2022 FCA 18, 2022 FCA 18

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . A-216-20 2022 FCA 18 Minister of Public Safety and Emergency Preparedness ( Appellant ) v. Lotfi Abdulrahman Ahmed Bafakih, Suaad Bafakih, Abdulrahman Lot Bafakih, Ahmed Bafakih ( Respondents ) Indexed as: Canada (Public Safety and Emergency Preparedness) v. Bafakih Federal Court of Appeal, Webb, Mactavish and LeBlanc JJ.A.—Toronto, September 28, 2021; Ottawa, February 1, 2022.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Vacation of refugee protection — Appeal from Federal Court decision setting aside Immigration and Refugee Board, Refugee Protection Division (Review Panel) decision vacating, as permitted by Immigration and Refugee Protection Act, s. 109 , decision of then Convention Refugee Determination Division (Original Panel) allowing respondents’ claim for refugee protection — Act , s. 109 conferring on Refugee Protection Division (RPD) discretion to vacate positive refugee determination in certain circumstances — Here, Review Panel found that respondents, family from Yemen, had obtained refugee protection as result of withholding their connections to Kenya, potential country of reference — According to Review Panel, this information, if disclosed, would have raised suspicions for Original Panel, could have led to further inquiries regarding respondents’ potential Kenyan nationality — Such finding held to be unreasonable by Federal Court on ground no evidence establishing that this information, if disclosed, would have been material to actual granting of refugee status — Federal Court also finding that s aid information was only material to possible line of inquiry that would have led nowhere, since nothing in evidence suggested that respondents had any right to Kenyan nationality or that Kenya was possible country of reference — Federal Court concluding that appellant failed to establish that respondents’ omissions were material to granting of refugee claim; certifying question involving whether respondent must demonstrate misrepresentation or withholding of material fact that would have led original RPD panel to come to different conclusion — Whether Review Panel’s decision reasonable — In present matter, Review Panel improperly declined to address issue of misrepresentation or withholding of material fact before vacating grant of refugee status — Problem lying in manner in which Review Panel addressed materiality issue — Clearly, Review Panel felt not within purview of its authority under Act , s. 109 to determine whether respondents having any right to Kenyan citizenship — Review Panel’s position at odds with binding precedents — Review Panel not considering foreign documentation on record; left issue of materiality of omissions attributed to respondents inadequately answered — If Review Panel had considered evidence, concluded that respondents had no right to Kenyan citizenship, it could not have found that they were guilty of misrepresentation or concealment — What Review Panel did affected reasonableness of its vacating order — Such error was sufficient to set aside Review Panel’s decision, was determinative of present appeal — Therefore, other component of certified question not needing to be decided — Review Panel’s decision set aside, matter remitted to RPD for reconsideration by differently constituted panel — Component of certified question for which Federal Court of Appeal sought additional submissions from parties as to whether RPD must find existence of misrepresentation or withholding of material fact before vacating was answered in affirmative — Appeal dismissed.

Administrative Law — Judicial Review — Standard of Review — Appeal from Federal Court decision setting aside Immigration and Refugee Board, Refugee Protection Division (Review Panel) decision vacating, as permitted by Immigration and Refugee Protection Act, s. 109 , decision of then Convention Refugee Determination Division (Original Panel) allowing respondents’ claim for refugee protection — Review Panel found that respondents had obtained refugee protection as result of withholding their connections to Kenya, potential country of reference — According to Review Panel, this information, if disclosed, would have raised suspicions for Original Panel, could have led to further inquiries regarding respondents’ potential Kenyan nationality — Federal Court held such finding unreasonable on ground no evidence establishing that this information, if disclosed, would have been material to actual granting of refugee status — Federal Court also determining that s aid information was only material to possible line of inquiry that would have led nowhere, since nothing in evidence suggested that respondents had any right to Kenyan nationality or that Kenya was possible country of reference — Federal Court concluding that appellant failed to establish that respondents’ omissions were material to granting of refugee claim — Whether Review Panel’s decision reasonable — Review Panel’s decision not reasonable, had to be set aside — However, reasons for doing so different from those of Federal Court — Essence of Federal Court’s finding was that omissions attributed to respondents regarding their Kenyan connections not material; that Review Panel’s decision could not reasonably be sustained since no evidence existing that respondents’ connection with Kenya could yield in Kenyan nationality — Such findings were for Review Panel to make, not Federal Court as reviewing court — Although Federal Court correctly identified standard of reasonableness as standard of review applicable to impugned decision, it deviated from it; proceeded to correctness review of that decision — By making its own finding regarding materiality of omissions attributed to respondents, Federal Court exceeded what it was empowered to do in reviewing Review Panel’s decision — Took it upon itself to make finding on issue that Review Panel had declined to entertain — That, it could not do.

