Date: 20051209
Docket: IMM-2107-05
BETWEEN:
Jackeline
Maria Paris Montoya
Applicant
and
The
Minister of Citizenship and Immigration
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
PAUL U.C. ROULEAU D.J.
[1]
The
applicant Jackeline Maria Paris Montoya and her two minor children, citizens of
Venezuela, filed an application for leave with the Registry of this Court from
a decision by the Immigration and Refugee Board – Refugee Protection Division
(the panel) – dated March 22, 2005 by member Donald Archambault.
[2]
The panel
found that the applicant was not a refugee nor a person in need of protection
under paragraph 1F(b) of the United Nations Conventions relating to the
Status of Refugees (the Convention). It should be noted that the applicant’s
original application was accompanied by a claim for refugee protection for her
two children, Jonathan David Fernandez Paris and Abby Jackeline Fernandez
Paris. The hearing of the children’s claim for refugee protection was postponed
to a later date.
[3]
On August
28, 2004, the applicant and her two children filed a refugee claim in Canada.
The applicants claimed that they feared persecution for their political
opinions and membership in a particular social group, namely women and families
who are victims of violence. They further claimed that they are persons in need
of protection as they are also exposed to a risk of torture, to threats to
their lives or to a risk of cruel or unusual treatment or punishment if they
have to return to their country of origin (Venezuela). The case was duly
referred to the Immigration Board – Refugee Protection Division, after the
applicant was questioned by an immigration officer. On
February 10, 2005, the Solicitor General of Canada sent counsel for
the applicant a notice of intervention as the immigration officer had raised
certain questions about the fact that the applicant came to Canada with her
children without the father’s consent. Now, the notice sent by the Solicitor
General of Canada, citing article 1F(b) of the Convention, stated that, as the
applicant left her usual place of residence with two children, this was a case
of abduction within the meaning of the Criminal Code of Canada. On March
22, 2005, the hearing concerning only the applicant’s refugee claim was held and
the ground of exclusion under article 1F(b) of the Convention upheld.
[4]
The
applicant worked at a hospital in Venezuela. In February 1999, the applicant
and one of her friends, Carlos, allegedly reported to the hospital
administrator a bizarre and highly unusual event involving police officers who
transported bodies in black bags late at night without registering them at the
morgue, which was contrary to the usual practice. The administrator warned the
applicant and Carlos not to meddle in this matter. The following day, Carlos
allegedly went to report what had happened at the hospital at the police
headquarters of the Republic. A few days later, the applicant said she was
advised to hand in her resignation. The applicant alleged that she was being
persecuted and accordingly decided to take a month’s vacation in the Dominican
Republic with her husband, who was a citizen of that country, commencing on
July 2, 1999.
[5]
The
applicant alleged that, upon her arrival in the Dominican Republic, she wanted
to come to Canada to settle since her sister lived there. The applicant and her
mother were denied a residence application for Canada. The applicant then went
to the U.S. on September 7, 2002 to look after her mother-in-law. She
returned to the Dominican Republic on February 26, 2003.
[6]
The
applicant apparently began to have problems with her spouse after her return to
the Dominican Republic. Further, following her departure from Venezuela, she
also learned that her friend Carlos had been killed. It was these events that
led the applicant and her children to leave their country and that they rely on
to seek Canada’s protection.
[7]
On March
22, 2005, the panel dismissed the applicant’s application on the basis of the
exclusion ground in article 1F(b) of the Convention. The notice of intervention
reads as follows: [translation]
“The principal applicant left her usual place of residence with two children,
which constitutes abduction within the meaning of the Criminal Code of
Canada”. In particular, the panel cited section 283 of the Criminal Code
of Canada:
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283.
(1) Every one who, being the parent, guardian or person having the lawful
care or charge of a person under the age of fourteen years, takes, entices
away, conceals, detains, receives or harbours that person, whether or not
there is a custody order in relation to that person made by a court anywhere
in Canada, with intent to deprive a parent or guardian, or any other person
who has the lawful care or charge of that person, of the possession of that
person, is guilty of
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283.
