[18]
Article
1F(b) of the United Nations Convention Relating to the Status of Refugees states:
|
F. 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
|
F. Les
dispositions de cette Convention ne seront pas applicables aux personnes donc
on aura des raisons sérieuses de penser :
(b)
Qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugies
|
STANDARD OF REVIEW
[19]
A
standard of review analysis is not necessary in every case. Where the standard
of review on an issue before the Court is well settled by jurisprudence the
reviewing court may apply that standard of review: Dunsmuir v. New Brunswick
2008 SCC 9 para. 54.
[20]
This
Court has found, and I agree, the question of exclusion under section 98 is a
question of mixed law and fact with some discretion, it should be reviewed on
the standard of reasonableness: Jayasekara v. Canada (Minister of
Citizenship and Immigration) 2008 FC 238 at para. 10, aff’d 2008 FCA 404 (Jayasekara).
APPLICANT’S SUBMISSIONS
[21]
The
Applicant submits the RPD erred in rejecting the Applicant’s assertion he was
never notified of the civil and criminal proceedings against him. He also
asserts the RPD’s dismissal of the letter from the alleged fraud victim was
unreasonable because the letter demonstrates no serious crime was committed.
[22]
The
Applicant’s counsel argued his client committed no crime. He insisted the
evidence discloses the Applicant provided two cheques to an investor as
security to the latter’s investment in a business venture. The investor
subsequently received a villa as full payment on his investment but the
Applicant negligently failed to retrieve his cheques because he trusted the
investor. When he discovered the cheques were the basis of his conviction the
Applicant’s family intervened and confronted the investor about filing a false
accusation. As a result, the investor wrote a letter to Interpol stating he was
withdrawing his complaint.
[23]
In
the alternative, the Applicant’s counsel submitted that if the RPD found a
crime was committed, the writing of a bad cheque is not a qualifying crime.
Counsel argued the Applicant is credible because he testified in a forthright
manner for some eight hours, without embellishment.
[24]
The
Applicant further submits the RPD erred by rejecting the evidence from Mr.
al-Yahki, the Applicant’s Egyptian lawyer.
[25]
The
Applicant argues the Minister’s case depends exclusively on the Interpol Red
Notice. He adds, without corroboration the notice is insufficient evidence to
support a serious reason to consider a crime was committed. The Applicant
refers to Gurajena v. Minister of Citizenship and Immigration 2008 FC
724 (Gurajena) in support of this submission.
[26]
The
Applicant argues one of the purposes of Article 1F(b) is to prevent those who
are trying to avoid justice from evading extradition. Therefore, a claimant who
has expiated a serious non-political criminal act should not be excluded. He
relies on paragraph 23 of the Guidelines on International Protection:
Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees, which reads:
Where expiation of the crime is
considered to have taken place, application of the exclusion clause may no
longer be justified.
This may be the case where the individual has served a penal sentence for the
crime in question, or perhaps where a significant period of time has elapsed
since commission of the offence. Relevant factors would include the seriousness
of the offence, the passage of time, and any expression of regret shown by the
individual concerned. In considering the effect of any pardon or amnesty,
consideration should be given to whether it reflects the democratic will of the
relevant country and whether the individual has been held accountable in any
other way. Some crimes are, however, so grave and heinous that the application
of Article 1F is still considered justified despite the existence of a pardon
or amnesty. (emphasis added)
[27]
The
Applicant submits the RPD would have concluded differently had it considered
the relevant factors in Mr. Justice Gilles Létourneau’s reasons in the Federal
Court of Appeal’s decision in Jeyasekara interpreting Article 1F(b).
RESPONDENT’S SUBMISSIONS
[28]
The
Respondent submits the status of the sentence does not preclude exclusion under
Article 1F(b) of the Convention. In Jayasekara, the Court of Appeal
concluded Article 1F(b) is not limited to fugitives from foreign justice, and
it can be applied to persons who have served their sentences or who have had
their foreign criminal issues resolved and settled.
[29]
The
Respondent submits the Applicant did not present evidence demonstrating the
Applicant’s criminal issues in Egypt are formally resolved, expiated or
expunged. According to the Applicant’s lawyer in Egypt, the “victim
reconciliation” document was neither filed, nor ratified by that country’s court
of appeal in order to “cancel” the sentence. The Respondent therefore argues
the RPD concluded reasonably in finding the criminal sentence is outstanding.
