Date: 20100426
Docket: IMM-5000-09
Citation: 2010
FC 454
Vancouver, British
Columbia, April 26, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
JOSE
ISAIAS AREVALO PINEDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Arevalo Pineda seeks judicial review
of the decision of the Refugee Protection Division of the Immigration and
Refugee Board (RPD) concluding that he was excluded from making a refugee claim
under s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act) and Article 1F(b) of the United Nations Convention
Relating to the Status of Refugees, July 28, 1951, Can. T.S. 1969 No.
6 (the Convention) because
there were serious reasons for considering that he had committed a serious
non-political crime outside Canada prior to claiming refugee status in Canada.
[2]
The circumstances in
this case appear to be quite unique in that the charges upon which the Minister
sought to exclude the applicant have been dismissed by a competent court. The
applicant argues that, in such circumstances, Article 1F(b) of the Convention could
not apply as a matter of law. He also submits that, in any event, even if it
could, the decision was unreasonable.
[3]
For the reasons that
follow, I cannot agree with the applicant’s interpretation of Article 1F(b) of
the Convention. However, I agree that this application should be allowed for
the decision contains a reviewable error.
I.
Background
[4]
Mr. Arevalo
Pineda is a citizen of Guatemala. He came to Canada in June 2008 and claimed refugee status.
Having disclosed during the interview with the immigration authorities that he
had been charged in the United States in 1994, but that these charges had been
dismissed, the Minister intervened to seek his exclusion pursuant to Article
1F(b) of the Convention.
[5]
On July 31, 2009, two
months before the applicant’s scheduled hearing, the Minister provided him
with a copy of the documentation he would be using. This included a list of 28
charges laid against him and his cousins for kidnapping for sexual purposes,
forcible rape in concert with a foreign object (finger), oral copulation (on
the victim) and the use of a handgun in the course of one or more of these
offences.
[6]
The Minister’s
package also included notes from the police investigation particularly in
respect of the statement made by the alleged victim to the police.
[7]
It appears that the
alleged victim, who since then was confirmed to be the girlfriend of one of the
other accused, recanted her allegations and refused to testify. The case was
dismissed on May 23, 1994, and the applicant was deported to Guatemala in August 1994. At the time, he was 22-years-old. Since
then, he got married and has two children. He worked as a bus driver in Guatemala until he fled that country allegedly because he feared a
dangerous gang who tried to extort money from him and his boss, the owner of
the bus.
[8]
On the morning of his
hearing, the applicant sought to introduce in evidence a faxed letter purportedly
written by the alleged victim. The letter was in Spanish and was notarized. Although
no official translation was provided, the interpreter present at the hearing
translated it to the RPD and the Minister’s counsel acknowledged that she was
fluent in Spanish.
[9]
The applicant’s
counsel argued that the RPD should use its discretion to accept this evidence
because it was very relevant and crucial to his case. The Minister’s counsel
took issue with this request because she had no time to verify its origin.
Finally, the RPD admitted it in evidence saying that it would consider the
weight to be given to it after hearing the applicant’s testimony.
[10]
No one sought an
adjournment or the right to provide further comments or evidence in that
respect after the hearing.
[11]
Mr. Arevalo Pineda
was briefly examined and after hearing the arguments in respect of the
exclusion, the RPD rejected the applicant’s claim orally stating that there was
no need to proceed with the merits of the claim per se. On October 20, 2009,
that is, about three weeks after the hearing, a written decision was issued.
[12]
At paragraph 10 of
the decision, the RPD explains:
The
serious reasons are, in summary, and looked at globally, two. One of the
serious reasons is the documentation from the United States…
[13]
Having noted that the
United States is a jurisdiction operating under the rule of law and that Mr.
Arevalo Pineda had not adduced evidence to show that the documents from the State
of California should be rejected because they are faulty or because they
emanate from a jurisdiction which lacks a fair and independent process, the RPD
concludes “that they are credible and trustworthy evidence” (para. 13). Then,
it says:
The other
source of serious reasons to consider that the claimant committed a serious
non-political crime is his own testimony that this was, indeed, he who was
charged. Therefore, the allegations against him, for these two reasons, have
been proven to be credible and trustworthy evidence.
