Seyoboka v. Canada (Minister of Citizenship and Immigration), (2009) 340 F.T.R. 105 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: October 29, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 340 F.T.R. 105 (FC);2009 FC 104

Seyoboka v. Can. (M.C.I.) (2009), 340 F.T.R. 105 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. FE.029

Henri Jean-Claude Seyoboka v. The Minister of Citizenship and Immigration

(IMM-2147-08; 2009 FC 104)

Indexed As: Seyoboka v. Canada (Minister of Citizenship and Immigration)

Federal Court

de Montigny, J.

January 30, 2009.

Summary:

Seyoboka's refugee status was vacated by the Immigration and Refugee Board, Refugee Protection Division (Tribunal), on the basis that he had obtained it as a result of a material misrepresentation about his identity as an officer in the Rwandan military. Moreover, the Tribunal excluded him from the definition of Convention refugee and of protected person (ss. 1F(a), (b) and (c), United Nations Convention Relating to the Status of Refugees), because it found that he was complicit in crimes against humanity during the Rwandan genocide. The Tribunal additionally found that Seyoboka was personally involved in the murder of his Rwandan neighbour. Seyoboka filed an application for leave and for judicial review of the decision to vacate his refugee protection; this application was denied. Subsequently, he filed a motion to set aside this decision; this motion was also rejected. Seyoboka submitted to the Tribunal an application to reopen the decision to vacate his refugee status. He alleged that the Minister of Citizenship and Immigration had breached natural justice in the vacation proceedings by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP. The Tribunal concluded that there was no breach of natural justice which could give rise to a reopening. Seyoboka applied for judicial review of that decision.

The Federal Court dismissed the application.

Administrative Law - Topic 2277

Natural justice - The duty of fairness - Waiver - Seyoboka applied to the Immigration and Refugee Board, Refugee Protection Division (Tribunal), to reopen its decision to vacate his refugee status - He alleged that the Minister of Citizenship and Immigration had breached natural justice by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP - Seyoboka applied for judicial review of the Tribunal's decision that there was no breach of natural justice - He contended that the Minister breached the duty to disclose and violated his right to natural justice as well as right to life, liberty and security of the person (Charter, s. 7) - The Federal Court dismissed the application - Seyoboka had waived any alleged breach of natural justice - It was "entirely reasonable" for the Tribunal to hold that Seyoboka's failure to raise the insufficiency of the disclosure at the earliest opportunity barred him from raising it now - He should have raised the issue during the vacation hearing - He was represented by counsel for much of that proceeding - It was not open to Seyoboka to have waited until after receiving a negative decision by the Tribunal (and a negative decision from the court, on leave) to raise disclosure in the context of an application to re-open - To do nothing in the face of knowledge that relevant information might have been withheld might support an inference that counsel made a strategic decision not to pursue disclosure - See paragraphs 45 to 48.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - Seyoboka applied to the Immigration and Refugee Board, Refugee Protection Division (Tribunal), to reopen its decision to vacate his refugee status - He alleged that the Minister of Citizenship and Immigration had breached natural justice by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP - Seyoboka applied for judicial review of the Tribunal's decision that there was no breach of natural justice - He contended that in failing to disclose the statements, the Minister breached her duty to disclose - The Federal Court addressed the submission in the following manner - The exculpatory nature of the statements was purely speculative, as neither witness had filed an affidavit in support of Seyoboka's position - The Minister did not use the testimonies or any other RCMP document at the hearing - On the case law, the proposition that the Minister breached her legal obligation to make inquiries of all agencies involved, to ensure a complete record was disclosed, was "much too broad" - The Tribunal was an administrative tribunal with specialized knowledge, not bound by legal or technical rules of evidence - As a result, the disclosure standards delineated in "Stinchcombe" did not apply automatically in the context of a refugee hearing and might require adaptation - On the other hand, the level of disclosure could not be decided on the distinction between criminal and administrative proceedings, and the consequences of an adverse finding must be taken into consideration - See paragraphs 30 to 34.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - The Immigration and Refugee Board, Refugee Protection Division (the Tribunal), dismissed the applicant's motion to reopen his claim for refugee protection - On the application for judicial review, the Federal Court discussed disclosure obligations in the immigration and refugee context - The applicant had alleged that the Minister of Citizenship and Immigration had breached natural justice by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP - The applicant contended that the Minister breached her legal obligation to make inquiries of all agencies involved in investigating the applicant to ensure a complete record was disclosed - Contrary to the applicant's submissions, the court stated that the Canada Border Services Agency (the Minister's representative) and the RCMP were divisible for the purpose of disclosure - The RCMP's common law investigative privilege could only be modified by statute; it had a duty not to share the fruits of its criminal investigations with other agencies or departments of the government - The court distinguished the cases relied on by the applicant, on their facts, where the RCMP and the Crown were found to be indivisible for disclosure purposes - "Except in the most exceptional circumstances, an administrative agency should not have access to the file of a police force gathered as a result of an ongoing investigation, let alone be held responsible for not disclosing that information" - See paragraphs 9 and 10, 40 to 44.