This was an appeal from a Federal Court decision setting aside a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (the Review Panel) vacating, as permitted by

section 109 of the Immigration and Refugee Protection Act , a decision of the then Convention Refugee Determination Division (the Original Panel) allowing the respondents’ claim for refugee protection.

Section 109 of the Act confers on the RPD the discretion to vacate a positive refugee determination if it finds that: (1) the

decision was obtained as a result of the refugee claimant directly or indirectly misrepresenting or withholding material facts relevant to his or her claim and; (2) leaving the misrepresentations aside, that the remaining evidence that was before the panel that decided the refugee claim was insufficient to justify granting protection. Here, the Review Panel found that the respondents, a family of four from Yemen, had obtained refugee protection as a result of withholding their connections to a potential country of reference, Kenya.

According to the Review Panel, this information, if disclosed, would have raised suspicions for the Original Panel and could have led to further inquiries regarding the respondents’ potential Kenyan nationality. This finding was held to be unreasonable by the Federal Court on the ground that there was no evidence on record establishing that this information, if disclosed, would have been material to the actual granting of refugee status.

Said information, according to the Federal Court, was only material to a possible line of inquiry that would have led nowhere, since nothing in the evidence before it suggested that the respondents had any right to Kenyan nationality or that Kenya was, therefore, a possible country of reference. The Federal Court certified a question involving whether the respondent must demonstrate, and whether the RPD must find, misrepresentation or withholding of a material fact that would have led the original RPD panel to come to a different conclusion.

The Federal Court subsequently directed the parties to provide additional submissions on one element of the certified question and, in response, the parties submitted that the RPD, before vacating a decision granting refugee protection under subsection 109(1) of the Act , was required to find that there was a misrepresentation or withholding of a material fact, adding that there was no dispute between them as to whether the RPD had made a misrepresentation finding in the present matter.

The respondents had sought refugee protection once they arrived in Canada from Yemen and the Original Panel accepted their claim. Later, the appellant sought to have the Original Panel’s decision vacated. Evidence suggested that Kenya could have been a country of reference for the purposes of the refugee claim. The respondents denied any ties, past or present, with Kenya. The Review Panel declined to determine whether there was any legal basis for considering Kenya as a country of potential nationality for the respondents.

It further found that the respondents’ failure to disclose their Kenyan connections was enough to engage subsection 109(1) of the Act as such failure precluded a line of inquiry that, potentially, could have led the Original Panel to refuse their refugee claim. Noting that the Review Panel had made no determination as to whether Kenya was or was not a country of reference, the Federal Court found the Review Panel’s approach to

section 109 of the Act to be fundamentally flawed. It found that if any connection the respondents may have had with Kenya was not capable of yielding Kenyan nationality, then there could be no withholding of material facts relating to a relevant matter. The Federal Court concluded that the appellant had failed to establish that the respondents’ omissions were material to the granting of their refugee claim.

The appellant contended that the Federal Court adopted the wrong legal test by requiring him to establish that the outcome of the respondents’ refugee proceedings would definitely have been different had the Original Panel had access to the full evidentiary record. Moreover, he submitted that the Review Panel reasonably found that the respondents, by withholding all information pointing to Kenya, obtained refugee protection as a result of material withholdings as the non-disclosed facts raised issues of identity, nationality and potential country of reference, which all go to the core of refugee protection.

Keeping in mind the certified question, was the Review Panel’s decision reasonable? Held , the appeal should be dismissed. The certified question pertained to the test to be applied by the RPD before vacating a decision granting refugee protection under subsection 109(1) of the Act . The fundamental problem in this matter was that although the parties correctly agreed that the RPD is required to find that there was a misrepresentation or withholding of a material fact before vacating a grant of refugee status, the Review Panel in the present matter improperly declined to address this issue.

It declined to engage on the issue of the materiality of the omissions attributed to the respondents regarding their connections to Kenya. Instead, the Review Panel focused on whether these omissions resulted in the grant of refugee protection by the Original Panel, thereby sidestepping a critical step in the analysis, and this was a fatal error. The omissions attributed to the respondents herein were related to a “relevant matter”, as required by subsection 109(1) of the Act . However, to trigger the vacating of the Original Panel’s decision, those omissions also needed to be material.

