MB3-00566

RPD File No. / No de dossier de la SPR : MB3-00566 Private Proceeding Huis clos APPLICATION TO VACATE REFUGEE PROTECTION Respondent Intimé XXXX XXXX XXXX Applicant Demandeur The Minister of Public Safety and Emergency Preparedness Date(s) of Hearing Date(s) de l'audience September 18, 2013 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision October 10, 2013 Panel Tribunal Patrick Lemieux Claimant's Counsel Conseil du demandeur d'asile Me Anthony Karkar Designated Representative Représentant désigné N/A Minister's Counsel Conseil de du ministre Salvatore D'Aloia REASONS FOR DECISION [1] On February 14, 2013, the Department of Public Safety and Emergency Preparedness (the Minister) filed an application, in accordance with section 109 of the Immigration and Refugee Protection Act (the Act), to vacate the refugee protection of XXXX XXXX XXXX (the respondent), granted on August 27, 2008, by the Refugee Protection Division (RPD). [2] The respondent is a citizen of the Dominican Republic. DETERMINATION [3] For the reasons set out below, the panel allows the application to vacate the respondent's refugee protection status. ANALYSIS [4] The Minister filed this application because there were serious reasons to consider that the respondent-prior to coming to Canada to claim refugee protection-committed a serious non-political crime in the United States; had the panel been aware of these factors at the time of its determination granting refugee status, exclusion clause 1F(b) would have been applied. [5] In support of his position, the Minister alleged the following: a. A comparison of the respondent's fingerprints conducted with the American authorities revealed that the respondent is known to them under the name XXXX XXXX. b. The respondent was arrested on XXXX XXXX XXXX 1991, by police in XXXX, Rhode Island for "delivery of cocaine" and "conspiracy to traffic in cocaine." c. The respondent was formally charged with "delivery of cocaine" and "conspiracy to traffic in cocaine" on XXXX XXXX, 1991; and d. The Rhode Island Supreme Court issued an arrest warrant against the respondent on XXXX XXXX XXXX 1992, for failure to appear in court for her trial. [6] According to the Minister, this conduct is tantamount in Canada to a breach of paragraph 5(3)(a) of the Controlled Drugs and Substances Act and is liable to imprisonment for life. [7] In his application, the Minister also presented evidence that the respondent is also known to the American authorities under the name XXXX XXXX and was arrested in Massachusetts on XXXX XXXX, 2004, for, among other things, "assault w/dangerous weapon." [8] According to the Minister, had the panel initially seized with the respondent's refugee protection claim been aware of this evidence, its determination would have been different. [9] According to section 109 of the Act, it was up to the Minister to establish that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. For the reasons set out below, the panel finds that the Minister discharged his burden in this regard. It arrived at this finding by examining the following questions: i) Was there misrepresentation? ii) Was it on a material fact relating to a relevant matter? and iii) Was the decision to allow the respondent's claim for refugee protection obtained as a result of this direct or indirect misrepresentation? i) Was there misrepresentation? [10] For the following reasons, the panel finds that the Minister established that the respondent misrepresented her situation. [11] In her Personal Information Form (PIF), the respondent replied "no" to questions 9 (a) and (b), which ask among other things if she has ever been sought, arrested or detained by the police or any other authorities in any country. [12] She also replied "no" to question 10, which asks if she has ever committed, or been charged with or convicted of, any crime in any country. [13] The Minister's evidence supporting his application to vacate establishes that these answers by the respondent misrepresented her situation. Indeed, the evidence reveals, among other things, that the respondent had been arrested by Rhode Island police on XXXX XXXX, 1991, that she had been detained for several days and that she had been charged with the crime of "delivery of cocaine" and "conspiracy to traffic in cocaine" on XXXX XXXX XXXX 1991. [14] The respondent acknowledged this evidence during her testimony. [15] However, she justified this omission by explaining that she answered only those questions asked by the immigration officer, who had explicitly limited the questions [translation] "to the past 10 years." That is why she reported her arrest by US immigration in 1999 to the officer but failed to mention the charges in 1991. Thus, according to her, she had had no intention of hiding her criminal history. [16] In this regard, her counsel submitted that she was aware that her fingerprints would enable the Canadian authorities to verify her responses. Consequently, she had nothing to gain by trying to conceal what would be revealed in any event. [17] Counsel for the respondent added that due to an administrative practice by his firm, the information found in form IMM-5474 was, as a rule, automatically transposed to the PIF. It followed, according to him, that the