Aliens - Topic 15

Definitions and general principles - Right to counsel - [See first Aliens - Topic 1335 ].

Aliens - Topic 1329.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Hearing - Reopening of - Seyoboka's refugee status was vacated by the Immigration and Refugee Board, Refugee Protection Division (Tribunal), on the basis that he had obtained it as a result of a material misrepresentation about his identity as an officer in the Rwandan military - Moreover, the Tribunal found that he was complicit in crimes against humanity during the Rwandan genocide and that he was personally involved in the murder of his Rwandan neighbour - Seyoboka's application for leave and for judicial review of the decision to vacate his refugee protection was denied - His subsequent motion to set aside that decision was rejected - Seyoboka submitted to the Tribunal an application to reopen the decision to vacate his refugee status - He alleged that the Minister of Citizenship and Immigration had breached natural justice in the vacation proceedings by not disclosing the potentially exculpatory statements of two witnesses interviewed by the RCMP - The Tribunal concluded that there was no breach of natural justice - Seyoboka applied for judicial review of that decision - The Federal Court dismissed the application - Even if the Minister did have a duty to disclose the testimonies, it would make no difference to the outcome, since Seyoboka waived his alleged right - It was entirely reasonable for the Tribunal to hold that his failure to raise the insufficiency of the disclosure at the earliest opportunity barred him from raising it - Moreover, Seyoboka could not succeed on the ground that he was unable to safeguard his rights due to the lack of counsel - Finally, the Tribunal was not unreasonable in finding that the undisclosed information was not determinative; it was extremely remote that the statements were determinative, given his complicity in crimes against humanity - See paragraphs 26 to 57.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention Refugees and persons in need of protection - Right to a fair hearing - In determining the content of the duty of fairness on the basis of the five factors in Baker v. Canada (Minister of Citizenship and Immigration), (1999) (S.C.C.), the Federal Court accepted that the applicant was entitled to a high degree of procedural fairness in a proceeding to vacate his refugee status based on alleged omissions of participation in war crimes and crimes against humanity - For that finding, the court relied more particularly on the consequences for the applicant to be branded as a war criminal, and on the adversarial nature of such a proceeding - See paragraph 35.

Aliens - Topic 1330

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to counsel or representation - [See first Aliens - Topic 1335 ].

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - [See second Aliens - Topic 1335 ].

