VB4-01706

RPD File No. / No de dossier de SPR : VB4-01706 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 XXXX Personne(s) protégée(s) (A.K.A XXXX XXXX XXXX) Date(s) of Hearing November 14, 2014 Date(s) de l'audience Place of Hearing Heard by Videoconference in Lieu de l'audience Winnipeg, MB (Claimant) Calgary, AB (RPD) Date of Decision June 26, 2015 Date de la décision Panel J. Schmalzbauer Tribunal Counsel for the David Matas Conseil(s) de la (des) Protected Person Barrister and Solicitor personnes protégée(s) Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Warren Kelly Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is the decision in the vacation application from the Minister of Public Safety Canada pursuant to section 109 of the Immigration and Refugee Protection Act (the "Act").1 The application from the Minister of Public Safety Canada is to vacate the refugee status of XXXX XXXX XXXX, also known as XXXX XXXX XXXX, a citizen of Somalia. The hearing was held on November 14, 2014. The respondent testified at the hearing. [2] Section 109 states the following:2 * 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 and indirectly misrepresenting or withholding material facts relating to a relevant matter. * 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. * 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. [3] Article 1F(b) of the Refugee Convention states the following: * 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 ALLEGATIONS [4] The Minister submits that the respondent in the case at hand has misrepresented a material fact or withheld a material fact on a relevant matter and that there is no remaining credible and trustworthy evidence on which the original panel could have conferred refugee protection on the respondent. The applicant further alleges that the original panel would have excluded the respondent pursuant to Article 1F(b) of the Refugee Convention3 had it been aware that she had been convicted by United States (US) authorities of an Assault- 2nd Degree - Dangerous Weapon. The Minister is seeking an order that the refugee status conferred on the respondent be vacated and that the decision be nullified. DETERMINATION [5] The panel finds that the applicant has established that the respondent withheld material facts that, had they been known to the original panel, may have led to a different determination. The panel further finds that based on the information contained in the minister's application to vacate,4 the respondent would have been excluded pursuant to Article 1F(b) of the Refugee Convention. THE FACT [6] The respondent entered Canada on or about May 29, 2009 and subsequently filed for Canada's protection. The claim was heard by the Refugee Protection Division on January 13, 2011 and the respondent was determined to be a Convention refugee. The respondent at that time identified herself as XXXX XXXX XXXX and she had resided in Somalia until XXXX 2009 where she travelled through Kenya where she left for Canada on XXXX XXXX, 2009. In the forms the respondent had completed in applying for protection she had indicated she had not been ordered to leave Canada or another country, she had also indicated that had not been sought, arrested detained, convicted, or charged of any crime in any country.5 [7] The respondent declared in her refugee documents, including her Personal Information Form that she had resided in Somali until coming to Canada in 2009. The respondent indicated that her and her family had been victims of attacks in Somalia from 1996 onwards which culminated in her spouse allegedly being killed by Islamic Courts Militia in 2006. [8] The applicant had submitted the respondent's fingerprints to the Federal Bureau of Investigation (FBI) in the US on April 15, 2014 and a response from the FBI was returned the same day indicated that the fingerprints of the respondent were identical to a person known by the US authorities as XXXX XXXX XXXX. A further check by the applicant of the National Crime Information Centre (NCIC) of the FBI identity provided a state criminal record result of XXXX XXXX in Minnesota. The respondent's Minnesota Public Criminal history indicated that she had been convicted of the felony Assault 2nd Degree - dangerous weapon and was sentenced to 81 months on XXXX XXXX, 2000.6 [9] The respondent attended an interview with Canadian Boarder Services Agency (CBSA) Inland enforcement on May 14, 2014. The respondent at this interview was questioned on the information obtained by the FBI in relation to her identity and criminal conviction in the US. At this interview the respondent admitted to applying for protection under her original name, but had used an assumed name in the US. The respondent further conceded that she was convicted in the US of assault.7 INTERLOCUTORY [10] Counsel at the hearing had made argument, that the issue of the exclusion matter, was not relevant in the vacation proceeding. The hearing proceeded and the panel directed the parties that the question of relevancy will be dealt with in submissions but testimony will be taken on the matter of exclusion. POST HEARING [11] Post hearing the counsel for the respondent had argued that he required the transcript and reasons from the previous decision in completing his written submissions to this panel.8 The panel agreed and a digital copy of the previous hearing was submitted to both parties, as well as transcription of the reasons for decision.9 The counsel for the respondent had the hearing transcribed and had filed a copy with the Immigration and Refugee Board (the "Board"), in reviewing the transcript