VB7-01383

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : VB7-01383 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 at Vancouver, BC Appel instruit à Date of decision February 28, 2018 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Juliana Dalley 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Honduras, appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. He requests to submit new evidence. He also requests an oral hearing to consider that evidence. He requests that the Refugee Appeal Division (the "RAD") set aside the RPD's decision and substitutes it for its own determination that he is a Convention1 refugee or a person in need of protection. DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),2 the RAD confirms the determination of the RPD, namely, the appellant is excluded from making a claim as a Convention refugee pursuant to section 96 of IRPA and/or a person in need of protection pursuant to section 97 of IRPA in accordance with Article 1 F (b) of the Convention. BACKGROUND [3] The appellant is from Honduras. When he was a minor, he went to the United States and lived there for a few years. While he was there, he was arrested three times on drug-related charges; once as a minor. Specifically, he was arrested once for possession and twice for possession as well as intent to distribute. The drugs involved were cocaine and heroin. He came to Canada and made a claim for Convention refugee status and/or as a person in need of protection. [4] The RPD held a hearing on January 18, 2017. The RPD found that the appellant was "generally candid and credible".3 However, it found that he had committed a serious non-political crime and in accordance with Article 1F(b) the appellant was excluded from making a claim. The reasons will be discussed in more detail later. [5] The appellant has appealed this decision to the RAD. He argues that the RPD failed to consider that the appellant was a minor when some of the offences occurred. Further, the RPD did not consider the appellant's testimony that he was not in possession of drugs the other two times that he was arrested. [6] Further the RPD erred when it failed to consider mitigating factors when assessing the seriousness of the crime. ISSUES [7] The issue is whether the appellant is excluded from claiming Convention refugee status and/or as a person in need of protection in accordance with Article 1F(b) of the1951 Convention Refugee for having committed a serious non-political crime. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [8] The appellant presented the following evidence upon appeal to the RAD: * A psychological report dated September 6, 2014 outlining the appellant's account of how he came to the United States and diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX although the appellant denied the symptoms associated with them; * A letter dated May 5, 2014 (the date is in Spanish) stating that the appellant was compliant with probation requirements; * A "Supplemental Statement regarding Applicant's Admissibility to the United States" dated October 14, 2014, which appears to be about the appellant's juvenile offence only; and, * A court order dated XXXX 4, 2013 from Colorado giving his aunt care of him and noting that it is not safe for the appellant to be returned to Honduras to the care of his mother. [9] Section 110(4) of the Act states: 110(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their 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. [10] RAD Rule 3(g) of the Refugee Appeal Division Rules (the "RAD Rules")4 states that the appellant must present submissions regarding how the documentary evidence meets the requirements and how the evidence relates to the appellant. [11] The appellant must establish that the evidence arose after the rejection of their claim or that it was not reasonably available. Alternatively, the appellant must establish that he could not have reasonably been expected to have presented the evidence at the time of the rejection. RAD Rule 3 states that there should be submissions on this as well as the relevance of the evidence. [12] I have also considered the "Raza5 principles" as modified by Federal Court of Appeal (FCA) in Singh.6 It directs the Tribunal to consider the credibility, relevance and the newness of the evidence. In terms of credibility, RAD should consider credibility in terms of its source and the circumstances that it came into existence. This is different than a credibility assessment for the purpose of adjudicating the appeal, which looks at the credibility of the content of the document. [13] On record is a description of the documents but not submissions on how it meets section 110(4). [14] All of these documents existed before the appeal record was due. Even though there are two sets of submissions from the appellant in the memorandum; there are not sufficient submissions to show how the evidence was not reasonably available before hand and/or why he could not have reasonably been expected to have presented the evidence at the time of the rejection. For these reasons, the psychological report, the letter dated May 5, 2014, and the court order dated February 4, 2013 