VB3-02040

RPD File No. / No de dossier de SPR : VB3-02040 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Vacate - Demande d'annulation Applicant The Minister of Public Safety and Emergency Preparedness Demandeur(e) Protected Person(s) XXXX XXXX Personne(s) protégée(s) Date(s) of Hearing November 28, 2013 Date(s) de l'audience Place of Hearing Vancouver, BC Lieu de l'audience Date of Decision January 9, 2014 Date de la décision Panel Paula Faber Tribunal Counsel for the Aleksandar (Alex) Stojicevic Conseil(s) du / de la / des Claimant(s) Barrister and Solicitor demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) des tribunaux Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Alanah Hatch Conseil du ministre REASONS FOR DECISION [1] This is the decision of the Refugee Protection Division (RPD) in the matter of the application of the Minister of Public Safety and Emergency Preparedness (Applicant) to vacate the determination of Convention refugee status that was granted to XXXX XXXX (the "Respondent"), a citizen of Bosnia and Herzegovina, by a visa officer overseas. Issues 1. The Minister's Representative alleges that the Respondent directly or indirectly misrepresented or withheld material facts relating to a relevant matter, which, if known to the visa officer who considered the application for refugee status in 1997, could have resulted in a different determination. 2. The Minister's Representative requests that the Refugee Protection Division find the Respondent excluded pursuant to Section 1 F(b) of the United Nations Convention Relating to the Status of Refugees.1 3. Subsection 109(2) of the Immigration Refugee Protection Act (the "Act"), whether there is other "untainted" evidence to support the original visa officer's decision to grant refugee status to the Respondent.2 Relevant Statutory Provisions The definition of a Convention refugee under section 96 of the Act. 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries; or b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Exclusion - Refugee Convention under section 98 of the Act: 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 protection3 Article 1 F of the 1951 Convention: 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; b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Section 109 of the Act: 109.(1) Vacation of refugee protection - 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. (2) Rejection of application - 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. (3) Allowance of application - 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. Background [2] Mr. XXXX, a citizen of Bosnia and Herzegovina, applied for permanent residence at the Canadian Embassy in Belgrade in XXXX1997. His application was processed as a Government Assisted Refugee case. He was interviewed in Belgrade on XXXX XXXX, 1997 and his case was finalized on XXXX XXXX, 1998. The Respondent became a permanent resident at Pearson International Airport upon his arrival to Canada on XXXX XXXX, 1998. He was accompanied by his wife and son. Minister's Allegations [3] The Minister submits that the Respondent directly or indirectly misrepresented or withheld material facts relating to a matter which, if known by the Visa Officer, would have resulted in a different determination. [4] In response to a question in his application for Permanent Residence, Mr. XXXX denied having committed a criminal offence in any country. [5] The Applicant has provided documents which allege that the Respondent committed the crime of abduction on XXXX XXXX, 1997, approximately one month prior to his application for Permanent Residence. [6] Formal charges were not laid at the Primary Court in XXXX until XXXX XXXX, 1999. [7] An Order for the issuance of an International Wanted Circular was issued by the Primary Court in Lopare on XXXX XXXX, 1999. [8] The Respondent was found guilty in absentia and sentenced to four and a half years imprisonment. [9] The Minister submits that had the visa officer been aware that the Respondent had committed this crime, a different determination may have been made. [10] The visa officer may have also excluded the Respondent pursuant to Article 1 (F)(b) of the 1951 U.N. Convention. [11] The Minister submits that the Respondent committed a serious, non-political crime outside the country of refuge prior to his admission to that country as a refugee. [12] If Mr. XXXX had committed this crime in Canada, the Minister submits that he would have been convicted of Kidnapping pursuant to section 279(2) of the 1997 Criminal Code.4 The maximum punishment for this offence is imprisonment for a term not exceeding ten years. ANALYSIS [13] The Minister's Representative must establish that the Respondent, on a balance or probabilities, directly or indirectly misrepresented or withheld material facts relating to his application for Convention refugee status, and/or on his application for permanent residency to Canada. [14] Question 20 B of the Application for Permanent Residence in Canada, asks, "Have you ever committed a criminal offence in any country?" The Respondent answered "No" to this question5 This application was signed by the Respondent in Belgrade on October 8, 1997. [15] In the Minister's package of documents at Tab 3 of exhibit 1.2 there is a document (with translation) from the Primary Court in XXXX, dated XXXX XXXX, 1999, which lays charges against four individuals, including the Respondent, XXXX XXXX. The others named in this court document include: XXXX XXXX, XXXX XXXX and XXXX XXXX. [16] A brief summary of events which led to the laying of these charges is taken from the court document at Tab 3 exhibit 1.2. [17] On XXXX XXXX, 1997, a pregnant woman named XXXX XXXX was abducted from her home in XXXX and taken to a location in Lopare. A medical procedure