[14]
Thereafter, the
decision-maker turns to the applicant’s evidence which consists of his
testimony that the allegations made were not true and that the complainant has
admitted so by recanting her story. Also, in the fact that the charges were
dismissed. The RPD notes correctly, in my view, that its role is not to
determine whether or not Mr. Arevalo Pineda is innocent of the charges
which were brought against him, but only whether there are serious reasons to
consider that he committed a serious non-political crime.
[15]
It then goes on to
deal with “the last-minute testimony” produced by the applicant. Because it was
produced late, in breach of the 20-day period
and the Minister’s representative had no ability to question the
complainant over the phone or to look into the circumstances of the document,
it states that it was given “very, very little weight.” In fact, it adds
that: “I gave it the weight which I give the evidence of recanting which is
from the District Attorney, that is, we have evidence that the complainant has
recanted her testimony.”
[16]
According to the RPD,
the fact of recanting does not mean that there are suddenly no serious reasons
to consider that the applicant committed a serious non-political crime. It then
finds that the original statement to the police was detailed and concludes:
They [the
details] give a certain weight to the charges which were made because they deal
with the assault, the threats and the injuries. That is a significant level of
detail. Therefore, I find that I have serious reasons in this case.
[17]
The rest of the
decision deals with whether or not a serious crime was involved. This was never
really a disputed issue but is nevertheless part of the analysis to be
performed. The only thing worth mentioning here is that in examining the
mitigating circumstances, the RPD adds some further comments on the recanting
by the complainant at paragraph 30. Again, it notes that it “cannot assume that
the recanting should be taken at face value” because of the threats received at
the time of the alleged rape – that she and her sister would be killed if she
told anyone, including her family or the police.
II. Analysis
[18]
It is not disputed that the interpretation
of s. 98 and Article 1F(b) of the Convention is a pure question of law to
which the standard of correctness applies. As to the application of these
provisions to the facts of the case, this is a mixed question of fact and law
to which the standard of reasonableness applies (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 55; Jayasekara
v. Canada (Minister of Citizenship and
Immigration), 2008 FCA
404, [2009] 4 F.C.R. 164 at paras. 14 and 56; Sing v. Canada (Minister of Citizenship and
Immigration), 2005 FCA
125, 253 D.L.R (4th) 606 at para. 68). The applicant relies
on Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103
D.L.R. (4th) 1; Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998]
1 S.C.R. 982, 160 D.L.R. (4th) 193 and
Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390,
190 D.L.R. (4th) 128 (F.C.A.) for the proposition that Article 1F(b) of the
Convention is directed at refugee claimants who are fugitives from justice that
are trying to avoid extradition. He submits that these cases although
rendered under the old legislation, are equally applicable to the current Act.
The applicant argues that a refugee claimant who has been the subject of
charges that were dismissed cannot as a matter of law have been intended to
fall within the scope of Article 1F(b) of the Convention.
[19]
The respondent
submits that the scope of Article 1F(b) was revisited in Zrig v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 178,
[2003] 3 F.C. 761 and in the context of the Act in Jayasekara, above.
The Court agrees that these cases although dealing with slightly different
factual circumstances clearly indicate that the applicant’s position cannot be
adopted.
[20]
In Zrig, the
Court of Appeal had to determine whether an applicant could be excluded
pursuant to Article 1F(b) because of his association with a group that committed
serious non-political crimes. The applicant had neither been charged nor
convicted of such crimes.
Both Justice Marc Nadon and Justice Robert Décary (concurring reasons) reviewed
the impact of the three decisions relied upon by the applicant and referred to
above (see particularly paras. 67 – 72 and paras. 120 – 127). They mention that
the comments of Justice La
Forest in Ward were
made in obiter and without the benefit of full arguments whereas
those of Justice Michel Bastarache in Pushpanathan could not be
construed as a limitation but rather that they were directed to the issue that
was crucial to the case before the Supreme Court – extradition.
