Last Updated on June 17, 2020 by Steven Meurrens

Section 109 of the Immigration and Refugee Protection Act provides that the Refugee Protection Division (the “RPD“) may vacate a decision to allow a claim for refugee protection if it determines that the decision was obtained through misrepresentation. Specifically, it states:

Vacation of refugee protection

(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 a relevant matter.

Rejection of application

(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

Allowance of application

(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

The approach to an application to vacate a decision granting refugee status involves two steps:

First, the RPD must find that the decision granting refugee protection was obtained as a result of a direct or indirect misrepresentation, or a withholding of material facts relating to a relevant matter; and

Second, the RPD should consider whether there remains sufficient evidence that was considered at the time of the positive determination to justify refugee protection and, if so, the RPD may reject the application to vacate, notwithstanding the misrepresentation

The Immigration and Refugee Board’s statistics on vacation hearings can be found here.

Vacation applications Finalized Pending
Allowed Dismissed Abandoned Withdrawn & Other Total
2020 (January to March) 21 31 1 0 2 34 329
2019 210 279 13 0 3 295 342
2018 173 369 5 0 14 388 427
2017 238 70 0 0 3 73 643​
2016 215 21 0 0 6 27 478
2015 141 61 6 0 3 70 283
2014 240 135 13 0 7 155 212
2013 128 95 13 0 14 122 127

Pursuant to Justice Russell’s decision in Bafakih v. Canada (Citizenship and Immigration), 2020 FC 659, the misrepresentation requirements for vacating a refugee protection decision are more stringent than in general immigration applications, and require that the RPD determine that the misrepresentation directly impacted whether someone was eligible for refugee status. He wrote:

In my view, under s 109(1) of the IRPA, refugee protection can only be vacated if the RPD finds “that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.” It appears that, the Member conflates s 109 (1) with s 40(1)(a) of the IRPA. However, the wording of these two provisions is distinctly different and, as the facts of this case demonstrate, for good reason.

Before me, the Respondent has not demonstrated how the failure of the Applicants to mention their Kenyan connections was the omission of a “relevant matter” by which the refugee decision “was obtained.” The Respondent can only say that the failure to mention the Kenyan connections prevented a line of inquiry into whether Kenya was a possible country of reference. We now know that it was not. The Respondent did not, before the RPD, and has not before the Court, established an omission that, in accordance with s 109(1), resulted in the decision to grant the Applicants refugee status.

It seems to me that to interpret s 109(1) in the way the Respondent suggests and in the way adopted by the RPD in the present Decision, would mean that a genuine refugee could lose refugee status simply by failing to mention a fact that “could have” opened up a possible line of inquiry, even if protection was not obtained as a result of that omission.