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Immigration and Refugee Board, Refugee Protection Division (Tribunal), dismissed Seyoboka's motion to reopen his claim for refugee protection - Seyoboka applied for judicial review - The Federal Court considered the appropriate standard of review - Pursuant to Rule 55 of the Refugee Protection Division Rules, an application to reopen a claim for refugee protection must be allowed if there was a failure to observe the principle of natural justice - A standard of review analysis need not be conducted in every instance where the standard of review applicable to the particular question before the court was well-settled by past jurisprudence - Before "Dunsmuir", the jurisprudence dealing with motions to reopen under Rule 55 held that the standard of review was reasonableness simpliciter - On the other hand, it was "abundantly clear" that the standard of review to be applied to issues of breach of natural justice was correctness - As a result, the court applied the correctness standard with respect to the requirements of natural justice; whenever factual determinations were at play in resolving the issues, however, they were reviewed against the standard of reasonableness - See paragraphs 26 to 29.

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - Seyoboka applied to the Immigration and Refugee Board, Refugee Protection Division (Tribunal), to reopen its decision to vacate his refugee status - He alleged that the Minister of Citizenship and Immigration had breached natural justice by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP - The Tribunal concluded that there was no breach of natural justice - The applicant knew the RCMP had met with the witnesses, but did not raise the issue of disclosure or mention the witnesses at the vacation hearing or in the subsequent application for leave and judicial review of the decision to vacate - The applicant applied for judicial review of the decision not to reopen his claim - Seyoboka claimed that he did not know the witnesses' interviews were recorded or transcribed - He also submitted that for most of the vacation proceedings, he was unrepresented by counsel - The Federal Court did not find these arguments convincing - He could at least have asked for the witnesses' statements and attempted to have them disclosed - Moreover, litigants who chose to represent themselves must accept the consequences - In any event, Seyoboka was represented by counsel during his application for leave and for judicial review of one of the vacation and exclusion decisions, where (again) disclosure was not raised - It was not the Tribunal's function at a hearing for an application to reopen to consider issues that should have been raised in a judicial review application - See paragraphs 49 to 52.

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The applicant challenged the decision of the Immigration and Refugee Board, Refugee Protection Division (Tribunal), to dismiss his application to reopen his refugee status vacation proceeding - The Tribunal  had noted that the applicant was excluded not only because of the evidence that he had killed a woman in Rwanda, but also because of his complicity in crimes against humanity - The applicant alleged that exculpatory evidence (undisclosed) existed - The Tribunal found that the undisclosed information was not determinative and that the applicant had suffered no prejudice - The Federal Court found the Tribunal's conclusion "entirely reasonable" - The transcript revealed that the applicant was highly connected to the governing regime of Rwanda during the 1994 genocide - His implausible claim that he was unaware of the extent of the massacres was rejected by the Tribunal - Since he had already unsuccessfully sought judicial review of that decision, he was precluded from attempting to collaterally attack it - Had the Tribunal decided the case exclusively on the ground of his involvement in the murder, he might have been entitled to a new hearing - But this was not even the most serious ground to vacate his refugee status - When the impugned decision rested on other grounds untainted by the breach of natural justice, there would be no point to send it back on judicial review - See paragraphs 53 to 55.

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The applicant alleged that the Minister of Citizenship and Immigration had breached natural justice in refugee vacation proceedings by not disclosing the potentially exculpatory testimonies of two witnesses interviewed by the RCMP - He "speculated" that the exculpatory witness statements could have established that he was among the minority who used their position in the Rwandan military to save Tutsi civilians rather than to kill them - The Immigration and Refugee Board, Refugee Protection Division (Tribunal) rejected that theory and dismissed his motion to reopen his claim for refugee protection - The Federal Court dismissed the judicial review application - There was no evidence to support the applicant's theory - And nowhere in his affidavit filed in support of this application did the applicant mention that the witnesses would have exculpated him from his complicity in crimes against humanity by reason of his involvement in the Rwandan military - The possibility that their statements might have been relevant to this serious ground for excluding him was therefore extremely remote - The court was therefore unable to conclude that the Tribunal was unreasonable in finding that the undisclosed information was not determinative - See paragraph 56.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - [See Aliens - Topic 1334 ].

