Date: 20070309
Docket: IMM-2128-06
Citation: 2007 FC 277
Ottawa, Ontario, March 9, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
BELA
TAMAS FARKAS
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Bela Tamas
Farkas (the
Applicant) is
a citizen of Hungary who bases
his Convention refugee claim on an alleged fear of persecution by reason of his
Roma ethnicity and his Jewish religion. In a decision dated March 31, 2006, a
panel of the Immigration and Refugee Board, Refugee Protection Division (the
Board) determined that the Applicant is excluded under Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees (the Convention)
because there are serious reasons for believing that he committed a serious
non-political crime in Hungary. The Applicant seeks judicial review of this
decision.
Issues
[2] The issue raised by the Applicant is whether the Board erred
in its finding of exclusion, because it:
(a) failed to assess the
relevant Hungarian law on the basis of expert testimony; or
(b) erred in finding that
the crime for which the Applicant had been convicted was a serious
non-political crime.
Background
[3] The details
of the Applicant’s alleged crime, as contained in the Certified Tribunal
Record, are as follows. On March 13, 1999, the Applicant, as an accomplice,
forced entry into a store and stole property with the total value of 2,978,025
Hungarian Forints (around $20,000 CDN). On October 18, 2000, the Applicant was
convicted pursuant to the provisions of section 316 of the Hungary Penal
Code and was sentenced to five years imprisonment and barred from public
affairs for six years. On appeal to the Komarom-Esztergom County Court of
Justice, his conviction was upheld, but his sentence reduced to two years and
eight months imprisonment and three years abstinence from public affairs. The
Applicant has not served his sentence in Hungary and the
Hungarian officials have issued a warrant for his arrest. There is also an
outstanding Interpol warrant for his arrest.
[4] In its
decision, the Board made the following key determinations:
- The
Interpol arrest warrant and the copy of the Hungarian Court
judgment were sufficient evidence to establish that there were serious
reasons for believing that the claimant, before coming to Canada, had
committed a crime.
- The
crime was not political in nature.
- The
Applicant was found guilty of being an accomplice in the criminal offence
of theft by force of property of high material value (almost $20,000 CDN),
pursuant to section 316 of the Hungarian Criminal Code.
- Had the
offence been committed in Canada, the Applicant
would have been guilty of an offence under s. 334 of the Criminal Code
of Canada and liable to a maximum sentence of ten years.
- The Applicant
was dealt with fairly and in accordance with the rule of law by the
Hungarian court.
- The
Applicant has not served his sentence for the commission of the crime in
question.
Analysis
[5] The issue
before the Board was whether the Applicant was excluded from protection by the
operation of Article 1F(b) of the Convention. Article 1F(b) of the Convention
is as follows:
|
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 dont
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 réfugiés
|
[6] As the
Federal Court of Appeal stated in Lai v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 125, [2005] F.C.J. No.
584 at para. 22 (F.C.A.)(QL), the primary purpose of Article 1F of the Convention
is to ensure that perpetrators of serious non-political crimes are not entitled
to international protection in the country in which they are seeking asylum.
This principle is embedded in s. 98 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) which provides as follows:
|
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.
|
|
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.
|
[7] Thus, the
effect of a Board finding that this Article is applicable to a claimant is that
the claimant cannot be found to be a Convention refugee or a person in need of
protection pursuant to s. 96 or s. 97 of IRPA.
[8] In Xie v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 250, [2004] F.C.J. No.
1142 at para. 23 (F.C.A.) (Q.L.), the Federal Court of Appeal established that
an exclusion hearing under Article 1F is not in the nature of a criminal trial
where guilt or innocence must be proven by the Minister beyond a reasonable
doubt. It is not the Board’s role to establish the actual innocence or guilt of
the appellant (see Moreno v. Canada (Minister of
Employment and Immigration), 107 D.L.R. (4th) 424, 159 N.R. 210,
[1993]
F.C.J. No. 912 at para. 21 (F.C.A.) (QL). Rather, the onus upon
the Minister of Citizenship and Immigration (the Minister) is to establish,
based on the evidence presented to the Board, that there are “serious reasons
for considering” that the Applicant committed a serious non-political crime
outside of Canada, prior to their arrival in Canada. The
standard of evidence to be applied to this threshold test is higher than a mere
suspicion but lower than proof on the balance of probabilities standard (see Zrig
v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003]
3 F.C. 761 at para. 174 (F.C.A.) and Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306 at 312-314 (F.C.A.)).
[9] The Federal
Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration),
[2000]
4 F.C. 390, 190 D.L.R. (4th) 128, [2000] F.C.J. No. 1180 (F.C.A.)
(QL), discussed how Article 1F was a means of bringing refugee law into line
with the basic principles of extradition law, by ensuring that fugitives are
not able to avoid the jurisdiction of a state in which they may lawfully face
punishment.