[21]
Chan was said to rest on questionable grounds
given that it relies heavily on Ward and Pushpanathan and was
distinguished on its facts including that it was based on the structure of
the old legislation (paras. 62-63). The Court of Appeal made it clear that a
restrictive interpretation of the objectives of Article 1F(b) was not in line
with its wording nor with the interpretation adopted by the courts of other signatories
to the Convention such as the British Court of Appeal and the Federal Court of
Australia. It dismissed the idea that the parties to the Convention intended that
the exclusion under Article 1F(b) be limited to persons charged with serious
non-political crimes who seek to evade prosecution.
[22]
In fact, at paragraph
118, Justice Décary describes the objectives of Article 1F(b) as follows:
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 which I would summarize as follows: ensuring that
the perpetrators of international crimes or acts contrary to certain
international standards will be unable to claim the right of asylum; ensuring
that the perpetrators of ordinary crimes committed for fundamentally political
purposes can find refuge in a foreign country; ensuring that the right of
asylum is not used by the perpetrators of serious ordinary crimes in order to
escape the ordinary course of local justice; and ensuring that the country of
refuge can protect its own people by closing its borders to criminals whom it regards
as undesirable because of the seriousness of the ordinary crimes which it
suspects such criminals of having committed. It is this fourth purpose which is
really at issue in this case.
[23]
His views were
recently endorsed by the Federal Court of Appeal in Jayasekara, at
paragraph 29, where it noted that those purposes are complementary. In that
recent decision, the Court of Appeal once again rejected the restrictive
approach adopted in Chan which was distinguished if not completely
disavowed.
[24]
Finally, it is worth
citing the following passage of Justice Décary’s reasons in Zrig at
paragraph 129:
[…] It follows that under Article 1F(b) it is possible to exclude
both the perpetrators of serious non-political crimes seeking to use the
Convention to elude local justice and the perpetrators of serious non-political
crimes that a State feels should not be allowed to enter its territory, whether
or not they are fleeing local justice, whether or not they have been prosecuted
for their crimes, whether or not they have been convicted of those crimes and whether
or not they have served the sentences imposed on them in respect of those
crimes.
[Emphasis added]
[25]
This makes good sense
given that charges can be dismissed for a variety of reasons including
procedural issues, rejection of crucial evidence for technical reasons, or
simply because the accused raised a reasonable doubt. The Convention does not
adopt the stringent standard applicable in criminal proceedings and the RPD may
indeed be satisfied that evidence produced by the Minister, which may not be
admissible in a court of law, is sufficient to raise a serious possibility that
the applicant has indeed committed a serious crime.
[26]
In light of this case
law, I need not say more to conclude that the RPD did not err in law by
applying s. 98 of the Act and Article 1F(b) of the Convention to this case. I
will now turn to the second issue raised by the applicant.
[27]
As mentioned, parties
to the Convention chose a fairly low evidentiary threshold to determine if a
refugee claimant has committed a serious non-political crime before seeking
protection in the country of refuge. Parliament has also given the RPD a lot of
freedom to receive any evidence it considers credible and trustworthy
[subsections 170(g) and (h) of the Act]. That said, the need for “serious
grounds” is protection against arbitrary and capricious action especially in
light of the dire consequences resulting from an exclusion pursuant to Article
1F(b) of the Convention. For this standard to be meaningful, it requires a
proper and objective assessment of the context as well as all the evidence
presented by the refugee claimant. Obviously, the RPD must be particularly
cautious when charges led have been dismissed by a competent court in
accordance with the rule of law.
[28]
In Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192, 219 N.R.
376 (FCA) and Xie v. Canada (Minister of Citizenship and Immigration),
2004 FCA 250, [2005] 1 F.C.R. 304, the Federal Court of Appeal made it clear
that the RPD can, in a proper context, rely upon an indictment and an arrest
warrant to conclude that there are reasonable grounds to conclude that a claimant
has committed serious crime outside of Canada.
