TB2-02968

RPD File No. / N° de dossier de la SPR : TB2-02968 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX Demandeur(e)(s) d'asile (a.k.a. XXXX XXXX XXXX) Date(s) of Hearing November 30, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision March 12, 2013 Date de la décision Panel Barry D. Barnes Tribunal Counsel for the Claimant(s) Marcos R. Ortiz Conseil(s) du (de la/des) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) du tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Dawn Glynn Conseil du (de la) ministre [1] XXXX XXXX XXXX, a citizen of the Philippines, claims refugee protection pursuant to Sections 96 & 97 (1) of the Immigration and Refugee Protection Act (IRPA). [2] The Minister intervened and asked that the claimant be excluded pursuant to s.98 of the Act and Schedule 1F(b) of the Convention.1 ALLEGATIONS * In 2001 he went to work in to Abu Dhabi as a XXXX; * In 2006 he took a 250,000 UAE dirham loan , about USD65,000 at the then exchange rate, from Emirates Bank, of which approximately seven monthly 3,000 dirham payments were made; * As part of the security for the loan he issued a blank cheque to cover any outstanding balance; * In 2007 he had an offer to come to Canada under the live-in caregiver programme. This was arranged with an agency for a visa and job, etc., * In June 2008 he arrived in Vancouver to find he was the target of a scam. There was no employer; * He did odd jobs and worked as a cleaner; * In Canada he met a person who offered to be a dummy employer if he would pay any taxes; * From 2009 - 2010 Emirates Bank contacted him regarding repayment of the loan as his security cheque had not been honoured; * He was advised that he was blacklisted in UAE and charged, and Interpol and Philippine authorities would be advised; * The account was turned over to a collection agency, who started calling and were ignored; * On Feb 16, 2012, when arrested and detained in Canada, he alleges he first heard of his charge and conviction in UAE.; * The UAE charged him and convicted him to 18 months in abstentia; * He believes the Abu Dhabi police have paid the Philippine police or immigration authorities to detain him and return him to the UAE to serve time; * His wife reports that people have come looking for him and are threatening him; * On February 21 an inadmissibility report was issued against him; * On March 2, he filed a claim for refugee protection; * On March 21, 2012 he had an Admissibility hearing before the Immigration Division; * On May 1, 2012 he was ordered deported under s 36(1)(b); * The Minister has intervened in his RPD hearing to ask that he be excluded pursuant to Schedule 1Fb of the Convention. DETERMINATION [3] I find that the claimant is excluded pursuant to s.98 of the Act and Schedule 1F(b) of the Convention. ANALYSIS Identity [4] I find that the claimant is a citizen of the Philippines based upon his passport found in both the CIC documentation2 and the Minister's documentation.3 [5] The determinative issue in this case is whether the claimant committed a serious non-political crime that would make him ineligible for Canada's protection. The Legislation IRPA, s. 98 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES - Schedule to IRPA F. This provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ... (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.4 [6] The evidence is that he was convicted in Abu Dhabi. There is an arrest warrant referring to his conviction and sentencing in absentia to a prison term of eighteen months as well as an Interpol Notice that he is wanted.5 The claimant did not contest that this warrant and conviction were against him. [7] I find that this is more than sufficient proof that he committed a non-political crime prior to his admission to Canada as a refugee. [8] Next, there is the question of if it meets the definition of serious. [9] The guiding jurisprudence in this matter is Jayasekera.6 In that decision of the Federal Court of Appeal, the court directed that we evaluate the elements of the crime; the mode of prosecution; the penalty prescribed; the facts; and the mitigating and aggravating circumstances underlying the conviction, in order to determine if the crime is serious. [10] The Court provided further guidance as to various mitigating and aggravating circumstances that may be considered when determining whether a crime was "serious." The Court said that "a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered." [11] The court also confirmed that crimes, which would have a sentence of 10 years or more in Canada, could be considered serious for the purposes of exclusion and interpreting Article 1F(b). [12] The Minister has argued that the equivalent section of the Criminal Code of Canada is article 380(1)(a): 380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars;7 [13] I find that this provision of the Criminal Code is sufficiently similar to the crime that it could be used to prosecute for the same offense in Canada, and therefore I find the crime committed is serious