was performed on Ms. XXXX causing her to have a miscarriage. The court document accuses the respondent (XXXX), XXXX and XXXX as having been the perpetrators who committed the crime of abduction. [18] Specifically, the court document states that the Respondent and co-accused XXXX were found by XXXX XXXX in XXXX and hired to help XXXX XXXX abduct Ms. XXXX. [19] XXXX and XXXX dressed in police uniforms went to the home of XXXX XXXX. They presented Ms. XXXX with an arrest warrant and asked her to go with them in order to give a statement in connection with a drug case. Her parents protested, Ms. XXXX was grabbed and put in the back of a car driven by XXXX. A cloth sack was put on her head XXXX XXXX gave her two injections through her clothes. She was taken to a health centre in Lopare where a medical procedure was preformed by an unknown person. After the procedure, XXXX, XXXX and XXXX put Ms. XXXX back in the car and drove her to another village. She had a miscarriage the next day. [20] Page 15 of the translation of this Primary Court document at tab 3 states that the facts of this case have been established by the evidence collected during the investigation and the evidence handed over with the criminal charges. [21] During the investigation for the Court, XXXX XXXX, admitted to performing the activities described. In his defence given on XXXX XXXX, 1998, he states that XXXX XXXXfound him and their mutual friend XXXX XXXXin XXXX, and presented them with an offer, which they accepted, to do a job for XXXX XXXX. [22] XXXX XXXX, in his defense given in the investigation for the report of the Primary Court on XXXX XXXX, 1998, admits to having a deal with XXXX to find two guys to do a job for him, but he was not present when XXXX gave the uniforms and instructions to XXXX and XXXX. [23] XXXX XXXX did not give his defence in the investigation citing immunity as a representative in the Parliamentary Assembly of Bosnia and Herzegovina. [24] This court document also states that the accused XXXX is living in Canada and his address is not known. [25] Based on the acceptance of guilt by XXXX XXXX as well as the other evidence in the investigation including statements by Ms. XXXX and other witnesses, this court document in tab 3 of exhibit 1.2 concludes that the accused committed the crime stated (kidnapping and illegal pregnancy interruption) and the charges brought against the accused are justifiable and legally based. [26] At tab 4 of the Minister's book of documents in exhibit 1.2 (page 29) there is an order of the Primary Court in Lopare, dated XXXX XXXX, 1999, that an international wanted circular be sent out for XXXX XXXX, Date of Birth, XXXX XXXX, 1963. [27] The international wanted circular request with translation is contained at Tab 5 of exhibit 1.2 . This document is dated XXXX XXXX, 2012. It states that the XXXX XXXXis wanted by the Republic of Srpska due to Criminal charges. The expiry of this arrest warrant is 2017. [28] The Minister's Representative was asked why it took so long for the International Wanted circular to be issued following the August 1999 order of the Court at page 29 of exhibit 1.2. [29] In the Minister's response it was suggested that because the document is valid for five years, there could have been a previous document - although she admits to having no knowledge of the existence of a prior International Wanted Circular for the Respondent. [30] At Tab 6 of the Minister's Book of Documents (exhibit 1.2) there is a Report from the XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2001. This report states that the municipal court in XXXX sentenced XXXX to six and a half years of imprisonment, and his accomplices, XXXX XXXXand XXXX XXXXwere each sentenced to four and a half years of imprisonment. The Minister was not in possession of the court decision that is referenced in the XXXX XXXXReport. Respondent [31] In an interview with a CBSA Officer on May14, 2013,6 the Respondent stated that although he is from XXXX, Bosnia, he was residing in XXXX, Serbia from 1992 during the fighting. The Respondent's wife returned to XXXX, Bosnia to give birth to their son, born on XXXX XXXX, 1993. The Respondent also went to Bosnia around this time, but because the war was still going on, he remained there for only a couple of weeks before returning to Serbia. [32] Counsel has provided a document entitled XXXX XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 1996.7 This report describes the situation in XXXX, which is described as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [33] The Respondent stated that his parents remained in XXXX during the war, and that he would return to XXXX from Serbia a couple of times a year, when there was a break in the fighting, and that he would stay for a day or two. [34] During the interview with CBSA, the Respondent acknowledges that he obtained his Bosnian ID card in XXXX. According to the officer, this ID card was issued in November 1997, so this places him in Bosnia at this time. [35] During the interview and in testimony, the Respondent admits to knowing of XXXX XXXX as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, but he never had any direct dealings with him and did not know him personally. [36] The Respondent acknowledges that he knows XXXX XXXX. He says that it is a small community and that everyone there knows everyone. He also admits to knowing XXXX XXXX, who he states is friends with his brother. [37] When asked about XXXX XXXX during the interview, the Respondent states that he does not know her. [38] When asked about his involvement in a crime in 1997, the Respondent states that he heard about this, but he was not there and was not involved in any way. His parents had informed him that they had a received an order for him to appear before the court. He testified