[30]
Moreover,
the Respondent submits the question of whether or not the Applicant has a
criminal record in Egypt is not determinative of exclusion. Article 1F(b)
concerns serious reasons to consider the Applicant committed a serious
non-political crime. A criminal record, while likely a serious reason, is not
the only reason to believe a serious crime has been committed.
[31]
The
Respondent insists the RPD was reasonable by basing her decision “serious
reasons for considering” a “serious non-political crime” was committed on the
following factual conclusions:
a.
The
Interpol Red Notice dated October 26th, 2006 indicates the Applicant
was convicted in Egypt of fraud, deception and issuing unfunded cheques in an
amount equal CAD $51,000, and was sentenced to six-years in prison. The
withdrawal of the civil suit does not mean no crime was committed.
b.
According
to his own evidence, the Applicant claims to have paid restitution to the
victim. Restitution compensates wrongdoing.
c.
The
Applicant’s crime was driven by self-interest and avarice.
d.
The
seriousness of the crime is established by the amount involved and the sentence
imposed.
e.
The same
offence is punishable in Canada by a maximum penalty of 14 years.
[32]
The
Respondent concludes there is no reason for the Court to interfere with the
RPD’s decision.
THE HEARINGS
[33]
The
RPD hearing process in Mr. Rihan’s case was disjointed, confusing and suffered
from serious drawbacks with respect to taking evidence and hearing submissions.
The language translation was a major obstacle to clear communication. Problems
arose with the translation of the Refugee Protection Officer’s (the RPO)
inquiries. At one point the Officer said to the Applicant:
RPO: Okay. Now I am going to give you
general instruction, I don’t know whether you are listening to me or Mr.
Interpreter or both and by listening to two people at once you are not hearing much.
But a question that says when, what month, the answer should be two [sic]
thing, what month, what year. The question should not have to be repeated three
times. (Tribunal Record pp. 245 – 246)
I draw attention to this extract, which
resembles other exchanges throughout the hearing and highlights the confusion
plaguing this process. Confusion also surfaces throughout the transcripts of
the Applicant’s witnesses: his wife’s and his Egyptian lawyer whose long
distance telephone connection was lost on one occasion.
[34]
There
are also several spellings of the same names in the record. For example, Mr.
al-Jezawi is the alleged victim of the fraud at issue in this case. His name is
spelled “Al-Gizware”, “El-Gizawy” and “Elgezary” at different points in the
transcript. Mr. Rihan’s lawyer in Egypt is Amin Ekram Arnest al-Yahki, his name
is spelled “Elyahky” throughout the transcript.
[35]
However,
the predominant obstacle to any coherence in this whole process was two
mid-course changes of presiding RPD members. A total of three RPD members heard
this case at different times.
[36]
The
first hearing was initially declared abandoned because the Applicant didn’t
show up. However, the hearing was reinstated and reset to September 13, 2007
after the first RPD learned the Applicant was ill due to a heart condition on
the day of his hearing.
[37]
A
second RPD member presided over the September 13, 2007 sitting and heard
testimony from the Applicant, the Applicant’s wife, and the Applicant’s
Egyptian lawyer, Mr. al-Yahki. The latter, Mr. al-Yahki, has represented Mr.
Rihan since 1996. He testified he practices criminal, administrative and
business law. His office employs other lawyers and support staff. This hearing
concluded on September 28, 2007 with oral submissions by the RPO and the
Applicant’s counsel. The Minister’s counsel attended but did not participate.
[38]
In
her submissions the RPO noted the Minister’s allegation of a serious reason for
considering the Applicant committed a serious non-political crime. The Officer
acknowledged the Applicant’s assertion the charges were fabricated. The RPO
also noted the Applicant’s initial claim involved harassment by
fundamentalists. The RPO noted that after oral testimony, the harassment issue
became more political in nature because the Applicant’s wife testified the
harassment was perpetrated by men affiliated with the Muslim Brotherhood. The
Muslim Brotherhood is identified as an extremist organization with political
ties in Egypt. The RPO also made submissions concerning the questions of credibility
and inclusion.
[39]
The
presiding RPD member concluded the hearing and reserved, indicating the
decision would be issued in writing.
[40]
Subsequently,
the Applicant was informed by letter from the RPO that:
While hearing evidence at the hearing,
the claimant’s wife testified that the victim of the crime and the Muslim
Brotherhood worked in concert to manufacture evidence against the claimant, and
that the claimant’s conviction in absentia is not only false but also further
indication of the persecution that he has faced and will continue to face if he
returns to Egypt.
