VB3-02880

RAD File No. / N° de dossier de la SAR : VB3-02880 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision February 12, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Adrian Huzel Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Marin Debruyn Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Cuba, appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is excluded from the definition of Convention refugee as per Article 1 F(b) of the Convention Relating to the Status of Refugees (the "Convention")2 in that there are serious reasons to believe that he committed a serious non-political crime outside of Canada prior to making his claim for refugee protection in this country. This appeal is therefore dismissed. BACKGROUND [3] The RPD heard the appellant's refugee protection claim on September 25, 2013. The RPD's reasons for the decision were delivered orally with written reasons and a 'Notice of Decision' dated October 17, 2013.3 [4] The RPD Member found that the appellant was convicted of the offense of XXXXX XXXXX in XXXX in 2007 and that this conviction is sufficient to establish that there are serious reasons for considering that he committed this offense. Under s. 5(3) of the Controlled Drugs and Substances Act,4 trafficking or possession for the purpose of trafficking a substance included in Schedule I or II is punishable by life imprisonment. XXXXX is listed in Schedule I. [5] The RPD's written reasons dated October 17, 2013, stated that the appellant's case for refugee protection was rejected. The determinative issue in this claim was exclusion from the definition of Convention refugee as per Article 1 F(b) of the Convention5 in that there are serious reasons to believe that the appellant committed a serious non-political crime outside of Canada prior to making his claim for refugee protection in this country. As the appellant was found to be excluded from refugee protection, the RPD Member did not assess the merits of the appellant's application of his "inclusion" case, that is, the merits of his claim for refugee protection as it relates to Cuba, his country of nationality. [6] The appellant is represented for this appeal by the same legal counsel as at his RPD hearing. Submissions [7] The appellant submits the issues are as follows: * Did the RPD Member err in finding that the appellant's denial of culpability for the crime in question and his "lack of regard for the law in general" were aggravating factors that outweighed mitigating factors and resulted in its decision that the presumption that his crime was a serious non-political crime for the purposes of Article 1 (F)(b) had not been rebutted? * Did the RPD Member ignore evidence that strongly suggested the appellant played a very minimal role in the crime? [8] The appellant has requested that the RAD, under s. 111(b) of the Act, set aside the determination of the RPD and substitute a determination that the appellant is not excluded from refugee protection pursuant to Article l(F)(b) and have his "inclusion" claim for refugee protection considered by a differently constituted RPD Panel. While counsel does not refer to s. 111(c), I assume that his request to have the "inclusion" protection claim considered by a differently constituted tribunal is under that provision. [9] Neither counsel for the appellant nor counsel for the Minister made any submissions as to the standard of review in this appeal. [10] The Minister has intervened in this appeal. Counsel for the Minister submits that the RPD Member properly considered aggravating factors and gave an adequate analysis of why the appellant's role in the XXXXX XXXXX was significant. The Minister requests that the RAD, under s. 111(a) of the Act, confirm the determination of the RPD that the appellant is excluded from refugee protection pursuant to Article l (F)(b). Consideration of New Evidence [11] No new evidence has been submitted in support of this appeal. Application for an Oral Hearing [12] The appellant has not requested an oral hearing pursuant to s. 110(6) of the Act. [13] Section 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [14] According to s. 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s. 110(3) that raises a serious issue with respect to the credibility of the appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [15] When read together, ss. 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,6 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [16] As discussed above, no new evidence has been submitted in support of this appeal. As such, the RAD must proceed without a hearing in this appeal. Standard of Review [17] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [18] In Dunsmuir,7 the Supreme Court of Canada (the "Supreme Court") considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review: correctness and reasonableness. Dunsmuir has limited applicability to the RAD however, which is not a reviewing court but rather an administrative appellate body. In Khosa,8 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute but again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [19] I find that the issues raised in this appeal are issues of mixed law and fact. [20] In Newton,9 the Alberta Court of Appeal (the "Alberta Court"), having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton. [21] The Newton10 factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, such as is the case with the RPD and RAD. Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The contextual approach to assessing which factors are most appropriate in setting the standard of review has been established in Khosa.11 The most significant factors to consider in establishing the standard of review of a decision by a tribunal of first instance by an appellate tribunal are: * the respective roles of the RPD and RAD in the context of the Act; * the expertise and advantageous position of the RPD Member compared to that of the RAD; and * the nature of the question in issue. [22] Both the RPD and the RAD derive their jurisdiction from and interpret the same home statute: the Immigration and Refugee Protection Act. Section 162(1) of the Act gives each Division, including the RPD, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." The RAD has been given the supervisory jurisdiction to decide appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.12 The level of deference which the RAD provides to the RPD depends on the questions at issue as addressed above. [23] The presence of a right of appeal does not warrant a correctness standard of review given the prescribed relationship between the RPD and RAD, and the limits imposed on the RAD in the Act. [24] The RAD finds that the RPD is to be provided with deference on questions of fact as it relates to the assessment of the claim for protection. The RPD is a tribunal of first instance which has been given the authority in the Act to make a decision to accept or reject a claim for protection.13 RPD Members have expertise in interpreting and applying the Act, as well as are experts in assessing claims based on country conditions. The RPD must conduct a hearing14 and assesses the totality of the evidence, including evidence related to the credibility of the appellant and witnesses, after it has had an opportunity to see the appellant, hear his testimony and question him. [25] In contrast to the RPD's authority to assess a claim for protection, the Act limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance but exists to review the decision made by the RPD. The RAD must proceed without a hearing on the basis of the Record, submissions by the parties, and new evidence.15 Appeals to the RAD are party-driven and do not provide appellants an opportunity to have their claims heard de novo. The RAD's authority to hold hearings is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.16 Hearings are also limited to only specific issues (serious credibility issues) which are directed by the Refugee Appeal Division Rules (the "Rules").17 [26] Given that the RPD has held a hearing on the totality of the evidence and given that the RPD has heard from the appellant directly at a hearing, the RPD is in the best position to assess the credibility of the appellant and to make findings on issues of fact related to the claim. This position is consistent with Newton at paragraph 82 where it indicates: The [Refugee Appeal Division] is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer and the conclusions reached by him.18 [27] Newton concludes that: a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the [Refugee Appeal Division] should not interfere.19 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD; and that the RPD decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.20 [28] For the reasons outlined above, the RAD has afforded a considerable level of deference to RPD findings on questions of mixed law and fact in this claim and will consider whether the findings of mixed law and fact raised in this appeal meet the reasonableness test. Analysis of the Merits of the Appeal [29] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD. [30] Counsel for the appellant submits that the RPD Member erred in finding that the appellant's denial of culpability for the crime in question and his "lack of regard for the law in general" were aggravating factors that outweighed mitigating factors and resulted in its decision that the presumption that his crime was a serious non-political crime for the purposes of Article 1F(b) had not been rebutted. In her reasons, the RPD Member characterized as aggravating factors the appellant's denial of culpability in the face of fairly compelling evidence, the appellant's flight to Canada when he learned there was a warrant issued for his arrest in relation to a XXXX charge and his "lack of regard for the law in general" as he had on several occasions driven with a suspended license. [31] The Federal Court of Appeal in Jayasekara21 identified the relevant factors for assessing the seriousness of a crime as follows: an evaluation of the elements of the crime, the mode of persecution, the penalty prescribed, the facts, and the mitigating and aggravating circumstances underlying the conviction. These factors relate to the commission of the offence and its nature. In her reasons, the RPD Member did not refer the Jayasekara factors at page 2, lines 14-22 of the decision. [32] The mitigating and aggravating circumstances to be considered by the RPD in determining whether a crime is serious under Article 1F(b) do not include whether the claimant is rehabilitated and a danger to the public in Canada.22 Nor is it relevant that the Minister of Citizenship and Immigration has determined the refugee claimant not to be a danger to the public.23 