Canada (Citizenship and Immigration) v. Halindintwali

Canada (Citizenship and Immigration) v. Halindintwali
Court (s) Database
Federal Court Decisions
Date
2015-03-27
Neutral citation
2015 FC 390
File numbers
T-1952-13
Decision Content
Date: 20150327
Docket: T-1952-13
Citation: 2015 FC 390
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 27, 2015
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
CÉLESTIN HALINDINTWALI
Defendant
JUDGMENT AND REASONS
I. Background [1] The Minister of Citizenship and Immigration (the Minister) seeks a declaration, pursuant to paragraph 18(1)(b) of the Citizenship Act, RSC 1985, c C-29 [the Act], that Célestin Halindintwali (the defendant) obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. For the reasons that follow, I am of the opinion that the Minister has established, on a balance of probabilities, that the defendant acquired Canadian citizenship by fraud and by concealing material circumstances.
[2] In 1995, the defendant went to the Canadian High Commission in Nairobi, Kenya, to apply for permanent residence under the “Convention refugee seeking resettlement” class. The application included the defendant’s wife, Marie Solange Ingabire, and their daughter.
[3] In his application, the defendant stated that he and his wife were citizens of Burundi. He claimed that he was Hutu, while his wife was Tutsi, and that it was difficult to live in Burundi as a mixed couple. The defendant stated that their home in Bujumbura had been burned down in March 1995 in an attack by Tutsi militants supported by the Burundian army, and that their twin daughters had died during this attack.
[4] The defendant’s application for permanent residence was approved. He obtained permanent resident status on July 22, 1997, and became a Canadian citizen on June 21, 2001.
[5] In June 2013, the Minister initiated a process to revoke the defendant’s citizenship on the grounds that it had been obtained by false representation or fraud or by knowingly concealing material circumstances within the meaning of subsection 10(1) of the Act. The Minister contends that the defendant made false representations to Canadian authorities when applying for permanent residence. He maintains that the defendant is Rwandan, and not Burundian, and that he submitted false information in order to provide Canadian authorities with a story that would enable him to be accepted as a refugee. The Minister also maintains that the defendant lied when he stated in his permanent residence application that he had never participated in a crime against humanity. The Minister claims that the defendant actively participated in the Rwandan genocide of 1994 as a leader of the civil defence organization in the prefecture of Butare, and that he was a member of the National Revolutionary Movement for Development (MRND) party and its Interahamwe militia.
II. Nature of the proceeding and procedural history A. Nature of the proceeding [6] This is a reference pursuant to paragraph 18(1)(b) of the Act. This proceeding is governed by sections 10 and 18 of the Act.
[7] Pursuant to subsection 10(1) of the Act, the Governor in Council may make an order revoking a person’s citizenship if he is satisfied that the person obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Subsection 10(2) of the Act creates a presumption whereby a person who obtained permanent resident status by false representation or fraud or by knowingly concealing material circumstances is deemed to have obtained citizenship through one of those means. Section 10 reads as follows:
Order in cases of fraud
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
Presumption
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
1974-75-76, c. 108, s. 9.
Décret en cas de fraude
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la date qui y est fixée :
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
Présomption
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l’a acquise à raison d’une admission légale au Canada à titre de résident permanent obtenue par l’un de ces trois moyens.
1974-75-76, ch. 108, art. 9.
[8] As per subsection 10(1), the Governor in Council reaches the decision based on a report submitted by the Minister.
[9] Section 18 of the Act provides a mechanism that imposes on the Minister an obligation to give notice to the person involved of the Minister’s intention to recommend that the Governor in Council revoke that person’s citizenship. The person may then exercise his or her right to request that the case be referred to the Federal Court to determine whether he or she obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. When the case is referred to the Court, the Minister must await the Court’s decision before submitting his report to the Governor in Council.
[10] Section 18, which governs this process, reads as follows:
Notice to person in respect of revocation
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
Nature of notice
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
Decision final
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
1974-75-76, c. 108, s. 17.
