MB7-22434

RAD File No. / No de dossier de la SAR : MB7-22434 Private Proceeding / Huis clos Reasons and decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXa.k.a. XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 16, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Éric Taillefer Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Farah Merali Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXXa.k.a. XXXX XXXX XXXX, a citizen of the Democratic Republic of Congo (DRC), appealed the decision of the Refugee Protection Division (RPD) dated October 16, 2017, rejecting his refugee protection claim on the grounds that he is excluded under Article 1E and Article 1F(b). [2] On July 16, 2019, the Refugee Appeal Division (RAD) confirmed the determination of the RPD and rejected his appeal on the grounds that he is excluded under Article 1E of the Convention. [3] On July 24, 2020, the Federal Court, having received an application for judicial review of the decision rendered by the RAD, decided to allow the application, concluding that: ...the RAD had to conduct an analysis of the applicant's risk with respect to his country of residence...The purpose of Article 1E of the Convention is to ensure that a person fleeing his or her country of nationality cannot claim refugee protection in a third country when he or she may already be residing in another country. If the refugee protection claimant fears persecution in both his or her country of nationality and that of residence (which is the case here), such an interpretation would not reflect the spirit of the law as a whole and would be contrary to Canada's international obligations in not allowing him or her to seek Canada's protection simply because he or she has the right of residence in both countries.1 [4] On October 2, 2020, following the Federal Court decision, the appellant submitted a supplementary memorandum wherein he comments on the documentary evidence already submitted and submits a few additional documents to corroborate his allegations.2 [5] In his initial appeal memorandum, the appellant alleges that the RPD erred:3 a. In its assessment of his credibility b. In its analysis of exclusion clause 1E c. In its analysis of exclusion clause 1F(b) [6] The appellant is asking the RAD to recognize him as a Convention refugee or a person in need of protection.4 [7] The appellant is relying on evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) but is not requesting that a hearing be held before the RAD.5 [8] As reflected in the Federal Court decision, the determinative issues for the RAD are first to assess the appellant's fear and risks in his country of residence, the United States (exclusion clause 1E), and also exclusion clause 1F(b). Given that the appellant is excluded under Article 1E and Article 1F of the Convention, he is neither a Convention refugee nor a person in need of protection under section 98 of the IRPA. Therefore, the RAD will not rule on inclusion. DETERMINATION [9] For the reasons set out below, the appeal is dismissed. The RAD agrees with the RPD's conclusion that the appellant is excluded from protection under Article 1E and Article 1F(b) of the Convention and section 98 of the IRPA. BACKGROUND [10] The appellant provided different Basis of Claim Forms (BOC Forms) with different identities, different dates of birth and different stories. The first Basis of Claim Form [11] His first BOC Form set out the following allegations. He was born in Kinshasa on XXXX XXXX XXXX XXXX. He never knew his biological father and lived with his mother and stepfather from age two onwards. [12] On XXXX XXXX XXXX 2015, his stepfather was shot by the Republican Guard during a protest. The same day, the appellant and his mother were arrested by the army. The appellant was tortured and kept in a cell until the end of XXXX 2015. [13] On XXXX XXXX XXXX 2015, the appellant bribed a military member who helped him to escape and hide. [14] On XXXX XXXX XXXX 2015, he left the DRC and went to Canada, where he asked for Canada's protection on XXXX XXXX XXXX 2015. Minister's intervention [15] On July 23, 2015, the Minister filed a notice of intervention6 in which he submits that XXXX XXXX XXXX is not the appellant's true identity. He also states that the true identity of the person concerned is XXXX XXXX XXXX, that he is a permanent resident of the United States, that he holds a green card that is valid from XXXX XXXX XXXX 2014, to XXXX XXXX XXXX 2024, and that there is a warrant for his arrest in Texas for sexual contact with a minor. [16] The Minister asks the RPD to conclude that the appellant is excluded from the application of the Convention under Article 1F(b) and Article 1E, to conclude that his request compromises the integrity of the Canadian refugee protection program and to reject his refugee protection claim. The subsequent Basis of Claim Forms [17] In the second BOC Form submitted in XXXX 2015, the appellant now maintains that his name is XXXX XXXX XXXX and admits