The Presiding Member has directed me to
inform you of this so that you have the opportunity to address this issue in
your submissions, should you choose to.
(Tribunal Record, page 64)
[41]
The
RPD member did not issue a decision. She was replaced by a third RPD member.
[42]
On
May 2, 2008, a new hearing began with the new RPD Member, Harriet Wolman. The
Minister’s counsel chose to participate in addition to the RPO and the
Applicant’s counsel. The hearing commenced on a de novo basis with
the transcripts of previous testimony accepted as evidence. The new RPD member
said:
From my perspective I am prepared to
accept the transcript as - - because it’s sworn testimony. So basically
we’re not going to rehear the claim from the beginning. I don’t - - you know,
I’m willing to hear comments from everybody but I feel we can just proceed.
…
When we get to that point I feel we will
have heard enough testimony and if there are any further representations, not
repetitive of the previous ones, it there are further representations based on
what we hear this morning then I’m happy to hear them and consider them
before I make my decision.
(emphasis
added)
[43]
The
Applicant testified again and was examined by his counsel and cross-examined by
both the RPO and the Minister’s counsel.
[44]
The
Minister’s counsel submitted there are serious reasons for considering the
Applicant committed a serious non-political crime in Egypt before coming to
Canada. The RPD made no further submissions.
[45]
Applicant’s
counsel did not repeat his previous submissions as directed. He refuted the
basis for finding the Applicant committed a crime. He stressed the importance
of considering testimony from the Applicant and the Applicant’s witnesses in the
earlier hearing.
ANALYSIS
[46]
Before
examining the RPD’s treatment of the evidence, it is useful to review the
jurisprudence concerning Article 1F(b).
[47]
A spectrum
of interpretations of Article 1F(b) of the Refugee Convention emerged from the
jurisprudence. Justice Bastarache’s obiter in Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998]
S.C.J. No. 46 (QL) at paragraph 73 (Pushpanathan) gives the article its
most narrow interpretation. He suggested the article was meant to prevent
fugitives from foreign justice using a claim of refugee status to shield them
from extradition. Pushpanathan decided a certified question concerning
Article 1F(c) of the convention, the interpretation of 1F(b) in that decision
is concerned with understanding the exclusionary provisions of the article by
reference to a crime committed in Canada. More specifically, whether drug
trafficking is a serious non-political criminal act.
[48]
The
Federal Court of Appeal in Chan v. Canada (Minister of
Citizenship and Immigration), [2000] 2 FC 290 (Chan) later used this reasoning to
allow the appeal of a claimant convicted and sentenced for offences related to
drug trafficking. The offence was a serious non-political crime and the
sentence was served. The Court of Appeal therefore held the claimant was not a
fugitive and would not be excluded by Article 1F(b). It decided against the
Minister who was arguing for a broader interpretation of the Article. The Court
held under the statutory scheme of the day a broader interpretation would deny
a hearing to legitimate refugee claimants who have served a sentence for
serious non-political crimes without considering their rehabilitation.
[49]
Changes to
the Immigration and Refugee Protection Act later opened the door to a
wider view of Article 1F(b). The Federal Court of Appeal reconsidered the
article’s meaning in Zrig v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 178 (Zrig). This time, the question hinged on
whether the claimant should be excluded based on his association to a terrorist
group in Tunisia. A considerable body of evidence pointed to the group’s
involvement in serious non-political crimes predicated on violence and
intimidation. Evidence and admissions demonstrated the claimant was a member of
the group at its highest echelons; however no evidence linked him conclusively
to any of the qualifying crimes. Nevertheless, Madame Justice Danièle
Tremblay-Lamer of this Court agreed an inference could be drawn to find the
claimant was likely aware of his group’s involvement in at least one of a
series of serious non-political criminal acts perpetrated after his promotion
to a high position.
[50]
The Court
of Appeal distinguished the facts in Zrig from earlier jurisprudence on
Article 1F(b), thereby broadening the Article’s application. The Court of
Appeal distinguished the analysis in Chan because the Applicant in Zrig
was neither charged nor convicted of the crimes at issue before the Refugee
Board: Zrig, para. 64. Mr. Justice Marc Nadon then found Justice
Bastarache’s reasoning did not limit the meaning of Article 1F(b) to cover only
extraditable crimes in Canada. He wrote at paragraph 67:
“Such a limitation would be
surprising to say the least, since first it is in no way contained in the
wording of Article 1F(b), and second, the limitation would lead to an absurd
situation in which extraditable criminals would be excluded from refugee
protection whereas offenders whose crimes were not extraditable crimes would
not be excluded because Canada had not concluded an extradition treaty with the
country in which the serious non-political crimes were committed.”