the panel notes that the transcription is of the vacation hearing in November 2014, rather than the hearing in January 2011. Although the panel had agreed to provide a copy of the previous hearing for the counsel's submissions. Post hearing, after counsel's letter advising the Board that there was no fulsome recording of the hearing, the IRB Recording Technician confirmed that the previous panel`s hearing was not recorded and therefore they would be unable to provide a recording as counsel had requested. I am satisfied, based on the reasons, provided to the counsel, that the previous panel had no indication of the claimant's time in the US, her true identity, nor her criminal record as none of these are mentioned in her reasons. Nor is there any evidence of the claimant's identity as XXXX XXXX XXXX was known to the previous panel member. [12] Minister and counsel had multiple opportunities to present submissions to the panel and had done so.10 [13] Although counsel had argued that the previous member had been aware of the truthful identity of as per the reasons, which had been edited and then submitted to counsel by the division. A clarification was given to the counsel that was a formatting or clerical error with the two names listed for the claimant since the vacation hearing. That the reasons as transcribed by his own office clearly show, that the panel member at no time mentioned the any other identity but XXXX XXXX.11 [14] Counsel had argued that the division could vacate the previous decision granting protection for the respondent by only ignoring the reasoning in the previous determination, that the respondent is a woman and Somali and this alone was sufficient to justify refugee protection. ANALYSIS [15] It is trite law that the Minister has the onus of establishing the required elements to vacate the status of the respondent. In order for the Minister to vacate the status of the respondent, the Minister must establish that the claimant misrepresented or withheld a material fact of a relevant matter from the original panel and that this misrepresentation or withholding of a material fact could have resulted in a different decision. The panel finds that the Minister has established that the claimant misrepresented and withheld material facts of a relevant matter from the original panel which would have resulted in the exclusion of the respondent from refugee protection. [16] The panel finds that the respondent withheld her identity and her criminal conviction in the US. The respondent conceded at the initial interview with CBSA in May 2014 and at the hearing, that she had misrepresented or withheld materials facts related to a relevant matter in her original refugee claim.12 The respondent at the hearing testified that she had used an alias in entering Canada and had misrepresented her whereabouts and her criminality in the US. The panel therefore finds that the minister has established that the respondent misrepresented or withheld a material fact related to a relevant matter from the original panel. [17] Pursuant to section 109(2), the panel is to determine whether there is sufficient credible and trustworthy evidence remaining in the claim that would have allowed the original panel to confer refugee protection despite the respondent's misrepresentations and withholding of material facts. The panel finds that considering the misrepresentations made by the respondent, that this would have reasonably led the previous panel to have excluded the claimant from refugee protection under Article 1F(b) and the panel cannot find the respondent to be a refugee or a person in need of protection if she is excluded. [18] The panel finds that the applicant has provided sufficient credible and trustworthy evidence to establish that there are serious reasons for considering that the respondent committed a serious non-political crime prior to coming to Canada and making her refugee claim. The panel has used the factors described in Jayasakera in analyzing whether the crime in question is serious.13 [19] In order for the panel to consider whether, the respondent would have been excluded, the applicant must establish that the crime in question is serious, non-political, and was committed prior to the respondent entering Canada to make her refugee claim. It was determined by CBSA, after the respondent's initial refugee hearing, that as a result of a fingerprint check, that the respondent had under a different identity, been charged with felony Assault - with a Dangerous Weapon.14 The panel finds that the crime in question is serious. The jurisprudence has established that when an offence carries a maximum penalty of 10 years or more, there is a presumption that it is a serious crime. The equivalency of the respondent's offence if it were committed in Canada would be equated to section 267 under the Criminal Code of Canada, assault with a weapon or causing bodily harm and to section 268 aggravated assault.15 These offences carry a maximum term of imprisonment in Canada of 10 years for Assault with a Weapon and 14 years for Aggravated Assault.16 The respondent was given 81 month sentence (6.75 years) in the course of her conviction. Considering that the maximum sentence to an aggravated assault is 14 years and the claimant's sentence was approximately 6 3/4 years, the panel does conclude that the crime committed by the respondent, is a serious crime. [20] The facts or circumstances of the crime in question is detailed in the Minnesota police records, which included witness statements of those present including the investigating officer.17 This is a brief