that he arrived in Canada under a false identity. He alleges that he has suffered from XXXX since age XXXX and that he was sent to see a healer. [18] He explains that his father is still alive and that he left the DRC to settle in the United States in 2000. The appellant joined his father in 2014, but his father sent him back to the DRC in XXXX 2015 following an incident with his XXXX XXXX XXXX (the XXXX-year-old minor and victim of the sexual contact). [19] The appellant alleges that he fears law enforcement in the DRC, because his father is an opponent, and that he also fears the public, who associate him with witchcraft. In the United States, he alleges that he fears his father and being mistreated if he has to go to prison there. [20] The RPD rejected his refugee protection claim, concluding that the appellant is a person referred to in Article 1E and Article 1F(b) of the Convention.7 NEW EVIDENCE [21] Under the IRPA,8 the RAD can allow only evidence: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [22] If the evidence meets one or more of these requirements, the RAD must decide whether the evidence is new, credible and relevant before admitting it.9 [23] The appellant commented on the documentary evidence already submitted to the RPD, addressing the situation in the United States, and stated that this evidence was very clear10 and shows that even American citizens who have mental health problems are overrepresented in American prisons and may be mistreated or sexually assaulted in prison. In some states, the death penalty can even be applied and although he has no information showing that that could be the case for him, it nonetheless reveals the attitude of the American authorities with regard to this issue.11 [24] The appellant also stated that, according to Human Rights Watch, Black people in the United States make up a high percentage of the prison population and have a greater risk of mistreatment in the American justice system and, in the wake of the Black Lives Matter movement, these actions committed by police officers have come under the media spotlight.12 [25] The appellant presented five new pieces of evidence in support of his appeal: A) Exhibit P-1 is a document providing an overview of DW (Deutsche Welle), Germany's international broadcasting organization. B) Exhibit P-2 is a news article written by Bryan Stevenson, published in The New York Times on August 14, 2019, titled "Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system." C) Exhibit P-3 is a news article posted on the website of the German radio station DW (Deutsche Welle) titled "Blacks in the US targeted by an unfair justice system." There is no date on this article. D) Exhibit P-4 is a news article written by Alisa Roth, published in The Guardian on March 31, 2018, titled "A ?hellish world': the mental health crisis overwhelming America's prisons." E) Exhibit P-5 is a news article written by Wendy Sawyer, published in Prison Policy Initiative on July 27, 2020, titled "Visualizing the racial disparities in mass incarceration." [26] The burden is on the appellant to make complete, detailed submissions in his memorandum regarding how the new evidence being presented meets the requirements set out in subsection 110(4) of the IRPA and how it relates to the appellant. [27] In his supplementary memorandum, the appellant argues that these documents meet the requirements set out in subsection 110(4) of the IRPA. [28] He states that:13 - This evidence shows that there is a problem not only with the American prison system but with all levels of the United States criminal justice system, which is biased against African-Americans and black people. According to sources cited in The New York Times, this systemic behaviour originated from the era of slavery in the United States and from the Jim Crow laws of the early 20th century. - The documents submitted provide new evidence arising from recent events in the United States. It did not exist at the time of the hearing before the RPD or even before the RAD prior to the decision rendered in 2019. - The purpose of this evidence is to demonstrate that the situation is ongoing and that the American authorities have little or no concern about it. The evidence also demonstrates that the appellant still faces a prospective risk should he return to the United States. - In addition, this information reveals that incarceration and prison conditions go beyond the effects of generally applicable laws. Although the American criminal justice system applies to everyone, it does not apply to everyone in an equal fashion. Elements of systemic racism have infiltrated the system, making it unfair for non-Whites. It is also unfair for people with mental health problems and non-citizens. The punishment he may face in the United States therefore constitutes cruel and unusual punishment, triggering the application of section 97 of the IRPA. [29] The RAD's role with regard to new evidence presented by an appellant is clearly