that he learned about this around the year 2000. His parents phoned to tell him that criminal charges had been brought against him. [39] Mr. XXXX was asked why he would not have tried to fight the charges laid against him if they were false, he testified that he thought it was too late and impossible to do because of the corruption, and everything was done already. I do not accept this response. [40] The Respondent has admitted to having travelled between Bosnia and Serbia. He has admitted to personally knowing two of the others charged (XXXX and XXXX), and they have implicated the Respondent in the crime. [41] The Respondent was asked why XXXX and XXXX would have named him as having participated in the crime; he testified that he believes that his name was used as a way to hide someone else who was actually involved in the crime. [42] The Respondent said that he is not received well in the community for leaving Bosnia during the war, and he thinks that his name was used because of this and because it was known that he was in Canada and could not give a statement. I do not accept this response. The evidence before me indicates that XXXX, who was also charged and convicted of this crime, was a XXXX XXXX. The minister's representative submits that compared to the others, he was someone with a reputation and power. Although he was able to cover up and prolong the case for a period of time, he was not able to escape being charged and convicted. The Minister submits that the alleged third person whose identity is being protected, was essentially a thug hired by XXXX to do his dirty work, and is not someone whose identity would be kept secret when XXXX's own identity was not. I agree with the Minister and I find on a balance of probabilities that it is unlikely the Respondent was identified as having participated in the crime, in order to protect someone else. [43] The Respondent applied for and was issued a passport for Bosnia and Herzegovina. A passport was issued to him on XXXX XXXX, 2012. He indicates that the Ministry of Interior for Bosnia would have done checks with respect to criminality prior to issuing the document. While evidence of the process and procedure for obtaining a Bosnian passport is not before me, the Minister submits that passports can often be obtained for individuals who are wanted, charged or convicted and the issuance of a passport does not nullify the charges and conviction in this case. Decision [44] Based on the Minister's comprehensive materials that are before me, I find on a balance of probabilities that section 109(1) of the Act has been established by the Minister. I find that the decision of the visa officer in the Respondent's refugee claim was obtained as a result of directly or indirectly misrepresenting of withholding material facts relating to a relevant matter. [45] I find that the Respondent has substantially misrepresented himself or withheld material facts relating to a relevant matter, specifically by denying that he had committed a criminal offence in any country. [46] Counsel submits that the Minister must rely on the question of having committed a criminal offence in any country having been answered incorrectly, because the charges against the Respondent were filed after he became a permanent resident of Canada. I find that the Respondent has misrepresented himself in his response to question 20 B of his application for permanent residence in Canada. [47] Counsel submits that all of the material that has been put forward by the Minister amount to nothing more than investigation records and would have no formal weight under Canadian law. While I am not bound by any legal or technical rules of evidence, I must base my decision on evidence that is adduced in the proceeding and considered credible or trustworthy in the circumstances. [48] The Minister submits that the evidence provided does not have to satisfy beyond a reasonable doubt that the Respondent committed the crime. The Minister need only show that that there are serious reasons for considering that he committed the crime. The Minister also submits that warrants with charging documents are frequently used to support allegations of foreign criminality and there is no objective evidence before the panel to suggest that the court system in Bosnia was unfair at the time that charges were laid in 1998, or at the time the court proceeding was completed in 2001 or when the warrant was issued in 2012. [49] My finding is that the evidence before me establishes on a balance of probabilities that the Respondent is wanted on criminal charges and was convicted in absentia and subject to a four and a half year sentence for a crime that he committed in Bosnia in XXXX 1997, prior to his application for permanent residence to Canada in XXXX 1997. [50] Had the Respondent's criminal offence been known to the Visa Officer who reviewed his application and conducted the interview with him in XXXX 1997, a different determination would have resulted. 