Standard of
Review
[10] The standard of
review to be applied to the decision of the Board concerning Article 1F(b) was
dealt with by Justice Décary in Harb v. Canada (Minister of Citizenship and
Immigration) 2003 FCA 39, 238 F.T.R. 194 (F.C.A.), where he stated at
paragraph 14:
In so far as these are findings of fact
they can only be reviewed if they are erroneous and made in a perverse or
capricious manner or without regard for the material before the Refugee
Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal
Court Act, and is defined in other jurisdictions by the phrase
"patently unreasonable"). These findings, in so far as they apply the
law to the facts of the case, can only be reviewed if they are unreasonable. In
so far as they interpret the meaning of the exclusion clause, the findings can
be reviewed if they are erroneous. […]
[11] With these
principles and the standard of review described above, I turn to the issues
raised by the Applicant.
Issue #1: Did
the Board err by failing to assess the relevant Hungarian law on the basis of
expert testimony?
[12] In the
Applicant’s submissions, the Board erred in its assessment of Hungarian law due
to the fact that the Board did not rely on expert evidence. The Applicant
relies on Canada (Minister of
Citizenship and Immigration) v. Saini, 2001 FCA 311 at para.
26, 206 D.L.R. (4th) 727, for the principle that findings pertained
to foreign law are findings of fact, not law, and as such need to be proved as
evidence through the use of expert testimony, in person or via affidavit. The
Applicant submits that, in this case, the Minister did not put forward any
expert evidence. In the absence of such testimony, the Board erred in making
findings on the meaning of the law of Hungary. Further the Applicant
submits that it is an error of law for the Board to rely on a mere provision of
a document purporting to be the law of Hungary without the truth of its
contents being attested to by an affiant expert in Hungarian legal terminology
and fluent in English and Hungarian.
[13] As this is
primarily a question of law, I will apply the standard of correctness to this
issue.
[14] In
my view, the Applicant is trying to impose an excessively high burden of proof
on the Minister and the Board. I note first that the Board, in making its
determination under Article 1F(b), is not attempting to establish guilt or
innocence under Hungarian law. Rather, the Board is reviewing all of the
evidence to determine whether there are serious reasons for believing that the
Applicant has committed a serious non-political crime. The legal rules normally
associated with the criminal context do not apply in a refugee context (Lai,
above).
[15] In this case, the Board
had before it significant evidence that supported its conclusion. The judgment
of the court of first instance sets out the relevant provision of the Hungarian
law and, of even more importance, a detailed description of the actions that
led to the Applicant’s conviction under the law. The Minister, in his
submissions to the Board, provided extracts from the Hungarian
Criminal Code. The fact that this evidence may fall far short of the
standard of proof in criminal cases is of no importance since the issue is not
whether the Applicant committed the crime of which he is accused. The issue is
whether there are serious reasons for considering that he did. The evidence
before the Board is capable of supporting that conclusion. There was no need to
“prove” the Hungarian law through expert testimony.
[16] Further,
the case of Saini, above, is not relevant to this
application. In that case, the main issue was whether Mr. Saini, who was
convicted in Pakistan of hijacking an airliner and later pardoned by the Pakistani
President, could be deported from Canada on the basis of subparagraph
19(1)(c.1)(i) of the Immigration Act, which, in effect excluded persons
who have been convicted of a serious offence outside of Canada. In that
context, the Federal Court of Appeal pointed out that three elements must be
established before a foreign discharge or pardon may be recognized: (1) the
foreign legal system as a whole must be similar to that of Canada; (2) the aim,
content and effect of the specific foreign law must be similar to Canadian law;
and (3) there must be no valid reason not to recognize the effect of the
foreign law. The issue of whether the Pakistani pardon had the effect of
erasing the crime as a matter of Canadian law was central to the decision. In
that context, it is apparent why each party to the hearing presented evidence
on the meaning of the applicable Pakistani law. The case before me does not
deal with a foreign pardon. Nor was there any dispute at the hearing as to the
meaning of the Hungarian law.