set out in subsection 110(4) and in Singh and Raza, as stated above in paragraphs 21 and 22. The RAD does not have discretion to admit new evidence. [30] Consequently, these pieces of evidence already form part of the evidence and have already been admitted in evidence. The five exhibits submitted with the supplementary memorandum (P-1 to P-5) [31] Exhibit P-1 is an overview of Deutsche Welle. [32] This document provides an overview of the German broadcasting organization DW, including its mission, vision, programs, audience, distribution and activities. It was taken from the channel's website and is of an informative nature. [33] The document has no date and does not meet the requirements of subsection 110(4) because its issue date is unknown. As a result, it will not be admitted as new evidence. [34] Exhibit P-2 is a news article written by Bryan Stevenson, published in The New York Times on August 14, 2019, titled "Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system." [35] This article discusses the history of slavery in the United States and its relationship with the application of American justice to Black people. The article is dated August 14, 2019. It meets the first requirement of subsection 110(4), as it arose after the RPD rendered its decision. It is new because it was issued after the RPD's decision. It is credible because it was published by one of the most credible newspapers in the United States and it is relevant because it discusses a topic that is directly related to this case. It is admitted as new evidence. [36] Exhibit P-3 is a news article posted on the website of the German radio station DW (Deutsche Welle) titled "Blacks in the US targeted by an unfair justice system." [37] This article has no date but begins its analysis by referring to the Black Lives Matter movement, which arose after the death of George Floyd, demonstrating that it was written after the RPD hearing. Like Exhibit P-2, the article reviews the history of the injustices inflicted upon African-Americans. It is admitted as new evidence. [38] Exhibit P-4 is a news article written by Alisa Roth, published in The Guardian on March 31, 2018, titled "A ?hellish world': the mental health crisis overwhelming America's prisons." [39] This article discusses the situations of some individuals who have mental health problems in American prisons. The article was published after the date of the hearing before the RPD and is new, credible and relevant. Therefore, it is admitted as new evidence. [40] Exhibit P-5 is a news article written by Wendy Sawyer, published in Prison Policy Initiative on July 27, 2020, titled "Visualizing the racial disparities in mass incarceration." [41] This article addresses the racial inequality that is apparent at different levels of the criminal justice system in the United States using several comparative tables and images. The article was also published after the hearing before the RPD and is new, credible and relevant. It is therefore admitted as new evidence. [42] Although the four admitted documents were published after the date of the RPD's decision, their general content fails to establish any direct or indirect link to the appellant's story of persecution or to his risks and threats, as will be expanded upon later on in the analysis of this case. [43] The Federal Court case law clearly establishes that it is incumbent on the RPD to examine the most recent sources of information in assessing the evidence even in cases where the updated country reports are not filed by the applicant.14 [44] In the RAD's opinion, this principle also applies to the RAD.15 It is necessary to assess the risk faced by the refugee protection claimant from a prospective view.16 Consequently, the RAD should consider the most recent information on country conditions at the time of reviewing the RPD's decision and assessing the risk of persecution or harm faced by the appellant. [45] However, according to Majebi,17 the RAD must assess the evidence for exclusion under Article 1E at the time of the hearing before the RPD. The RAD is of the opinion that the new evidence simply confirms the existence of acts of discrimination against black people, but that they do not constitute a deliberate, widespread and systemic policy to the extent that they could be considered persecution. STANDARD OF REVIEW [46] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage with respect to the credibility assessment.18 That being said, the RAD's role is to determine whether the RPD did in fact err, as the appellant claims. [47] The RAD applied the correctness standard in this case. ANALYSIS Preliminary remarks [48] In his supplementary memorandum, the appellant submits that the Honourable Mr. Justice Shore of the Federal Court set aside19 the RAD decision rendered on July 16, 2019. [49] The RAD notes that the Federal Court allowed the application for judicial review, considering the conclusions regarding the applicant's permanent resident status in the