Avis préalable à l’annulation
18. (1) Le ministre ne peut procéder à l’établissement du rapport mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne se soit réalisée :
a) l’intéressé n’a pas, dans les trente jours suivant la date d’expédition de l’avis, demandé le renvoi de l’affaire devant la Cour;
b) la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
Nature de l’avis
(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a l’intéressé, dans les trente jours suivant sa date d’expédition, de demander au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l’intéressé.
Caractère définitif de la décision
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d’appel.
1974-75-76, ch. 108, art. 17.
[11] Rule 169(a) of the Federal Courts Rules, SOR/98-106 [the Rules], provides that Part 4 of the Rules, which is applicable to proceedings required to be brought as an action, applies to references under section 18 of the Act.
[12] A reference under section 18 of the Act is therefore filed as a statement of claim (rule 171). However, it is not an action in the traditional sense of the word given that the Court is not being asked to maintain or revoke the citizenship of the individual in question. Rather, the Court must draw conclusions of fact and determine whether the person obtained citizenship by false representation or fraud, or by knowingly concealing material circumstances, and if so, make a declaration to this effect that will serve as the basis for the report the Minister must submit to the Governor in Council. The specific nature of a reference under section 18 of the Act was clearly described by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v Obodzinsky, 2002 FCA 518, at paragraph 15, [2002] FCJ No 1800:
15 Of course, a reference by the Minister under s. 18 of the Act is not an action in the ordinary or traditional sense. A proceeding initiated under s. 18 is essentially an investigative proceeding used to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means. It results simply in a non-executory finding which is the basis of a report by the Minister to the Governor in Council for a decision to be taken by the latter, unlike an action, which when valid produces executory conclusions. The very nature of a reference under s. 18 of the Act is that the provisions contained in Part 4 of the Court’s Rules must be applied, making the necessary alterations not only as to terminology but also as to the advisability of applying certain provisions contained in that Part’.
[See also Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391, at paras 52, 55, [1997] SCJ No 82].
[13] The Court’s decision with regard to a reference under section 18 of the Act is final and is not subject to appeal (subsection 18(3) of the Act).
B. Procedural history [14] On June 6, 2013, the Minister sent a notice to the defendant informing him of the Minister’s intention to recommend that the Governor in Council revoke the defendant’s citizenship pursuant to section 18 of the Act.
[15] On June 21, 2013, the defendant, through his counsel, exercised his right to request that the case be referred to the Court.
[16] The Minister filed his statement of claim on November 27, 2013, and it was duly served on the defendant in accordance with the Rules. The defendant did not file a statement of defence within the time prescribed in rule 204 of the Rules, nor at any other time. The Minister made numerous attempts to ensure that the defendant had not inadvertently failed to file his statement of defence. Counsel for the Minister left messages for the defendant’s counsel, but these were never returned.
[17] In June 2014, the Court sent the parties a notice of status review. The defendant did not reply. The Minister, meanwhile, filed submissions with the Court, which among other things informed the Court that the Minister intended to file a motion for confidentiality, and a motion for default judgment.
[18] On August 8, 2014, Prothonotary Richard Morneau ordered that this proceeding continue as a specially managed proceeding. Although the defendant had not filed a statement of defence or responded to the notice of status review, a copy of Prothonotary Morneau’s order, as well as the defendant’s motions for a confidentiality order and default judgment, were served on the defendant on August 12, 2014. The defendant has still not responded.
[19] Rule 210(1) provides that where a defendant fails to serve and file a statement of defence within the time set out in rule 204, the plaintiff may bring a motion for judgment against the defendant on the statement of claim. The plaintiff’s motion is supported by affidavit evidence (subsection 210(3) of the Rules). Pursuant to rule 210(4), in dealing with a motion for default judgment, the Court may grant judgment, dismiss the action or order that the action proceed to trial and that the plaintiff prove its case in such manner as the Court may direct.