(1) Quiconque, étant le père, la mère, le tuteur ou une personne ayant la
garde ou la charge légale d’une personne âgée de moins de quatorze ans,
enlève, entraîne, retient, reçoit, cache ou héberge cette personne, qu’il y
ait ou non une ordonnance rendue par un tribunal au Canada relativement à la
garde de cette personne, dans l’intention de priver de la possession de
celle-ci le père, la mère, le tuteur ou une autre personne ayant la garde ou
la charge légale de cette personne est coupable :
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(a) an indictable
offence and is liable to imprisonment for a term not exceeding ten years; or
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a)
soit d’un acte criminel passible d’un emprisonnement maximal de dix ans;
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(b)
an offence punishable on summary conviction.
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b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire.
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[8]
The panel
concluded that the evidence clearly indicated that the applicant left her
country with her children without the knowledge of her husband and with the
intent never to go back to their country. The applicant testified that her
husband would not have allowed or authorized their departure if he had known
that she did not intend to return. Accordingly, when the applicant brought her
children to Canada, she committed abduction within the meaning of section 283
of the Criminal Code and she could not invoke the defence of consent
provided for in section 284 of the Criminal Code. As a person who
contravenes that provision is liable to imprisonment for a term not exceeding
ten years, the panel ruled that the exclusion ground provided for in section 98
of the Immigration and Refugee Protection Act applied.
[9]
The panel
considered the exception to the exclusion ground provided for in
section 285 of the Criminal Code. However, after having examined
the question of whether the applicant was fleeing to protect herself from
danger of imminent harm, the panel ruled that the evidence offered by the
applicant did not support the defence of imminent harm for her children.
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285.
No one shall be found guilty of an offence under sections 280
to 283 if the court is satisfied that the taking, enticing away,
concealing, detaining, receiving or harbouring of any young person was
necessary to protect the young person from danger of imminent harm or if the
person charged with the offence was escaping from danger of imminent harm.
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285. Nul ne
peut être déclaré coupable d’une infraction prévue aux articles 280
à 283 si le tribunal est convaincu que les actes reprochés étaient
nécessaires pour protéger la jeune personne en question d’un danger imminent
ou si l’accusé fuyait pour se protéger d’un tel danger.
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[10]
In
particular, the panel mentioned that the applicant testified that her children
had not been physically abused, but that it was she who had been mistreated.
Further, the panel raised the fact that, while the applicant alleged she had
been abused commencing in the year 2000, there was some documentation to
suggest that the abuse did not begin before February 2003. Finally, the
applicant filed in support of her application a complaint made to the police
dated August 19, 2004: however, she said she wanted to leave the country on
August 17, 2004. When the panel asked her why she had not made a complaint
until August 19, 2004, the applicant replied that she had to garner evidence.
Finally, the panel noted that the applicant claimed that she and her spouse no
longer lived together, yet her documentation indicated that her most recent
address was that of her spouse. Accordingly, the panel dismissed the
applicant’s refugee claim application on the basis of article 1F(b) and decided
that the children’s refugee claim would be heard at a later date.
[11]
It is
important to note that neither the applicant nor her children are citizens of
the Dominican Republic. She claimed that her husband threatened to give
information to the people persecuting her in Venezuela. Now, the applicant
alleged that the panel should not exclude the applicant without hearing all the
evidence. The panel only assessed her application in the light of article 1F(b)
and the events which occurred in the Dominican Republic, without taking her
situation in Venezuela into account. Accordingly, if the panel has not heard
everything, it could not rule that the exception to section 285 did not
apply. The fears of persecution in Venezuela and threats by her spouse to
provide information to such people were of primary importance in the
applicant’s decision to leave the Dominican Republic with her children.
[12]
The
applicant also asserted that, after the panel rendered its decision, she
obtained her spouse’s consent. However, that consent was not offered in
evidence before the panel; it emerged only after the decision had been
rendered. Despite this, the applicant believed it should be considered in view
of the importance of the matter.
[13]
The
respondent argued that the applicant was excluded pursuant to
paragraph 1F(b) and that this decision was reasonable. In the respondent’s
submission, the appropriate test pertaining to the exclusion ground was
properly applied and the evidence offered by the applicant properly analyzed.
[14]
With
regard to the applicant’s argument that the panel did not assess her situation
in Venezuela, the respondent noted that it was up to the applicant to present
her arguments at the hearing, not at the leave stage. Further, he noted that
the panel had no duty to rule on the merits of the refugee claim since it had
held that the applicant should be excluded.