[51]
The
Court of Appeal went on to consider other interpretations of Article 1F(b) held
by the British Court of Appeal and the Australian Federal Court as well as
academic writing in the Travaux Préparatoires. Together, these sources led the
Court of Appeal to find there was no intended limitation in Article 1F(b)
restricting it to prevent claims for refuge from persecution as a shield from
extradition.
[52]
The
Court of Appeal finds complementary purposes of Article 1F(b) at paragraphs 118
and 119 in Zrig:
“My reading
of precedent, academic commentary and of course, though it has often been
neglected, the actual wording of Article 1F of the Convention, leads me to
conclude that the purpose of this section is to reconcile various objectives …
These purposes are
complementary. The first indicates that the international community did not
wish persons responsible for persecution to profit from a convention designed to
protect the victims of their crimes. The second indicates that the signatories
of the Convention accepted the fundamental rule of international law that the
perpetrator of a political crime, even one of extreme seriousness, is entitled
to elude the authorities of the State in which he committed his crime, the
premise being that such a person would not be tried fairly in that State and
would be persecuted. The third indicates that the signatories did not wish
the right of asylum to be transformed into a guarantee of impunity for ordinary
criminals whose real fear was not being persecuted, but being tried, by the
countries they were seeking to escape. The fourth indicates that while the
signatories were prepared to sacrifice their sovereignty, even their security,
in the case of the perpetrators of political crimes, they wished on the
contrary to preserve them for reasons of security and social peace in the case
of the perpetrators of serious ordinary crimes. This fourth purpose also
indicates that the signatories wanted to ensure that the Convention would be
accepted by the people of the country of refuge, who might be in danger of
having to live with especially dangerous individuals under the cover of a right
of asylum.” (emphasis added)
[53]
The
Court of Appeal concluded there is no distinction, except with respect to the
obvious, between Articles 1F(a) and (b). Article 1F(a) refers to specific
serious international crimes: “…a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes”, while F(b) refers to the commission of
“…a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee”. In finding this, the Court of Appeal
broadened the applicability of the article to find Zrig’s association to a
terrorist organization that perpetrated violent acts during his membership at a
high level was a serious reason for considering he had committed qualifying
crimes. It denied Zrig’s appeal and upheld the trial judge’s conclusion.
[54]
What
emerges is Article 1F(b) leaves signatories to the convention a fair degree of
latitude to exclude both criminal and possibly criminal applicants. The Article
is not restricted to extraditable crimes, nor must there be proof of a
conviction or even an allegation of a qualifying crime made by authorities in
other countries.
[55]
That being
said, Canada’s commitment to Convention refugees requires the RPD members
properly scrutinize the evidence before them before applying the exclusionary
articles of the convention.
[56]
With the
scope of Article 1F(b) settled by the Court of Appeal in Zrig, I now
turn my attention to the factors that should be taken into account while
deciding if there are sufficient reasons for exclusion.
Did
the RPD base her decision on an erroneous finding of fact made in a perverse
manner without regard for the evidence before it?
[57]
This Court
must, on the one hand, ask if a board has properly considered the evidence
while, on the other hand, resist the temptation to supplant its own take on the
evidence. Mr. Justice John Evans, as he then was, explained the concept
succinctly in Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425 at paragraph 14 (Cepeda-Gutierrez):
“It is well established that
section 18.1(4)(d) of the Federal Court Act does not authorize the Court to
substitute its view of the facts for that of the Board, which has the benefit
not only of seeing and hearing the witnesses, but also of the expertise of its
members at assessing evidence relating to facts that are within their area of
specialized expertise... In order to attract judicial intervention under
section 18.1(4)(d) the applicant must satisfy the Court, not only that the
Board made a palpably erroneous finding of material fact, but also that the
finding was made "without regard to the evidence".” (emphasis
added)
And then at paragraph 17 he wrote:
However, the more important
the evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63
F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact. (emphasis added)
[58]
In Ozdemir
v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331 Justice
Evans revisited the question of how Boards should address evidence, he wrote at
paragraph 10:
Nor will a reviewing court
infer from the failure of reasons for decision specifically to address a
particular item of evidence that the decision-maker must have overlooked it, if
the evidence in question is of little probative value of the fact for which it
was tendered, or if it relates to facts that are of minor significance to the
ultimate decision, given the other material supporting the decision.
