MB4-02569

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 : MB4-02569 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 at Montréal, Quebec Appel instruit à Date of decision February 25, 2015 Date de la décision Panel Anna Brychcy Tribunal Counsel for the person who is the subject of the appeal Me Odette Desjardins Conseil de la personne en cause Counsel for the Minister Salvatore D'Aloia Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX is a citizen of Guatemala. He is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The appellant has not presented new evidence and has not requested an oral hearing before the Refugee Appeal Division (RAD). He asks that the RAD set aside the RPD's decision and replace it with a determination that he is a "Convention refugee" or a "person in need of protection", or, in the alternative, that the matter be referred back to a different member of the RPD for redetermination. DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellant is an excluded person pursuant to section 98 of IRPA and Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (The Convention). [3] The appeal is dismissed. BACKGROUND [4] The appellant left his country for the United States and lived there illegally. While in the United States he alleges he was falsely accused of assault by his common-law spouse in April 2008 and that his wife later withdrew her accusations. He was deported back to Guatemala. He tried again unsuccessfully to enter the United States but was deported a second time in 2011. He came to the United States a third time and then went on to Canada, which he entered illegally on November 11, 2012. Two years later, the appellant was apprehended during a routine police road check in Laval. He claimed refugee protection on February 5, 2014. In his Basis of Claim Form (BOC Form), the appellant states that he fears criminal gangs in Guatemala who tried to extort money from him and threatened to harm him. He fears that if he were to return to his country his life would be in danger. [5] The RPD heard the appellant's claim on March 22, 2014 and April 17, 2014. The RPD's written reasons, dated June 16, 2014, stated that the appellant's case for refugee protection was rejected. The RPD rejected the appellant's claim for refugee protection on the grounds that he was excluded from protection under Article 1F(b) of the Convention. The RPD was of the opinion that there were serious reasons for considering that the appellant had committed a serious non-political crime in the United States prior to making his claim for refugee protection in Canada. As the appellant was found to be excluded from refugee protection, the RPD Member was not required to assess the merits of the appellant's claim for refugee protection as it relates to Guatemala, his country of nationality. SUBMISSIONS OF THE APPELLANT [6] The appellant submits before the RAD that the RPD erred in its analysis of the application of the exclusion clause in 1F(b) by not carrying out a complete analysis of the evidence. The appellant submits that the RPD did not take into consideration in its decision the fact that the appellant had never been convicted of the charges that had been falsely brought against him. Having been deported back to Guatemala before the conclusion of the trial, the appellant did not have the opportunity to defend himself and be acquitted of the charges. [7] The appellant submits that the RPD ignored the evidence when it concluded that no mitigating circumstances were alleged or revealed in the record of the case (paragraph 31 of the RPD decision).1 The appellant argues that the RPD did not consider the affidavit of the appellant's former wife, where she states that she had made the false charges to the police because she had hoped that in having her husband found guilty of conjugal violence she would be able to legalize her stay in the United States in this way. She had then initiated steps to withdraw the charges that she had made against the appellant. The ex-spouse herself later returned voluntarily to Guatemala in the hope of continuing to live with the appellant with whom she shares a child. The appellant alleges that the RPD failed to consider these factors in its decision. MINISTER'S INTERVENTION AT THE APPEAL [8] The Minister of Public Safety Canada (the Minister) intervened in this appeal. Counsel for the Minister requests that the RAD, under s. 111(a) of the Act, confirms the determination of the RPD that the appellant be excluded from refugee protection pursuant to Article lF(b). The Minister did not present new evidence and did not request an oral hearing. [9] The Minister submits that the RPD's decision is reasonable and that its reasons are adequate and sufficient. The RPD concluded clearly that it was not necessary for the appellant to have been sentenced for his crime in conducting its analysis of the exclusion clause. The RPD had concluded that the police report and outstanding arrest warrant were sufficient to conclude that there were serious reasons to consider that the appellant had committed a serious non-political offence prior to his entering Canada. [10] The Minister submits that the RPD gave proper attention to the affidavit of the victim and that the RPD was reasonable in giving it little probative value. The RPD's reasons were explained. The Minister also argues that the appellant's good relations with his wife after the April 2008 incident are extraneous factors and do not constitute mitigating circumstances. [11] The Minister also submits that the RPD did not need to mention all aspects of the evidence in its decision. ROLE OF THE RAD [12] The RPD and the RAD are two distinct divisions within the Immigration and Refugee Board. They are part of the Canadian refugee protection system under IRPA, which governs them and whose objectives include establishing fair and efficient procedures that will maintain the integrity of this system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. In their respective roles, the RPD and the RAD must deal with whether