[15]
While
there are several points in dispute between the applicant and the respondent,
the only point which this Court must deal with is whether the panel’s decision
to exclude the applicant pursuant to paragraph 1F(b) of the Convention was
reasonable.
[16]
The
standard of review to be applied in the case at bar is that of the reasonable
decision. As mentioned by Mr. Justice Décary in Harb v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 108; 2003 FCA
39 (QL), at paragraph 14:
In so far as these are
findings of fact they can only be reviewed if they are erroneous and made in a
perverse or capricious manner or without regard for the material before the
Refugee Division (this standard of review is laid down in s. 18.1(4)(d)
of the Federal Court Act, and is defined in other jurisdictions by the
phrase “patently unreasonable”). These findings, in so far as they apply the
law to the facts of the case, can only be reviewed if they are unreasonable. In
so far as they interpret the meaning of the exclusion clause, the findings can
be reviewed if they are erroneous. (On the standard of review, see Shrestha
v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at
paras. 10, 11 and 12.)
[17]
With
regard to the application of paragraph 1F(b), in Moreno v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 912 (QL), the Federal
Court of Appeal noted that, in order to make a finding that the applicant is
guilty of a criminal offence, the Minister only has to comply with the standard
of evidence underlying the phrase “serious reasons for considering”. As seen in
Zrig v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 565;
2003 FCA 178 (QL), it is not necessary to offer conclusive evidence that the
person concerned is the subject of criminal proceedings. The respondent argued
that the applicant did not dispute that abduction is a “serious non-political
crime”. In this case, the panel had serious reasons to believe that the
applicant had committed abduction, but after having analyzed the facts, it
ruled that she could not establish a danger of imminent harm, i.e. the defence
provided for in section 285 of the Criminal Code.
[18]
A
priori, the
applicant alleged that the panel erred when it considered that section 283
was applicable, regardless of the defence set out in section 285. On the one
hand, she alleged she could not be excluded under 283 since she did not intend
to deprive the father of possession of the children and that the father had
tacitly given his consent: in particular, he allegedly assisted the applicant
to obtain a visa from the Canadian authorities for a third child (a visa which,
at the end of the day, was not issued by the authorities).
[19]
I do not
feel that there is any merit in this argument. The fact that the father may
have contacted the Canadian authorities to assist the applicant in obtaining a
visa for a third child does not mean that he consented to the children coming
to Canada with no intention of returning to the Dominican Republic. In the
absence of consent, abduction of the children deprives him of his right to
custody. On the other hand, even if the panel correctly ruled that she abducted
the children, the applicant argued that she acted out of necessity as her
safety and that of the children were threatened by her spouse.
[20]
However,
the panel did not believe there was any danger of imminent harm requiring flight
by the applicant with her children. That finding was based on the various
contradictions noted in the evidence offered. In particular, the panel
mentioned that it was not in dispute that the applicant and her spouse had
problems, but there was no danger of imminent harm that could justify the
applicant’s action in leaving the country with her children, and without her
spouse’s consent.
[21]
The panel
argued that the contradictions in the evidence were sufficient for it to rule
that the applicant did not meet the exception set out in section 285 of the Criminal
Code. In particular, the panel dwelt on the fact that the applicant
admitted that the children had not been subjected to physical abuse by her
spouse. However, the applicant said that, having witnessed the physical abuse
inflicted to their mother, the children suffered psychological harm. The
applicant contended that she did not want to deprive her spouse of custody of
her children but to protect them from the danger of psychological abuse.
[22] The applicant relied on Lai v. The Minister of
Citizenship and Immigration, [2004] F.C.J. No. 113; 2004 FC 179 (QL) at
paragraph 36, where Mr. Justice MacKay referred to the fact that
“[t]he panel accepted the Minister’s argument that Article 1F(b) does not require
an examination of the offence from the point of view of the prosecutor, stating
‘It is the motivation of the claimant when the crime was committed that is
important’”. Whereas it is true that intention is one element the panel must
consider, in this case the panel had to assess whether the applicant brought
the children to Canada for the purpose of protecting them from danger of
imminent harm. As mentioned earlier, the panel was not satisfied on the
evidence submitted that this danger existed.