are not accepted into evidence. [15] Additional considerations apply to the "Supplemental Statement regarding the Appellant's Admissibility to the United States", dated October 14, 2014. I note that there was a change of counsel at the RAD level. In this case, and in these circumstances, it would be difficult for the appellant to anticipate that the fact that he enrolled in school, as set out in the document, might be a consideration. In this case, there is an argument that he could not have reasonably been expect to have presented this document beforehand. This document is accepted onto the record because its relevance, in this case, outweighs the consideration that the appellant did not make submissions as to why it was not submitted earlier. I have considered information in this report with regards to the appellant's rehabilitation and expiation. This is discussed later in the decision. Late evidence [16] The appellant has also provided additional submissions and transcripts after the appeal record was filed. [17] The appellant must demonstrate how these new documents have met the requirement of section 110(4) of the Act as well as RAD Rule 29.7 [18] RAD Rule 29 states that the RAD must consider: * relevance and probative value of the document; * any new evidence the document brings to the appeal; and, * whether evidence and submissions could have, with reasonable efforts, been provided beforehand. [19] In this case, there was a delay in acquiring Legal Aid funding for legal assistance. I accept that it is more likely than not that this delay interfered with an ability to provide the submissions beforehand. Further, the transcripts are accepted; they are not new evidence as the recording of the hearing is already on file. I have reviewed them and they are referred to in the decision. DETERMINATION ON WHETHER TO HOLD AN ORAL HEARING [20] Subsection 110(6) of the Act delineates when the RAD is permitted to hold a hearing. It states: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] This section states that the RAD can hold a hearing when there is new evidence that raises a serious credibility issue. Further, the evidence must be central to the decision. In addition, there is a requirement that the evidence would justify a final decision allowing or rejecting the claim. In this appeal, there is not a serious credibility issue and the documentation accepted onto the record does not raise any. For these reasons, the RAD will not hold a hearing. SCOPE OF RAD APPEAL [22] The role of the RAD has been considered in depth by the Federal Court of Appeal. In the Huruglica decision, Madame Justice Gauthier wrote that the RAD must apply the standard of correctness when considering RPD decisions where there is a finding of fact and mixed law and fact which does not raise an issue of credibility of oral evidence.8 After doing an independent analysis of the record to determine if the RPD erred, the RAD provides a final determination by confirming the RPD decision or by setting aside the RPD decision and substituting its own decision for it. If the RAD cannot provide a final determination without hearing the oral evidence presented to the RPD, the RAD can refer the matter back to the RPD for a determination. ANALYSIS OF THE MERITS OF THE APPEAL [23] I have conducted an independent assessment of the evidence and arguments.9 This review includes reviewing transcripts of the hearing and listening to the entire recording of the hearing. The compact disc of this recording is in evidence. Credibility assessment [24] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the appellant's testimony where the RPD would have been in a better position than the RAD to judge it. The RPD found that that the appellant was, for the most part, credible. These comments relate to the substance of the testimony and not to any behavioural or any other item that the RPD could observe and the RAD could not. For these reasons, I do not find that the credibility findings are owed deference. [25] Having reviewed the evidence I find that the appellant has been, overall, credible and do not have a reason to question the finding that he was an overall credible witness. Are there serious reasons for considering that the appellant has committed a serious non-political crime? [26] There is no question that the crime is a non-political crime; at issue is whether the crime was serious. In order to address this, I have considered the elements of the crime, the mode of prosecution, the penalty prescribed, and any aggravating or mitigating factors. Elements of crime [27] I have considered the elements of the crime. The appellant argues that the RPD did not consider the appellant's testimony that he was not in possession of drugs the other two times that he was arrested. However, the appellant also stated that he had lived in an apartment for three weeks where drugs were being put into balloons for trafficking.10 He did not dispute that he lived in the apartment where a considerable amount of drugs were found to be put into black balloons. The drugs may not have been on his person, but they were in the apartment where he lived with his girlfriend. That the drugs were in