Date: 20111004
Docket: IMM-541-11
Citation: 2011 FC 1127
Ottawa, Ontario, October 4, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
EVANGELISTA ESPINEL NARANJO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Naranjo seeks to set aside a decision of the
Refugee Protection Division of the Immigration and Refugee Board that found
that he was excluded from refugee protection as there were serious reasons for
considering that, prior to coming to Canada, he had committed “a serious
non-political crime” as defined in Article 1F(b) of the Refugee Convention.
[2]
Mr. Naranjo is a citizen of Venezuela. In January of 1998, he was
convicted in the United States for “Failure to File a Report of International
Transportation of Currency over $10,000” (Count 1), as he had over $1.2 million
(USD) cash hidden inside his luggage (specifically inside stereo speakers) on a
flight he was boarding from Miami to Caracas, Venezuela. He was also convicted
of six counts of “Structuring Deposits in Order to Avoid Filing a Currency
Transaction Report” (Counts 2 to 7) in total over $100,000 (USD) in a twelve
month period. US officials found an additional $2 million (USD) of cash hidden
at his house in Florida.
[3]
The applicant was initially charged with lying to officers and money
laundering. He decided to cooperate with the authorities and agreed to a plea agreement,
resulting in the convictions noted above for which he was sentenced to fifteen
months in prison as to each of the seven counts to run concurrently. He served
13 months and was then handed over to the immigration authorities and ordered
to leave the US due to criminality.
[4]
Shortly after the deportation from the US, the applicant
attempted to cross into the US from Mexico and was returned to Venezuela by the
US authorities. He was again removed from the US on August 25, 2005, when he
attempted to re-enter through the Canadian border. The applicant later
returned to the US without authorization, and was convicted on November 1,
2006, for “Being Found Unlawfully in the U.S. after deportation for an
Aggravated Felony.” He was deported on January 10, 2007. Apparently the
applicant had visited Canada several times. On his most recent visit on February
27, 2010, he made a claim for refugee protection. He alleged that due to his
political opinion his life was at risk due to threats from Chavez supporters in
Venezuela.
[5]
The Board found that the applicant was excluded
from protection. Specifically, it found as follows:
The fact that the claimant has been initially charged with lying to
officers and money laundering and, after a plea bargain with the prosecutors,
was charged, convicted and sentenced to incarceration for the above-mentioned
criminal offences in the U.S. is prima facie evidence as “serious
reasons” for considering that the claimant has committed a serious
non-political crime prior to coming to Canada. Therefore, the panel finds that
there are serious reasons for considering that the claimant has committed the
above-mentioned crimes.
The Board held
that the crimes “for which he was initially charged before he made a deal with
the prosecutors were lying to officers and money laundering for which a maximum
sentence of at least ten years could have been imposed, had the crime
been committed in Canada [emphasis added].”
[6]
The applicant at the hearing submitted that (1) it is not clear from the
Board’s reasons which offence or offences were found to be serious non-political
crimes, (2) the Board erred in finding that the charges of lying
to officers and money laundering constituted “serious reasons for considering” that
the applicant had committed those crimes, and (3) the Board erred in balancing
the mitigating factors by focusing on subsequent immigration infractions and
giving no weight to the completion of the sentence for Counts 1 to 7 and the
lack of conviction for the withdrawn allegations or charges of lying to
officers and money laundering.
[7]
The relevant statutory provisions are as
follows. Article 1F(b) of the Refugee Convention
provides: “The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that … he has
committed a serious non-political crime outside the country of refuge prior to
his admission to that country as a refugee.” Section 98 of the Immigration
and Refugee Protection Act, SC 2001, c 27, provides that “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.”
[8]
It is accepted that for the purposes of Article
1F(b) a “serious non-political crime” has the same meaning as “serious
criminality” in s. 36(1) of the Act, which reads as follows:
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36. (1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed;
(b) having been convicted of an offence
outside Canada that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of imprisonment of at
least 10 years; or
(c) committing an act outside Canada that
is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under
an Act of Parliament punishable by a maximum term of imprisonment of at least
10 years.
|
36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d’une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
b) être déclaré coupable, à l’extérieur
du Canada, d’une infraction qui, commise au Canada, constituerait une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans;
c) commettre, à l’extérieur du Canada,
une infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
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[9]
Accordingly, in order to have been found
inadmissible, the Board had to have a serious reason for considering that the
applicant had committed an act in the US that is an offence there and that, if
committed in Canada, would constitute
an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years.
[10]
It is common ground that the only act that could
meet that definition is the crime of money laundering; which was one of the two
crimes with which the applicant had originally been charged.