[59]
I take
from this jurisprudence that a board need not express a conclusion on every
piece of evidence. However, if the board is silent on evidence that
contradicts, or supports an opposite conclusion, then this Court may infer the
board made an erroneous finding of fact.
[60]
The RPD found
the Applicant committed a serious non-political crime based on two conclusions.
The first concerns her finding restitution was made, the second is the
information contained in the Interpol Red Notice.
[61]
The RPD finds
the conviction reported in the Interpol Red Notice “is not the relevant issue”.
She concludes a serious non-political crime was committed based on the
testimony of Applicant’s Egyptian lawyer, Mr. al-Yakhi, that restitution was
made. She asks, “…why would there be restitution if no crime had been
committed?” The member essentially argues a condition precedent to restitution
is wrongdoing. And in this case, she finds this is a reason to believe the
qualifying crime was committed. However, Mr. al-Yakhi testified that no
restitution was paid by the Applicant.
[62]
Mr.
al-Yakhi explained
a reconciliation report settles a lawsuit in Egyptian courts, but none was made
since al-Jizawe signed a waiver without concurrence by the Applicant.
RPO: Now, you
were speaking of a reconciliation report. Who prepares that?
Witness: The reconciliation report
must be prepared or edited by two parties.
RPO: Who are these two parties?
Witness: Elgezary and Rihan (ph), but
the fact is that it is just a waiver from Elgazery by himself without the
statement or presence of Rihan.
RPO: Has that been done in this case, in
Mr. Rihan’s case?
Witness: It did.
(Transcript/Record p. 401)
[63]
The RPD
ignores the testimony by Mr. Rihan, Ms. Hassanein and Mr. al-Yakhi that no
restitution was ever paid. They all stated in one form or another the allegedly
fraudulent cheques were security on a villa investment and the investment
transaction was completed properly without need to deposit the security cheques.
[64]
Mr.
Rihan provided the following testimony:
Q: (Minister’s Counsel) So – okay. In
order for Interpol to put this out and I read testimony that said that your
lawyer has copies of the cheques, it says that you gave him 250,000 in
return for that 250,000 and you gave them in the form of two cheques.
A:
(Rihan) He took his money after we sold the villa with the profit, the
interest, so it was more than [sic] 250 pounds. The only mistake is that I
didn’t take cheque from him.
[65]
Descriptions
of the business transaction between Mr. Rihan and Mr. al-Jezawi (Al-Gizware)
are also provided by Ms. Hassanein, the Applicant’s wife:
Witness: Yes, there was a business
between them for some construction I (inaudible) –
RPO: Okay.
Interpreter: And he got a villa in
return.
RPO: Who gave them the villa?
Witness: Ahmid Rihann.
RPO: Okay. Just because there is money
referred to in here, insufficient cheque.
Interpreter: Excuse me?
RPO: There is money referred to in
this letter from Mr. Al-Gizware about insufficient funds cheque. And you
have also, are probably concluding, speaking of money when you speak of
motivation that the brotherhood offered to Mr. Al-Gizware. But now there is a
third set of money and that’s wages or return.
Witness: No. All I am saying is that
he took his money through having a villa.
RPO: Okay. He is Mr. Al-Gizware?
Witness: Yes.
RPO: And he took his money from whom
for what purpose?
Witness: He took his money from Ahmed
Rihan in return for some construction work they did together.
RPO: Money or a villa?
Witness: He took a villa in Insokman (ph).
[66]
Mr.
al-Yahki, the Applicant’s lawyer, testified he knows Mr. al-Jezawi (Elgezary),
the alleged victim, through the work he has done for the Applicant. He
testified:
Counsel: Do you know the relationship,
business relationship between Ahmend Abul Fooder Elgezary and Ahmed Rihan?
Witness: Yes.
Counsel: What kind of relationship,
business relationship they have, as far as you know?
Witness: Commercial relationship. Ahmed
Abul Fodder Elgezary bought a villa from Ahmed Rihan.
Counsel: And?
Witness: Ahmed Abul Fodder Elgezary
bought a villa through a contract, the villa in (inaudible).
Counsel: I’m
sorry?
Interpreter:
I will ask you to repeat this again please.
Counsel:
Please.
Witness: Ahmed Abul Fod (ph) has
guarantee cheques or security cheques for the villa. Ahmed Abul Fod got the
villa and through their accounting department of Ahmed Fod office, a lawsuit
was instituted against Ahmed Rihan because of the cheques, but when it was
found out that Ahmend Abul Fod didn’t have the right to do so, he waived those
lawsuits.