respondent's responses in the PIF did not constitute misrepresentation, to the extent that i) when she submitted her claim for refugee protection, she had given them in good faith, believing that the relevant period was from 1996 to 2006, and ii) this response was blindly copied into the PIF due to an administrative error by his firm. [18] The respondent's form IMM-5474 was not presented as evidence, but the immigration officer's notes were (Document 1 - Exhibit M-1). In them, the respondent does report her arrest by the immigration authorities, but makes no mention of her arrest, detention and charges in 1991. [19] Counsel for the Minister challenged the respondent's assertion that she thought in good faith that she did not have to declare that portion of her criminal past that extends back more than 10 years. In this regard, he submitted that the questions and answers during the interview conducted by the officer are always reproduced as is in the notes, and that no mention is made of any request that answers be limited to the [translation] "last 10 years." [20] According to the panel, section 109 of the Act does not require the respondent to have intended to engage in misrepresentation. All that is required is for the decision to allow a claim for refugee protection to have been obtained as a result of misrepresenting material facts relating to a relevant matter. Whether or not the respondent was misled, acting in good faith or acting unwittingly when presenting inaccurate or incomplete information does not change the fact that the inaccurate and incomplete information was provided and that it constitutes misrepresentation of the facts. This finding is sufficient to establish that the Minister has discharged his burden in this regard. [21] However, if section 109 of the Act requires the Minister to demonstrate that the respondent intended to misrepresent a fact and that, as a result, her state of mind can serve as a reason to find that a fact was not misrepresented, the panel would still find in the present case, for the following reasons, that the respondent misrepresented facts. [22] Indeed, while the panel cannot accept as established the assertions made by the respective counsel for the parties as to the various modus operandi observed by border officers or administrative staff in a private firm to support their positions, it accepts several factors that lead it to conclude that the respondent failed to credibly establish that she was not seeking to conceal her criminal history when she made different statements as evidence. For example, the panel notes that: a. The officer's notes begin with an introductory paragraph specifying that the questions reproduced in the notes can serve as a template for the examination and that this template can be used in parallel with the forms that are to be completed by the refugee protection claimant. b. These forms include IMM-5474. Although the one completed by the respondent is not included in the evidence, the panel-by virtue of its specialized knowledge-is familiar with the questions it contains, as well as with the order in which these questions are asked. c. The questions relating to a refugee protection claimant's criminal history (question 4) precede the only question on the form that introduces a "last 10 years" limit (question 7, which deals with employment and places of residence). d. That being the case, the panel finds it unlikely that question 7 on the IMM-5474 form led the respondent to incorrectly believe that the questions about her criminal record asked by the officer during the interview applied only to the last 10 years. Furthermore, it does not believe that the officer would have explicitly given the respondent this instruction. e. It also points out that the PIF is clear as to the questions for which the response must be limited to the last 10 years (questions 11 to 13). Questions 9 and 10 are not among them, nor are others that precede questions 11 to 13-including question 6, for which the respondent provided details going back more than 10 years. f. Asked at the hearing to explain her answers to PIF questions 9 and 10, the respondent reiterated that the officer had asked her only about "the last 10 years." The panel finds this explanation unreasonable, since the PIF was signed nearly a month after her interview with the officer. Moreover, even if the panel accepted that the respondent was under the false impression in her answers that there was a 10-year limit, it notes that she also failed to declare her 1999 arrest in these questions. This omission invalidates the respondent's explanation that she was answering truthfully, based on what she understood to be the question. g. The panel further notes that the respondent had the benefit of an interpreter and a lawyer when she stated "under oath" on page 13 of her PIF that the information provided in her PIF was complete, true and correct. The panel also observes that she subsequently made changes to her PIF, without correcting her answer to questions 9 and 10, nor her use of other names. h. Indeed, the respondent concealed the fact that she had used the name XXXX XXXX during her time in the United States. On the various occasions where she could have reported this name (e.g. during her interview