[17] I
finally note that the Board, as an expert tribunal, is entitled to make
findings of fact based on the record before it. There is no need for each and
every fact to be proven through expert witnesses.
Issue#2: Did the Board
err by finding that the offence of the Applicant was a “serious non-political
crime”?
[18] The Applicant
submits that the Board erred in finding that the crime for which the Applicant
was convicted is a serious crime. The Applicant points out that, in Pushpanathan
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 867, 116 A.C.W.S. (3d) 570, the
Court found that drug smuggling was not evidence of “serious criminality” for
the purpose of exclusion. Thus, the Applicant submits that it is an error of
law to find the charge of theft by force of property of high material value to
be a serious non-political crime. As well, the Applicant relies on Knox v. Canada (Minister of
Citizenship and Immigration), 71 A.C.W.S. (3d) 122, [1997] F.C.J. No.
530 (F.C.T.D.) (QL), in which the Court found that a theft of $58,000 USD (two
sums of $29,000 USD) did not constitute a serious non-political crime.
[19] In my view,
the Board’s determination of whether a crime is “serious” is a finding of fact
that should be reviewed on a standard of patent unreasonableness. However, even
on a standard of reasonableness simpliciter, my conclusion would be the
same.
[20] It should be
noted that the Applicant is not contesting that the alleged crime, if committed
in Canada, would be
punishable by a sentence of up to ten years. Committing the offence of theft
over $5,000 described in subsection 334(a) of the Criminal Code renders
an individual “liable to a term of imprisonment not exceeding ten years.”
[21] The Applicant
relies on Knox, above, in which the Board found that the applicant did
not commit a serious non-political crime when he conspired to defraud the United States. The first
problem with this submission is that the facts in Knox were dramatically
different from those before me.
[22] The second
problem with this argument is that it ignores the more recent jurisprudence. In
Chan, above at para. 9, the Federal Court of Appeal accepted that, “a
serious non-political crime is to be equated with one in which a maximum
sentence of ten years or more could have been imposed had the crime been
committed in Canada.” The ten-year threshold was affirmed
by Justice Michael Kelen in Xie v. Canada (Minister of
Citizenship and Immigration), [2004] 2 F.C.R. 372 at para. 34, aff’d 2004
FCA 250,
after a careful analysis. Other Courts have endorsed the concept of referring
to the penalty provided in Canadian law (see, for example, Medina v. Canada (Minister of
Citizenship and Immigration), 2006 FC 62, [2006] F.C.J. No. 86 (F.C.).
Accordingly, with the evidence that the crime, if committed under Canadian law,
carries a penalty of ten years, the Board had an evidentiary base to conclude
that the crime qualified as “serious” within the meaning of Article 1F(b) of
the Convention.
[23] The Applicant
also relies on Pushpanathan, above, to show that “if drug smuggling has
been found to not be evidence of ‘serious criminality’ for the purpose of
exclusion, then it is an error of law to find the charge and conviction herein
to be such”. I do not agree with the Applicant’s characterization of Pushpanathan.
In Pushpanathan, the Supreme Court was dealing with exclusions under
Article 1F(a) and Article 1F(c) – not Article 1F(b) (which is the case here).
Article 1F(c) states: “The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for considering that (c)
he has been guilty of acts contrary to the purposes and principles of the
United Nations”. Consequently, Article 1F(c) does not require “serious
criminality”. Thus, in my view, Pushpanathan cannot be of any assistance
to the Applicant.
Conclusion
[24] In
conclusion, the Board did not err; its decision should stand.
[25] The
Applicant suggested that I certify a question to clarify whether Knox is
still good law. In light of Xie and Chan, above, the law on how a
Board assesses Article 1F(b) has been further refined. Knox, in my view,
must be read in the context of its unusual facts and with recognition of the
clarifications provided by the more recent jurisprudence. I do not believe that
this is a question of general importance.
ORDER
THIS COURT
ORDERS
that:
- The application is
dismissed; and
- No question of
general importance is certified.
“Judith A.
Snider”
_____________________________
Judge
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