1F(b) Exclusion [51] The Minister submits that the Respondent should be excluded pursuant to Article 1F(b) of the 1951 U.N. Convention. The Minister is of the opinion that there are serious reasons for considering that the Respondent committed a serious non-political crime outside of Canada prior to his admission to Canada as a refugee. [52] The Federal Court of Canada has defined "serious reasons to consider" as less than the civil standard of balance of probabilities, but more than mere conjecture or speculation. The test to determine if someone has committed a serious non-political crime is set out in Jayasekara.8 The Federal Court of Appeal examined what is required in determining whether a crime is serious and has determined that there must be an evaluation of the following factors: elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and/or aggravating circumstances underlying the conviction. [53] The panel finds the Minister's Representative has met the legal test and that there are serious reasons to consider the Respondent committed a serious non-political crime in Bosnia prior to his admission to Canada. [54] The court documents in the Minister's package at Tab 3 of exhibit 1.2 formally charge the Respondent with the crime of kidnapping. And the XXXXi Report at Tab 6 of this same exhibit indicates that he was sentenced to a four and a half year term of imprisonment. [55] Statements within the court documents from two of the co-accused implicate the Respondent and provide corroborating evidence of his involvement in the crime. [56] While the Respondent denies his involvement and claims that he was not in Lopare, Bosnia on XXXX XXXX, 1997 when the criminal activity took place, I find that there is credible and trustworthy evidence before me which satisfies me of his participation in the crime. [57] Even though the Respondent told the Visa Officer during his interview in XXXX 1997 9 that he has not returned to Bosnia since leaving in 1992, he admitted during his interview with a CBSA Officer in XXXX 2013, that he returned to Bosnia approximately XXXX a year until leaving for Canada. Although this is also a misrepresentation, I do not find that it is material given the respondent's evidence that he went back for only a day or two at a time. [58] The Respondent also states that he obtained his Bosnian ID card in XXXX 1997 in XXXX as indicated during his interview with an officer at page 62 of exhibit 1.2. [59] I am satisfied that the Respondent was able to travel back and forth between Bosnia and Serbia. He was principally residing in XXXX, near Belgrade, but he testified that between leaving XXXX, Bosnia in 1992 and coming to Canada in 1998 -- he spent approximately 25-30 days in Bosnia. [60] The Respondent has not provided any evidence to show that he was in Serbia on XXXX XXXX, 1997 as he alleges. [61] I give more weight to the court documents over the Respondents testimony. The documents, which name the Respondent with respect to his involvement in a crime, include the formal criminal charges, the order and decision of the court to send out an International Wanted circular, as well as the International Wanted Circular. [62] I find that the crime that was committed by the Respondent was a non political crime and I find that it was committed in Bosnia prior to his admission to Canada, and finally, I find that the crime was serious. The Minister submits that had the Respondent committed this crime in Canada, he would have been convicted of Kidnapping pursuant to section 279(2) of the 1997 Criminal Code.10 The maximum punishment for this offence is imprisonment for a term not exceeding ten years. [63] The Respondent denies his involvement in the crime, and therefore, there are no mitigating factors to consider. [64] As far as aggravating factors, Mr. XXXX has been implicated by two others as having been involved in the crime. In the investigation that led to the charges, the Respondent's roll in the crime is described by witnesses. He was identified as having participated in the following activities with respect to the crime: being one of the two people who dressed as a police officer; being one of two people who grabbed the victim and brought her to the car; as having put a cloth sack over the victim's head; as having been in the car when she received injections through her clothes; as having remained in the room while the medical procedure was done. [65] The Respondent has a conviction which resulted in an international warrant being issued for his arrest. [66] The Minister submits that there is no evidence of any wrong doing by the court in Bosnia or evidence that the charge and conviction have been overturned. [67] I therefore find that there are serious reasons to consider that the Respondent committed a serious non-political crime, namely, kidnapping, prior to his entry into Canada and is therefore excludable under Article 1 F(b) of the Refugee Convention.11 109(2)12 [68] In applying section 109(2), I find that this section is not available or applicable as I have found the Respondent excluded and therefore, there are no other remaining reasons or evidence13 upon which a positive decision by the visa officer could have been granted. CONCLUSION [69] Accordingly, the prior status that was granted to XXXX XXXXby a visa officer overseas on XXXX XXXX, 1998 is deemed to be rejected and the decision that led to the conferral of refugee protection on him is nullified. [70] The Minister's application to vacate a determination of Convention refugee status (Section 109) is allowed. (signed) "Paula Faber" Paula Faber January 9, 2014 Date 1 Article 1 Of The United Nations Convention Relating to the Status of Refugees Section F. The 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; 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 109(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. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. Section 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. 4 Criminal Code of Canada, RSC 1985. 5 Tab 1 of exhibit 1.2. 6 Tab 8 of exhibit 1.2. 7 Item 2.2 of exhibit 2. 8 Jayasekara v. Canada (Citizenship and Immigration) 2008 FCA 404. 9 Page 1 and 2 of Tab 1 of exhibit 1.2. 10 Supra, footnote 4. 11 Supra, footnote 1. 12 Supra, footnote 2. 13 Coomaraswamy v. Canada, 2001 FCT 47 (The Board must confine itself to evidence that was before the initial decision maker. The untainted evidence must be assessed on its own.) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : RPD.15.7 (18 May 2010) RPD File No. / N° de dossier de la SPR : VB3-02040 RPD File No. / N° de dossier de la SPR : VB3-02040