with the immigration officer1 and in response to question 1(c) on the PIF), the respondent failed to do so. Since a truthful statement in this regard could have made it easier for the Canadian authorities to uncover the respondent's criminal history, the panel finds that this omission is part of an effort by the respondent to conceal her criminal history. [23] In view of the above, the panel finds that the respondent consciously and knowingly neglected to declare her run-ins with the American authorities in 1991. In arriving at this finding, it also considers that the respondent's testimony in this and several other regards struck it as insincere and driven not by the desire to tell the truth but by the desire to say what would benefit her. [24] Consequently, the Minister has established that the respondent misrepresented her criminal history in the United States. ii) Did the misrepresentation have to do with material facts relating to a relevant matter? [25] For the following reasons, the panel finds that the Minister established that the respondent misrepresented material facts relating to a relevant matter. [26] Indeed, under Article 1F(b) of the Refugee Convention,2 perpetrators of serious non-political crimes cannot obtain international protection in the country where they claim refugee protection. In other words, the effect of a finding under this article is that the refugee protection claimant is excluded from accessing the refugee determination process in Canada. [27] All information relating to what could reasonably be perceived as or equated with a serious non-political crime is thus information on a material fact relating to a relevant matter. Therefore, it must be declared by a refugee protection claimant at the first opportunity. [28] In this case, the respondent neglected to declare that she had been arrested, detained and charged with "delivery of cocaine" and "conspiracy to traffic in cocaine." In so doing, she misrepresented a material fact relating to a relevant matter. iii) Was the decision to allow the respondent's claim obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter? [29] To determine, as the Minister claims in his notice, whether the panel that originally heard the respondent's claim would have arrived at a different determination had it been aware of these factors, it must be determined whether this initial panel would have found that the respondent should be excluded from the possibility of being found to be a "Convention refugee" or a "person in need of protection" under subsection 97(1) of the Act by reason of her behaviour. [30] To do so, the following question must be answered: did the respondent commit a serious non-political crime while outside Canada? [31] The respondent having acknowledged committing the alleged act while in the United States, and in the absence of evidence that the act had a political aim, the aforementioned question can be summed up as follows: are the delivery of cocaine and conspiracy to traffic in cocaine serious crimes? Crime? [32] In his notice, the Minister alleged that this conduct is tantamount in Canada to a breach of subsection 5(1) of the Controlled Drugs and Substances Act. [33] The section is as follows: 5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. (2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV. (3) Every person who contravenes subsection (1) or (2) (a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and (i) to a minimum punishment of imprisonment for a term of one year if (A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, (B) the person used or threatened to use violence in committing the offence, (C) the person carried, used or threatened to use a weapon in committing the offence, or (D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or (ii) to a minimum punishment of imprisonment for a term of two years if (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or (C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence; (a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day; [34] Cocaine is a substance included in subsection 2(2) of Schedule I of the Controlled Drugs and Substances Act. [35] The term "traffic" is defined as follows in section 2 of the Controlled Drugs and Substances Act: "traffic" means, in respect of a substance included in any of Schedules I to IV, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations. [our emphasis] [36] In light of these provisions and the respondent's acknowledgements regarding her conduct on XXXX XXXX, 1991, the panel finds that the Minister established that the acts the respondent committed in the United States were tantamount to at least a criminal act in Canada at the time of their commission, namely, the delivery of a substance included in Schedule I of the Controlled Drugs and Substances Act. Serious crime? [37] In Jayasekara,3 the Federal Court of Appeal reaffirmed that consideration must be given to i) international standards and ii) the perspective of the receiving state in determining the seriousness of a crime. In this regard, it stated that there is a strong indication of the seriousness of a crime if its commission in Canada would have been punishable by a maximum term of imprisonment of at least 10 years. However, the Court