United States to be reasonable20 and those related to the possibility of persecution in the United States to be unreasonable,21 and decided that the matter should be returned to the RAD for re-determination.22 [50] The appellant also submitted that his supplementary memorandum was produced after the panel notified him of his right to update his record following the Federal Court decision and that the submissions contained therein concern his risk of persecution in the United States. He asked whether the RAD considers it necessary to analyze exclusion clause 1F(b) and to let him know so that he may provide further submissions on the topic as the previous submissions were made several years ago.23 [51] The RAD disagrees for the following reasons. [52] First, it is a de novo assessment and, in such a case, the RAD must analyze the entirety of the record. [53] Second, the RPD concluded that the appellant was excluded from Canada's protection under Article 1E and Article 1F(b) of the Convention and the appellant appealed the decision of the RPD and submitted his arguments and criticisms of the RPD's decision, including those related to exclusion clause 1F(b). [54] In its decision rendered on June 16, 2019, the RAD concluded that, because the appellant was excluded under Article 1E, it was unnecessary for it to rule on the other issues raised in the appeal, including exclusion clause 1F(b). [55] Last, on October 26, 2020, the appellant's counsel made an application for an extension of the time to file additional submissions following the Federal Court's decision. The RAD allowed the application and, pursuant to subsection 159.91(2) of the Immigration and Refugee Protection Regulations, extended the time limit by one week, until November 2, 2020, although there was nothing to prevent the appellant's counsel from including all of his submissions in the supplementary memorandum. [56] The appellant's counsel replied via a notice dated October 26, 2020, stating that the time limit was short and asking the RAD for one month of additional time to prepare his submissions, given the complexity of the case. [57] On October 27, 2020, the RAD allowed the request made by the appellant's counsel, stating that although there was nothing to prevent him from including all of his submissions in the supplementary memorandum following the Federal Court decision, for the purposes of natural justice, the RAD allows the application for extension until November 26, 2020, despite the time constraints associated with de novo cases such as this one. [58] On November 26, 2020, the RAD received a notice from the appellant's counsel stating that after rereading the record, the appellant's counsel had no additional submissions concerning exclusion clause 1F(b). THE APPLICATION OF EXCLUSION CLAUSE 1E The appellant's permanent resident status in the United States [59] Like the RPD, the RAD concluded in its first decision that the appellant had permanent resident status in the United States on the date of the last hearing before the RPD (on February 11, 2016). [60] The appellant challenged that conclusion in his memorandum. [61] In its decision, the Federal Court concluded that: [62] "The prima facie presumption of permanent residence can only be rebutted by convincing evidence, not by uncertainty", that the appellant did not provide any evidence that the American authorities have terminated his permanent resident status in that country and that, in this case, it was not unreasonable to conclude that this evidence did not contradict the RPD's finding that loss of status is merely a possibility.24 [63] There was no reason to believe that the appellant had lost his permanent residence at the time of the last RPD hearing.25 [64] The RPD reasonably concluded that the appellant was covered by Article 1E and therefore could therefore not claim refugee protection in Canada as a result of alleged risks in the DRC.26 The possibility of persecution in the United States [65] The RAD acknowledges that there are two lines of authority with regard to whether a risk analysis must be conducted in the first prong of Zeng. In this case, the Federal Court pronounced in favour of conducting the risk analysis, contrary to Célestin and St Paul. The RAD follows Justice Shore's opinion, set out at paragraph 23 et seq. of that decision, that the risk analysis should be conducted in the country of residence, in this case, the United States. [66] Like the RPD, the RAD concluded that the possibility of the appellant's incarceration in the United States is speculative, since it is not certain that the appellant would be convicted of the charges against him.27 [67] The appellant challenged that conclusion, primarily basing himself on the arrest warrant issued by the Texas judge in the United States. [68] The Federal Court considered the RAD's conclusion to be unreasonable, as the RAD did not conduct an analysis of conditions in American prisons for Black inmates with mental health problems in