his apartment is not in dispute. I do not find that one needs to be carrying drugs upon their person to be in possession. [28] In paragraph 50 of the appellant's memorandum, the appellant states that he was not involved in the sale of drugs. However, during the hearing, the appellant stated that his girlfriend did the packaging and he did the selling.11 The appellant has not taken issue with this testimony. I did not find anywhere in the appellant's testimony before the RPD that the appellant denied he was selling drugs; rather he acknowledges that was what he was doing. It is not clear from the record whether the appellant was convicted for the second and third offence for trafficking, but he did admit to selling cocaine three times in his life.12 Further, he states that he was charged twice with an intent to distribute13 and as at he was arrested three times, he was arrested at least one time as an adult for trafficking. He was not convicted on the two last occasions but that is because he did not attend all of the court sessions for the last two arrests. I cannot conclude that he was not found guilty of the offences because of the merits. In addition, one does not have to be convicted to meet the criteria of Article 1F (b); there need only be serious reasons to consider that one committed a serious nonpolitical crime. His admissions of trafficking are the best evidence available on this issue; and they demonstrate that it is more likely than not that he was trafficking. [29] Further, the second arrest was in XXXX 2014 and the appellant's date of birth is XXXX25, 1995;14 he was of the age of majority after that and he was arrested the second time in July, 2014. [30] The drugs involved are cocaine and heroin; these are serious drugs and not light recreational drugs. These are controlled substances. It was not just one offence. He was caught living in an apartment where it was a business. He acknowledged that he was trafficking drugs. He also had possession of drugs. At the minimal, these are the elements of the offence. Mode of prosecution [31] The mode of prosecution is in a criminal court. The offence is not a hybrid offence, composed of summary and/or indictable offences, but is an indicatable offence. Penalty prescribed [32] As noted by counsel, the long standing rule of the ten year maximum sentence as an indicator of a serious crime is a guideline to be considered in the context of other elements. But it is the maximum sentence which must be considered, and for trafficking in these substances the maximum sentence is life imprisonment.15 The appellant has argued that the ten year rule was applied in a mechanistic, decontextualized and unjust manner. [33] According to the Supreme Court of Canada in Febles16 the ten year rule is a rebuttable presumption.17 It considered sentences where there was a range with ten or more years on the upper end and the lower end. However, a claimant should not be excluded if the crime was at the lower end of the sentence. In this case, ten years is not at the upper end; a life sentence is at the upper end. As stated before, the appellant did not receive a sentence because he was not present for the last two offences; however, it is a consideration that the range for a sentence for each crime is up to life in imprisonment. Further, there were two offences when the appellant was an adult; it is unlikely he would face a sentence at the lower end. Finally, in this paragraph the United Nations High Commissioner for Refugees lists some examples of what would warrant exclusion, this included drug trafficking. Having considered the context for the guideline of the ten year rule, I find that the presumption is not rebutted. However, this decision does not rest on the presumption of the ten year rule alone, it rests on an evaluation of the evidence and the context of the crimes themselves. Mitigating factors [34] The appellant has argued that he was young, separated from his family, and that he was under duress to work with his girlfriend who was a dealer. If he refused to do so, she would have terminated the relationships. Duress [35] The appellant has argued that he was under duress to traffic. His girlfriend would have terminated the relationship if he did not do so. Further, he had to provide money to his mother to pay a "tax" to a gang called the Madras. One should consider whether he was deprived a realistic choice; this goes to voluntariness of his actions. [36] I have considered the test for duress as set out by the Supreme Court of Canada in the Ruzic18 as set out by the Federal Court in Guerra Diaz.19 The questions are whether there was an urgent situation of clear and imminent danger, whether there was no reasonable alternative to breaking the law, and the proportionality between the harm inflicted and the harm avoided. [37] The prospect of being rejected by the appellant's girlfriend does not constitute a situation of clear and imminent danger. The appellant did not state that he would face further repercussions for refusing to sell the drugs. The evidence leads to the conclusion that he could have walked away from it. When one considers the proportionality between the harm inflicted