stated that this strong indication of seriousness must also be evaluated in light of the following factors: iii) the elements of the crime, iv) the mode of prosecution, v) the penalty prescribed, and vi) the facts and the mitigating and aggravating circumstances underlying the conviction. The panel will now analyze how these principles identified by the Federal Court of Appeal apply to the facts at hand. i) International standards [38] In the United States, the provision of the US statute under which the respondent was charged according to the arrest warrant issued against her, to wit, section 21-28-4.01 of the General Laws of Rhode Island, 1956, as amended (Reenactment of 1982), provides for a maximum sentence of life imprisonment if the person is not a "drug addicted person," and in the other cases, a maximum sentence of 30 years, as well as fines in the thousands of dollars. [39] This maximum term leads the panel to consider that the American jurisdiction characterizes the crime committed by the respondent as "serious." [40] No other evidence has been established4 concerning the treatment given this type of crime by other jurisdictions. [41] However, the panel bears in mind what Justice Létourneau stated in Jayasekara, when he concluded, following an in-depth analysis of the applicable international standards, that narcotics trafficking is considered to be a serious crime throughout the world. ii) From Canada's perspective [42] Under paragraph 5(3)(a) of the Controlled Drugs and Substances Act, the maximum sentence for this offence is life in prison. There is no minimum sentence, unless certain aggravating factors are present, in which case the minimum sentence is one or two years. [43] Since the aforementioned case law recognizes that there is a strong indication of the seriousness of a crime if its commission in Canada would have been punishable by a maximum term of imprisonment of at least 10 years, for the panel it is clear that this strong indication of seriousness can be applied to the present case, given the maximum sentence imposed in Canada. iii) The elements of the crime [44] The respondent's actions in 1991 are not offences against the person and do not involve the use of violence. They are, however, part of a phenomenon that has dire social consequences, from both a human and economic standpoint. What the Supreme Court of Canada5 had to say about the crime of narcotics trafficking is very eloquent in this regard: The harm caused by the illicit traffic in drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals, families and communities. It destabilizes and retards the development of whole nations and regions. Drug trafficking now also threatens peace and security at a national and international level. It affects the sovereignty of some states, the right of self-determination and democratic government, economic, social and political stability and the enjoyment of human rights. [45] Counsel for the respondent argued that the respondent's crime was limited to one transaction on the evening of XXXX XXXX XXXX 1991, involving a quantity valued at only $20. According to him, that does not constitute a serious crime. [46] The panel does not agree. [47] According to the evidence on the record, there are serious reasons to believe that the respondent's involvement in drug trafficking went deeper than just this single transaction, for which she was arrested and at least one charge was laid against her. Indeed: a. The police report indicates that the arrest took place as part of an investigation into the sale of cocaine at a known residential address. b. The respondent acknowledged that this place of residence was her brother's and that he had been involved in these dealings at least since the time she moved in with him about a year earlier. c. None of the respondent's evidence-on her brother's dealings, her involvement in them, the events of XXXX XXXX, 1991, and the aftermath thereof-was credible. The respondent was not straightforward in her responses, nor spontaneous. What is more, she changed her answers several times during her testimony. Her account of the events of XXXX XXXX, 1991, contradicted in a number of respects the account contained in the police report. Lastly, she dodged certain questions, always preferring to repeat her stock response, such as that the facts date back a very long time, that she was young back then, that she depended on her brother, that she did not know a lot, that she was not familiar with drugs when she moved in with him, and that she has paid for her mistakes. d. In terms of specific examples, having replied vaguely at the beginning as to the number of times she had participated in a sales transaction, she then tried to minimize her participation by stating, as her testimony went on, that in fact she had only once dispensed a baggie containing cocaine, and that was on the evening in question (XXXX XXXX, 1991). However, her previous testimony suggested an established modus operandi with her brother whereby he would call from time to time when he was away and ask her to open the door for a particular individual and hand him one or more baggies, according to his instructions. She had also testified, in keeping with the representation by her counsel that a transaction