Date:
20130507
Docket:
IMM-7783-12
Citation:
2013 FC 476
Ottawa, Ontario,
May 7, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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HZZM ABRAHAM USCKARYA
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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
[1]
This
is an application for judicial review of a July 11, 2012 decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board]
wherein the Board allowed the Minister’s application under section 109 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [the Act] to vacate the
applicant’s refugee protection.
FACTS
[2]
The
applicant is a citizen
of Iraq. He was granted refugee protection in Canada on October 24, 2008.
[3]
On
May 18, 2011, the Minister of Public Safety and Emergency Preparedness [the
Minister] applied to vacate the applicant’s refugee status on the basis that
the applicant misrepresented his criminal history in the United States.
[4]
The
Board found that the
applicant committed the offences for which he was convicted in the United States and that he entered into a plea bargain. It also found that the applicant
withheld information about the offences when filing his refugee claim and then
misled immigration officials in an attempt to obtain refugee protection. Had
the applicant not withheld this information from the original panel of the
Board, the original panel would have had serious reasons for considering that
the respondent has committed a serious non-political crime outside of Canada and would have found that he was excluded from refugee protection.
ISSUES
1. Did the Board err in
interpreting section 271 of the Criminal Code, RSC 1985, c C-46 [the
Criminal Code]?
2. Did the Board err in
considering whether the applicant had rebutted the presumption of the
seriousness of his crime?
STANDARD OF
REVIEW
[5]
The
first issue, being purely a question of law, is reviewed on the correctness
standard (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339).
[6]
The
second issue deals with the application of law related to the Board’s finding
that the applicant had committed a serious non-political crime outside of
Canada. Accordingly, the applicable standard of review is reasonableness (Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FC 238 at para
10; Jawad v Canada (Minister of Citizenship and Immigration), 2012 FC
232 at para 21).
ARGUMENTS AND
ANALYSIS
1. Did
the Board err in interpreting section 271 of the Criminal Code?
[7]
The
applicant submits the Board was mistaken as to the content of section 271 of
the Criminal Code. The complete text of this provision was before the
Board and reads as follows:
271. (1) Every one who commits a sexual assault is
guilty of
(a) an indictable offence and is liable to
imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and
liable to
imprisonment for a term not exceeding eighteen
months.
[8]
However,
the Board omitted paragraph 271(1)(b) when it reproduced section 271 in
the decision. The Board stated the provision in the following manner:
271. (1) Every one who commits a sexual assault is
guilty of (an) indictable offence and is liable to imprisonment for a term not
exceeding ten years.
[9]
The
applicant submits that the Board’s error is significant because the fact that
charges under section 271 can proceed summarily under paragraph 271(1)(b) is
relevant to assessing whether the presumption of the seriousness of the
applicant’s crime is rebutted.
[10]
The
respondent submits that the Board merely transposed the same error into its
decision that was in the Minister’s evidence before the Board and that
this error is not an error of law (Lu v Canada (Minister of Citizenship
and Immigration), 2007 FC 159 at para 29). Moreover, if the applicant was
concerned about the Board being misled by the error that was in the Minister’s
submissions, he should have raised it at the hearing (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 [Alberta]). In any case, the respondent contends that the
Board did not misunderstand section 271 of the Criminal Code, as the Board
acknowledged that the applicant argued that because he was convicted of a misdemeanour
in the U.S., he would have been sentenced on summary conviction by the Canadian
courts and liable to a term of imprisonment not exceeding eighteen months.
[11]
I
agree with the respondent. The Board’s flawed reproduction of section
271 was immediately followed with the following acknowledgement:
[28] Counsel for the [Mr. Usckarya] submits that
because the [Mr. Usckarya] was convicted of a misdemeanour in the U.S., the Canadian courts would have sentenced the respondent on summary conviction where
he would be liable to a term of imprisonment for a term not exceeding 18
months.
[12]
The
Board also acknowledged the applicant’s argument related to paragraph 271(1)(b)
in its summary of the applicant’s argument relating to mitigating and
aggravating circumstances:
[39]…Counsel for [Mr. Usckarya] further submitted
that because of these mitigating circumstances, the original panel would have
looked favourably on the possibility of an 18-month sentence versus a ten-year
sentence.
[13]
Given
that the Board acknowledged this argument and in no way indicated that a
summary conviction under section 271 was impossible, I am persuaded that the
Board correctly understood section 271 of the Criminal Code.
[14]
Furthermore,
as noted by the respondent, the applicant should have raised his concern about
the omission in the respondent’s evidence at the hearing if he was
concerned that the omission might mislead the Board (see Alberta,
above).
2. Did the
Board err in considering whether the applicant had rebutted the presumption of
the seriousness of his crime?
Applicant’s
argument
[15]
The
applicant submits that the following statement by the Board, made in the
context of evaluating the elements of the crime in order to determine whether
the presumption of the seriousness of the crime could be rebutted, was not
based upon the factual record:
[34] This was a violent and horrifying act, one that
must have been terrible for the victim at the time but that also could have had
long-enduring effects on her. The elements of this crime do not rebut the
presumption of seriousness; they reinforce it.