or not to grant refugee protection to persons who make a claim. [13] While IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [14] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [15] The RAD is not a court of law and does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. While the Court had endorsed the standard of reasonableness in Iyamuremye,2 and accepted it in Malhotra,3 more recently, the Court, in Huruglica,4 found the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.5 It is to review all aspects of the RPD's decision and come to an independent assessment of the appellant's refugee claim. [16] Considering that the RPD views the evidence first-hand, deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. This panel member of the RAD will be following the case of Huruglica in dealing with this appeal. Accordingly, the RAD will conduct its own assessment of all the evidence and come to an independent assessment of whether exclusion 1F(b) applies in the present case. ANALYSIS OF THE MERITS OF THE APPEAL [17] Section 98 of IRPA provides: 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. [18] Article 1E and F of The United Nations Convention Relating to the Status of Refugees states: 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. [19] In examining the exclusion clause in 1F(b), the RPD noted that, had the armed assault against his common-law spouse occurred in Canada, section 267 of the Canadian Criminal Code calls for an indictable offence subject to imprisonment not exceeding 10 years, or an offence punishable on summary conviction and liable to an imprisonment not exceeding 18 months. In concluding that the appellant's offence did constitute a serious, non-political crime, the RPD evaluated the elements of the crime, the mode of prosecution, the penalty prescribed, and the mitigating and aggravating circumstances underlying the conviction.6 Appellant was never convicted of his crime [20] The appellant in his memorandum submits that he had never been convicted for his alleged crimes. In being deported to Guatemala before his trial he did not have the opportunity to defend himself and be acquitted of the charges. It must be kept in mind that under Article 1F of the Refugee Convention, it is not necessary that a person be actually convicted.7 [21] The issue of exclusion at the RPD hearing had been raised by the Minister. The Minister must prove, based on the evidence presented, which includes the appellant's testimony, that there are "serious reasons for considering" that the claimant has "committed" a serious non-political offence prior to entering Canada. In a number of Federal Court decisions, the Court has outlined the standard of evidence set out in the phrase "serious reasons for considering". It is well below what is required in connection with either criminal law (beyond a reasonable doubt) or in civil law (balance of probabilities or preponderance of evidence).8 [22] In the case of Moreno v. Canada, the Court stated that it is universally accepted that the applicability of the exclusion clause does not depend upon whether a claimant has been charged or convicted of the criminal acts set out in the Convention. But, rather the burden of proof falls on the Minister to merely demonstrate that there are serious "reasons to considering" that the claimant committed these acts.9 The Federal Court of Appeal (FCA), in Zrig v. Canada, added to the above premise by stating that, "The Minister does not have to prove the respondent's guilt. He merely has to show...that there are serious reasons for considering the respondent's guilt."10 [23] With respect to the appellant`s arguments that he had never been convicted for his crimes, the RAD is in agreement with the intervention of the Minister who submits that for an exclusion under 1F(b) it is sufficient to establish that serious reasons exist to believe that the appellant has committed a serious crime. The RPD had found that the Minister had presented credible and trustworthy evidence in the form of a police report and arrest warrant which showed that the charges against the appellant are still outstanding. The RPD clearly stated in paragraph 23 of its Reasons and Decision that the Minister's evidence was the basis on which it had concluded that there were serious reasons to consider that the appellant had committed a serious non-political offence prior to his entering Canada. The RAD is in agreement with the RPD's conclusion on this point. Failure to consider ex-spouse's affidavit [24] The appellant also submits that the RPD did not give proper attention to the ex-wife's solemn declaration. In her affidavit, the appellant's former spouse, who now resides in Guatemala, states that she falsely made accusations against the appellant in the hope of getting permanent legal status in the U.S as a victim of domestic violence. She states in her affidavit that she began procedures to withdraw the accusations. She could not continue her efforts because she had returned to Guatemala. The RAD agrees with the RPD that the ex-wife was vague in her affidavit as to what steps exactly she had taken and when she had done so. While the appellant had testified that his ex-wife had sent a letter to the Court to withdraw the charges, the Minister's evidence had revealed that the charges against the appellant were still outstanding, as of January 2014, as is the warrant for his arrest. In its reasons, the RPD clearly states that this element negatively affected the credibility of the ex-spouse's declaration that steps had actually been taken to have the charges dropped. [25] Furthermore, the RAD is in agreement with the RPD when it gave the ex-wife's declaration little probative value. It had contradicted what she had stated to police officers on the night of April xx 2008, when they had responded to the call for the incident of domestic violence and at which time she had stated to the officers that she had been attacked and threatened with a knife. The RPD gave more probative value to the police report by the officers who