[20] In this case, the Minister may proceed by default. The defendant was properly informed of the proceeding. In fact, it was the defendant who requested the reference to the Court, and he had legal representation, at least at the outset. The statement of claim was duly served on the defendant. Counsel for the Minister tried in vain to communicate with counsel for the defendant. The defendant also received service of subsequent proceedings even though, in principle, he was not so entitled. In particular, he received service of the notice of status review, the order for a specially managed proceeding, and the Minister’s motions for confidentiality and default judgment.
[21] It is unusual for a proceeding of this nature, which could have such significant consequences for the person involved, to be heard without that person’s participation, when in fact, the reference was initiated at that person’s request. However, given the numerous opportunities provided to the defendant to participate in this proceeding, I can only conclude that the defendant chose, with full knowledge of the matter, not to participate. Furthermore, this is not the first time that the Court has proceeded by default in such a reference: in Canada (Minister of Citizenship and Immigration) v Aguilar, [2001] FCJ No 11, 109 ACWS (3d) 209 (FCTD), the Court granted an application for default judgment in a reference to revoke citizenship, based solely on documentary evidence.
III. Legal framework [22] As I have already indicated, the Minister is asking the Court to find, through application of paragraph 18(1)(b) of the Act, that the defendant obtained his permanent residence status, and consequently, his Canadian citizenship, by false representation or fraud, or by knowingly concealing material circumstances.
[23] The legal parameters applicable to a reference to the Court are well established in case law, and I will summarize them briefly before dealing with the evidence that was submitted by the Minister.
A. Procedural rights [24] First, the procedural rights applicable to a reference under the Act are governed by the provisions of the Act that were in effect when the citizenship revocation proceedings were initiated (Canada (Minister of Citizenship and Immigration) v Furman, 2006 FC 993, at para 9, [2006] FCJ No 1248 [Furman]; Canada (Minister of Citizenship and Immigration) v Skomatchuk, 2006 FC 994, at para 9, [2006] FCJ No 1249 [Skomatchuk]; Canada (Minister of Citizenship and Immigration) v Rogan, 2011 FC 1007, at para 17, [2011] FCJ No 1221 [Rogan]). In this case, the proceeding began on June 6, 2013, when the Minister sent the defendant notice of his intention to recommend that the Governor in Council revoke the defendant’s citizenship. This case is therefore governed by the provisions of the Act that were in effect on that date. Sections 10 and 18 of the Act that were cited at the beginning of these reasons were in effect at that time.
B. Substantive rights [25] The defendant’s substantive rights related to obtaining Canadian citizenship derive from the Act that was in effect when he obtained Canadian citizenship, i.e., in June 2001. His substantive rights related to obtaining permanent resident status as a refugee seeking resettlement derive from the provisions of the Immigration Act, RSC 1985, c I-2, and the Immigration Regulations, 1978, SOR/78-172 [the Regulations], which were in effect when he applied for permanent resident status in November 1995 and obtained his permanent resident status in July 1997 (Furman, at para 16; Skomatchuk, at para 16; Rogan, at para 23).
[26] To be admitted to Canada as a “Convention refugee seeking resettlement,” the defendant had to be admissible first of all as a refugee.
[27] Section 2 of the Regulations defines the criteria for this class of refugee:
“Convention refugee seeking resettlement” means a person, other than a person whose case has been rejected in accordance with the Comprehensive Plan of Action adopted by the International Conference on Indo-Chinese Refugees on June 14, 1989, who is a Convention refugee
(a) who is outside Canada, (b) who is seeking admission to Canada for the purpose of resettling in Canada, and (c) in respect of whom there is no possibility, within a reasonable period of time, of a durable solution.
« réfugié au sens de la Convention cherchant à se réinstaller »
Personne, autre qu’une personne dont le cas a fait l’objet d’un rejet conformément au plan d’action global adopté le 14 juin 1989 par la Conférence internationale sur les réfugiés indochinois, qui est un réfugié au sens de la Convention :
a) qui se trouve hors du Canada; b) qui cherche à être admis au Canada pour s’y réinstaller; c) à l’égard duquel aucune solution durable n’est réalisable dans un laps de temps raisonnable.