requires that drugs be exchanged for money, that she never took money from her visitors, except on the evening of XXXX XXXX XXXX 1991, thereby suggesting that she had previously delivered baggies containing drugs. When confronted with these contradictory versions of her testimony as to the number of times she had dispensed baggies, she returned to her stock response (it had been a long time, she no longer recalled, she was only following her brother's instructions, he was the one involved in these dealings, she was not, and she has changed since then). The panel is not satisfied with these explanations, finding that they fail to justify a total lack of forthrightness as to the number of times she had given baggies to people. e. The panel confronted the respondent with its view that it was implausible that she had been involved just once in her brother's dealings, since she had been living there for at least a year while he was [translation] "involved" in them. In response, the respondent acknowledged that her brother had begun asking her for help six to eight months after she had come to live with him, once again contradicting her repeated replies that she had not been involved in her brother's dealings. f. The police report indicates that the respondent's brother had assured a detective, posing as a buyer, that she could obtain drugs at the address in question at any time, because they were sold on a 24-hour basis. All she had to do was ring the buzzer at the lobby door, back up so she could be seen from the window of his third-floor apartment, and then wait. In fact, it was by following these instructions that the detective was delivered the baggie by the respondent and handed her the $20. [48] In light of the above, the panel did not believe the respondent when she tried to minimize her participation in cocaine trafficking to this single transaction on XXXX XXXX XXXX 1991, for which she was arrested and charged. On the contrary, it finds that the balance of evidence, including the respondent's often deceitful testimony, indicates that the respondent was assisting her brother in his dealings for some time, at least when it came to helping deliver baggies of cocaine to people who came to buy some. This was not some isolated incident. [49] In arriving at this conclusion, the panel recognizes that the respondent may not have had to receive the payment often, and that this aspect of the transaction might generally have been handled by her brother or his other accomplices. However, contrary to the position advanced by counsel for the respondent, the panel is of the opinion that trafficking in narcotics is not limited to a transaction in which money is received in exchange for handing over narcotics. On the contrary, the definition of the term "traffic" also includes simple delivery.6 [50] Lastly, it is the panel's opinion that the respondent, despite having been in somewhat of a vulnerable situation (e.g. age, maturity, dependence on her brother), failed to establish having been under duress to participate in her brother's activities. Consequently, the duress defence does not apply in this case.7 [51] For these reasons, the panel considers that the elements of the crime argue for a characterization of "serious." iv) The mode of prosecution [52] Paragraph 5(3)(a) of the Controlled Drugs and Substances Act states that the sole mode of prosecuting the crime in question is as an indictable offence. Prosecution on summary conviction, an option for prosecuting less serious cases, was rejected by Parliament for the crime in question. It follows that the prescribed mode of prosecution for this crime in Canada is a factor that supports a finding that the crime in question is a "serious" crime. [53] As for the mode of prosecution in the United States or elsewhere in the world, this has not been established by the evidence. v) The penalty prescribed [54] The penalty prescribed having already been analyzed to determine whether an indication of seriousness applied to the crime due to international or local standards (see paragraphs 38 to 43), the panel refers to the findings of this analysis with regard to this factor. vi) The facts and the aggravating circumstances underlying the conviction [55] Despite the terms used to describe this factor, and more specifically the term "conviction," the fact that the respondent was not convicted does not preclude the panel from considering the facts and the circumstances underlying the criminal act. [56] In this case, the fact that the respondent absconded is a relevant fact. [57] Although this conduct represents criminal behaviour distinct from the conduct for which the exclusion is being raised, the panel finds this conduct to be a circumstance worthy of consideration. Indeed, it is the panel's opinion that this conduct is not one of "these factors extraneous to the facts and circumstances underlying the conviction" that the Federal Court of Appeal suggests not be considered in assessing the seriousness of a crime.8 On the contrary, this conduct is the very reason-the basis-for the lack of a finding in this case, of guilt or not. Moreover, although this court9 has stated that sentence length is an unreliable guide to the seriousness of a crime and that little weight should be