[16]
The
applicant testified before the Board that he did not know that the complainant
had not consented to the sexual relations until the police arrested him. On
the advice of his lawyer, he pled guilty to reduced charges.
[17]
The
applicant submits that the Board suggests the incident was much more serious
than the way he described it in his testimony, yet at the hearing the Board did
not allege that the applicant’s recitation of events was incomplete or untruthful
and it is improper for the Board to do so in its reasons.
[18]
The
applicant further maintains the Board erred by discounting the fact that
the applicant was prosecuted with a misdemeanour rather than a felony and did
not provide an explanation for doing so. The foreign jurisdiction’s choice in
pursuing a less serious charge was important to a proper determination of
whether the presumption of the seriousness of the applicant’s crime had been
rebutted (Canada (Minister of Citizenship and Immigration) v Velasco,
2011 FC 627 at paras 45-48).
[19]
Finally,
the applicant maintains that the Board erred in its analysis of mitigating
circumstances by disregarding the fact that he had no history of assault or
sexual assault prior to the offences. Moreover, the Board erred by finding that
the applicant did not disclose materials from the U.S. proceeding, as the
evidence before the Board demonstrated that applicant’s counsel made extensive,
yet unsuccessful, efforts to obtain evidence to corroborate his allegations.
Respondent’s
argument
[20]
The
respondent submits the Board reasonably considered the factors outlined in Jayasekara
v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 [Jayasekara],
that may rebut the presumption that the offence committed was a serious
non-political crime.
[21]
Regardless
of the applicant’s perspective regarding the consent of the victim, he pleaded
guilty to serious crimes. The respondent submits it was reasonable for the
Board to acknowledge that victims of aggravated sexual assault are victims of
horrific acts and that these crimes would have an impact on the victim’s life.
[22]
The
respondent contends that it is not the role of the Court to reweigh the
evidence that was before the Board regarding the mode of prosecution. In the
circumstances, it was reasonable for the Board not to speculate as to the
circumstances relating to the plea bargain and the prosecutorial actions in the
U.S.
[23]
Finally,
the respondent submits that it is improper for the applicant to fault the Board
for its finding that insufficient evidence was submitted regarding the reasons
for the mode of prosecution when the evidence itself supported the finding.
Regardless of the efforts made by the applicant’s counsel to contact the Michigan court, the fact remained that the evidence was not available from this source. The
Board reasonably considered the allegations made by the applicant regarding his
lack of a previous criminal record, but he was not persuaded that the
allegation was a mitigating factor.
Analysis
[24]
An
applicant may seek to rebut the presumption of the seriousness of his crime or
crimes by addressing the factors set out by the Federal Court of Appeal in Jayasekara,
above, at paras 44 and 45: the elements of the crime, the mode of
prosecution, the penalty prescribed, the facts and the mitigating and
aggravating circumstances underlying the conviction.
The
elements of the crime
[25]
I
agree with the respondent that regardless of the applicant’s testimony that he
did not know the victim did not give her consent until the police arrested him,
given that the applicant was convicted of aggravated assault and 4th
degree criminal sexual assault, it was reasonable for the Board to acknowledge
that it was a violent and horrifying act that must have been terrible for the
victim and could have long-enduring effects on her.
The
mode of prosecution and penalty prescribed
[26]
Contrary
to the applicant’s submissions, the Board did not discount the fact that the
applicant was sentenced with a misdemeanour rather than a felony. The decision
demonstrates that the Board considered this issue and adequately examined it:
[35] [Mr. Usckarya] made a plea bargain and was to
be sentenced on a lesser charge of misdemeanour rather than a felony.
[36] The panel does not accept that the willingness
of the authorities to enter into a plea bargain proves that they viewed the
offence as less than serious. However, even a probationary sentence should not
be considered as light, as it carries restrictions which curtail one’s liberty,
and violation of which could leave to imprisonment.
[37] The view that the American authorities took of
[Mr. Usckarya’s] offences is not in itself determinative of whether those
offences constitute serious crimes for the purpose of an exclusion analysis.
(Footnotes omitted)
[27]
I
am not persuaded by the applicant’s argument that the Board applied the
improper test by commenting that “even a probationary sentence should not be
considered light”. The Board clearly understood throughout its decision that
the issue was whether the applicant committed a serious non-political crime.
The context of the comment that “even a probationary sentence should not be
considered light”, which is reproduced in the excerpt above, demonstrates that
this observation was reasonable and related to the Board’s explanation for why
it did not accept that the U.S. authorities viewed the offence as less than
serious.
The
facts and the mitigating and aggravating circumstances underlying the
conviction
[28]
While
the applicant’s counsel had attempted unsuccessfully to obtain the Michigan court record, the Board cannot be faulted for noting that there was insufficient
evidence submitted regarding the reasons for the mode of prosecution and the
reasons for the sentence.
[29]
Thus,
in light of the evidence before it, it was reasonable for the Board to find
that there were no mitigating circumstances that would be relevant to the Jayasekara
analysis.
[30]
The
parties have not proposed any questions for certification.
[31]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed; and
2. No
questions are certified.
“Danièle
Tremblay-Lamer”
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