[28] To be recognized as a refugee, a person must demonstrate that he or she meets the definition of Convention refugee, which is set out in subsection 2(1) of the Immigration Act:
“Convention refugee” means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person’s nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
« réfugié au sens de la Convention » Toute personne :
a) qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays; (ii) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) n’a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l’application de la Convention par les sections E ou F de l’article premier de celle-ci dont le texte est reproduit à l’annexe de la présente loi.
[29] To be recognized as a refugee, the defendant had to demonstrate the existence of a well-founded fear of persecution for one of the enumerated reasons in every country in which he was a national (Canada (Attorney General) v Ward, [1993] 2 SCR 689, at pp 752-754, [1993] SCJ No 74).
[30] Furthermore, to be recognized as a refugee, the defendant must not have been excluded from the definition of refugee. Clause 1F(a) of the Convention relating to the Status of Refugees excludes from the definition of refugee any person with respect to whom there are serious reasons for considering that he has committed a war crime or crime against humanity. Clause 1F(a) reads as follows:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
a) qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l’humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
[31] Paragraph 19(1)(j) of the Immigration Act also provided that no persons would be admitted if there were reasonable grounds to believe that they had committed a war crime or crime against humanity:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
[. . .]
j) celles dont on peut penser, pour des motifs raisonnables, qu’elles ont commis, à l’étranger, un fait constituant un crime de guerre ou un crime contre l’humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l’époque de la perpétration.
C. Burden of proof and standard of proof [32] A reference under section 18 of the Act is a civil, rather than criminal, proceeding. As such, the burden of proof that lies with the Minister is that which applies in civil matters, i.e., a balance of probabilities, despite the fact that the issue is an important one that could have serious consequences for the defendant (Furman, at paras 21-23; Skomatchuk, at paras 24-25; Rogan, at paras 26-27). In order to find that the proof has been established based on a balance of probabilities, the Court must be satisfied that in light of the evidence presented, it is more probable than not that the alleged events did indeed occur (Rogan, at para 28). As the Supreme Court of Canada indicated in FH v McDougall, 2008 SCC 53, at para 49, [2008] 3 SCR 41:
49 In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.
[Emphasis added.]
[33] It is therefore up to the Minister to establish, on a balance of probabilities, that the defendant obtained permanent resident status, and consequently, Canadian citizenship, by false representation or fraud, or by knowingly concealing material circumstances.
[34] The fact that this proceeding is being conducted without the defendant’s participation does not lighten the Minister’s burden of proof. It has been established that in a judgment by default, every allegation is treated as denied, and the onus is on the plaintiff to prove its claims (Teavana Corporation v Teayama Inc, 2014 FC 372, at para 4, [2014] FCJ No 393; Louis Vuitton Malletier SA v Lin, 2007 FC 1179, at para 4, [2007] FCJ No 1528; Aquasmart Technologies v Klassen, 2011 FC 212, at para 5, [2011] FCJ No 256).
D. The legal test [35] The case law has established that in order to meet his burden, the Minister does not have to demonstrate that the false representation, fraud or knowing concealment of material circumstances would necessarily have led to the rejection of the application for permanent residence. He must, however, establish that the false representation, fraud or knowing concealment of material circumstances involved elements that were sufficiently important to cause a decision-maker to conclude that had they been known, these facts would have led Canadian authorities to conduct more in-depth fact-finding or inquiries before approving the application for permanent residence.