as opposed to the harm avoided, the social harm of selling controlled substances illegally is outweighed by a personal experience of an unsuccessful relationship. [38] The appellant has argued that he had to deal drugs to send money to his mother to pay a tax. There is not sufficient evidence that it had to be drug money to pay the Madras. [39] In other words, it is more likely than not there was a reasonable alternative to dealing drugs. The appellant points out that he could not work legally in the US. While the appellant may have had to work illegally, there are many forms of less illegal work, including work that did not present the same degree of social harm being involved in the drug trade. [40] I have considered the proportionality between the harm the appellant would face and the social harm of the actions. That the appellant, as a young man of 19 years of age, would face the consequences of a failed relationship does not constitute duress. The appellant has noted that he was isolated. However, he was not completely cut off from his parents. He was sending money to his mother so he had some form of contact with her. Even as someone who is away from his family there is insufficient evidence that there would be any harm other than the feelings associated with a relationship that was lost. Again, while the mother needed money for the "tax", the appellant had other ways to provide it. [41] For these reasons, I do not find that the arguments for duress are compelling. In addition, I also find that the Federal Court in Guerra Diaz is influenced by the fact that in that case, the appellant was being threatened into providing cell phones to a dangerous drug gang and had tried to move to avoid them. It was clear that the gang would have caused significant harm to him and his family if he did not comply with their demands. In the appeal before me, the appellant's actions have a higher degree of turpitude. The consequences for himself are not as difficult to avoid, and the harm of a failed relationship is not as serious. For these reasons, I find that the Guerra Diaz decision is distinguishable from the appeal before me. Other mitigating factors [42] For the first offence, the appellant was a minor. I note that he was given a light sentence. However, for the second and third offences the appellant was young but not a minor. While the record could be clearer, it provides sufficient evidence to conclude that he was arrested twice for possession with intent to traffic and that he was only arrested one time as a minor. This means that on at least one occasion, he was arrested as an adult for possession with the intent to traffic. This is a serious consideration. In addition, there were in total three arrests. The mitigating factors must be weighed in the context of all of the evidence. Having considered the totality of the evidence, in this case, that the appellant is young is not sufficient. [43] If the appellant had only committed the first offence, it could be that the evidence would not show that there was serious reason to consider that he had committed a serious non-political offence. The appellant was a minor, he served XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX. This is not a sign of a serious offence. But he was arrested two more times, as an adult, and on at least one occasion, it was with the intent to traffic. In addition, these arrests occurred in a relatively short period of time, in less than two years. The first one was in 2013.20 The second one was in XXXX 2014. The third arrest was also in the US and would have occurred before XXXX 2015.21 Further, these arrests happened relatively recently; they are not remote events. There were three arrests for drugs that were not light or recreational. In addition, it is not disputed that the appellant lived in an apartment where the police found controlled substances and balloons used to traffic them. There was a stereo and a receipt for it, and a book with names and amounts.22 The appellant has stated that he was unaware of the book and that the receipt was because he exchanged the stereo for one that he had purchased earlier.23 I have not given these alleged facts weight. But he has also stated that he had lived there three weeks and he does not deny that there was drug trafficking in the apartment and he did not deny that he did so.24 These facts do lead to a conclusion that the appellant was committing a serious non-political crime. [44] I have considered the dissent in Febles written by Justice Abella and Justice Cromwell. They argue that considerations such as rehabilitation, expiation, and/or the completion of sentences will be relevant.25 There is documentation on record that in October 2014, the appellant had enrolled in school in the US.26 It is clear that these statements were written to stop the appellant from being deported in a report that seems to only address the offence committed when he was a minor. But it appears that the appellant abandoned the legal channels to stop the deportations and instead fled to Canada. In any event, even though the appellant had enrolled in school, he was still arrested in about XXXX 2014 for another drug charge. I