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - The applicant proposed four questions for certification purposes: "1. Within the context of the judicial review hearing where the Minister intervenes to seek the exclusion of the claimant, is the Minister under a duty to disclose all relevant evidence in his possession, including exculpatory evidence, subject only to any claims to privilege which would be assessed by the tribunal? 2. Is that duty contingent on any request from the claimant or does the duty exist independently of any request from the claimant? 3. Can the right to disclosure be waived? If so, must the waiver be explicit, or can it be inferred from the conduct of the claimant? 4. If there is a duty to disclose, does that duty include a duty to disclose evidence in the possession of other Government agencies when Minister's counsel is aware that that government agency has a file on the person which might contain relevant evidence?" - The Federal Court accepted the certification - The issues were recurring and deserved to be clarified - The court considered the twofold test (the question must be serious and of general importance, and must be determinative of an appeal) - Although the questions had already been canvassed by the case law and were quite fact specific, the applicant stressed that "Charkaoui No. 2" had changed the law with respect to disclosure - In light of the serious consequences of the proceedings for the applicant, it was "well worth" having the benefit of the Court of Appeal's assessment - See paragraphs 58 to 61.

Aliens - Topic 4502

Evidence - Duty to disclose - [See Administrative Law - Topic 2277 , second Administrative Law - Topic 2617 and third Aliens - Topic 1335 ].

Civil Rights - Topic 1324

Security of the person - Immigration - Claim to refugee status - [See Administrative Law - Topic 2277 ].

Police - Topic 12

General - Access to police investigation files - [See second Administrative Law - Topic 2617 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - [See second Administrative Law - Topic 2617 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, appld. [para. 27].

Nazifpour v. Canada (Minister of Citizenship and Immigration) (2005), 286 F.T.R. 6; 2005 FC 1694, refd to. [para. 28].

Masood v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 709; 2004 FC 1224, refd to. [para. 28].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 28].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, consd. [para. 30].

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, appld. [para. 35].

Siad v. Canada (Secretary of State), [1997] 1 F.C. 608; 206 N.R. 127 (F.C.A.), refd to. [para. 35].

Khadr v. Canada (Minister of Justice) et al. (2008), 375 N.R. 47; 2008 SCC 28, consd. [para. 36].

Charkaoui, Re (2008), 376 N.R. 154; 2008 SCC 38, consd. [para. 37].

R. v. Styles, [2003] O.J. No. 5824 (Sup. Ct.), dist. [para. 41].

R. v. Smith (M.G.) (2007), 419 A.R. 179; 2007 ABQB 172, dist. [para. 42].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 44].

R. v. Bramwell (H.L.) (1996), 72 B.C.A.C. 125; 119 W.A.C. 125; 106 C.C.C.(3d) 365 (C.A.), refd to. [para. 48].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 48].

Wagg v. Minister of National Revenue (Customs and Excise), [2004] 1 F.C. 206; 308 N.R. 67 (F.C.A.), appld. [para. 51].

Palonek v. Minister of National Revenue (2007), 368 N.R. 358; 2007 FCA 281, appld. [para. 51].

Canada (Minister of Human Resources Development) v. Hogervorst (2007), 359 N.R. 156; 2007 FCA 41, appld. [para. 51].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 55].

Lord's Evangelical Church of Deliverance and Prayer of Toronto v. Minister of National Revenue (2004), 328 N.R. 179; 2004 FCA 397, refd to. [para. 55].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, appld. [para. 60].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 72(1) [para. 1].

Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules, rule 55(1), rule 55(4) [para. 26].

Refugee Protection Division Rules - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Lorne Waldman, for the applicant, Henri Jean-Claude Seyoboka;

Jamie Todd, for the respondent, Minister of Citizenship and Immigration.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant, Henri Jean-Claude Seyoboka;

Department of Justice, Toronto, Ontario, for the respondent, Minister of Citizenship and Immigration.

This application was heard at Toronto, Ontario, on October 29, 2008, before de Montigny, J., of the Federal Court, who rendered the following judgment and reasons for judgment on January 30, 2009.