Here, the problem lied in the manner in which the materiality issue was addressed by the Review Panel. Clearly, the Review Panel felt that it was not within the purview of its authority under subsection 109(1) of the Act to determine whether the respondents had any right to Kenyan citizenship. The position taken by the Review Panel on this issue was at odds with binding precedents, which constrain how and what it can reasonably decide.

Under subsection 109(1) of the Act , it is incumbent upon the RPD not only to identify the nature of the misrepresentations or omissions put forth by the competent minister in his application, but also to determine the extent to which these misrepresentations or omissions may have been material. This determination involves considering all the evidence on file, including new evidence presented by both parties.

Here, the Review Panel did not consider the foreign documents despite having before it the provisions of the Kenyan Constitution of 1963 and 2010 dealing with citizenship, which suggested that children of Kenyan citizens may be entitled to Kenyan citizenship by descent, thereby leaving the issue of the materiality of the omissions attributed to the respondents inadequately answered. If the Review Panel had given full and fair consideration to the evidence and concluded that the respondents had no right to Kenyan citizenship, it could not have found that they were guilty of misrepresentation or concealment.

What the Review Panel did affected the reasonableness of its vacating order. This error was sufficient to set aside the Review Panel’s decision and was determinative of the present appeal. Therefore, the other component of the certified question did not need to be decided. While the Review Panel’s decision was unreasonable and had to be set aside, the reasons for doing so differed from those of the Federal Court. The essence of the Federal Court’s finding was that the omissions attributed to the respondents regarding their Kenyan connections were not material.

In its view, the Review Panel’s decision could not reasonably be sustained no matter what the subsection 109(1) test is since, in particular, there was no evidence that any connection the respondents might have had with Kenya in 1999 was capable of yielding Kenyan nationality. This finding was for the Review Panel to make, not the Federal Court. Although the Federal Court identified—correctly so—the standard of reasonableness as the standard of review applicable to the impugned decision, it deviated from it and in fact proceeded to a correctness review of that decision.

By making its own finding regarding the materiality of the omissions attributed to the respondents, the Federal Court exceeded what it was empowered to do in reviewing the Review Panel’s decision. It took it upon itself to make a finding on an issue that the Review Panel had declined to entertain. That, it could not do. Therefore, the Review Panel’s decision was set aside and the matter remitted to the RPD for reconsideration by a differently constituted panel.

Finally, the component of the certified question for which the Federal Court of Appeal sought additional submissions from the parties was answered in the affirmative.

STATUTES AND REGULATIONS CITED Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, r. 22. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 40(1)(a), 109. CASES CITED applied: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Canada (Minister of Citizenshipand Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1; Canada (Minister of Public Safety and EmergencyPreparedness) v. Gunasingam, 2008 FC 181, [2008] 3 F.C.R. D-2, 73 Imm. L.R. (3d) 151; Canada (Minister of Citizenship andImmigration) v.

Wahab, 2006 FC 1554, 305 F.T.R. 288; Hassan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. D-53, 174 F.T.R. 288, (T.D.). CONSIDERED: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585; Williams v. Canada (Minister of Citizenship andImmigration), 2005 FCA 126, [2005] 3 F.C.R. 429. REFERRED TO: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Baker v. Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Mahjoub v.

Canada (Citizenship and Immigration),2017 FCA 157, [2018] 2 F.C.R. 344; Canada (Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689, 103 D.L.R.(4th) 1; Coomaraswamy v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153, [2002] 4 F.C. 501. APPEAL from a Federal Court decision (2020 FC 689, [2020] 4 F.C.R. 143) setting aside an Immigration and Refugee Board, RefugeeProtection Division decision (X (Re), ) vacating, as permitted by

section 109 of the Immigration and RefugeeProtection Act, a decision of the then Convention Refugee Determination Division allowing the respondents’ claim for refugeeprotection. Appeal dismissed. APPEARANCES Kevin Doyle and Norah Dorcine for appellant. Ashley Fisch and Hart Kaminker for respondents. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Kaminker and Associates, Toronto, for respondents.

The following are the reasons for judgment rendered in English by [1] LeBlanc J.A.: This is an appeal by the Minister of Public Safety and Emergency Preparedness (the Minister) from a judgment ofRussell J. of the Federal Court (the Application Judge). In his judgment dated June 15, 2020 (2020 FC 689, [2020] 4 F.C.R. 143), theApplication Judge set aside a decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada (the ReviewPanel), rendered orally on May 28, 2019 ([X (Re), (I.R.B.),]Toronto TB8-11918, TB8-11919, TB8-11920 and TB8-11921), vacating, as permitted by

section 109 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), a decision of thethen Convention Refugee Determination Division (the Original Panel) allowing the respondents’ claim for refugee protection. [2]

Section 109 of the Act confers on the Refugee Protection Division (RPD) the discretion to vacate a positive refugeedetermination if it finds that (1) the decision was obtained as a result of the refugee claimant directly or indirectly misrepresenting orwithholding material facts relevant to his or her claim and, (2) leaving the misrepresentations aside, that the remaining evidence that wasbefore the panel which decided the refugee claim was insufficient to justify granting protection. [3] Here, the Review Panel found that the respondents, a family of four from Yemen, had obtained refugee protection as a result ofwithholding their connections to a potential country of reference, Kenya.