had been present at the scene and who had taken her declaration and noted her emotional state and the traces of physical violence on the victim. The police report also mentions that a knife had been found at the scene and that the victim had also declared that the appellant had been violent with her in the past. The police report is from the United States, a country which is internationally recognized as respecting the rule of law and due process, and it was made by the officers present at the scene who would have no interest in the outcome of this refugee claim. The RAD therefore does not agree with the appellant that the RPD member failed to consider the evidence. The RPD member clearly considered the ex-wife's affidavit and gave clear reasons as to why the report of the police officers was preferred. Failure to consider mitigating circumstances [26] The appellant states that the RPD failed to consider the mitigating factors which could decrease the seriousness of the alleged crime committed. In the section of the RPD's decision entitled "Aggravating and Mitigating Circumstances", the RPD member discusses the aggravating factors but states at paragraph 31 that no mitigating factors had been alleged or are apparent in the record. The appellant alleges that this statement by the RPD implies that the RPD totally ignored the evidence. The RAD finds that the RPD made reference to the evidence in other places in her decision. There was not a lack of analysis of the evidence. A reading of the RPD decision indicates that in paragraphs 19 and 20 the RPD member had examined in detail the affidavit of the ex-wife and stated the reasons why she had found her credibility to have been undermined and why the document had been given little probative value. The RPD had not found the ex-wife' statement that the abuse did not take place to be credible. [27] The existence of mitigating or aggravating circumstances is one of the issues that the RPD must consider in its assessment of the seriousness of the crime committed, as mentioned in Jayasekara. These factors relate to the commission of the offence and its nature. The appellant in this case alleges that his ex-wife had made false accusations against him in April 2008 and that he did not assault her and nor did he threaten her with a knife or state that he would kill her. [28] The appellant also states that the RPD did not consider the good relationship that the ex-spouse appears to have with the appellant today. In considering the fact that the abuse occurred against his former partner, in paragraph 28 of its reasons the RPD member made reference to the principle in imposing a sentence, that the offence is aggravated, if the abused was the offender's spouse or common-law partner (Criminal Code, s. 718.2(a)(ii)).11 [29] The fact that the appellant was never convicted is also not a mitigating circumstance regarding the seriousness of the crime. The appellant had declared that the accusations against him had been withdrawn and that he had been informed by a U.S. immigration official at the time of his second deportation, in October 2011, that his file had been closed. However, the RPD had noted that the Minister's evidence had shown that these accusations still existed according to the information obtained from the U.S. authorities on January 27, 2014. The RAD finds that the RPD considered all the evidence and rightly concluded that there were no mitigating circumstances. [30] In the present case, there are serious reasons to believe that the appellant committed the domestic violence of which he was accused. Domestic violence is serious and considered so in both Canada and the United States. In the present case it involved a knife and threats to the life of the pregnant spouse of the appellant. While the presumption of seriousness of a crime may be rebutted by reference to one of the factors mentioned in Jaysakera, the RAD, like the RPD, did not find the ex-wife's statements that the abuse had not occurred to be credible. The fact that she now appears to have a good relationship with the appellant and the fact that he was never convicted of his crime are not mitigating circumstances. [31] For the above mentioned reasons, the RAD finds, like the RPD, that there are serious reasons for considering that the appellant has committed a serious non-political crime, as stated in Article 1F(b) of the Convention and in section 98 of IRPA, and that he is therefore excluded from claiming refugee protection. CONCLUSION [32] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellant is an excluded person pursuant to section 98 of IRPA and Article 1F(b) of the Convention. The appeal is dismissed. Anna Brychcy Anna Brychcy February 25, 2015 Date /cl/kp 1 RPD decision, par. 31. " Par ailleurs, aucune circonstance atténuante n'a été alléguée ou ne ressort du dossier en l'espèce. " 2 Iyamuremye, Oscar v M.C.I. (F.C.,No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 3 Malhotra v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014; 2014 FC 768. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Huruglica,para. 45. 6 Jayasekara v. Canada (Minister of Citizenship and Immigration), A-140-08, Letourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, at paragraph 44. 7 Unachukwu v. Canada (Citizenship and Immigration), 2014 FC 199. 8 Ramirez v. Canada (M.E.I) [1992] 2 F.C. 306 (C.A); Sivakumar v. Canada (Minister of Employment and Immigration) (CA.), [1994] 1 C.F. 433 ; Moreno v. Canada ( Minister of Employment and Immigration ) ( C.A. ), [1994] 1 F.C. 298; Zrig v. Canada (Minister of Citizenship and Immigration) (C.A.), 2003 FCA 178, [2003] 3 F.C. 761. Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40 [2013]ACS no. 40 (QL) 9 Moreno v. Canada (Minister of Employment and Immigration ) ( C.A. ), [1994] 1 F.C. 298. 10 Zrig v. Canada (Minister of Citizenship and Immigration) (C.A.), 2003 FCA 178, [2003] 3 F.C. 761 at paragraph 56. 11 Unachukwu v. Canada (Citizenship and Immigration), 2014 FC 199. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02569 9