[36] The courts have had more than one occasion to rule on the elements that must be established to demonstrate that the person in question knowingly concealed material circumstances, particularly in terms of the intent to conceal and the materiality of the information concealed. Madam Justice Mactavish provided a good description of the law in this regard in Rogan, above:
31 The Minister does not have to demonstrate that, had he been truthful during the immigration process, Mr. Rogan’s application for permanent residence would necessarily have been rejected. Rather, the Minister need only show that Mr. Rogan gained entry to Canada by knowingly concealing material circumstances which had the effect of foreclosing or averting further inquiries: Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850, [1973] S.C.J. No. 112, at 873; Odynsky, above, at para. 159; Canada (Minister of Citizenship and Immigration) v. Wysocki, 2003 FC 1172, 250 F.T.R. 174 at para. 16.
32 In order to find that someone “knowingly conceal[ed] material circumstances” within the meaning of section 10 of the Citizenship Act, 1985, “the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker”: Odynsky, above, at para. 159. See also Schneeberger, above, at para. 20.
33 “A misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer which has the effect of foreclosing or averting further inquiries”: Schneeberger, at para. 22, citing Brooks. This is so even if the answer to those inquiries might not turn up any independent ground of deportation: Brooks, above, at 873.
34 In assessing the materiality of the information concealed, regard must be had to the significance of the undisclosed information to the decision in question: Schneeberger, at para. 21. However, “more must be established than a technical transgression of the Act. Innocent misrepresentations are not to result in the revocation of citizenship”: Schneeberger, at para. 26, citing Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155, [1993] F.C.J. No. 712 (F.C.T.D.).
35 That said, misrepresentations claimed to be “innocent” must be carefully examined, and willful blindness will not be condoned. If faced with a situation of doubt, an applicant should invariably err on the side of full disclosure: Canada (Minister of Citizenship and Immigration) v. Phan, 2003 FC 1194, 240 F.T.R. 239 at para. 33.
[37] There is less case law with regard to the elements required to establish that citizenship was obtained by fraud or a false declaration. Madam Justice Kane recently provided an excellent analysis of the issue in Canada (Minister of Citizenship and Immigration) v Savic, 2014 FC 523, [2014] FCJ No 562, concluding that intention to mislead is also required to establish that citizenship was obtained by fraud or false declarations. The relevant passage reads as follows:
66 The plaintiff’s primary argument is that the defendant acted intentionally in concealing material circumstances and in making false representations.
67 The plaintiff’s alternative argument is that some conduct that falls under section 10, namely false representations, need not be intentional. Success on this argument would avoid the need to provide some evidence to establish on a balance of probabilities that there was an intention to mislead the decision maker.
68 The overall goal of section 10 is to ensure that persons who have obtained permanent resident status and citizenship by providing false information or by withholding information that is material to the decision will not continue to benefit from that status. In my view, intent to mislead the decision maker is required for all conduct referred to in section 10. That intention must be established on a balance of probabilities; the plaintiff must provide some evidence of intention or some evidence from which a reasonable inference of intention to mislead can be drawn.
69 Section 10 refers to three types of conduct (false representation or fraud or by knowingly concealing material circumstances) and it is possible that the same conduct could satisfy all three, but that is not required.
70 Fraud arises in both criminal law and in other contexts including tort and contract. Fraud is generally defined as intentional or reckless misrepresentation of fact by words or by conduct that deceives another person and which results in a detriment to that other person (see Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8). The conduct which amounts to fraud can also be an omission or silence in situations where there is an obligation to disclose information.
71 The requirement for intention with respect to conduct that amounts to fraud in section 10 does not need to be spelled out because intention, which can include recklessness regarding the statement or omission and the other person’s likely reliance on that statement, is part of the definition of fraud.
. . .
74 This leaves for consideration the conduct contemplated by false representations, which the plaintiff alternatively submits does not require an intention to mislead. As noted above, I do not agree. Simply making a false statement (i.e., a false representation) in error or inadvertently should not result in a declaration under section 10. Some intention to mislead is required. This intention must be established on a balance of probabilities.
75 However, it is difficult to conceive of a situation where a false representation that is not inadvertent would not also be covered by the conduct described as fraud, given that in the context of permanent resident applications, the representation would be relied on by the decision maker and the applicant would benefit from making the false representation.