According to the Review Panel, this information, if disclosed,would have raised suspicions for the Original Panel and could have led to further inquiries regarding the respondents’ potential Kenyannationality. [4] This finding was held to be unreasonable by the Application Judge on the ground that there was no evidence on recordestablishing that this information, if disclosed, would have been material to the actual granting of refugee status.

Said information,according to the Application Judge, was only material to a possible line of inquiry that would have led nowhere, since nothing in theevidence before him suggested that the respondents had any right to Kenyan nationality or that Kenya was, therefore, a possible countryof reference. [5] The Application Judge certified the following question: Before vacating a decision granting refugee protection under [subsection] 109(1) of the [Act], is the Respondent required to demonstrate,and is the [Refugee Protection Division (RPD)] required to find, a misrepresentation or withholding of a material fact that would haveled to a different conclusion by the original RPD panel, or is it sufficient for the RPD to find a misrepresentation or withholding of a

material fact that could have led to a possible line of inquiry that may, or may not, have resulted in a denial of refugee protection by the original RPD panel? [ 6 ] On December 7, 2021, a few weeks after the hearing of this appeal, the Court directed the parties to provide additional submissions on one element of the certified question, as it found that said question “presupposes that a finding was made by the RPD that there was a misrepresentation or withholding of a material fact”.

This element of the certified question is: Before vacating a decision granting refugee protection under [subsection] 109(1) of the [ Immigration and Refugee Protection Act ], … is the [Refugee Protection Division (RPD)] required to find [that there was] a misrepresentation or withholding of a material fact …? [ 7 ] In joint submissions filed on December 21, 2021, in response to the Court’s direction, the parties submitted that the RPD, before vacating a decision granting refugee protection under subsection 109(1) of the Act , was required to find that there was a misrepresentation or withholding of a material fact, adding that there was no dispute between them as to whether the RPD had made a misrepresentation finding in the present matter.

The dispute between them, the parties assert is rather whether this finding was reasonable and whether the Application Judge properly assessed whether the respondents’ refugee protection was obtained as a result of the withholding of material facts. [ 8 ] I do agree that the RPD is required to find that there was a misrepresentation or withholding of a material fact before vacating protection but for the following reasons, which differ from those of the Application Judge, I am of the view that the Review Panel’s decision in this matter does not withstand scrutiny. I.

The Underlying Facts [ 9 ] The respondents entered Canada in May 1998 and sought refugee protection shortly thereafter on the basis that they were harassed and persecuted by a prominent Yemeni government figure. The Original Panel accepted their claim. [ 10 ] A few months later, the Minister intercepted a package of documents sent to the respondents from the United States. That package contained identity cards (ID cards) listing the place of birth of the adult respondents, Lotfi Abdulrahman Ahmed Bafakih (Lotfi) and Suaad Bafakih (Suaad), as Mombasa, Kenya.

This prompted the Minister to request, and obtain, from the Kenyan authorities biometric records showing that Lotfi and Suaad were registered Kenyan nationals. The Kenyan authorities also provided the Minister with a copy of application forms for Kenyan ID cards submitted in 1994 by individuals with similar names in which Mombasa also appeared as the place of residence. [ 11 ] With this information in hand, the Minister sought to have the Original Panel’s decision vacated.

He claimed that the biometric records matched Kenyan records and the ID cards application forms provided by the Kenyan authorities suggested that Kenya could have been a country of reference for the purposes of the refugee claim.

The Minister further argued that the withholding of this information had therefore precluded the Original Panel from engaging in a fulsome analysis of the respondents’ Kenyan ties. [ 12 ] The respondents denied any ties, past or current, to Kenya, although Lotfi admitted having used, in 1994, the services of a third party who had connections with that country in hopes of obtaining a Kenyan ID card, which never materialized. He insisted that these actions were prompted by his desire to settle outside Yemen as Yemen was facing political turmoil at the time.