Therefore, the RPD should not consider factors such as the claimant's rehabilitation, "good character", expiation, remorse, recidivism and ongoing danger.24 [33] The appellant's denial of culpability directly relates to the offense for which he did enter a guilty plea. I note that the appellant pled guilty to the charge and was charged and tried in the U.S., a country which is internationally recognized as respecting the rule of law and due process. The appellant confirmed he was granted a defence lawyer and had a trial before a judge. There is nothing in the evidence that gives me reason to doubt that the appellant received a fair trial and due process in the U.S. [34] Counsel for the appellant submitted that the RPD Member ignored evidence that strongly suggested the appellant played a very minimal role in the crime. In the hearing, when asked as to why he had entered the guilty plea despite his contention that he had committed no crime, he stated that his lawyer had advised him that if he went to court and lost he could receive a sentence of up to 25 years. The appellant testified the lawyer would make a deal with the judge that he would plead guilty and receive a sentence of two years. The appellant stated that he accepted the deal out of ignorance of the laws.25 In her reasons, the RPD Member gave greater weight to the documentary evidence which she found provided a strong indication that the appellant was present and a participant in XXXXX XXXX. I find the RPD Member's conclusion in this respect to be reasonable. [35] In her reasons, the RPD Member also considered as an aggravating factor the appellant's "lack of regard for the law in general" referring to his testimony that on several occasions he had driven with a suspended license. [36] I note that in the RPD Record, pages 80 to 98, the appellant's lengthy criminal history had been provided by US authorities dating back to 1995. A partial listing of charges included XXXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. In addition there are XXXXX XXXXX charges in 1999 and 2008 in addition to his outstanding warrant for XXXXX XXXXX XXXX. While the RPD Member referred to the appellant's having driven with a suspended license, this criminal history had been entered into evidence. Repeated offences, prior convictions for the same crime, and probation violations can be considered an aggravating factor.26 I find the RPD Member's conclusion that the appellant's lack of regard for the law in general was an aggravating factor to be reasonable. [37] Based on the totality of the evidence, I find that the RPD Member's findings of mixed law and fact were reasonable. The RPD Member did not misstate or misconstrue the evidence in coming to her findings. Having considered all the evidence, I find that the RPD reasons do fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDY [38] Pursuant to s.111(1)(a) of the Immigration and Refugee Protection Act the Refugee Appeal Division confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is excluded from the definition of Convention refugee as per Article 1 F(b) of the Convention Relating to the Status of Refugees in that there are serious reasons to believe that he committed a serious non-political crime outside of Canada prior to making his claim for refugee protection in this country. This appeal is therefore dismissed. (signed) "Douglas Fortney" February 12, 2014 Date 1 Immigration and Refugee Protection Act (the "Act"), S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees.Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 The Refugee Protection Division Record, p. 2. 4 Controlled Drugs and Substances Act, S.C. 1996, c. 19. 5 Article IF(b) of the 1951 Convention Relating to the Status of Refugees, Res. 2198 (XXI) General Assembly: 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. 6 S.110(4) of the Act. 7 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 8 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at para. 43. 10 Ibid, at para. 44. 11 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 12 S. 110(1) of the Act. 13 S. 107 of the Act. 14 S. 170 of the Act. 15 S. 110(3) of the Act. 16 S. 110(4) of the Act. 17 Refugee Appeal Division Rules, SOR/2012-257; Rule 57. 18 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 82. 19 Newton, ibid, at para. 95. 20 Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47. 21 Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404. 22 Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324. 23 Feimi v. Canada (Citizenship and Immigration), 2012 FCA 325. 24 Quintana Murillo v. Canada (Citizenship and Immigration), 2008 FC 966; Rojas Camacho v. Canada (Citizenship and Immigration), 2011 FC 789; Hernandez Febles v. Canada (Citizenship and Immigration), 2011 FC 1103; Martinez Cuero v. Canada (Citizenship and Immigration), 2012 FC 191; Feimi v. Canada (Citizenship and Immigration), 2012 FC 262; Poggio Guerrero v. Canada (Citizenship and Immigration), 2012 FC 937; Ospina Velasquez v. Canada (Citizenship and Immigration), 2013 FC 273. 25 Appelant's Record, p. 29. 26 Poggio Guerrero v. Canada (Citizenship and Immigration), 2012 FC 937 at 25; Gudima v. Canada (Citizenship and Immigration), 2013 FC 382 at 13; Chernikov v. Canada (Citizenship and Immigration), 2013 FC 649 at 16-17 and 21-26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-02880 RAD.25.02 (April 9, 2013)