within the meaning of Article 1F(b). [14] This finding is reinforced by the evidence the Minister submitted in the decision of the Immigration Division of May 1, 2012 where the Board rendered a Deportation Order against him [the claimant] pursuant to paragraph 229(1)(c) of the IRPA8 and the order was issued as a person described in section 36(1)(b) of the Act.9 The Elements of the Crime [15] He received the proceeds of a bank loan, and provided as security a blank cheque. When he lost his job, his visa also expired. He left the UAE after only making seven payments against the loan. He ignored all notices from the bank and their collection agency including a warning that legal action would be taken against him. The bank presented his security cheque, which was not honoured. He was charged and convicted in absentia of violating 104/1 of the Federal Penal law No. 3/1987 amended by the Federal law No. 34/2005 and Article 643 of the Commercial Transactions Law issued by Federal law No. 18 for the year 1993.10 The Mode of Prosecution [16] After being contacted by the bank and ignoring their notices, he was warned that they would take legal action. He continued to ignore their communication. The Bank finally took action under the laws of Abu Dhabi and he was convicted to 18 months imprisonment in abstentia.11 [17] There was no challenge made by the claimant to this conviction other than that he alleged the first he knew of it was when he was detained in Canada. The Penalty Prescribed [18] The penalty of 18 months incarceration, while called severe by counsel in submissions, is not in violation of accepted international standards. The Facts [19] The claimant obtained a bank loan from the Emirates Bank and used the proceeds to pay off another loan at a different bank and then used the balance to build a house in the Philippines. He made seven or eight monthly payments as required. He then lost his job and, as his visa was related to his work, he had to leave the UAE. From this point on, he did not make any payments or contact the bank. The bank sent numerous emails asking what he was planning to do about missing payments, warning him they would finally realize the security cheque. When the cheque was dishonoured, they again warned him to pay the balance or they would take legal action and inform authorities, as well as sending the amount owing out for collection.12 He failed to respond and actions were taken including charges in the court resulting in his conviction in abstentia.13 The Mitigating and Aggravating Circumstances [20] Counsel submitted that the default should be seen as a civil not a criminal matter and that in Canada it would be treated that way, and is therefore a mitigating factor. While that may be the case in Canada, I find a substantial loan would have been secured differently. The fact that the action is a criminal offence in Abu Dhabi requires the treatment of a similar offence in Canada to determine if the crime is serious. No equivalency is required. The claimant has not denied that he failed to repay the loan; that he had issued the cheque as security; and that he had failed to communicate with the Bank regarding the outstanding amount because he was not in a position to make payments. Given his education and experience and the lengthy time he avoided responding to the bank, I find that these are aggravating circumstances. The email from the Bank, dated 13 October 2009, states in part: "Kindly note that no payment has been done from your side despite of several reminders through calls and emails, thereby please be informed that you have 48 hrs from today to confirm if you are interested to repay back Emirates Bank or not. If we receive no reply from you, it means that you are refusing to pay, therefore please be informed that the following will be implemented:..." CONCLUSION [21] Having considered the evidence and the testimony of the claimant that he was aware of the outstanding loan, the emails and the calls but did not respond, and having reviewed the factors as per the decision in Jayasekara,14 I find that there are serious reasons for considering that the claimant has committed a serious non-political crime outside of Canada prior to making his claim for protection. [22] Finding the claimant to be excluded, there is no necessity to examine other elements of his claim under s. 96 and s. 97. [23] I find that the claimant is excluded pursuant to s. 98 of the Act and Schedule 1F(b) of the Convention, and I therefore reject the claim. (signed) 'Barry D. Barnes' Barry D. Barnes March 12, 2013 Date 1 Exhibit M-1 2 Exhibit R-2 3 Exhibit M-2 4 Immigration and Refugee Protection Act, S.C. 2001, c.27. 5 Exhibit M-4 6 Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 164 (F.C.A.) 7 Criminal Code (R.S.C., 1985, c. C-46) (as amended) 8 Exhibit M-7 9 Exhibit M-8 10 Exhibits M-5 and M-9 11 Exhibit M-5 12 Exhibit C-3, p. 2.6 13 Exhibit M-5 14 Supra, footnote 6 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. / N° de dossier de la SPR : TB2-02968 RPD File No. :TB2-02968