Counsel: when did this lawsuit started,
if you know?
Witness: Most probably in 2005.
Counsel: Was Ahmed Rihan aware of this
lawsuit.
Witness: Never.
(Emphasis added)
[67]
The
Applicant’s Egyptian lawyer clarified further, explaining the complainant did
not receive any money as restitution:
Counsel: You said that you are a lawyer
representing Mr. Rihan in this case. What was –what your recommendation to him
what he had to do in this case? What is the best way to approach it to solve
this?
Witness: That he would first talk to
Ahmed Elgezary and review the accounts with him.
Counsel: But Ahmed Elgezary, he waived
his right, and in his letter to the Interpol it says that he got his money.
Witness: He didn’t take any return.
Counsel: so, why he wrote this one down?
Witness: Because he has found out that
there was an error in account – in the accounting, and because he found out
that the villa that he got now, its value is much more higher than the cheques
that were indebted by Ahmed.
Counsel: Let me ---
Witness: This is what Elgezary stated.
Counsel: Stated ---
Witness: To me.
(Emphasis added)
(Transcript/Record
p. 391)
[68]
A
careful review of the transcripts show the Applicant maintained Mr. al-Jezawi
received payment (of a villa) on his investment and denied any restitution for
unfunded cheques was paid.
[69]
No other
evidence supports the finding Mr. Rihan ever paid restitution to Mr. al-Jezawi
for unfunded cheques. It is inferred as a notion by Minister’s council based on
the letter from Mr. al- Jezawi withdrawing his allegation. The
witnesses’ testimony was entirely to the contrary, always supporting the
allegations Mr. Rihan was framed, and Mr. al-Jezawi, the framer, eventually withdrew his
complaint because
he had received his profit from his investment in the form of a villa. The RPD
misconstrued this evidence.
[70]
Having
regard to the evidence before the RPD, I find the RPD was wrong in finding restitution
was paid. This finding undermines the reason the Board Member finds Mr. Rihan
committed a serious crime.
Did
the RPD err in fact and law with respect to her conclusion the Interpol Red
Notice alone constitutes a “serious reason for considering” a qualifying crime
was committed in light of other evidence before her?
[71]
The
RPD put significant weight on the allegations in the Interpol Red Notice.
[72]
The
Red Notice reads in part:
2.1 SUMMARY OF
THE FACTS OF THE CASE:
Egypt, Cairo: In 2005, REEHAN received EGP 250,000 from the victim and gave him
two cheques for that amount. The victim believed the money would be invested in
the AL-REEHAN Investment Company and would receive proceeds from the
investments every month. However, REEHAN failed to make any such payments, and
the victim discovered the cheques were unfunded.
2.2 ACCOMPLICES: N/A
2.3 CHARGE ON WHICH CONVICTED: Fraud and
deception, uttering unfunded cheques.
2.4 LAW COVERING OFFENCE: Articles 238
and 304/2 of the Egyptian Code of Criminal Procedure, and Articles 336/337 and
1 of the Egyptian Penal Code.
2.5 SENTENCE IMPOSED: 6 years
imprisonment.
(Record p. 470)
[73]
The
Red Notice refers to ss. 238 and 304/2 of the Egyptian Code of Criminal
Procedure. Those provisions provide for conviction and sentencing in
absentia.
[74]
What is
the meaning of “serious reasons for considering”? The RPD relies on the Federal
Court of Appeal’s judgment in Moreno v. Canada (Minister of Employment and
Immigration), (C.A.), [1994] 1 F.C. 298 (Moreno) to support the
following proposition in her decision:
“Regarding the standard of proof, the
Court has found that “serious reasons for considering”, which is a standard of
proof that applies to questions of fact, rather than law, is a lesser standard
than that of a balance of probabilities. To meet this standard, there needs not
be evidence that the claimant has been charged, convicted, or criminally
prosecuted. In the circumstances of this case, the claimant has been charged
and convicted.”
[75]
Justice
Robertson in Moreno draws a clear line between question of fact and
questions of law in assessing how board members should interpret the meaning of
“serious reasons to consider”. He writes at paragraph 22:
“…the requisite standard of proof comes
into legal play only when the tribunal is called on to make determinations
which can be classified as questions of fact. The “less-than-civil-law”
standard is irrelevant when the issue being addressed is essentially a question
of law”.
