by Sukhram Ramkissoon

According to a recent Federal Court decision, a 60-year-old citizen of Nigeria whom I will refer to as Samuel, sought refugee protection in Canada based on his risk due to a land dispute as well as his bisexuality. The Refugee Protection Division (“RPD”) rejected the claim and found that his claim was manifestly unfounded. This decision had significant consequences for Samuel as he could appeal the decision to the Refugee Appeal Division (RAD). Samuel therefore applied for leave and judicial review of the RPD’s decision and in May 2022.

On June 1, 2022, Samuel was directed to report for removal to Nigeria and on June 18, 2022. He sought an order staying his removal pending the final determination of his application for leave and judicial review. In granting a stay of removal the judge stated that case law sets out several principles to guide such an application, which are the following, but not limited to:

• The claim itself must not be fraudulent. The use of fraudulent documents to escape persecution or to enter Canada is not sufficient. However, once making a claim for refugee protection, that claimant must “operate with clean hands and statements in support of the claim have to be accurate or they could be held against the claimant.”
• For a claim to be fraudulent, “it would be required that a situation be represented of being of a certain character when it is not.” Not every misstatement or falsehood would make a claim fraudulent. “It must be that the dishonest representations, the deceit, the falsehood, go to an important part of the refugee claim for the claim to be fraudulent, such that the determination of the claim would be influenced in a material way.” For a claim to be clearly fraudulent, “there must be an attempt to deceive in a substantial or material manner with respect to the determination of the status”. Falsehoods that are “merely marginal or are antecedent to the claim would not qualify”

In the decision at issue, the RPD’s main reasons for rejecting the claim and finding that it was manifestly unfounded is summarized as follows:

1. a) The allegations regarding the land dispute are not credible:

• The applicant gave numerous inconsistent addresses for the bungalow he claims to have built on the disputed land.
• The police documents are fabricated because the header in all documents is “Police Intelligent Department” instead of “Police Intelligence Department,” and because they were compiled by the applicant’s cousin.
• The hospital report depicting the assault on the applicant’s son is fabricated because it states he was 15 years old at the time, when in fact he was 16; which post-dates the date of his treatment (July 1, 2018) by almost two years (report dated April 8, 2020); and because it references the fabricated police report.
• The photographs of son’s injuries are likely staged because they relate to the fabricated hospital report and came from the same cousin.

1. b) The allegation of a 2016 arrest in Nigeria for same sex crimes is not credible:

• Samuel omitted this incident and his fear of persecution from his original Basis of Claim (“BOC”) narrative and his explanation for the late disclosure of this information was not credible.
• The BOC narrative implies that the 2016 matter was resolved with the payment of a single bribe yet at the hearing the applicant stated that he continued to pay bribes in relation to that matter.
• The applicant testified that he had been arrested and detained only once but the BOC narrative alludes to another arrest in relation to the land dispute.
• The applicant did not disclose either arrest on his Schedule A form, despite his language abilities, education, and awareness of the significance of the arrests.
• The police report (the “Invitation Regarding Indecent Practices”) is also likely a fabricated document as it contains the same error as the other reports.
• Emails from family members are tainted by the fact that the fabricated reports originated from them and therefore given no weight.

1. c) The claim is manifestly unfounded:

• Samuel’s use of and reliance upon the fraudulent documents support a finding that the claim itself is fraudulent.
• The fabricated documents were not used to escape persecution but, rather, were held out by Samuel as genuine documents going to the core of his claims.
• Samuel’s numerous dishonest representations concerning his sexuality demonstrate that his claim is not genuine and was made for the sole purpose of advancing the refugee claim.

 Balancing all of the relevant considerations, the judge ruled that a stay of removal is the only way to ensure that the subject matter of the litigation is preserved so that effective relief will be available should Samuel be successful on his application for judicial review regarding the negative RPD decision.

The judge granted the stay motion and directed that Samuel shall not be removed from Canada prior to the final determination of the underlying application for leave and judicial review.

Good luck Samuel.

SUKHRAM RAMKISSOON is a member of the College of Immigration and Citizenship Consultants and specializes in immigration matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario, Phone 416 789 5756.