attached to whether or not a sentence has been completed, these factors can be taken into consideration, albeit not in isolation. [58] The panel finds that the respondent's conduct in absconding in order to avoid the consequences of her actions is an aggravating factor that must be taken into account in assessing the seriousness of the crime. [59] In arriving at this finding, it notes the respondent's vague testimony concerning her failure to appear for her trial on the merits. In this regard, it notes that she acted wilfully and consciously, and that she has never taken any steps since then to answer for her actions. [60] Incidentally, the panel further notes that counsel for the respondent submitted that no probative value should be attached to the documentary evidence comprising the police reports, because its authors were not available to be cross-examined and only a decision on the merits would have produced a reliable account of the facts. The panel points out that it was due to the respondent's actions that no decision on the merits was rendered in this case by the US judiciary, and that it would be inappropriate today to invoke the absence of an "objective analysis" of the facts in the form of such a decision. Also, while the panel recognizes that it is not unfathomable that police authorities might manipulate, wilfully or not, the truth for their own purposes, nothing in the evidence presented allows the panel to conclude that such was the case here. Thus, it attaches more probative value to this documentary evidence than to that of the respondent's less-than-forthright testimony concerning the incidents that took place on XXXX XXXX XXXX 1991. [61] Moving on, the panel has not identified other facts and aggravating circumstances, nor has the Minister raised any. [62] The panel notes that the aggravating factors identified in paragraph 5(3)(a) of the Controlled Drugs and Substances Act that would have warranted imposing a minimum sentence in Canada are not present in this case. Examples include cases where: a. the person committed the offence for the benefit of, at the direction of or in association with a criminal organization; b. the person used or threatened to use violence in committing the offence; c. the person carried, used or threatened to use a weapon in committing the offence; d. the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years; e. the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years; and f. the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence. vi) The facts and the mitigating circumstances underlying the conviction [63] Counsel for the respondent raised the following points as facts and mitigating circumstances: a. the respondent's brother was prosecuted but escaped prison time; it follows that the respondent, as an accomplice with far less involvement, would not have received a significant sentence; b. she was charged in connection with a single transaction valued at $20; in Canada, such a charge would not have led to a significant sentence; c. the fact that she did not have to answer for these actions in 1991, when she was arrested in 1999 by Texas immigration authorities, shows that the American authorities did not consider her crime to be serious; and d. the fact that no drugs were found on the premises when the police raided the home and arrested the respondent and her brother. [64] As for point "a," the only evidence concerning her brother's fate was the testimony the respondent gave. But as we saw earlier, this was not trustworthy. Regarding her brother's specific situation, the respondent provided, among other things, different answers to the questions she was asked about the contacts she has maintained with him since that time. What is more, she was not able to offer basic clarifications as to how the American authorities treated her brother in connection with the charges laid against him in 1991. Lastly, even if her brother received a light sentence, it is recognized that there can be many reasons a lenient sentence can be delivered even for a serious crime. It follows that her brother's situation regarding his conviction is not a probative factor in the present case, far less a mitigating one. [65] As for point "b," the panel already dealt with this argument and found that there were serious reasons to believe that the respondent's involvement in drug trafficking was not an isolated incident but, rather, part of a modus operandi whereby she assisted her brother from time to time in his dealings involving trafficking in a hard drug, namely cocaine. Thus, counsel's argument is not applicable in this case. [66] As for point "c," the panel has already analyzed the American authorities' general thinking pertaining to the criminal act for which the respondent was arrested and charged. As for the fact that the Texas authorities do not seem to have sought to have the respondent answer for her actions in Rhode Island, the respondent in no way established that this makes them any less serious. First, she did not establish that the authorities in one state are required to cooperate with their counterparts in another when it comes to a violation of the latter's laws. Second, she did not establish that the Texas authorities had even been aware of her legal