Date:
20121023
Docket:
IMM-9762-11
Citation:
2012 FC 1231
Ottawa, Ontario,
October 23, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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OMAR ROMAN JIMENEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a citizen of Mexico, claimed refugee protection due to threats from
a gang and because he had been shot at. The central issue in this matter was
whether the Applicant was excluded from the Convention Relating to the Status
of Refugees, 1951, CTS 1969/6; 189 UNTS 150 because he had “… committed a
serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee” as provided in Article 1F(b).
[2]
A
preliminary issue in this judicial review is whether the leave and judicial
review application was out of time. The Applicant claimed that he did not
receive the Immigration and Refugee Board [IRB] decision until he picked it up
directly from the Board’s office 18 months after the decision was issued.
However, the Applicant knew the results of the decision since it was first
rendered orally in his presence at the conclusion of his hearing.
[3]
This
Court grants the extension of time (to the extent it was needed), influenced by
the fact that leave was granted by Justice Simpson in the face of the “late”
filing as raised by the Respondent. It seems highly unlikely that an
experienced judge would have missed this issue.
[4]
The
Court was also influenced by the words of the Applicant’s counsel, as an
officer of the Court, as to events which surround obtaining the decision in the
absence of any affidavit evidence. The Court could only have rejected the
counsel’s evidence if it believed it to be untrue. Counsel was advised that the
Court accepted her word as an officer of the Court on the clear understanding
that should it be knowingly inaccurate, the Court could refer such conduct to
the professional disciplinary body as well as initiating contempt proceedings.
[5]
Lastly,
the Court was influenced by the only real issue in this judicial review, that
of whether “duress” had been adequately considered by the Board. If there was
merit in the “duress” argument, not to hear the matter would result in an
injustice.
II. BACKGROUND
[6]
The
Applicant claimed that his wife was kidnapped by the Los Zetas gang who
demanded a large ransom which he could not afford. In lieu of paying the
ransom, the Applicant carried drugs, two kilograms of cocaine, to Holland where he was caught smuggling.
[7]
At
the Applicant’s trial in Amsterdam, the Applicant pled guilty to the drug
trafficking charge. He was sentenced to 20 months, served eight months and was
then deported to Mexico.
[8]
It
appears that the Applicant’s wife was released by her kidnappers sometime after
his arrest in Holland.
[9]
During
his time in prison, the Applicant’s wife left the family home, took their
daughter with her and cut all ties to the Applicant.
[10]
The
Applicant left Mexico after being shot in the leg. He arrived in Canada in July 2008 and claimed refugee protection in November of that year.
[11]
At
the IRB hearing, the Member first dealt with the exclusion issue under Article
1F(b). The Applicant pleaded “duress” before the Member. The Applicant claimed
that he did not raise the defence of duress in the Amsterdam Court, although he
did tell his lawyer about his wife’s kidnapping.
[12]
In
this judicial review, the Applicant asserts that the Member failed to consider
the element of “duress” that led to his conviction and that the Member simply
adopted the Amsterdam Court’s conclusion of guilt.
[13]
The
Applicant also raised fairness issues (such as bias, inadequacy of reasons,
legitimate expectations and failure to adjourn) as well as unreasonable
credibility findings. Having heard argument on these points, the Court asked
the Respondent to only respond to the “duress” issue. There is no basis for the
other grounds raised.
III. ANALYSIS
[14]
The
issue of whether the IRB considered the issue of “duress” on its own or whether
it blindly followed the Amsterdam Court’s acceptance of a guilty plea is a
matter of law. It is to be decided under a “correctness” standard of review (Feimi v Canada (Minister of Citizenship & Immigration, 2012 FC 262, 2012 CarswellNat 1157 at para 9).
[15]
A
fair reading of the IRB decision is that the Member found that the Applicant
had not made out the “duress” defence. The effort to make out the defence was
flawed due to the lack of corroborating evidence regarding the kidnapping.
[16]
The
Applicant had full and complete notice that “duress” was an issue, that he had
the onus to make out that claim and that he had to produce documentary
evidence. Specifically, the Applicant had been advised by the IRB that he had
to file documents dealing with the events in Holland, the problem of Los Zetas,
and the kidnapping of his wife.
[17]
There
is no issue that the Applicant committed the offence of drug smuggling or that
it was a serious offence. The only mitigating factor raised, as discussed in Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4
FCR 164, was duress.
[18]
The
burden was on the Applicant to establish that his crime was motivated by
duress. In this case the only duress is that flowing from his wife’s
kidnapping. Absent the kidnapping, there is no duress.
[19]
There
was no affidavit from anyone confirming the kidnapping, least of all an
affidavit from his wife. There was not even an affidavit from his Dutch lawyer
confirming that duress had been discussed but the decision was made not to
raise it in the Dutch proceedings. Duress is not even raised in the Applicant’s
request for a pardon from the Dutch authorities.
[20]
The
Member found that there was no collaborative evidence that such kidnapping
occurred. The Member’s conclusion is correct and he did not ignore the issue
but merely found that the issue had not been made out.
[21]
Therefore,
the Court concludes that the issue of duress was addressed by the IRB and that
its conclusion that the defence was not made out was reasonable.
IV. CONCLUSION
[22]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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