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   Dominica — Positive — Minister's intervention — Application — Vacation — Refugee status — False statements — Citizenship — Male.

Appearances:

For the claimant: Tyson George.

For the respondent: Shelley Levine.

Refugee protection officer: S. Pieters.

REASONS FOR DECISION

¶ 1      These are the reasons for granting an application to vacate the decision that allowed the claim for Convention refugee status of Yi Hui Zheng on May 2, 2001. The Minister of Citizenship and Immigration submitted that the original decision was obtained as a result of direct misrepresentation of material facts relating to the Immigration and Refugee Protection Act [See Note 1 below] (IRPA) and that it should be vacated pursuant to Section 109(1) of the IRPA.

   Note 1: As enacted by S.C. 2001, c.27.

¶ 2      Subsequent to the favourable Convention refugee determination, it was ascertained that the fingerprints of the person granted refugee status as Yi Hui Zheng, who had reputedly entered Canada by vehicle at Niagara Falls, Ontario, on May 15, 1999, matched those of a person who had entered Canada at Pearson International Airport on May 15, 1999 utilizing a genuine Commonwealth of Dominica passport issued May 11, 1999 and bearing the name of Wheel Hui born on August 22, 1963.

¶ 3      The document indeed bears the respondent's likeness and his date of birth. The respondent testified that he obtained this document through the intervention of smugglers to whom he provided some information, his photograph and $30,000.00 US dollars. He explained that he concealed particulars of his entry into Canada and the existence of this document out of a fear that smugglers would act upon threats to exact a violent revenge against his family members in the People's Republic of China, hereinafter referred to as China. His counsel submitted that the passport, which bears a different name and was obtained through an agent, does not confer citizenship rights upon the respondent becauseit was obtained through fraudulent means.

¶ 4      The Commonwealth of Dominica confirmed that the passport bearing the respondent's likeness and date of birth but the name Wheel Hui, entitle the bearer to citizenship in the Commonwealth of Dominica. [See Note 2 below] He indeed traveled upon that document to enter Canada on May 15, 1999, and was released from detention a few days later upon its authenticity being verified by the Commonwealth of Dominica. The utilization of an authentic passport in this manner creates an onus upon the respondent to establish that he cannot avail himself of the protection of the Commonwealth of Dominica. [See Note 3 below] The respondent has failed to cast doubt upon the evidence that the document confers upon him the rights of a citizen of the Commonwealth of Dominica.

   Note 2: Exhibit M-1, at exhibit "D", Letter of May 17, 1999.

   Note 3: Zheng, Yan-Ying v. M.C.I. (F.C.T.D., no. IMM-332-96), Gibson, October 17, 1996.

¶ 5      The misrepresentation as to the particulars of the claimant's original entry into Canada utilizing a valid passport issued by the Commonwealth of Dominica and bearing his likeness and date of birth amount to a material misrepresentation. Its disclosure, may, as the Applicant submits, have attracted the application of exclusion provisions of the relevant legislation. Its disclosure would reasonably have called for the original panel to examine whether the Commonwealth of Dominica was a country of reference.

¶ 6      Regardless of the misrepresentation as to the authenticity of a document utilized by the claimant to enter Canada, the panel must go on to consider Section 109(2) of the IRPA, which sets out as follows:

¶ 7      Transcripts of the original hearing were reviewed. [See Note 4 below] The original panel canvassed the claimant's identity as a citizen of China and the credibility of his fears there through his oral evidence and supporting documentation including an original National identification card and a copy of a Summons for Yi Hui Zheng. The misrepresentation may or may not have had a material impact upon the decision of the original panel regarding the claimant's credibility and the bona fides of the fear of persecution in China. The misrepresentation, however, precluded the original panel from the opportunity to canvas the Dominican citizenship of the claimant and all of the applicable countries of reference. The Commonwealth of Dominica would reasonably have been considered a country of reference in light of the authenticity of the passport utilized by the claimant to enter Canada. Persecution in each of the countries of reference is an essential element of the Convention refugee definition under the former Immigration Act and under the IRPA. Consequently, given that there was no evidence of citizenship rights or of a fear of persecution in the Commonwealth of Dominica at the original hearing, the Refugee Protection Division is not satisfied that other sufficient evidence was considered at the time of the first determination to justify the refugee protection under the applicable legislation or, for that matter, to justify international protection now available pursuant toSection 97(1)a or 97(1)b of the IRPA.

   Note 4: Exhibit R-1.

¶ 8      The Refugee Protection Division, therefore, allows the Application and vacates the Convention refugee status of Yi Hui Zheng.

"J.M. Thibodeau"

Dated at Toronto, Ontario, this 20th day of February, 2004.

QL Update:  20050610
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