He further claimed that he chose Kenya not because he had any right to Kenyan citizenship, but because the Kenyan passport was more respected at the time and would help him access job opportunities in the Arab Gulf. [ 13 ] In the course of the hearing before the Review Panel, the respondents filed some documentary evidence which satisfied the Review Panel that both Lotfi and Suaad were in fact born in Yemen. They also filed affidavits from Lotfi’s parents where both affirmed, among other things, having been born in the 1940s in geographical areas now part of Kenya. II.

The Review Panel’s Decision [ 14 ] The Review Panel held that the new information arising from Lotfi’s parents’ affidavits showed that Lotfi could have obtained Kenyan citizenship by descent.

This, coupled with the evidence of Lotfi’s efforts to obtain Kenyan ID cards, were material facts which ought to have been disclosed to the Original Panel as such matters—identity, nationality and potential country of reference—go to the very core of refugee protection. [ 15 ] In concluding as it did, the Review Panel declined to determine whether there was any legal basis for considering Kenya as a country of potential nationality for the respondents. It insisted that this issue would have been for the Original Panel to consider, had the respondents’ connections to that country been disclosed in due course.

For the Review Panel, the respondents’ failure to disclose their Kenyan connections was enough to engage subsection 109(1) of the Act as such failure precluded a line of inquiry that, potentially, could have led the Original Panel to refuse their refugee claim. [ 16 ] The Review Panel was also satisfied that there was no other sufficient evidence before the Original Panel “that goes towards any claim against Kenya” that would have otherwise justified granting protection to the respondents as per subsection 109(2) of the Act .

For the Review Panel, “[t]here’s really nothing upon which the [Original Panel], in 1999, could have evaluated a claim against Kenya or the potential for Kenya to be a country of reference” (Review Panel’s decision, at page 8). III. The Application Judge’s Decision [ 17 ] Noting that the Review Panel had made no determination as to whether Kenya was or was not a country of reference, the Application Judge found the Review Panel’s approach to

section 109 of the Act to be “fundamentally flawed” [at paragraph 72]. According to the Application Judge, if any connection the respondents may have had with Kenya in 1999 was not capable of yielding Kenyan nationality, then there could be no withholding of material facts relating to a relevant matter. He stressed that subsection 109(1) of the Act required the Review Panel to be satisfied that the Original Panel’s decision “was obtained” as a result of the respondents’ failure to mention Kenya, not that it “could have been obtained” because of such omission [at paragraph 73].

[18] The Application Judge contrasted the language of subsection 109(1) with the language of paragraph 40(1)(

a) of the Act, whichprovides for the inadmissibility of non-citizens for misrepresentation for directly or indirectly misrepresenting or withholding materialfacts relating to a relevant matter “that induces or could induce” an error in the administration of the Act, noting that this language, whichsets out a broader test for inadmissibility, has not been reproduced in subsection 109(1). [19] The Application Judge further held that it was equally unreasonable to vacate the Original Panel’s decision on the ground that theOriginal Panel “could have” assessed Kenya as a possible country of reference because there is no evidence on record that therespondents had any right to Kenyan citizenship and, therefore, no evidence they misrepresented anything material.

In particular, hedetermined that there was no evidence suggesting that the fact that Lotfi’s parents were born in what is now Kenya provided therespondents with any right to Kenyan citizenship.

In other words, the Application Judge was satisfied that the possible line of inquiry theOriginal Panel was precluded from undertaking as a result of the respondents’ failure to reveal their Kenyan connections would have lednowhere. [20] The Application Judge concluded that the Minister had failed to establish that the respondents’ omissions were material to thegranting of their refugee claim as he was satisfied that the possible line of inquiry which the omissions prevented could not have led tothe refusal of said claim. IV.

The Minister’s Challenge to the Application Judge’s Decision [21] The Minister’s challenge to the Application Judge’s decision is twofold. First, he contends that the Application Judge adopted thewrong legal test by requiring the Minister to establish that the outcome of the respondents’ refugee proceedings would definitely havebeen different had the Original Panel had access to the full evidentiary record.

He claims that subsection 109(1) of the Act only requireshim to demonstrate that there was a material withholding related to a relevant matter and that there is a causal connection between thewithholding and the granting of protection which could have led to a different conclusion.

He urges the Court to answer the certifiedquestion in those terms. [22] Second, the Minister submits that the Review Panel reasonably found that the respondents, by withholding all informationpointing to Kenya, obtained refugee protection as a result of material withholdings as the non-disclosed facts raised issues of identity,nationality and potential country of reference, which all go to the core of refugee protection.

He further submits that the documentsprovided by the Kenyan authorities as evidence of a biometric records match was further evidence that refugee protection was obtainedby the respondents as a result of withholding material facts, but claims that the Review Panel failed to provide a reasonable explanationfor discounting it. V.

