Federal Court Upholds Vacation of Convention Refugee Status Due to Misrepresentation

Date: 20260120 Dockets: IMM-4926-24 IMM-4928-24 Citation: 2026 FC 85 Toronto, Ontario, January 20, 2026 PRESENT: The Honourable Madam Justice Heneghan Docket: IMM-4926-24 BETWEEN: [NAME] Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent Docket: IMM-4928-24 AND BETWEEN: [NAME] Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent

REASONS FOR

JUDGMENT [ 1 ] By Judgments issued on January 8, 2026, the within applications for judicial review were dismissed, with Reasons to follow. These are the Reasons. [ 2 ] In cause number IMM-4926-24, [NAME] (the “[NAME]” ) seeks judicial review of the decision of the [NAME] ( “[NAME]” ), allowing the application of the Minister of Public Safety and Emergency Preparedness (the “Minister” ), pursuant to section 109 of the Immigration and [NAME] Act S.C. 2001, c. 27 (the “Act” ), to vacate his status as a Convention Refugee. The Minister is the Respondent (the “Respondent” ) in this application for judicial review. [ 3 ] In cause number IMM-4928-24, [NAME] (the “[NAME]” ) seeks judicial review of the decision of [NAME], allowing the Minister’s application to vacate her status as a Convention Refugee, pursuant to section 109 of the Act. The Minister is the Respondent (the “Respondent” ) in this application. [ 4 ] The [NAME] and [NAME] are siblings. At times, they will be referred to as the Applicants (the “Applicants” ). [ 5 ] The [NAME] claimed [NAME] on November 9, 2017, claiming that he had entered the country on October 21, 2017. He claimed to be a citizen of Somalia and at risk from the Al-Shabaab, a terrorist group in Somalia. He alleged that the Al-Shabaab had abducted him, his brother and his father, and they killed his father. He was granted Convention Refugee status on July 5, 2018. [ 6 ] On August 30, 2017, an application for a study permit was made in Nairobi, Kenya in the name of “[NAME]” , a Kenyan national. A study permit was granted and the holder of the permit entered Canada on October 13, 2017. [ 7 ] Subsequently, the Minister brought an application to vacate the [NAME]’s status as a Convention Refugee. Photographic evidence was submitted to support the allegation that the [NAME] and the holder of the study permit were the same person. [NAME] heard the vacation application over two days in November 2022 and issued its decision on February 29, 2024. It reached the following conclusion with respect to the [NAME] : The evidence is clear in the panel’s view, that the [NAME] respondent had misrepresented, his name(s), his residence/citizenship in Kenya, his family makeup, his education history, his family in Canada and their claims for protection. And importantly, his entire claim, his whereabouts and therefore all of his allegations of past persecution were misrepresented at his initial hearing. The panel finds that the [NAME] respondent had clearly misrepresented his identity and central facts in the claim for the original decision. [ 8 ] [NAME] claimed [NAME] on November 20, 2017, on the basis of being a citizen of Somalia and at risk from the Al-Shabaab. The Minister of Citizenship and Immigration intervened in the Convention Refugee proceedings and submitted evidence to show that [NAME] had been fingerprinted on November 20, 2015, as a refugee known as “[NAME]” , born in Somalia on January 1, 1997. [ 9 ] [NAME] amended her personal history form and admitted that she had used the name of a deceased cousin, that is “[NAME]” in order to relocate to the United States, but that she had not in fact done so. [ 10 ] On August 4, 2017, an application for a study permit was received in Nairobi, Kenya in the name of “[NAME]” , a Kenyan national. That applicant was granted a study permit and entered Canada on October 5, 2017. The Minister submitted before [NAME] that the holder of the study permit and [NAME] are the same person. Evidence, including photographic evidence, was presented in support of that allegation. [ 11 ] The original [NAME] accepted [NAME]’s claim for protection on the basis of the evidence about her life in Somalia, in spite of its concerns about her identity and the use of fraudulent documents. [ 12 ] The basis of the Minister’s application to vacate the Convention Refugee status of the Applicants is that they obtained such status as the result of directly misrepresenting or withholding facts about their identities and other facts “relating to their identities.” [ 13 ] In its decision granting the Minister’s application, the [NAME] acknowledged that the Minister carried the burden of showing the existence of grounds to vacate the Convention Refugee status that was conferred on the Applicants. The [NAME] addressed the elements set out in section 109 of the Act, that is whether the Applicants directly or indirectly misrepresented or withheld material facts. [ 