Docket: IMM-2928-11
Citation: 2012 FC 16
Ottawa, Ontario, January 5,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SPARTAK RADI
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 25, 2011.
The Board excluded the Applicant from status as a Convention refugee or person
in need of protection based on Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can TS
No 6 (Refugee Convention) and section 98 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) for the commission of a serious
non-political crime in the United States.
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant, Spartak Radi, is a citizen of Albania. In 2007,
he made a claim for refugee protection in Canada fearing
persecution linked to a blood feud involving his family. His previous attempt
to seek asylum in the United States was unsuccessful.
[4]
The
Applicant’s name appears on a list of fugitives being sought by American
authorities. He has been arrested and charged on a number of occasions for
offences including domestic violence, disorderly conduct and assault and
battery.
[5]
More
specifically, on or about September 28, 2006, he was accused of domestic assault.
The victim characterized her relationship with the Applicant as “abusive in
the past” and suggested that he was “an extremely ‘violent’ person.”
[6]
On
October 16, 2006, the Applicant pleaded nolo contendere and was found
guilty of the misdemeanour of being a disorderly person.
II. Decision
Under Review
[7]
The
Board assessed whether there were serious reasons for considering that the
Applicant committed a serious non-political crime outside Canada. It was
acknowledged that he did not contest his conviction for an offence ultimately
categorized as a misdemeanour in the United States. Based on the report
of the police officers, however, the Board was of the opinion that he could
have been accused and possibility found guilty of assault causing bodily harm
to his common-law partner in Canada.
[8]
Subsequent
violent behaviour toward his common-law partner, as documented in a police
report, constituted aggravating circumstances. This was supported by
additional evidence from the Minister’s representative regarding his criminal
activities in the United States.
[9]
The
Board therefore concluded at paragraph 25 of its reasons:
In light of all the evidence, including
the claimant’s testimony, and having taken into account the submissions of
claimant’s counsel, I am of the opinion that the Minister met his burden of
proof and that there are serious reasons for considering that the claimant
committed a serious non-political crime outside Canada. In particular, I refer to the incident
that occurred on or about September 28, 2006, which, in my opinion, might have
resulted in a charge against the claimant in Canada of assault causing bodily harm to his
common-law partner at the time. Striking his spouse as the claimant did during
this incident with the immediate consequence that she lost at least four teeth,
threatening to kill her, being found guilty of an offence as a result and
subsequently continuing to act violently toward the same spouse constitutes
behaviour that is not taken lightly in Canada. And I am of the opinion that it
is legitimate for a receiving country to protect its own people by closing its
borders to a criminal whom it regards as undesirable because of the seriousness
of the ordinary crime that he is suspected of having committed.
III. Issue
[10]
This
application raises the following issue:
(a) Did
the Board err in concluding that the Applicant committed a serious
non-political crime that excluded him from refugee protection?
IV. Standard
of Review
[11]
To
the extent that the interpretation of Article 1F(b) and section 98 is
considered, the correctness standard is applicable. However, the Board’s
decision to exclude the Applicant as having committed a serious non-political
crime is an issue of mixed fact and law reviewed on a standard of
reasonableness (see Canada (Minister of Citizenship and Immigration) v PAPD,
2011 FC 738, [2011] FCJ no 926 at para 10; Ryivuze v Canada (Minister
of Citizenship and Immigration), 2007 FC 134, [2007] FCJ no 186 at para 15;
Harb v Canada (Minister of Citizenship and Immigration), 2003 FCA 39,
[2003] FCJ no 108 at para 14).
[12]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[13]
Article
1F(b) of the Refugee Convention excludes perpetrators of serious non-political
crimes from refugee protection as follows:
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1F.
The provisions of this Convention shall not apply to any person with respect
to whom there are serious reasons for considering that:
(a) he has committed 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;
(b) he has committed a serious
non-political crime outside the country of refuge prior to his admission to
that country as a refugee;
(c) he has been guilty of acts contrary
to the purposes and principles of the United Nations.
[Emphasis
added]
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1F.
Les dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre
la paix, un crime de guerre ou un crime contre l'humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes;
b) Qu'elles ont commis un crime grave
de droit commun en dehors du pays d'accueil avant d'y être admises comme
réfugiés;
c) Qu'elles se sont rendues coupables
d'agissements contraires aux buts et aux principes des Nations Unies.
[Je
souligne]
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[14]
Canadian
law recognizes this principle by way of section 98 of the IRPA that states:
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98. A person referred to in section E
or F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
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98. La personne visée aux sections E ou
F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
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[15]
In
assessing the seriousness of a crime under Article 1F(b), Jayasekara v
Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2008] FCJ
no 1740 at para 44 “requires an evaluation of the elements of the crime, the
mode of persecution, the penalty prescribed, the facts and the mitigating and
aggravating circumstances underlying the conviction.” Reference to these
factors may rebut any presumption as to the seriousness attached to that crime
internationally or under the legislation of the receiving state.
[16]
The
Applicant asserts that the Board was deficient in its analysis of these
factors, particularly the elements of the crime and mode of prosecution. He
was convicted for the misdemeanour of being a disorderly person – equivalent to
a summary conviction offence in Canada – not domestic assault.
According to the Applicant, the prosecutor must not have been satisfied that
there was sufficient evidence to pursue the domestic assault charge, given
competing credibility claims. By relying on the statement of the complainant,
he insists the Board jumped to the conclusion that he could be convicted of
assault causing bodily harm under section 267 of the Criminal Code of Canada,
RSC 1985, c C-46.