response to the appellant's allegations of persecution. It appears undeniable that the appellant will be incarcerated should he return to the United States, as there is an arrest warrant against him, which prompted him to flee to the DRC and then travel to Canada. It would be unreasonable not to conclude that the American justice system would consider the accused appellant, who is still a Congolese citizen, to be a flight risk and would therefore detain him pending trial.28 [69] The Federal Court also concluded that: ...even if the applicant were to be incarcerated there, it has not been established that he would be persecuted. Certainly, a new RAD decision could reach that conclusion. That being said, it is not for this Court to conduct that analysis. In this case, the RAD did not consider further analysis to be warranted since it had determined (unreasonably) that it was hypothetical to say that the applicant would be incarcerated in the United States. It follows necessarily from this Court's earlier conclusion that the RAD must complete its analysis with respect to the United States.29 [References omitted.] [70] In his initial memorandum, the appellant submits that it is certain that he will be incarcerated in the United States and that he will be subject to cruel and unusual treatment or punishment there.30 Although criminal statutes are generally applicable, the situation in American prisons is still dangerous, especially for African-Americans and inmates with mental health problems. [71] In his supplemental memorandum, the appellant also submits that the information contained in the news articles he presented as new evidence reveals that incarceration and prison conditions go beyond the effects of generally applicable laws. The American criminal justice system does not apply to everyone in an equal fashion. It has been infiltrated by elements of systemic racism, making it unfair for non-Whites, people with mental health problems and non-citizens. The appellant is subject to a threefold risk of persecution as he is a black non-citizen with schizophrenia. The punishment he may face in the United States therefore constitutes cruel and unusual punishment, triggering the application of section 97 of the IRPA.31 Does the feared harm amount to persecution? [72] Although the RAD considers that the appellant will be arrested in order to be brought to justice should he return to the United States and although discrimination and harassment are widespread in American prisons, it does not agree that the appellant will be subject to persecution for the following reasons. [73] First, it is necessary to distinguish between persecution and discrimination. [74] To be considered persecution, the mistreatment suffered must be serious,32 and the inflicting of harm must occur with repetition or persistence, or in a systematic way.33 In order to determine what would qualify as serious, it is necessary to take into account the interest of the refugee protection claimant that is subject to harm and the extent to which that interest might be compromised. The courts have equated the notion of seriousness with the denial of a core human right.34 [75] The requirement that the harm be serious has led to a distinction between persecution and discrimination or harassment, with persecution being characterized by the greater seriousness of the mistreatment it involves.35 The courts have also distinguished between persecution and mere unfairness.36 [76] Paragraph 54 the UNHCR Handbook37 states that persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. Mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution.38 [77] As shown by the new evidence, certain categories of inmates in the United States are subject to acts of discrimination and harassment. Although these acts truly occur, they cannot be used to justify international protection, as demonstrated in paragraphs 82 and 83 below. [78] In addition, after using a false identity and making false allegations, the appellant admitted to committing a serious crime in the United States, attributing it to XXXX health problems. He stated that he does not wish to go to the United States because he fears going to prison. [79] During the hearing before the RPD (the second hearing) on December 9, 2015, the appellant claimed that he has no memory of the events (the sexual assault against XXXX minor XXXX) that took place on XXXX XXXX XXXX 2014. However, during his interview with the Texas police officer, he remembered what had happened, as demonstrated by the police report,39 in which the appellant was able to recount the incident but claims that he had been unaware of what he was doing. Nevertheless, he does not have any medical reports that could document his situation prior to the incident on XXXX XXXX XXXX 2014. [80] Although the appellant may have XXXX problems and XXXX, the RAD is of the opinion that he committed a serious, non-political crime in the United States and that he fled American justice. The purpose