Issue and Standard of Review [23] It is trite that on appeal from a decision of the Federal Court sitting in judicial review, this Court must determine whether theFederal Court chose the appropriate standard of review and, if so, whether it properly applied it in reviewing the impugnedadministrative decision. This requires the Court to “step into the shoes” of the Federal Court and effectively focus on the administrativedecision under review (Agraira v.

Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 [Agraira],at paragraphs 45–46). [24] Recently, the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585(Horrocks), declined the invitation to reconsider Agraira, and confirmed that its principles continue to apply.

The Agraira approach,according to Horrocks, “accords no deference to the reviewing judge’s application of the standard of review”; it rather requires the Courtto “perform[] a de novo review of the administrative decision” (Horrocks, at paragraph 10). [25] Here, applying the review framework laid out by the Supreme Court of Canada in Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1 (Vavilov), the Application Judge chose to review theReview Panel’s decision on the presumptive standard of reasonableness.

The parties do not dispute that this was the correct choice. [26] Keeping in mind the certified question, as broken down, the Court’s task, “stepping into the shoes” of the Federal Court, is todetermine whether the Review Panel’s decision is reasonable. It is settled law that the reasonableness standard applies to “all aspects” ofan administrative decision, including the decision maker’s

interpretation of its enabling statute (Vavilov, at paragraph 25). [27] On a reasonableness review, the focus of the inquiry “must be on the decision actually made by the decision maker, includingboth the decision maker’s reasoning process and the outcome” (Vavilov, at paragraph 83).

Ultimately, the reviewing court must besatisfied that the administrative decision is “based on an internally coherent and rational chain of analysis and … is justified in relation tothe facts and law that constrain the decision maker” (Vavilov, at paragraph 85). [28] Before getting into the analysis, it is important to bear in mind that the certification of a question serves a “trigger[ing]” functionby which an appeal under the Act is permitted (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R.909, at paragraph 44; citing Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,174 D.L.R. (4th) 193, at paragraph 12). That said, once properly triggered, it is well settled that all aspects of the appeal may beconsidered by the Court. In other words, the appeal is not restricted to the determination of the certified question (Mahjoub v. Canada(Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at paragraph 50). VI.

Analysis [29] As indicated at the outset of these reasons, the question put to this Court by the Application Judge pertains to the test to beapplied by the RPD before vacating a decision granting refugee protection under subsection 109(1) of the Act. As indicated as well, thisCourt sought additional submissions on one aspect of this question, which is whether the RPD, before rendering such a decision, isrequired to find that there was a misrepresentation or withholding of a material fact.

The parties responded, jointly, that it was. [30] This aspect of the certified question is important because, as underscored in the direction requesting additional submissions on

that point, that question, as framed by the Application Judge and as treated by the parties, presupposes that a finding was made by theReview Panel that there was a misrepresentation or withholding of a material fact. [31] Yet, the fundamental problem in this matter, as I see it, is that although the parties agree—correctly so in my view—that the RPDis required to find that there was a misrepresentation or withholding of a material fact before vacating a grant of refugee status, theReview Panel in the present matter improperly declined to address this issue.

More particularly, it declined to engage on the issue of themateriality of the omissions attributed to the respondents regarding their connections to Kenya. Instead, the Review Panel focused onwhether these omissions resulted in the grant of refugee protection by the Original Panel, thereby sidestepping a critical step in theanalysis. This was, in my view, a fatal error. [32] Subsection 109(1) of the Act reads as follows: Vacation of refugee protection 109

(1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection,if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to arelevant matter. [33] It is well settled that where an individual claiming refugee protection has citizenship in more than one country, the individualmust demonstrate a well-founded fear of persecution in relation to each of these countries before he or she can seek asylum in a countryof which he or she is not a citizen (Canada (Attorney General) v.

Ward, (SCC), [1993] 2 S.C.R. 689, 103 D.L.R. (4th)1, at page 751 S.C.R.). This principle extends to cases where, at the time the claim is heard, the claimant is entitled to acquire thecitizenship of a particular country by completing mere formalities, “thereby leaving no room for the State in question to refuse status”(Williams v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 126, [2005] 3 F.C.R. 429, at paragraphs 19–21). [34] There is no doubt, therefore, that the omissions attributed to the respondents in the present matter were related to a “relevantmatter”, as required by subsection 109(1) of the Act. However, to trigger the vacating of the Original Panel’s decision, those omissionsalso needed to be material.