76 Similarly, situations where an applicant would “knowingly conceal material circumstances” may also constitute a “false representation” and/or fraud.
[Emphasis added.]
IV. Analysis of the evidence [38] The Minister alleges that in his application for residence as a “Convention refugee seeking resettlement”, the defendant made false representations and knowingly concealed material circumstances on two fronts:
The defendant made false representations with regard to his citizenship and several other personal details, and he fabricated a story in order to be accepted as a refugee; The defendant lied when he stated on his permanent residence application form that he had never committed war crimes or crimes against humanity, nor participated in the perpetration of such crimes.
[39] As part of the permanent residence application process, the defendant filled out the permanent residence application form, in which he provided several personal details. He signed this form on October 30, 1995. Section 31 of the form contains a declaration from the applicant to the effect that the information he has provided is truthful, complete and accurate and that he understands that any false statements or concealment of a material fact may be grounds for his prosecution and/or removal from Canada.
A. The evidence submitted by the Minister [40] The Minister submitted several pieces of evidence.
[41] These include an affidavit sworn on December 18, 2014, by Professor Timothy Pau Longman, an expert on the Rwandan genocide. Professor Longman attached to this affidavit his curriculum vitae, his expert report and a signed certificate acknowledging that he had read and agreed to abide by the code of conduct for expert witnesses.
[42] Professor Longman holds a doctorate in political science from the University of Wisconsin, and is the Director of the African Studies Center and Associate Professor of Political Science at Boston University. He conducted exhaustive research in Rwanda for Human Rights Watch and the International Federation of Human Rights Leagues from November 1995 to July 1996. He also published a book on the genocide, entitled Christianity and Genocide in Rwanda. Professor Longman was recognized as an expert in the criminal trial of Jacques Mungwarere in Canada (R v Mungwarere, 2013 ONSC 4594, [2013] OJ No 6123 [Mungwarere]) and that of Beatrice Munyenyezi in the United States.
[43] I have no hesitation in recognizing Professor Longman as an expert on issues related to the Rwandan genocide, particularly its origins and the nature of the conflict and the massacres that it engendered.
[44] The report submitted by Professor Longman includes a very useful historical summary that provides for understanding what contributed to the genocide that took place in 1994. The report also sheds light on the sociopolitical context that existed in Rwanda in the 1990s and during the genocide, in which approximately 800,000 Rwandans, primarily Tutsis and so-called moderate Hutus, were killed. In his report, Professor Longman also offered a picture of the various organizations and key players in the genocide, as well as the methods they used. Among others, he described the roles of the MRND (a political party), the Interahamwe (the MRND’s militia) and the civil defence committees. He also described how the genocide was perpetrated in Rwanda generally, and in the prefecture of Butare in particular. He explained the role of Butare’s security and civil defence committees.
[45] The Minister further submitted an affidavit from Mr. Rudy Exantus, an RCMP investigator. Beginning in August 2008, Mr. Exantus worked as an investigator on the RCMP criminal investigation into the possible involvement of the defendant in the 1994 Rwandan genocide. Since 2011, Mr. Exantus has also executed search warrants and conducted inquiries with regard to the defendant at the request of the Department of Justice Crimes Against Humanity and War Crimes Section.
[46] In the context of his investigation and the search warrants he executed, Mr. Exantus and his colleagues met with several witnesses in Canada, Rwanda, Belgium and the Netherlands. In his affidavit, Mr. Exantus explained several aspects of the investigation and summarized the statements made by 21 witnesses in the interviews that he or his colleagues conducted.
[47] In the context of this proceeding, the Minister submitted a redacted copy of Mr. Exantus’s affidavit, in which the names of witnesses whose statements were reported in the affidavit were expunged.