of the Canadian refugee protection system is not to help fugitives escape foreign legal proceedings. [81] Furthermore, whether or not the appellant had the mental capacity to commit this serious crime is not a reason for the crime to be assessed by the Immigration and Refugee Board of Canada (IRB), either through the RPD or the RAD. [82] The arrest warrant does not remove the appellant's right to a just and fair trial or to counsel. Furthermore, he could use section 8.01 of the Texas Penal Code, which is a defence to criminal responsibility. [83] Once back in the United States, the appellant may plead the defences he raised here in Canada. The United States is a country with democratic institutions and an independent judiciary. [84] According to the objective evidence from the National Documentation Package on the United States (Report of the Working Group on Arbitrary Detention on its visit to the United States by the United Nations),40 it is a country where fundamental human rights are protected by the constitution and where there are judicial guarantees at both the federal and state levels: Overview of the institutional and legal framework 9. The essential guarantees of human rights and fundamental freedoms within the United States are set forth in the Constitution and in statutes. The Constitution includes 27 amendments. The first 10 amendments, referred to as the Bill of Rights, provide for the basic protection of individual liberties. In practice, the enforcement of those guarantees ultimately depends on the existence of an independent judiciary. The judiciary has the power to invalidate acts of the other branches of government at the federal, state and local levels, which conflict with those constitutional guarantees. 10. Under the Constitution, all powers not exercised by the federal government and not prohibited to the states are reserved to the states. Local governments have autonomy when dealing with matters such as the exercise of police power and the prison system. A. Judicial guarantees 11. The Constitution, as well as federal and state statutes, provides a number of substantive and procedural protections for individuals accused of committing crimes, being held for trial and being held in prisons or jails. In this respect, the Constitution and various statutes and rules of criminal procedure protect individuals against arbitrary arrest and detention. [85] Abuse and acts of discrimination and racism certainly occur in the United States; however, they do not constitute a deliberate, widespread and systemic policy to the extent that they could be considered persecution that is automatically faced by any person who is black, foreign or has mental health problems and who is incarcerated in the country. [86] The appellant fled the United States because he fears legal proceedings, not persecution. There is no reason to believe that he would not have the right to defend himself, access medical and XXXX assistance (as he did in Montréal) and receive impartial adjudication. The appellant's fear of his father [87] The RPD concluded that the appellant [translation] "failed to establish a reasonable chance of persecution, a risk to his life or a risk of cruel and unusual treatment or punishment, on a balance of probabilities, from his father."41 [88] The appellant submitted that the RPD erred in its conclusion, because while his father had sponsored him, he had taken away part of his children's identities by falsifying their dates of birth.42 He submitted that he explained that his father had made him see a pastor rather than a doctor, that his father had previously hit him and had threatened to send him back to Congo and that this behaviour is not that of a father who cares about his children's well-being.43 [89] The RAD disagrees. [90] The appellant testified that his father had helped him to come to the United States and that he had also helped him to quickly flee the country following the incident with XXXX XXXX XXXX That was after arranging for him to move in with one of his friends following the judge's decision to distance him from XXXX XXXX XXXX home. [91] Like the RPD, the RAD is of the opinion that the assistance the appellant received from his father is inconsistent with the behaviour of a person who wants to hurt him. [92] The RPD's conclusion is correct. THE APPLICATION OF EXCLUSION CLAUSE 1F(b) [93] The Minister asked the RPD to exclude the appellant by reason of a sexual assault that he allegedly committed against XXXX minor XXXX on XXXX XXXX XXXX 2014. A warrant for the appellant's arrest was issued on XXXX XXXX XXXX 2015. [94] The appellant did not deny the facts concerning this incident. The RPD concluded that the incident could be defined as a sexual assault against a child.44 [95] First, the RPD determined whether the incident could be considered a serious crime. It considered the fact that there is a warrant for the appellant's arrest in the United States. He has been charged with indecency with a child