[76]
Justice
Robertson considered the oft-cited passage of Justice Thurlow in Attorney
General of Canada v. Jolly, [1975] F.C. 216 (C.A.). Justice Robertson found
“reasonable grounds to believe” is similar in meaning to “serious reasons for
considering”. Justice Thurlow reviewed a delegate’s conclusion there were
reasonable grounds to believe the Black Panthers was a subversive organization
at pages 225-226:
“But where the fact to be ascertained on
the evidence is whether there are reasonable grounds for such a belief, rather
than the existence of the fact itself, it seems to me that to require proof of
the fact itself and proceed to determine whether it has been established is to
demand proof of a different fact from that required to be ascertained. It seems
to me the use by the statute of the expression “reasonable grounds for
believing” implies that the fact itself need not be established and that
evidence which falls short of proving the subversive character of the
organization will be sufficient if it is enough to show reasonable grounds for
believing that the organization is one that advocates subversion by force,
etc.”
[77]
This
reasoning “loses much of its relevance” in Moreno (para. 20) because
Justice Robertson finds the vast majority of cases where Article 1 F(a) are
applied use the Applicant’s own evidence to establish the grounds for
exclusion, whereas in Jolly the Minister submitted evidence supporting
the belief. But Justice Robertson nevertheless goes on to conclude at paragraph
25:
“In my view the standard of proof
envisaged by the exclusion clause was intended to serve an evidential function
in circumstances where it is necessary to weigh competing evidence. It
must not be permitted to overstep its legislated objective.”(emphasis added)
[78]
It is well
settled the standard of proof in “serious reasons for considering” is something
less than a balance of probabilities, but at the minimum, it must be more than
“suspicion” or “conjecture”: Sivakumar v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 433 (C.A.).
[79]
In this
case, the question is whether or not the Interpol Red Notice, in light of the
other evidence, is a serious reason for considering Mr. Rihan committed a
qualifying crime.
[80]
This is a
mixed question of fact and law. The legitimacy of the conviction mentioned in
the Red Notice is challenged, be that as it may, the notice is there and the
RPD was required to deal with it. The question is, given all the evidence can
the RPD only rely on the information in the notice as a serious reason for
exclusion?
[81]
Mr. Chief
Justice Allan Lutfy considered this in Gurajena at paragraph 1:
It may be that in some cases
proof of a valid warrant issued by a foreign country would constitute
"serious reasons for considering" that the applicant committed a
serious non-political crime within the meaning of Article 1F(b) of the
Convention: Qazi v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1461, 2005 FC 1204 at paragraph 18. The Federal Court of Appeal has
also suggested that in other situations a warrant, in combination with other
evidence, may be persuasive that the threshold of "serious reasons for
considering" has been met: Xie v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1142, 2004 FCA 250 at
paragraph 23. In any event, where evidence of a warrant is the sole evidence
relied upon by the Refugee Protection Division, the panel must "go
further" and determine whether the applicant is credible if, as in this
case, the principal applicant alleges that the charges referred to in the
warrant are fabricated: Qazi at
paragraph 19.(emphasis added)
[82]
I agree
with the Chief Justice’s assessment the panel must “go further” in examining if
the applicant’s allegation of fabricated charges is credible when the only
evidence against him is a warrant.
[83]
As
mentioned, the Applicant’s wife and lawyer testified at the hearing that no
crime had been committed by the Applicant since the investor/alleged victim who
initiated the lawsuit leading to the conviction had received a villa in full
value for his investment. The Applicant’s wife testified the charges stemmed
from pressure by the Muslim Brotherhood to harass the Applicant. They added Mr.
al-Jezawi, the alleged framer, was also a lawyer who acted for the Brotherhood.
They both stated he had the opportunity, knowledge and influence to effect a
conviction without the Applicant’s knowledge.
[84]
The
Applicant’s spouse testified the charges were fabricated at the instigation of
the Muslim Brotherhood and Mr. al-Jezawi was involved in the fabrication of
these charges, the ultimate convictions and then wrote the letter retracting
his allegations:
RPO: Okay. So you are saying, I am now
going to ask a whole bunch of yes or no questions, are you saying that the
Muslim Brotherhood fabricated charges against your husband?
Witness: Yes.
RPO: Are you saying that Mr. Al-Gizware
was somehow involved in the fabrication of these charges and ultimate convictions?
Witness: Yes.
RPO: Are you saying that Mr. Al-Gizware
has somehow believed that he did the wrong thing or made a mistake and that he
shouldn’t have been involved in this? And that’s why he wrote this?