This is entirely consistent with the language of subsection 109(1), which requires that the decision to allow aclaim for refugee protection be the result of “directly or indirectly misrepresenting or withholding material facts relating to a relevantmatter”. [35] This is entirely consistent as well with the jurisprudential three-step test the Review Panel referred to in its decision. This testrequires that (

i) that there be “a misrepresentation or withholding of material facts;” (ii) that those facts “relate to a relevant matter; and”(iii) that there be “a causal connection between the misrepresenting or withholding on the one hand and the favourable result on theother” (Canada (Minister of Public Safety and Emergency Preparedness) v. Gunasingam, 2008 FC 181, [2008] 3 F.C.R.

D-2, 73 Imm.L.R. (3d) 151, at paragraph 7; emphasis added). [36] Thus, in order to get to the third and ultimate step of the test, there need to be prior findings that not only does the withheldinformation relate to a “relevant matter”, but also that it concerns “material facts”. [37] Here, the problem lies in the manner in which the materiality issue was addressed by the Review Panel.

After having found thatthere was “some evidence by the Minister” that Lotfi could have obtained Kenyan citizenship by descent, the Review Panel held that itdid not have to “analyze now in May of 2019, the law of … citizenship for Kenya as it was back then in 1999” (Review Panel’s decision,at page 5).

It held as well that it did not have to ask the Minister “to hunt for documents from various family members to determine ifthey lost their citizenship to Kenya and if so, how the respondents could have been able to re-obtain their citizenship to Kenya, as of1999” (Review Panel’s decision, at page 5). [38] Clearly, the Review Panel felt that it was not within the purview of its authority under subsection 109(1) of the Act to determinewhether the respondents, based on all the evidence that was before it, had any right to Kenyan citizenship.

However, if no such rightemerged from the evidence, as determined by the Application Judge, then the omissions attributed to the respondents could not possiblybe held to be material. [39] The position taken by the Review Panel on this issue is at odds with binding precedents which constrain how and what it canreasonably decide (Vavilov, at paragraph 112). [40] In Canada (Minister of Citizenship and Immigration) v.

Wahab, 2006 FC 1554, 305 F.T.R. 288 (Wahab), Gauthier J. (now ajudge of this Court), provided a useful jurisprudential review, which I fully endorse, of the principles governing applications madepursuant to

section 109 of the Act. In particular, she reaffirmed the principle that under subsection 109(1), it is incumbent upon the RPDnot only to identify the nature of the misrepresentations or omissions put forth by the competent minister in his application, but also todetermine the extent to which these misrepresentations or omissions may have been material (Wahab, at paragraph 43). She alsoreaffirmed the principle that this determination “involves consideration of all the evidence on file, including the new evidence presentedby both parties” (Wahab, at paragraph 29; see also Coomaraswamy v.

Canada (Minister of Citizenship and Immigration), 2002 FCA 153,[2002] 4 F.C. 501, at paragraphs 16–17). [41] In Wahab, just as in the present matter, the RPD had to decide whether the respondent had misrepresented being a citizen of onlyone country—Iraq—while he was also in possession of a Russian passport. Gauthier J. held that the subsection 109(1) determinationrequired two distinct findings of fact by the RPD.

First, she said, the RPD had to decide whether the Russian foreign documents onrecord (passport and grant of citizenship) were forged documents or were genuine documents issued on the basis of fraudulentrepresentations (Wahab, at paragraph 39). Second, the RPD had to consider and evaluate “the legal effect of the grant of citizenship”obtained by the respondent at the time his refugee claim was considered by the original decision maker.

This, according to Gauthier J.,involved looking at the Russian statutes put in evidence by the Minister (Wahab, at paragraph 41). [42] Here, the Review Panel did none of that, despite having before it, among other things, the provisions of the Kenyan Constitutionof 1963 and 2010 dealing with citizenship, which suggested that children of Kenyan citizens may be entitled to Kenyan citizenship by

descent, thereby leaving the issue of the materiality of the omissions attributed to the respondents inadequately answered. [43] Hassan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. D-53, 174 F.T.R. 288, (F.C.T.D.) (Hassan) reaffirmed that an individual facing vacating proceedings was “entitled to the clearest assurance that the RefugeeDivision has given full and fair consideration to the evidence” (Hassan, at paragraph 23). In that case, Mr.

Hassan’s refugee status wasvacated on the ground that contrary to what he had represented to the original panel, he was not a citizen of Somalia, but of Kenya. Thereview panel found that there was no credible evidence that Mr. Hassan was a citizen of Somalia or that he had obtained Kenyancitizenship by fraud. The lack of credibility of Mr. Hassan’s testimony was fundamental to the panel’s decision (Hassan, at paragraph16). [44] Evans J. (a former judge of this Court) held that the review panel had failed to come to grips with the content of a medical reportwhich offered an explanation for the deficiencies in Mr.

