fact that a claimant's refugee status was withdrawn, that the claimant was not in fact a Convention refugee [at paragraph 13]:

Where 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.

[28]Having regard to the test which the reviewing panel must apply when deciding whether to allow the Minister's application, the conclusion reached by Tremblay-Lamer J. is sound.

[29]The argument which can be raised against such a conclusion is that there may be no "remaining credible evidence" because the claimant chose not to lead it because he/she was relying upon the fabricated story which they chose to put before the CRDD. While this does not excuse lying, say the appellants, it does mean that the review panel does not have the full story before them. Having regard to the possible consequences of a mistaken decision, why should the CRDD not have the true facts before it? The answer is that the claimants were given an oral hearing to allow them to put their case before the CRDD. If they chose to use that hearing to deceive the CRDD, they can hardly claim that they have not had a hearing when their deception is discovered. This is not a question of treating liars in a punitive fashion. It is a question of not creating circumstances in which claimants have an incentive to lie. If the appellant's argument were accepted, there would be virtually no risk attached to lying. On the other hand, there would be a significant advantage to doing so, for one could make one's case free of any limitations imposed by the facts. It is naive to think that in those circumstances, many claimants who have risked and spent so much to come here would not be seduced by the odds in favour of lying.

[30]The same is true even where, like here, the hearing took the form of an interview with a refugee claims officer. The oral hearing to which the appellants were entitled was dispensed with in order to expedite the granting of their status as refugees on the basis of the information which they provided. That dispensation was a benefit bestowed upon the appellants. It relieved them of the obligation of making their case orally before a panel of the CRDD. As the reviewing panel pointed out, if the appellants had disclosed the truth about their stay in Germany, it is likely that they would not have been eligible for the expedited process. Having been spared the necessity of an oral hearing on the strength of their dishonest stories, the appellants cannot now claim that they have a right to the hearing they would have received had they told the truth.

[31]For all of these reasons, the appellants' appeal should be dismissed.

Desjardins J.A.: I concur.

Linden J.A.: I concur.



1 [(2000), 6 Imm. L.R. (3d) 316 (F.C.T.D.)] Muldoon J. describes the application before him as one for leave to bring an application for judicial review. However, leave had previously been granted by another judge of the Trial Division. It is clear that this was an inadvertent slip as Muldoon J. dealt with the issues before him on the merits and certified a question. The appeal proceeded on the basis that Muldoon J.'s decision was one on the merits.