[11]
The applicant submits that it is unclear which
crime the Board considered to meet the requirements of the Act as it
referred to the applicant as having been charged with “lying to the officers
and money laundering.” It is suggested that the Board erred in failing to
clearly focus on the money laundering offence.
[12]
Examining the decision as a whole, I find this
submission to be without merit. The Board usually references both charges;
however, it is made clear in paragraph 25 that the Board is aware that it is
the charge of money laundering alone that meets the requirements of the Act.
The Board writes:
The claimant was initially charged with lying to the officers and
money laundering. According to the [Criminal Code of Canada], the foreign
crimes committed by the claimant, i.e., money laundering, equate to a crime for
which a maximum sentence of at least ten years could have been imposed had the
crime been committed in Canada. [emphasis added]
[13]
While it is true that the applicant had not been
found to have committed the crime of money laundering, the Board found that
there were serious reasons for considering that he had committed that crime.
The Board was fully cognisant of the fact that the offences for which the
applicant had been convicted did not meet the requirements of the Act to
be serious crime. Accordingly, I find that the Member did not, as alleged, rely
on convictions for offences which would carry a maximum sentence of less than
ten years imprisonment if committed in Canada.
[14]
I also do not accept the submission that the Board
erred in relying on “mere withdrawn allegations or charges to find the
Applicant excluded under Article 1F(b).”
[15]
I agree with the respondent 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. The Federal Court of Appeal in Zrig v Canada
(Minister of Citizenship and Immigration), 2003 FCA 178, clarified that an
Article 1F(b) finding is possible even where the claimant has not been
convicted. Furthermore, this Court in Pineda v Canada
(Minister of Citizenship and Immigration), 2010 FC 454, held that even
charges that have been dismissed by a competent court may be relied upon by the
Board, albeit with caution.
[16]
In my view, the Board was entitled to consider that a large sum of money
was in the possession of the applicant, that the applicant was sentenced to
fifteen months of incarceration for Counts 1 to 7 after his plea bargain, and
that he had been initially charged with money laundering. These facts constitute
facts on which it was reasonable to find that that there were “serious reasons
for considering” that he had committed the offence of money laundering. It
must be kept in mind that the test in the Convention and Act is a low
one. As has been noted by the Court of Appeal, “the Board is not required to
set out and determine all of the specifics or elements of the crime committed”:
Lai v Canada (Minister of Citizenship and Immigration),
2005 FCA 125, at para 56.
[17]
Lastly, the applicant submits that the Board erred in its weighing of
mitigating factors and he relies, in part, on the following statement of the
Board at para 34 : “Based on the evidence, the panel finds there are no
mitigating factors.” The applicant points, among other things, to the fact
that the applicant had completed his jail sentence which is a mitigating
factor: Jayasekara v Canada (Minister of Citizenship and Immigration), 2008
FCA 404, and Chan v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1180 (CA).
[18]
In my view, the sentence recited above must be read in context, and the
context makes it clear that the Board was aware of and did consider that the
applicant had served his sentence. The Board nevertheless concluded that there
were no mitigating factors sufficient to overcome the applicant’s serious
criminality, which phrase is inferred in the Board’s reasons at paragraph
34:
The panel
acknowledges that the claimant had served his sentence, and the subject
criminal acts were committed several years ago; however the panel must look at
the overall context of the case at hand including the life and the activities
of the claimant since the claimant committed those crimes. The panel finds that
the claimant has a long history of noncompliance with and misrepresentation to
the authorities relating to his criminal history in the U.S. Moreover, the
panel finds that the claimant has consistently and repeatedly concealed
information and lied to the U.S. and Canadian authorities in the years
following the subject convictions. Based on the evidence, the panel finds there
are no mitigating factors.
[19]
The applicant further submits that the Board erred in rejecting his
explanation as to why he had so much cash in the US, which if believed, would
show that he was not engaged in laundering money. His explanation was that
this money belonged to his family and other wealthy citizens of Venezuela. He
took the cash from Venezuela during the banking crisis of 1994-1996 in order to
protect it for these wealthy people. He believes it was legally obtained by
them. According to the applicant, he was merely returning the cash to its
owners in Venezuela when he was stopped by the US authorities.
[20]
The Board did not believe the applicant’s explanation; particularly his explanation
as to why he made no effort to reclaim the money if it had been legally obtained.
Given the amount of cash in question, the Board concluded that the owners of
the money in Venezuela would, more likely than not, not simply accept that the
money was lost and not seek its return. In my view, that is a reasonable
finding on which to discount the applicant’s explanation.
[21]
For the reasons set out, this application must be dismissed. No
question for certification was proposed by either party.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is dismissed and
no question is certified.
‘‘Russel W. Zinn”
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