Hassan’s testimony that led the review panel to find that the testimony was notcredible (Hassan, at paragraph 20). In Evans J.’s view, “[i]f the panel had believed Mr.

Hassan[’]s evidence that he had been born inSomalia and obtained his Kenyan passport on the basis of a false birth certificate, it could not have found that he was guilty ofmisrepresentation or concealment” (Hassan, at paragraph 16; emphasis added). [45] Similarly, in the present matter, if the Review Panel had given “full and fair consideration to the evidence” and concluded thatthe respondents had no right to Kenyan citizenship, “it could not have found that [they were] guilty of misrepresentation orconcealment”.

In other words, it could not have found that the respondents’ omissions regarding their connections to Kenya werematerial. [46] Again, the Review Panel was required to find that there was a misrepresentation or withholding of a material fact before vacatingthe Original Panel’s decision. However, it improperly declined to engage on the issue of the materiality of the omissions attributed to therespondents regarding their connections to Kenya.

Instead, it focused on whether these omissions resulted in the grant of refugeeprotection by the Original Panel, thereby sidestepping a critical requirement of the subsection 109(1) analysis. This affected thereasonableness of its vacating order. [47] This error was sufficient to set aside the Review Panel’s decision. It is, in my view, determinative of the present appeal.Therefore, the other component of the certified question need not be decided. The other component is whether the RPD, before vacatinga grant of refugee protection, is required to find a misrepresentation or omission of a material fact (

i) that would have led to a differentconclusion by the original panel, or (ii) that could have led to a possible line of inquiry that may, or may not, have resulted in a denial ofrefugee protection by the original panel. [48] As indicated in the Court’s direction issued on December 7, 2021, the certified question, as framed by the Application Judge,presupposes that a finding that there was a misrepresentation or withholding of a material fact was made by the RPD. This was not donein the present matter, whereas the Review Panel was required to make such a finding.

This failure being determinative of the presentappeal, there is no need to answer this other component of the certified question. [49] As alluded at the outset of these reasons, although I agree with the Application Judge that the Review Panel’s decision isunreasonable and must be set aside, I do so for reasons that differ from his. This has implications on the manner the Court is to dispose ofthe present appeal. [50] The essence of the Application Judge’s finding, as I see it, is that the omissions attributed to the respondents regarding theirKenyan connections were not material.

In his view, the Review Panel’s decision could not reasonably be sustained no matter what thesubsection 109(1) test is.

This is because there is no evidence that any connection the respondents might have had with Kenya in 1999was capable of yielding Kenyan nationality, or that the line of inquiry the Original Panel was precluded from undertaking would have ledto a finding that the respondents had a right to Kenyan citizenship. [51] This finding, quite apart from the fact that one could say it is problematic in light of the evidence respecting the Kenyancitizenship requirements, was for the Review Panel to make, not the Application Judge.

Although the Application Judge identified—correctly so—the standard of reasonableness as the standard of review applicable to the impugned decision, he deviated from it and infact proceeded to a correctness review of that decision. [52] As reaffirmed in Vavilov, a reviewing court applying the standard of reasonableness must refrain from deciding itself the issuesthat were before the administrative decision maker.

In other words, it “does not ask what decision it would have made in place of that ofthe administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decisionmaker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (Vavilov, at paragraph 83). [53] Here, by making his own finding regarding the materiality of the omissions attributed to the respondents, the Application Judgeexceeded what he was empowered to do in reviewing the Review Panel’s decision.

In fact, he took it upon himself to make a finding onan issue that the Review Panel had declined to entertain. That, he could not do. VII. Conclusion [54] It follows that I would dismiss the appeal, as I agree with the Application Judge, albeit for different reasons, that the ReviewPanel’s decision must be set aside and the matter remitted to the RPD for reconsideration by a differently constituted panel. I would alsoonly answer the component of the certified question for which the Court sought additional submissions from the parties on December 7,2021.

I would do so in the affirmative. [55] For clarity, as a result of dismissing the appeal, the Review Panel’s decision will need to be reconsidered in accordance withthese reasons, not the Application Judge’s reasons, which, with all due respect again, I cannot endorse. [56] As neither party has invoked “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration andRefugee Protection Rules, SOR/93-22, which would warrant an award of costs, I propose that the appeal be dismissed without costs.

Webb J.A. : I agree Mactavish J.A. : I agree