[17]
However,
I am unable to accept the Applicant’s position. The Board directed its
attention to the factors referred to in Jayasekara, above. In
considering the police report and statement of the complainant, the Board
examined the factual basis underlying the conviction. It was entitled to weigh
the evidence and reject claims by the Applicant that he was not violent in
favour of details regarding his actions towards his common-law partner. Irrespective
of the Applicant’s speculation regarding the mindset of the prosecutor, it was
open to the Board to infer that the complainant’s decision not to cooperate may
have impeded the pursuit of the original charge.
[18]
The
Federal Court of Appeal has recognized that an Article 1F(b) finding is
possible even in instances where the claimant has not been convicted (Zrig v
Canada (Minister of
Citizenship and Immigration), 2003 FCA 178, [2003] FCJ no 565). Paragraph
129 states:
[129] [...] 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 States 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.
[19]
In
Pineda v Canada (Minister of Citizenship and Immigration), 2010 FC
454, [2010] FCJ no 538 at para 25, Justice Johanne Gauthier commented:
[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.
[20]
More
recently, Justice Russel Zinn acknowledged that dismissed charges can be relied
on to make this finding, albeit with greater caution. He accepted the argument
that “there is nothing improper in considering and relying on charges laid;
even where those charges do not subsequently result in a conviction and
particularly where there is a plea agreement entered into by the accused which
results in the initial charges not being further pursued” (Naranjo v Canada
(Minister of Citizenship and Immigration), 2011 FC 1127, 2011 CarswellNat
3941 at para 15).
[21]
In
Ganem v Canada (Minister of Citizenship and Immigration), 2011 FC
1147, [2011] FCJ no 1404 at para 24, Justice Donald Rennie asserted that
“[n]either the fact of conviction nor the service of the sentence can be
determinative of the exclusion analysis.”
[22]
These
conclusions suggest that the Board has sufficient latitude in the assessment of
the evidence presented by the Minister and ascertaining whether a particular
charge or conviction would constitute a serious non-political crime for the
purposes of Article 1F(b), provided it considers the factors identified in Jayasekara,
above. It is not constrained by the exact characterization of the conviction,
or whether there was any conviction at all. There must simply be “serious
reasons for considering” that this type of crime was committed.
[23]
It
was also appropriate, indeed expected, that the Board would look to Canadian
criminal law in its assessment of the crime. In PAPD, above at
paragraph 12, this Court faulted the Board for not asking “what would be the
result if those facts were heard by a Canadian court” and instead looking “for
equivalent criminal provisions to those of the U.S. offences.”
[24]
As
a consequence, I cannot find that the Board erred by looking at the gravity of
the underlying incident and determining that, based on the nature of offence,
the Applicant was likely to have been charged and possibly convicted of
aggravated assault in Canada, thereby falling under the exclusion as a
serious non-political crime.
[25]
It
would be inconsistent with PAPD, above, to rely on the Applicant’s
assertion that a misdemeanour is prima facie equivalent to a summary
conviction offence in Canada. As it did in this instance, the Board
was required to consider the facts in the Canadian context.
[26]
In
addition, the Board’s emphasis on aggravating circumstances was in accordance
with Jayasekara, above. The Applicant’s continued violent behaviour
toward his common-law partner and other criminal activity further supported his
exclusion from protection for a serious non-political crime.
[27]
As
an alternative argument, the Applicant has proposed that even if the
categorization of his offence in Canada is appropriate, his
conduct should not be considered a serious non-political crime. Based on the
decisions in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993]
SCJ no 74 and Pushpanathan v Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, [1998] SCJ no 46, he insists that only
crimes related to human rights would give rise to the exclusion.
[28]
With
respect, this is not the case. As the Respondent noted, no specifics have been
provided to support this argument. More significantly, Justice Robert Décary
concluded in Zrig, above at paragraph 108 that “the crimes to which
Article 1F(b) applies are ordinary crimes which are recognized by traditional
criminal law.” The Court rejected slightly different arguments that Ward or
Pushpanathan, above, limited the scope of crimes that would be relevant
to the exclusion.
VI. Conclusion
[29]
The
crime committed by the Applicant as assessed according to Jayasekara,
above, and in light of Canadian criminal law was reasonably found to have
excluded him from refugee protection according to Article 1F(b) of the Refugee
Convention and section 98 of the IRPA. Despite the Applicant’s claims to the
contrary, the Board was entitled to weigh evidence of the underlying factual
circumstances.
[30]
The
Applicant proposed the following question for certification:
If on the facts of the case a person was
convicted of a non-serious offence, may the Immigration and Refugee Board
determine on the same facts that the person has committed a serious
non-political offence and therefore is excluded from refugee protection
pursuant to Article 1F(b) of the Convention relating to the Status of Refugees.
[31]
The
Respondent opposes certification of this question because it turns on the facts
of the case and does not qualify as one of general importance (see Kunkel v Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, [2009] FCJ no 1700 at paras
8-10). More significantly, it is not dispositive of this application as the
Board is expected to engage in an analysis of the relevant factors in Jayasekara,
above.
[32]
The
jurisprudence I referred to clearly establishes that the nature of the charges
or conviction is not determinative. It follows that the Board can assess the
same set of facts as leading to an exclusion under Article 1F(b). Despite the
Applicant’s suggestion, there is no need for further clarity on this aspect of
the provision.
[33]
Accordingly,
the application for judicial review is dismissed. No question is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
No question is certified.
“ D.
G. Near ”
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