VB8-06720

RAD File No. / No de dossier de la SAR : VB8-06720 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 14, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Kay Scorer Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX, a citizen of Guatemala, is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [3] In the Basis of Claim Form (BOC Form) that he filed before the RPD, the appellant alleges fearing criminals in Guatemala known as Maras who have blackmailed, threatened and assaulted him for many years. [4] The appellant claimed refugee protection in Canada in March 2017. [5] The RPD rejected the claim for refugee protection because there were serious reasons for considering that the appellant had committed a serious non-political crime in the United States, which if committed in Canada would have been "impaired driving causing death," and consequently, the appellant was excluded from protection under Article 1F(b) of the Convention. [6] Before the RAD, the appellant submitted that the RPD erred in its assessment of the seriousness of the offence he had committed in the United States, for reasons that will be detailed in the "Analysis" section below. [7] For these reasons, the appellant is asking the RAD to set aside the RPD's determination and refer the matter to the RPD for re-determination. [8] The Minister of Immigration, Refugees and Citizenship Canada (the Minister), through his representative, intervened before the RAD by filing a notice of intervention in which he submits that the RPD did not err in its determination, for reasons that will also be detailed below in the "Analysis" section, if necessary. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [9] The role of the RAD is to review RPD decisions, applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. ANALYSIS The RPD did not err in its assessment of the seriousness of the crime committed by the appellant in the United States. [10] In this case, the appellant does not deny having committed the crime of "impaired driving causing death." [11] The evidence presented before the RPD establishes the following: [12] - The appellant, born in Guatemala in 1973, was living without legal status in the United States as of 1989. [13] - In March 1994, the appellant was driving a friend's car while intoxicated and caused an accident. The driver of the other car involved in the accident died. [14] - The appellant was arrested and convicted in March 1995 by a Florida State court for the crime of "Driving under the influence and causing death of an individual human being," and sentenced to nine years of imprisonment. [15] - The appellant was released from prison in November 2000, after five years and nine months' imprisonment. [16] The RPD found that there were serious reasons for considering that the appellant had committed a serious non-political crime in the United States, equivalent in Canada to the crime of impaired driving causing death, as described in paragraph 253(1)(a) of the Criminal Code of Canada (now subsection 320.14(3) of the Criminal Code) which states that: 320.14 (1) Everyone commits an offence who (a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (b) (...) (c) (...) (d) (...) (2) (...) (3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person. [17] The punishment provided for this offence, under subsection 255(3) of the Criminal Code (now section 320.21 of the Criminal Code) is the following: 320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of, (i) for a first offence, a fine of $1,000; (ii) for a second offence, imprisonment for a term of 30 days; and (iii) for each subsequent offence, imprisonment for a term of 120 days. [18] In its assessment of the seriousness of the crime committed, the RPD considered the factors for doing so set out by the Federal Court of Appeal in Jayasekara (Jayasekara v. M.C.I. 2008 FCA 404), which reads as follows at paragraph 44: [44] I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S. & Ors v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, No. 05-15900, (U.S. Court of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (England C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24. [19] In his memorandum, the appellant submits that the RPD erred in its assessment of one of these factors to be considered in assessing the seriousness of the crime committed, namely, that of mitigating and aggravating circumstances underlying the conviction. [20] The appellant submits that the RPD erred in considering the other offences he committed in the United States, including the fact that he drove a motor vehicle while his driver's licence was suspended following the offence committed in March 1994, as being aggravating circumstances. The appellant contends that these facts are extraneous to the commission of the crime of "impaired driving causing death" for which he was convicted. [21] I agree with the appellant on this matter. The RPD erred in considering subsequent offences committed by the appellant in the United States. These are not aggravating circumstances underlying the conviction for the crime committed in March 1994. [22] However, I am of the opinion that this error does not vitiate the RPD's decision. [23] While there should not have been aggravating circumstances underlying the conviction, I find that there are also no mitigating circumstances underlying the conviction. [24] In his memorandum, the appellant submits that the fact that, at the time the crime was committed, he was homeless, without legal status, uneducated, unable to speak the language, 21 years old and living in poverty are mitigating factors that the RPD should have considered. [25] The RPD considered these factors in its reasons and concluded that these facts were not mitigating factors. I agree with the RPD on this matter. I do not see how these facts could mitigate the seriousness of the crime committed, as submitted by the Minister in his notice of intervention. [26] The appellant was an adult when the crime was committed and clearly had the ability to differentiate between right and wrong. That he was homeless, poor and uneducated in no way diminishes the seriousness of the crime committed. The same is true for the fact that he did not speak the language, or at least not fluently, since the appellant had already been living in the United States for five years, and that he did not have legal status there. [27] Moreover, the Federal Court of Canada, at paragraph 14 of its decision in Pullido Diaz (M.C.I. v. Pullido Diaz, No. IMM-4878-10) indicates that: [14] The Board further erred in its consideration of contextual matters. Jayasekara, above, specifically rejects inclusion of personal circumstances in the serious crime analysis. Factors such as age, economic condition or tragedy (such as rape) may have been relevant to sentencing in the U.S. but they do not address the seriousness of the offence itself. Taking these factors into account in balancing the seriousness of the offence distorts the picture of the offences themselves (Jayasekara, above). [28] Next, in this case, the RPD considered the other factors set out in Jayasekara to assess the seriousness of the crimes committed, such as the elements of the crime, the mode of prosecution (indictment in Canada), and the penalty prescribed (15 years of imprisonment in Florida and life imprisonment in Canada). [29] The appellant does not contest these RPD conclusions, as he notes at paragraph 22 of his memorandum. I do not see where the RPD allegedly erred in this matter. [30] Next, the appellant was sentenced to nine years' imprisonment in the United States. He submits in his memorandum that this sentence demonstrates that the court that convicted him was sympathetic to his situation. I disagree with this submission. I find that a nine-year prison sentence is, on the contrary, a severe sentence, and that nothing in the evidence produced shows that the Florida court was [translation] "sympathetic" to the appellant's situation. [31] The appellant criticizes the RPD for writing that the crime committed is considered "[t]he most serious crime in Canada," because it carries a life sentence. I am of the opinion that the RPD's use of this term has no bearing on its (or the RAD's) assessment of the seriousness of the crime committed. The RPD correctly considered all the elements required to evaluate the seriousness of the crime committed, and its conclusion is not based on its statement about "[t]he most serious crime in Canada." [32] Consequently, I find that the RPD did not err in concluding that there are serious reasons for considering that, prior to arriving in Canada, the appellant committed a serious non-political crime and that exclusion clause 1F(b) applies to him. [33] Considering all of the above, I conclude that the appellant has not established that the RPD committed errors justifying the RAD's intervention. REMEDY [34] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [35] The appeal is dismissed. "Normand Leduc" Normand Leduc January 14, 2020 Date IRB Translation Original Language: French RAD File No. / No de dossier de la SAR : VB8-06720 RAD.25.02 (April 4, 2019) Disponible en français 7 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.25.02 (April 4, 2019) Disponible en français