and sexual contact under section 21.11(a)(1) of the Texas Penal Code. That constitutes a second-degree felony, punishable by up to 20 years in prison in Texas. In Canada, a similar crime against a minor is subject to prosecution as an indictable offence under section 151 of the Criminal Code and is punishable by a maximum term of imprisonment of 14 years.45 [96] Next, the RPD considered the factors in Jayasekara. The RPD chose to refer to how similar criminal cases were handled and examined the two following questions: 1- Is it more likely than not that the appellant was suffering from a XXXX disorder at the time of committing the act? 2- Is it more likely than not that the appellant's XXXX disorder rendered him incapable, at the time, of appreciating the nature and quality of the act or of knowing that it was wrong? [97] In its reasons, the RPD considered several factors and concluded that there are serious reasons for considering that the appellant committed a serious, non-political crime, namely, a sexual assault against XXXX minor XXXX XXXX and that he should be excluded from the application of the Convention.46 Assessment of the events [98] The appellant also cited Jayasekara and argued that, in the circumstances, there was no conviction, as the appellant was never convicted, but simply an assessment of the events and of whether the act could have been considered a serious, non-political crime47 if it had been committed in Canada. [99] The RAD agrees with the RPD, which correctly assessed the events without considering them to be a conviction and which concluded that if this act had been committed in Canada, it would be punishable by a maximum term of imprisonment of 14 years. Like the dominant line of authority, it also concluded that a clear indicator of legislative intent must be found in the IRPA with regard to crimes punishable by a maximum sentence of 10 years being considered serious crimes. [100] The RPD also cited the relevant section of the Criminal Code, namely, section 151, the corollary of section 21.11(a)(1) of the Texas Penal Code. [101] The RPD did not err and the RAD agrees with its conclusion regarding the assessment of the events and that if a similar act had been committed in Canada, it could have been considered a serious, non-political crime. Does the appellant remember the events? [102] The appellant criticized the RPD for concluding that since he remembers the events (the sexual assault), he is therefore responsible and should be excluded. He argued that he clearly testified that he does not remember the events but that his family had explained them to him afterwards.48 [103] The RAD disagrees and considers this argument unsubstantiated, as nowhere in the RPD reasons is it stated that the appellant should be excluded for admitting that he remembers the events. Furthermore, contrary to the appellant's argument, the RPD clearly noted in paragraph 50 that the appellant [translation] "stated at his hearing that he no longer remembers the event and that it was his father who told him about it." Further on, in paragraph 52, the RPD noted that the appellant [translation] "stated that he does not remember [the incident]." The affidavit submitted by the American police officer [104] The appellant argued that the RPD used the affidavit from the American police officer to contradict him, yet this affidavit was never tested before a criminal court and is a summary element from which conclusive facts cannot be extracted.49 [105] The RAD disagrees. The appellant himself stated that the purpose of the affidavit had been to obtain an arrest warrant and that the said arrest warrant had been duly obtained, forming the basis for the charges. [106] Last, after being heard by the American judge, the appellant chose to flee to Congo rather than to continue his case before the courts by defending himself and proving his XXXX disorder in court. The appellant's XXXX [107] The appellant stated that the RPD concluded that it had no evidence that the appellant was XXXX at the time of the events. However, extensive medical evidence was submitted in which experts agree that the disorder developed at a young age. He also stated that doctors and social workers had followed the appellant for weeks, while the RPD only had a few hours with him.50 [108] The RAD considers these arguments unsubstantiated. In fact, the RPD never questioned the appellant's extensive medical record. However, this record was drawn up in Montréal after the appellant had arrived in Canada. The RAD considered the appellant's allegations regarding his XXXX health problems, but the evidence on the record is not sufficient to establish that they would have an impact on the relevant factors in Jayasekara,51 namely, that they would affect his intention of committing the crime or would constitute mitigating circumstances. [109] The RAD reviewed the entirety of the record and confirms the RPD's conclusion. [110] The appellant's medical record from Montréal is certainly