14 ] [NAME] found that each Applicant had done so. With respect to the [NAME] found that among other things, he misrepresented his identity and his whereabouts at the time of the alleged persecutory events, that he was not in Somalia at the time of the alleged persecution. It found that there was a causal connection between the misrepresentations and withholding of information. [ 15 ] [NAME] then considered whether there was any remaining credible evidence upon which the Convention Refugee status could be maintained, pursuant to subsection 109(2) of the Act. In this regard, [NAME] reviewed the evidence that was before the [NAME] upon the hearing of the [NAME]’s claim. [ 16 ] [NAME] noted that new evidence could not be submitted upon a “vacation” application to bolster the evidence originally submitted. [ 17 ] [NAME] concluded that there was no credible evidence upon which the [NAME]’s claim for Convention Refugee status could succeed. The determinative issue was his identity. [NAME] found that he had not established his identity as a citizen of Somalia at risk of persecution in that country. [ 18 ] [NAME] nullified the decision granting the [NAME] status. [ 19 ] [NAME] followed the same approach with respect to [NAME]. It noted that she continued to maintain her claim to be a Somalian citizen, known as “[NAME]” in the proceedings before it. [ 20 ] [NAME] commented on the submission of fraudulent documents by [NAME] in her first hearing before the [NAME]. It commented upon her use of three identities. [ 21 ] [NAME] ultimately concluded that [NAME] had made misrepresentations and withheld material facts. It found that there was a causal connection between the misrepresentations and withholding of material facts, and that there was no remaining “untainted” evidence to support the claim for Convention Refugee status. [ 22 ] The Applicants now argue that [NAME] erred in its analysis pursuant to subsection 109(1) by failing to weigh the rebuttal evidence submitted about the identity of the two Applicants. [ 23 ] The Applicants also submit that [NAME] erred in its analysis pursuant to subsection 109(2) of the Act by failing to clearly identify and distinguish the untainted evidence and ignoring that untainted evidence. [ 24 ] The Respondent, for his part, argues that [NAME] reached reasonable conclusions under subsection 109(1), noting its findings about the Applicants’ credibility. [ 25 ] The Respondent submits that [NAME] also reasonably found a causal connection between the Applicants’ misrepresentations and the claims for [NAME]. [ 26 ] As well, the Respondent contends that [NAME] reasonably applied subsection 109(2). It recognized that a vacation hearing is not a de novo hearing of a refugee claim. The Respondent submits that [NAME] was entitled to rely on its assessment of the evidence and in any event, that it reasonably assessed that evidence. [ 27 ] The decision of [NAME] is reviewable on the standard of reasonableness, following the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , [2019] 4 S.C.R. 653, [ 28 ] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” ; see Vavilov, supra , at paragraph 99. [ 29 ] The within application arises under section 109 of the Act which provides as follows: Vacation of [NAME] 109 (1) The [NAME] may, on application by the Minister, vacate a decision to allow a claim for [NAME], 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 [NAME] may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify [NAME]. 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 [NAME] is nullified. Demande d’annulation 109 (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait. Rejet de la demande (2) Elle peut rejeter la demande si elle estime qu’il reste suffisamment d’éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l’asile. Effet de la décision (3) La décision portant annulation est assimilée au rejet de la demande d’asile, la décision initiale étant dès lors nulle. [ 30 ] In Canada (Minister of Citizenship and Immigration) v. Wahab , 2006 FC 1554, the Court set out the approach to be taken upon an application for the vacation of Convention Refugee status pursuant to section 109 at paragraph 29, as follows: …On the basis of this review, the Court understands that the following principles are to apply when reviewing an application to vacate like the one at hand: a) Under s. 109(1), to determine if the original decision was made as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter, the [NAME] must consider all the new evidence put forward by the Minister and the claimant. b) Mens rea  or the intention of the claimant is not relevant to the finding to be made under s. 109(1). c) As the extent and nature of the material misrepresentation or withholding may be relevant to its ability to exercise its discretion pursuant to section 109(2) of IRPA , the [NAME] must give