summary of those details. The respondent had repeatedly been in arguments with the victim while working together on a factory floor. In the course of being dropped off at home after shift and in the presence of others, the respondent and victim were in an altercation. In the course of the altercation, the victim was repeatedly slashed across the face. The witness statement from the police office indicates that the wounds were deep slices to her cheek and a cut her eyelid. Although the weapon was not found, the authorities had established in the course of the US criminal proceedings, that a weapon of a 'ring' knife type, was used in the attack by the respondent.18 In light of the weapon and injuries against the woman in question, even taking into consideration, the argument the two women may have had, the evidence establishes that the respondent had been convicted of committing serious harm against an individual. Further considering nature of the injuries against the victim, that a knife was used against the woman's face would appear to the panel to be highly personal and shows serious intention to maim or cause serious harm. Further, the respondents, the use of a weapon, a weapon in the panel's view that would have been stolen from her place of work and concealed, which in the panel's view does establish mens rea or premeditation which are aggravating factors in review of the respondent's conviction. [21] The respondent at the hearing had testified to a somewhat sanitized version of these events. The panel places more weight in the evidence that was gathered in the course of the investigation that included multiple statements from witnesses and the officer in question and the resulting conviction in the US criminal proceedings, based on those facts. [22] The respondent was questioned as to the circumstances of the offence. She had testified to having been in argument with the victim which culminated in the violent altercation. She also testified that she believed the conviction for this crime was not fair. The respondent further talked about having difficulty understanding the police procedures and the case against her. [23] However, the panel also notes that on file, all the interviews conducted by the police were with the assistance of a Somali interpreter.19 The panel finds that the respondent more likely than not also benefited from an interpreter for the criminal conviction against her. The panel does find that during the course of the investigation and proceeding there appears to be no failure of natural justice by way of the claimant understanding the charges or proceedings against her. The panel finds that these mitigating issues as raised by the respondent are insufficient to rebut the presumption of seriousness of the crime in question. [24] The panel also finds that the crime in question was non-political.20 There was no evidence presented to the panel to establish a political nexus to the assault. The panel also finds that the applicant has established, in their evidence,21 that the assault was committed, she was charged and convicted and served her sentence, in the US prior to the respondent's arrival in Canada to make a refugee claim. CONCLUSION [25] Had the original panel had the opportunity to consider the crimes committed by the respondent in the US, along with the way such crimes are treated in Canadian law, as well as a number of other factors, it would have reasonably concluded that the respondent committed serious non-political crimes outside of Canada. [26] The panel therefore finds that the applicant has established serious reasons to consider that the respondent committed a serious non-political crime prior to coming to Canada to make a refugee claim. The panel further finds that, had the original panel known this information, the respondent would have been excluded from the definition of Convention Refugee pursuant to Article 1F(b) of the Convention. [27] Having found the respondent to be excluded, the panel is not required to make an assessment of the remaining credible and trustworthy evidence on her file to determine whether the original panel would have still concluded that she is a Convention Refugee. As the original panel would have excluded the respondent, they would not have assessed the inclusion portion of her claim.22 [28] The panel therefore allows the minister's application to vacate the claim of XXXX XXXX XXXX, also known as XXXX XXXX XXXX. The respondent's claim is therefore rejected and the decision that conferred her with Convention Refugee status is nullified pursuant to Section 109(3) of the Act. (signed) "Jodie Schmalzbauer" Jodie Schmalzbauer June 26, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988. 3 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. 4 Exhibit 7. 5 Exhibit 7. 6 Exhibit 7. 7 Exhibit 7, pp.18-20. 8 Exhibit 9. 9 Exhibit 10. 10 Exhibits 8-15. 11 Exhibit 10. 12 Exhibits 1-6. 13 Jayasekara v. Canada, 2008 FCA 404, [2009] 4 F.C.R. 164. 14 Exhibit 7, p. 6-7. 15 Criminal Code (R.S.C., 1985, c. C-46) Section 267 & section 268 16 Criminal Code (R.S.C., 1985, c. C-46) Section 267 & section 268. 17 Exhibit 7. 18 Exhibit 7. 19 Exhibit 7. 20 Gil v. Canada Minister of Employment and Immigration),[0] [1995] 1 F.C. 508 (C.A.); (1994), 25 Imm. L.R. (2d) 209 (F.C.A.). 21 Exhibit 7. 22 Aleman v. Canada (Minister of Citizenship and Immigration), 2002 FCT 710, Thambipillai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1166 (T.D.)(QL). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 9 RPD.15.7 (April 2012) Disponible en français RPD File No. / N° de dossier de la SPR : VB4-01706