have considered that he had served his sentence for the first offence. As stated before, I do not consider the first offence is a strong reason to find that the appellant committed a serious non-political crime. However, the appellant did not serve any penalty for the second and third offence. The reason that it is impossible to know whether he would have been convicted is that he did not attend trials for the second and third charges. The appellant has the burden of proof; there is insufficient evidence to conclude that it is more likely than not that the charges would be dismissed. The best evidence available is the appellant's testimony and the police documentation. It does not appear that the appellant attempted to make amends for the second and third offences; he left the country. The appellant has pointed out that he was told in the US that once he was 18 he would be deported.27 It appears that this would be a reason to leave the country. However, the appellant still has the burden of proof to show that there are not serious reasons to consider that he has committed a serious non-political crime. [45] I have considered the cumulative effect of all of the mitigating facts; however, even then it is not enough. The most compelling mitigating factors are the appellant's youth and isolation. But I have already explained why, in this case, they are not reasons to find that the crimes were not serious. The number of charges, the fact that he left without facing the consequences, the level of the drugs involved, namely cocaine and heroin, must be considered as well. Aggravating factors [46] Whether or not the appellant was on probation when he was arrested in XXXX 2014 is not a compelling factor. However, the appellant was arrested three times, living with the drug dealer where there were drugs and black balloons for trafficking in the apartment, he did not deny that he was trafficking,28 and he was charged with intent to distribute on two occasions. These are some of the considerations in the assessment of the evidence that, even if they are not considered aggravating factors, lead to a conclusion that the appellant has committed a serious non-political crime. SUMMARY [47] Have considered the totality of the evidence, the law and the arguments, I find that there are serious reasons to consider that the appellant had committed a serious non-political crime. I have set out my reasons for this conclusion in this decision. The appellant did not deny that he was selling drugs. There is insufficient evidence that the charges were fabricated. There are a significant number of facts that are noted in this decision that lead to the conclusion that it is more likely than not that the appellant was involved with dealing heroin and cocaine. To be involved in selling controlled substances is a serious non-political crime. REMEDIES [48] For these reasons, I find that the appellant is excluded from claiming that he is a Convention refugee and/or a person in need of protection in accordance with Article 1F(b). I confirm the decision of the RPD. (signed) "Patricia Broad" February 28, 2018 Date 1 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. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Refugee Protection Division (RPD) Decision, para. 9. 4 Refugee Appeal Division Rules, SOR/2012-257. 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Refugee Appeal Division Rules, SOR/2012-257. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 9 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040. 10 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, pp. 44-47. 11 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, pp. 34-35; p. 44. 12 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, Transcript, p. 35. 13 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, Transcript, p. 29. 14 Exhibit 3, RPD Record, Basis of Claim Form, p. 16. 15 Controlled Drugs and Substances Act (S.C. 1996, c. 19); section 5(3)(a); As Cocaine and Heroin are both Schedule I substances, trafficking either would result in being liable to imprisonment for life. 16 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68. 17 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, para.62. 18 R v Ruzic, 2001 SCC 24. 19 Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88. 20 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, p. 37. 21 Exhibit 3, RPD Record, Citizen and Immigration Canada "Schedule A", p. 47. 22 Exhibit 3, RPD Record, Statement in Support of Warrantless Arrest, p. 316 at p. 318. 23 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, p. 48. 24 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, pp. 44-45. 25 In paragraph 132 she also mentions that age would be a factor; this factor has already been addressed. 26 Exhibit 2, Appellant's Record, Supplemental Statement regarding Applicant's Admissibility to the US, dated October 14, 2014 [pages in record are not numbered]. 27 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, p. 42. 28 Exhibit 4, Appellant's Supplemental Record, Transcript of RPD Hearing, pp. 44-45. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-01383 RAD File No. / N° de dossier de la SAR : VB7-01383