[48] On September 23, 2014, I granted the Minister’s motion for order of confidentiality and rendered the order attached to these reasons (Canada (Minister of Citizenship and Immigration) v Célestin Halindintwali, 2014 FC 909, [2014] FCJ No 1297). Under the terms of that order, I ordered that the identity of persons interviewed by the RCMP during its investigations into the defendant and referred to in Mr. Rudy Exantus’s affidavit be declared confidential and that only a copy of the affidavit with the names of those individuals expunged be placed in the Court’s public record. I myself saw an unredacted version of the affidavit.
[49] The Minister also submitted as evidence, through Mr. Exantus’s affidavit, various documents from the Government of Burundi, the Government of Rwanda and numerous academic institutions in Burundi and Rwanda.
[50] In particular, Mr. Exantus referred to the affidavits of the following individuals, which were also submitted as evidence through his affidavit:
Stanislas Ngombwa, principal of the Byimana School of Sciences; Emmanuel Havugimana, academic registrar at the National University of Rwanda; Emma Munganyinka, head of the archives of the Southern Province (formerly known as the prefecture of Butare, in Rwanda); Emmanuel Semahoro, documentalist in the Rwandan Ministry of Infrastructure (Minifra), the successor to the Ministry of Public Services and Energy (Minitrape); Alexis Ntagungira, director of public management in the Rwandan Ministry of Public Service and Labour.
[51] Several pieces of evidence were presented through these deponents.
[52] Through Mr. Exantus’s affidavit, the Minister also presented as evidence various exhibits and transcripts from legal proceedings that had taken place before the International Criminal Tribunal for Rwanda (ICTR), most notably in the prosecution of Colonel Nteziryayo (Case No. ICTR-98-42-T).
[53] The Minister also submitted affidavits from the following individuals:
Emmanuel Ntaconsanze, responsible for the civil status registers in the commune of Maranga in Burundi; Donatien Irangeza, director of the Matyazo primary school in the province of Ngozi in Burundi; Sylvain Nsengiyumva, director of Mwumba College in the province of Ngozi in Burundi; M. Josée Bigendako, head of student services at the University of Burundi in Bujumbura.
[54] The Minister submitted the stenographic notes from an interview with the defendant that was conducted by RCMP investigators on August 29, 2002.
[55] The Minister also submitted certain documents from the defendant’s immigration file, as well as the affidavits of Alexandra Paslat, Aleksandra Wojciechowski and Francine Galarneau. Ms. Galarneau is First Secretary (Immigration) at the Canadian High Commission in London. When the defendant submitted his application for permanent residence, Ms. Galarneau was a visa officer at the Canadian High Commission in Nairobi, Kenya. She processed the defendant’s application for permanent residence.
[56] I will now deal with the Minister’s two principal allegations.
B. Did the defendant make false representations or knowingly conceal material circumstances with regard to the personal details that he supplied and the allegations of persecution that he made? [57] In her sworn affidavit of June 12, 2014, Ms. Galarneau explained the various stages involved in processing the defendant’s application for permanent residence. Several exhibits are attached to her affidavit, including the defendant’s permanent residence form and the notes she entered in CAIPS, which was the electronic database in use at that time in the visa offices of the Department of Citizenship and Immigration. In her affidavit, Ms. Galarneau indicated that notes could not be changed once they had been recorded in CAIPS and that they were always followed by the initials of the person who had made the entries. I am satisfied that the notes entered in CAIPS that are attached to Ms. Galarneau’s affidavit are indeed the notes that she recorded in the database when processing the defendant’s residence application.
[58] Ms. Galarneau stated that the defendant, his wife and their daughter submitted an immigration application as “Convention refugees seeking resettlement” and that in order to meet the requirements of that class, they had to, among other things, meet the definition of “Convention refugee”.
[59] The defendant furnished a variety of details on his form, including the following:
He was born on April 22, 1965, in Marangara, Burundi; He is a citizen of Burundi; His wife, Marie Solange Ingabire, was born on September 28, 1968, in Marangara, Burundi; He was married on October 13, 1993, in Marangara, Burundi; He attended Matyazo primary school in Burundi from September 1972 to July 1978; He attended Mwumba College in Burundi from September 1978 to