troubles in Rhode Island. [67] As for point "d," the evidence established that someone managed to flee the scene when the police conducted their raid on XXXX XXXX XXXX 1991. In this regard, and for the above-noted reasons, the panel attaches greater weight to the written account of the police officers involved than to the respondent's testimony regarding the presence of other individuals in the apartment. Furthermore, the evidence establishes that the residence was a place where drugs were available for purchase. In these circumstances, the panel is of the opinion that the fact that no drugs were seized during the raid and the fact that the amount found on the respondent's brother was minimal (US$255) are not mitigating factors. [68] Lastly, the panel is willing to accept that the respondent's lack of maturity and her situation of dependence on her brother can be considered mitigating factors, although the facts show that the respondent took steps to distance herself from her brother in the year following the arrest. [69] Weighing all these facts and these aggravating and mitigating circumstances, the panel considers that they argue in favour of a finding that the respondent's crime be characterized as "serious." vii) Finding as to the seriousness of the crime [70] Taking into account all the above, the panel finds that the factors set out by the Federal Court of Appeal in Jayasekara allow it to conclude that the crime in the present case is "serious." [71] The panel understands that the respondent may view it as unjust that crimes she committed many years ago can come back to haunt her, at a time when she seems to have seized the second chance that life has offered and chosen the right path. The fact remains, however, that the panel must rely on the legislation and the current case law, which states that someone found guilty of a serious non-political crime, as is the case here, must be excluded from the application of the Convention. Finding on question "iii," namely whether "the decision to allow the respondent's claim for refugee protection was obtained as a result of this direct or indirect misrepresentation." [72] Given the previous finding as to the seriousness of the crime, the panel finds that the Minister has established that, had the panel initially seized with the respondent's refugee protection claim been aware of all these factors, its determination would have been different. Indeed, had the respondent reported the incident of XXXX XXXX XXXX 1991, in her claim for refugee protection, as well as the name XXXX XXXX, which would have enabled the Minister to conduct the necessary investigations to better understand the situation, including the existence of the arrest warrant issued against her, and to eventually invoke the 1F(b) exclusion clause, the panel considers that for the aforementioned reasons, the initial panel would have found in favour of exclusion. It follows that the Minister established that the decision to allow the respondent's claim for refugee protection was obtained, directly or indirectly, as a result of the aforementioned misrepresentation. [73] As the panel concluded that the initial panel would have found in favour of exclusion, it is not necessary according to the applicable case law10 to proceed with the analysis provided for in subsection 109(2) of the Act. [74] Lastly, the panel notes that part of the hearing was devoted to questions and submissions surrounding charges brought against one XXXX XXXX in XXXX 2004 in Massachusetts. The debate surrounding these charges, the (acknowledged) use of the name XXXX XXXX by the respondent, the respondent's presence in or absence from the United States in 2004, the reliability of the ten-print response concerning this charge due, among other things, to the absence of an FBI number in relation to the Massachusetts file number, has been suspended pending a determination on the charges brought in Rhode Island that are the subject of the aforementioned exclusion. In light of the panel's findings, the debate in question is no longer determinative in this case. CONCLUSION [75] For the reasons mentioned above, the panel allows the Minister's application to vacate the respondent's refugee protection status. [76] The panel therefore vacates the refugee protection status granted to the respondent, XXXX XXXX XXXX. Patrick Lemieux Patrick Lemieux October 10, 2013 Date IRB translation Original language: French 1 Document 1 - Exhibit M-1. 2 For the full title of this Convention, see subsection 2(1) of the Act. 3 Jayesekara v. M.C.I., 2008 FCA 404. 4 The Minister established the evidence as to the treatment afforded this type of crime by the United States, but this evidence is analyzed below, including with respect to its admission. 5 Pushpanathan v. Canada, (1998) 1 S.C.R. 982, preliminary notes. 6 See paragraph 35. 7 Ghaffari v. Canada, 2013 F.C. 674. 8 Jayesekara v. M.C.I., 2008 FCA 404. 9 Hernandez Febles v. M.C.I., 2012 FCA 324, paragraph 34. 10 Canada v. Wahab (2006 FC 1554), No. IMM-1265-06, December 22, 2006; see also Canada v. Mahdi, (1995) 191 N.R. 170; Aleman v. Canada, 2002 FCTD 710. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RPD.29.01 (December 15, 2012) Disponible en français RPD File No. / N° de dossier de la SPR : MB3-00566