Date: 20080609
Docket: IMM-4257-07
Citation: 2008 FC 724
Ottawa, Ontario, June 9, 2008
PRESENT: THE CHIEF JUSTICE
BETWEEN:
GEORGE GURAJENA
ANNAH GURAJENA
GEORGE TAKURA GURAJNA (a minor)
SHINGIRAI EMMANUEL GURAJENA (a minor)
TADIWA COURTLAND GURAJENA (a minor)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUGMENT AND JUDGMENT
UPON the
application for judicial review of the determination, dated September 20, 2007,
by the Refugee Protection Division that the principal applicant George Gurajena
is excluded from refugee protection pursuant to Article 1F(b) of the
Convention, that the other applicants are not Convention refugees and that none
of the applicants is a person in need of protection;
UPON review
of the parties’ application records and the tribunal record and upon the
hearing of June 2, 2008 in Toronto, Ontario and by conference call on June 3,
2008;
[1] It may be that in some cases
proof of a valid warrant issued by a foreign country would constitute “serious
reasons for considering” that the applicant committed a serious non-political
crime within the meaning of Article 1F(b) of the Convention: Qazi v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1204 at paragraph 18. The Federal Court of Appeal has also suggested
that in other situations a warrant, in combination with other evidence, may be
persuasive that the threshold of “serious reasons for considering” has been met:
Xie v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 250 at paragraph 23. In any event, where evidence of a warrant is the
sole evidence relied upon by the Refugee Protection Division, the panel must
“go further” and determine whether the applicant is credible if, as in this
case, the principal applicant alleges that the charges referred to in the
warrant are fabricated: Qazi at paragraph 19.
[2] Against this legal background,
I find that the panel made two errors, the first of which is dispositive of
this application for judicial review.
[3] First, the panel relied on the
fact that the “charges were re-laid in March 1999” on the basis of reported
information from Interpol Harare. In my view, this information referring to
“central crime register 1419/3/99”, without the production of the “new” warrant
itself, does not establish that a second warrant was issued. The information in
the e-mail and the fax at pages 323 and 324 respectively of the tribunal record
was not sufficient to conclude that a second warrant existed. The panel
concluded that the 1998 “charges were dropped” and the principal applicant’s
bail money was returned to him in February 1999. In light of this conclusion, the
material before the panel could not support this finding: “the evidence … is
clear that a warrant for his arrest is outstanding”. This error alone warrants
the Court’s intervention and requires a new hearing.
[4] Second, in its reasons, the
panel concludes that the principal applicant is excluded under 1F(b) prior to
assessing the credibility of his denial that the second warrant existed and his
assertion that the charges were fabricated. A more coherent set of reasons
should have addressed the principal applicant’s credibility concerning the
“fresh” warrant prior to any conclusion that he was excluded. It was only when
reviewing the refugee claims of the other applicants that the panel made
the negative credibility finding concerning the principal applicant.
[5] Also, it would have been prudent
for the panel to determine whether the principal applicant was a Convention
refugee or a person in need of protection in the event its exclusion finding
was found to be in error: Moreno v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 912 at paragraph 60 and Brzezinski v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1008 at
paragraph 33. Here, the panel, in referring to Xie v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 250 at paragraph 38, may have
misunderstood the Court of Appeal’s statement that the Refugee Protection
Division (R.P.D.) exceeded its jurisdiction in dealing with the risk of torture
upon return to the country of citizenship after making the exclusion
determination. I do not read Xie as meaning that the R.P.D should not
proceed to an inclusion analysis under sections 96 and 97 of the Immigration
and Refugee Protection Act as an alternative finding in the event that its
exclusion determination under section 98 is found to be in error on judicial
review. Considerations of time and expense should encourage panels to do so.
Indeed, in Xie the panel did the inclusion analysis under sections 96
and 97 and found that refugee protection under section 97 would have been
granted had the claimant not been excluded under Article 1F(b).
JUDGMENT
THIS COURT ORDERS ADJUDGES
that:
1.
This
application for judicial review is granted and the matter is referred for
redetermination to a differently constituted panel of the Refugee Protection
Division.
2.
Neither
party suggested the certification of a serious question and none will be
certified.
“Allan
Lutfy”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
IMM-4257-07
STYLE OF CAUSE: GEORGE GURAJENA ET AL.
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 2 and 3,
2008
REASONS FOR JUDGMENT
AND JUDGMENT: THE CHIEF JUSTICE
DATED:
June 9, 2008
APPEARANCES:
Kingsley I.
Jesuorobo for the Applicants
Amy Lambiris for
the Respondent
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo for
the Applicants
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. for
the Respondent
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario
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