sufficient details in its reasons as to which misrepresented or withheld fact(s) it found material and in respect of what relevant matter. Those detailed findings will enable the [NAME] to consider if a particular claimant is, for example, excluded under section 98 of IRPA . Such determination must be made prior to proceeding to the second step set out in s. 109(2) and involves consideration of all the evidence on file, including the new evidence presented by both parties. d) The [NAME] only needs to proceed to the s. 109(2) analysis (step two) if it is satisfied that a claimant is not excluded under section 98 of IRPA . e) When carrying out the analysis set out in s. 109(2), the [NAME] can refer to its findings under section 109(1) but only to identify what "old" evidence remains untainted by the withholding or misrepresentation. The [NAME] cannot reassess the "old" evidence in light of new evidence adduced by the Minister or the claimant pursuant to section 109(1). The [NAME] cannot give any weight or even consider the new evidence produced by either party when exercising its discretion pursuant to section 109(2). [ 31 ] Here, [NAME] followed this process. For each Applicant, it reviewed the evidence submitted before the [NAME] and the evidence submitted on the vacation application. For each Applicant, the main issues were credibility and identity. [ 32 ] It is trite law and practice that the decision maker is mandated to weigh credibility, and its findings are entitled to a high degree of deference: Vavilov , supra at para 125. [ 33 ] From my review of the evidence in the Certified Tribunal Record, the negative credibility findings are supported. They are justified and transparent. [ 34 ] Identity is the determinative issue in any claim for [NAME] pursuant to the decision in [NAME] v. Canada (Minister of Citizenship and Immigration) 2024 FC 1334 at paragraph 35 where Justice Brown said the following: Applicants must establish they are who they say they are. The determination of this issue of identity is a question of fact: ( [NAME] v Canada (Citizenship and Immigration) , 1998 CanLII 18842 (FC), citing White v R , 1947 CanLII 1 (SCC), [1947] SCR 268). [ 35 ] I refer as well to the decision in [NAME] v. Canada (Minister of Citizenship and Immigration ) 2022 FC 1065 at paragraph 38 where Justice Kane said the following: In [NAME] v Canada (Citizenship and Immigration) , 2014 FC 1189 at para 32 [ [NAME] ], the Court explained that determining identity is within the expertise of the [NAME] (and this same principle applies to the RAD): It is also well established that the issue of identity is at the very core of the [NAME]’s expertise and this Court should be cautious about intervening on such decisions ( [NAME] v Canada (Minister of Citizenship and Immigration ), 2014 FC 8, [2014] FCJ No 10 at para 19 [ [NAME] ]). Justice Gleason further states in [NAME] v Canada (Minister of Citizenship and Immigration) , 2012 FC 319, [2012] FCJ No 369 at para 48 [ [NAME] ]: […] In my view, provided that there is some evidence to support the Board’s identity-related conclusions, provided the [NAME] offers some reasons for its conclusions (that are not clearly suspicious) and provided there is no glaring inconsistencies between the Board’s decision and the weight of evidence in the record, the [NAME]’s determination on identity warrants deference and will fall within the purview of a reasonable decision. In other words, if these factors pertain, the determination cannot be said to have been made in a perverse or capricious manner or without regard to the evidence. [ 36 ] Overall, the decision of [NAME] meets the legal standard of reasonableness. In their submissions, the Applicants repeatedly proceeded on the premise that the burden lay upon [NAME] or upon the Respondent to “disprove” their claimed identities. This was a fatal misunderstanding. [ 37 ] The burden always lies upon a person seeking a “benefit” under the Act to prove the case. Identity is a critical element. [ 38 ] For the within matters, [NAME] reasonably concluded that both the [NAME] and [NAME] had failed to establish their identities, that material representations had been made, and that there was insufficient credible evidence remaining to allow their acceptance as Convention Refugees. [ 39 ] Accordingly, the within applications for judicial review were dismissed by Judgments issued on January 8, 2026. FEDERAL COURT SOLICITORS OF RECORD DOCKETS: IMM-4926-24 IMM-4928-24 STYLE OF CAUSE: [NAME] v. [NAME] v. [NAME] OF HEARING: calgary, alberta DATE OF HEARING: july 9, 2025 JUDGMENTS: ISSUED ON JANUARY 8, 2026

REASONS FOR

JUDGMENT: HENEGHAN J. DATED: January 20, 2026 APPEARANCES : [NAME] ([NAME]) For The ApplicantS [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], Alberta For The ApplicantS Attorney General of Canada Calgary, Alberta For The Respondent