[29]
This is based on the
premise that in a system where the rule of law prevails, the RPD can reasonably
infer that there were reasonable and probable grounds for the police or the
judicial investigative system to issue a warrant or lay a charge.
[30]
Naturally, for such
premise to apply, the RPD must first be satisfied that the issuing authority
does respect the rule of law, that is, for example, that it is not dealing with
a country known for the filing of false charges as a means of harassment or
intimidation.
[31]
But, by the same
token, it also means that the value of the charges laid in a country like the United States is greatly diminished when such charges
are dismissed. In fact, I would think that in such a case, the dismissal
of the charges is prima facie evidence that those crimes were not
committed by the refugee claimant and that the Minister cannot simply rely on
the laying of charges to meet his burden of proof. The Minister must either
bring credible and trustworthy evidence of the commission of the crime per
se or show that in the particular circumstances of the case, the dismissal
should not be conclusive because it does not affect the basic foundation on
which the charges were laid. Again, for example, this could be achieved by
establishing that crucial evidence on the basis of which the charges were laid
was excluded for a reason that does not bind the RPD and does not totally
destroy its probative value.
[32]
In the present case,
it is evident that the main evidence (if not the only one) available to those
who laid the charges and on which their reasonable beliefs were based, was the
statement of the alleged victim. There is no evidence that there was anything
else in the investigative file. The policeman who interviewed the complainant
specifically noted that there were no visible marks or injuries and that there
was no “rape kit”. No examinations or tests were made. Thus, the recanting of
the complainant’s story destroyed the very foundation of the beliefs on which
the charges were originally laid.
[33]
This means that the
RPD had to be particularly careful in the way it treated the charges and it had
to deal thoroughly with the retraction. It is exactly in that respect that I
consider the decision under review to be lacking.
[34]
The charges could not
constitute credible and trustworthy evidence on which the RPD could base its
decision unless it was first satisfied that the recanting was not credible. The
vague reference to the threats received prior to going to the police in the
other section of the decision dealing with the seriousness of the crime cannot
“save” the decision, especially when one considers that these threats certainly
did not stop the complainant from telling her older sister and then the police.
[35]
Moreover, having
exercised its discretion to allow the filing of this evidence pursuant to Rule
30 outside of the delay provided for in Rule 29, it appears somewhat
counterintuitive considering the criteria to be used in the exercise of such
discretion to then assign very little weight to this evidence on the basis that
it was filed late and without considering the explanation provided by the
applicant as to why it was so. In effect, Mr. Arevalo Pineda made it clear that
the complainant, who according to her letter is still the wife of his cousin,
was fearful that providing evidence in the Canadian proceedings could have a negative
impact on her situation in the United States given her lack of status in that
country. She feared not only for herself but for her children.
[36]
Because of the
importance of this evidence which corroborates with the truthfulness of the
complainant’s recanting 15 years after the fact and at a time when it would not
have been plausible that the complainant would act under duress or because of
threats issued years earlier (which threats effectively did not prevent her
from going to the police in the first place), this error vitiates the whole
decision.
[37]
Before concluding, it
is worth mentioning that the RPD must look at the overall context which
includes what was accepted by the decision-maker namely, that the alleged
victim was in 1994, the girlfriend of the applicant’s cousin – one of the
alleged rapists – while in her original statement she simply described her
aggressors as customers at the restaurant where she worked. According to the
testimony of the applicant, as soon as he and his cousin got out of prison the
relationship resumed. It appears to have continued to this day with at least
one child resulting from this union.
[38]
Also, part of the
context is the life and the activities of the applicant since then. Finally,
given the testimony of the applicant who denied having been involved in any
crime, the RPD should also deal with his credibility and the weight given to
that evidence.
[39]
Both parties
confirmed that they did not seek certification of any question and the Court
agrees that none should be certified.
ORDER
THIS COURT ORDERS that:
1. The application is granted.
2. The
matter shall be sent for rehearing and reconsideration by a different panel.
“Johanne
Gauthier”
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