Witness: Maybe he regretted, yes I don’t want
to say maybe.
RPO: Okay. But do you – I am just trying
to understand why someone who would be involved in the initial fabrication of
charges would go to the problem or to the effort rather, of writing an
international organization to say that the charges were a mistake or the
conviction was a mistake.
Witness: Because for us to sit like
this now to cause turbulence around Ahmed and they put charges on him.
(Transcript/Record, pp. 356)
[85]
The
Applicant’s Egyptian lawyer, Mr. al-Yahki, testified his client was unaware of
the lawsuit. He asserted the alleged victim’s connections allowed him to secure
a conviction without the Applicant ever knowing charges were laid against him:
Witness: Elgezary deceived the court and
gave the court papers saying or mentioning that Ahmed Rihan was notified.
Counsel: And was Ahmed Rihan notified?
Witness: Till now, no.
Counsel: Okay. How did he do that? How
he show the court that he notified Rihan and, in fact, he did not do that, if
you know? I’m sorry, we did not hear you.
Witness: Through conspiring with
others and his contacts due to his former work as a police officer and because
his father was a former Parliament member.
(Transcript/Record, pp. 385)
[86]
Much
questioning and many submissions centred on the waiver sent to Interpol by the
complainant. A certified translation and interpretation of that document states
in part:
Where I am the plaintiff with the civil
right in the delinquency numbers 14108 for the year 2005 and 14109 for the year
2005 o the orchards delinquency
And I have gained an appeal judgements in
the two law suits against/Ahmed Abd-El Hafeiz Ahmed Rihan by an imprisonment
each one for three years for issuing a [sic] Nun-sufficient-fund cheques by the
amount of (Only 250,000 Geneh).
Where he has paid these outstanding
amount to us.
Therefore I am [sic] honoered to offer my
sincere thanks to your excellency
For your appreciated efforts.
I am presenting my withdrawal of my [sic]
complain about named / Ahmed
Abid-El hafeiz Ahmed Rihan (file No. 1108/10/2006).
(Transcript/Record
p. 446)
[87]
The
Applicant’s wife explained how Mr. al-Jezawi came to write the waiver:
RPO: Okay. Now it is also your testimony
that the Muslim brotherhood have done something to make it appear like your
husband is a wanted fugitive?
Witness: exactly, you got to this point.
RPO: Okay. But Mr. Al-Gizware has written
a letter that the whole thing is a silly mistake, please cancel it. So is it
your testimony that the brotherhood goes to this problem of manipulating a
crime then the lawyer writes Interpol to say forget it?
Witness: We believe something, we are not
sure one hundred percent that he did this due to motivation from them and Ahmed’s
sister spoke to him and she told him we are going to report because you got
your money, the full amount of your money and maybe we would – he was afraid
because we were asking the Interpol because this is wrong and nobody submit a
paper about $250,000.
(Transcript/Record
p. 348)
[88]
The RPD made no reference to the Applicant’s
wife’s testimony. Yet the previous RPD member accepted her allegation the
criminal prosecution was a part of the Muslim Brotherhood’s persecution of the
Applicant as a theory worthy of further examination and scrutiny.
[89]
The RPD neither referred to nor analyzed the testimony from
the Applicant’s wife or his Egyptian lawyer about the falsification of the
charges against the Applicant. While the RPD member did not hear the testimony
of either witness firsthand, she accepted their evidence by adopting the
transcript record at the start of the third hearing.
[90]
In
my view, the RPD erred by finding the Interpol Red Notice alone sufficed as a
“serious reason for considering” a serious crime was committed. The
evidence from the Applicant’s wife and his Egyptian lawyer, Mr. al-Yahki,
casts doubt on the information contained in the Interpol Red Notice. The
jurisprudence called on her to assess the credibility of the Applicant’s claim
the charges against him were fabricated: Gurajena.
CONCLUSION
[91]
I
conclude the RPD erred in assessing the Applicant’s evidence, misconstruing the
evidence of the Applicant’s Egyptian lawyer, and failing to consider evidence
by both the Applicant’s wife and his Egyptian lawyer.
[92]
I
find the RPD’s decision is unreasonable and cannot stand. The application for
judicial review is granted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is granted.
2. The decision
is quashed and the matter is remitted for redetermination by a differently
constituted Panel.
3. No costs are
award.
4. No question
of general importance is certified.
“Leonard
S. Mandamin”
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