[23] At first sight, and even after analysis, the
panel’s decision was not unreasonable. Paragraph 1F(b) of the Convention
excludes the applicant and she therefore cannot be regarded as a refugee. The
panel was under absolutely no duty to make an exhaustive analysis of her
contentions regarding refugee status, since that is not in issue. The panel
only had to rule on the question of exclusion under paragraph 1F(b). As cited
by Mr. Justice Robertson at paragraph 32 of Moreno v. Canada (Minister
of Employment and Immigration), supra:
Whether or not the
record supports the perceived inconsistencies identified by the Board is, in my
opinion, an issue which we need not address. It was agreed at the outset of
this appeal that this Court would not be asked to make a refugee determination.
While the appellant’s reasons for forsaking the military, and the timing of
that decision, are critical to his refugee claim, they are not relevant to the
determination regarding the applicability of the exclusion clause.
[24] The findings regarding the evidence offered by the
applicant in relation to section 283 of the Criminal Code, and the
defence provided for in section 285 of the Criminal Code, were not
unreasonable. The panel analyzed the applicant’s arguments, but the abduction
of the children could not be justified.
[25] Despite the foregoing analysis, this Court cannot
ignore certain practical facts which have an impact on this application. While
an application for judicial review is clearly not an appeal de novo and
this Court must absolutely not rule on evidence that was not before the panel,
mention should be made of the fact that the applicant received a letter of
consent from her ex-husband regarding the children on May 17, 2005. The letter
was received after the panel rendered its decision.
[26] The respondent argued, and this Court agrees with
his contention, that as regards the evidence that emerged after the panel
rendered its decision, namely the consent of her ex-husband, the case law is
clear: a decision must be arrived at on the basis of the evidence that was
before the panel, and in judicial review proceedings, new evidence not
presented to a panel cannot be offered in order to challenge its decision: see Noor
v. Canada (Human Resources Development), [2000] F.C.J. No. 574 (QL).
[27] If a refugee application were at issue and there
were subsequent evidence, the applicant might possibly initiate a pre-removal
risk assessment proceeding (PRRA) so as to offer this new evidence. However, as
what is at issue is the exclusion ground provided for in paragraph 1F(b) of the
Convention, this proceeding is not open to the applicant. This evidence might
have a major impact on the outcome of her application. Ignoring this new
evidence would be unfair to the applicant and this Court cannot in all
conscience fail to recognize the existence of this letter. Inter alia
this Court would find it unreasonable to deny the applicant justice on account
of an abstruse point of procedure. However, the binding precedents must
nevertheless be followed. Accordingly, since I cannot allow the application for
judicial review, I can suggest that the applicant make use of subsection 55(1)
of the Refugee Protection Division Rules. Under that subsection, the
applicant could try to have her case reopened.
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55. (1) A claimant or
the Minister may make an application to the Division to reopen a claim for
refugee protection that has been decided or abandoned.
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55. (1) Le demandeur
d'asile ou le ministre peut demander à la Section de rouvrir toute demande
d'asile qui a fait l'objet d'une décision ou d'un désistement.
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[28] It is true that subsection 55(1) of the Refugee
Protection Division Rules provides for the reopening of a claim for refugee
protection; however, as mentioned by Mr. Justice Mosley in Ali v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1394; 2004
FC 1153 (QL), an application to reopen a claim may be granted when there has
been a violation of natural justice. A distinction must accordingly be made. If
the applicant does not have an opportunity to offer this new evidence, there
will in fact be a violation of natural justice. An application to reopen will
eventually enable the applicant to offer her evidence in a proper forum for
determining whether the evidence should be considered.
[29] Once again, it is highly possible that her
application under that subsection will also be dismissed. However, the
applicant can file a claim for judicial review if it is dismissed.
[30] As to the applicant’s allegation that the panel
erred in not addressing her fear of persecution in Venezuela, the panel ruled
that exclusion applied and that it did not have to consider the persecution
allegations.
[31] To conclude, since the panel’s decision was
reasonable, I cannot allow the application for judicial review. However, I
would strongly suggest that the applicant take advantage of the remedy provided
for in subsection 55(1), and if this is granted, the applications of the
applicant and her children will be heard together.
JUDGMENT
The application for judicial review is
dismissed.
“Paul
U.C. Rouleau”
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