relevant, but there is nothing to prevent the appellant from taking it with him and submitting it to the judge in Texas, where the crime was committed. [111] In the RAD's opinion, the primary purpose of Article 1F(b) of the Refugee Convention is to ensure that perpetrators of serious, non-political crimes are not entitled to international protection in the country in which they are seeking asylum. In other words, the effect of a finding under this section is that the claimant is excluded from accessing the refugee determination process in Canada and cannot, therefore, be found to be a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA.52 [112] The RPD's decision is correct. [113] Furthermore, the appellant has demonstrated his ability to figure things out on his own. When he fled the United States, he went to the DRC alone and apparently returned to Canada alone, using a false identity and reducing his age in order to be considered a minor in Canada. Furthermore, although he knew no one in Canada, he was able to meet people who helped him to claim refugee protection and obtain medical care. In the RAD's opinion, he would be able to do the same thing in the United States. CONCLUSION [114] For all of these reasons, the RAD agrees with the RPD's conclusions, namely, that the appellant is excluded from protection under Article 1E and Article 1F(b) of the Convention and under section 98 of the IRPA. [115] The appeal is dismissed. (signed) Mokhtar Lamani Mokhtar Lamani December 16, 2020 Date IRB translation Original language: French 1 Mwano v. Canada (MCI), 2020 FC 792, at para. 23. 2 P-3, appellant's new record, appellant's supplementary memorandum, October 2, 2020. 3 P-2, appellant's record, appellant's initial memorandum, at para. 13 (issues). 4 P-3, appellant's new record, appellant's supplementary memorandum, memorandum conclusions. 5 P-3, appellant's new record, appellant's statement, at page 3. 6 SPR-1, Refugee Protection Division (RPD) record, at pages 429 to 433. 7 SPR-1, RPD record, RPD reasons, at para. 74. 8 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subs. 110(4). 9 Canada (MCI) v. Singh, 2016 FCA 96; Raza v. Canada (MCI), 2007 FCA 385. 10 P-3, appellant's new record, appellant's supplementary memorandum, at para. 10. 11 Ibid., at paras. 11 and 12. 12 Ibid., at paras. 13 and 14. 13 Ibid., at paras. 15 to 18. 14 Sivapathasuntharam v. Canada (M.C.I), 2012 FC 486, at para. 22. 15 Zhang v. Canada (MCI), 2015 FC 1031, at para. 54. 16 Ibid. 17 Majebi v. Canada (MCI), 2016 FCA 274, at para. 9. 18 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 19 P-3, appellant's new record, appellant's supplementary memorandum, at paras. 1 and 2. 20 Mwano v. Canada (MCI), 2020 FC 792, Section A: Applicant's permanent resident status in United States, at paras. 10 to 17. 21 Ibid., Section B: Possibility of persecution in United States, at paras. 18 to 26. 22 Ibid., at para. 27. 23 P-3, appellant's new record, appellant's supplementary memorandum, at para. 3. 24 Mwano v. Canada (MCI), 2020 FC 792, at para. 15. 25 Ibid., at para. 16. 26 Ibid., at para. 17. 27 SPR-1, RPD record, RPD reasons, at para. 44. 28 Mwano v. Canada (MCI), 2020 FC 792, at para. 19. 29 Ibid., at para. 20. 30 P-2, appellant's record, appellant's initial memorandum, at para. 30. 31 P-2, appellant's new record, appellant's supplementary memorandum, at para. 18. 32 Sagharichi, Mojgan v. M.E.I. (F.C.A., No. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993, at 2. 33 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, 20 Imm LR (2d), 733-734. 34 Ibid., 85. 35 Naikar, Muni Umesh v. M.E.I. (F.C.T.D., No. 93-A-120), Joyal, June 17, 1993, at 2. 36 Chen, Yo Long v. M.C.I. (F.C.T.D., No. IMM-487-94), Richard, January 30, 1995, at 4. 37 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reissued, Geneva, January 1992, at p. 15. 38 Moudrak, Vanda v. M.C.I. (F.C.T.D., No. IMM-1480-97), Teitelbaum, April 1, 1998. 39 SPR-1, RPD record, arrest affidavit from Detective A. Smead, at pages 453 to 455. 40 SAR-1, National Documentation Package on the United States (January 31, 2020), Tab 9.1: Report of the Working Group on Arbitrary Detention on its visit to the United States of America, United Nations, Human Rights Counsel, July 17, 2017, A/HRC/36/37/Add.2. 41 SPR-1, RPD record, RPD reasons, at para. 38. 42 P-2, appellant's record, appellant's memorandum, at paras. 36 and 37. 43 Ibid., at paras. 38 to 42. 44 SPR-1, RPD record, RPD reasons, at para. 53. 45 Ibid., at paras. 54 to 56. 46 Ibid., at paras. 57 to 71. 47 P-2, appellant's record, appellant's memorandum, at paras. 43 to 46. 48 Ibid., at paras. 47 and 48. 49 Ibid., at para. 49. 50 Ibid., at paras. 50 to 52. 51 Jayasekara v. Canada (MCI), 2008 FCA 404. 52 Quintana Murillo v. Canada (MCI), 2008 FC 966, at para. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-22434 RAD.25.02 (January 2020) Disponible en français 3 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 (January 2020) Disponible en français