Docket:
IMM-4710-13
Citation: 2014 FC 271
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, March 20,
2014
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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OSWAL NOE HERNANDEZ GOMEZ
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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 under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (the Act) of a decision by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board, dated June 4, 2013, rejecting the applicant’s refugee claim pursuant
to section 98 of the Act, as the applicant is subject to paragraph 1F(b) of the
Convention Relating to the Status of Refugees (the Convention).
FACTUAL
BACKGROUND
[2]
The applicant is a citizen of Honduras. He
apparently lived in the United States for a few spells in the 1990s. However,
it was not until November 1998 that he left Honduras for good. The applicant is
then purported to have lived in the United States illegally until he arrived in
Canada on July 1, 2009. He filed his refugee protection claim in Canada on
August 24, 2009.
[3]
The applicant alleges a fear of returning to
Honduras following threats that were initially issued against members of his
family, but that are now ostensibly directed at him.
[4]
On July 31, 2001, his brother Oscar Armando was
allegedly kidnapped and a ransom of one million lempiras was demanded. He was
apparently released after the family paid 600,000 lempiras.
[5]
It would appear that similar scenarios were
played out when his brother Milton, who was kidnapped on April 15, 2003, was
purportedly released following a payment of 300,000 lempiras, and when his
brother Carlos was allegedly kidnapped on May 1, 2006. However, Carlos is still
reported as missing because the family does not have the means to pay the
ransom. The body of Marco Armando, another of the applicant’s brothers, was
also reportedly discovered.
[6]
Upon his arrival in Canada, the applicant stated
that he had been arrested and detained for 24 hours in the United States for
driving without a licence. The year of the arrest was not given. He is also
reported as declaring that he has no criminal record. The same statements were
made in his Personal Information Form (PIF).
[7]
On December 3, 2012, a few days prior to the
hearing before the RPD, which was scheduled for December 12, 2012, the
applicant amended his PIF to include the fact that he had received a three-year
sentence for non-premeditated conspiracy after having loaned his car to his
brother Milton, who subsequently used it to commit illegal acts. The hearing
was postponed in order to provide the applicant with enough time to file his
criminal record, which he did on January 15, 2013.
[8]
The applicant’s criminal record shows that he
committed a number of offences, including failure to register a firearm (1995),
complicity in weapons trafficking (1997), driving with a suspended licence
(2006) and lack of a valid driver’s licence (2007).
PANEL’S
DECISION
[9]
The RPD analyzed the applicant’s exclusion under
section 98 of the Act on the ground that he is subject to paragraph 1F(b) of
the Convention.
[10]
In order to determine whether the crime
committed by the applicant can be characterized as serious, the RPD argues that
one simply needs to transpose the crime to a Canadian legal context. Citing the
Federal Court of Appeal decision in Chan v Canada (Minister of Citizenship
and Immigration), [2000] 4 FC 390, the panel stated 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.”
[11]
In this case, although the applicant states that
he was with his brother when he procured the weapons, he emphasizes that he
himself never purchased or sold any weapons. He further maintains that he was
unaware that any criminal acts had been perpetrated.
[12]
The applicant had nonetheless pleaded guilty in
1997 to an offence committed in the United States, an offence equivalent to
weapons trafficking and the importing or exporting of firearms knowing it is
unauthorized, under sections 99 and 103 of Canada’s Criminal Code. In
Canada, these offences carry a maximum sentence of 10 years. Therefore, the
offences committed would be considered as serious crimes and the applicant
would be subject to an exclusion order.
[13]
Invited by the RPD at the hearing to explain why
he had not declared his criminal history right from the start, the applicant
stated that it had not crossed his mind and that he had not been asked about it.
The RPD found these assertions unconvincing and determined that the applicant’s
amendments to his PIF had been made to deliberately minimize his participation
in the offences with which he was charged.
[14]
The RPD then analyzed other factors that could
be taken into consideration in determining the seriousness of a crime, namely,
the elements of the crime and the mode of prosecution (Jayasekara v Canada
(Minister of Citizenship and Immigration), 2008 FCA 404 (Jayasekara))
as well as the harm inflicted and the nature of the penalty for such a crime.
[15]
The RPD was of the opinion that, although the
U.S. prosecutor had dropped some of the charges, the fact that Canada’s Criminal
Code provides for minimum penalties for the crimes committed further
attests to the seriousness of these crimes. Moreover, the RPD notes that the
applicant did not establish that he was not given a fair trial. Thus, the RPD
found there was sufficient evidence demonstrating the existence of serious
grounds to consider that the applicant had committed a serious non-political
crime before entering Canada.
[16]
Despite the finding that the applicant was
excluded from refugee protection, the RPD proceeded with its analysis of the
applicant’s claims with regard to fearing a return to Honduras.
[17]
The RPD was of the view that the applicant had
failed to establish, on a balance of probabilities, that he was linked to
individuals who had been kidnapped and threatened. The RPD further concluded
that the applicant was not credible after finding several inconsistencies
between his testimony, newspaper articles adduced into evidence and the information
in his PIF.
[18]
Weighing all of these factors taken together,
the RPD determined that the applicant was not a credible witness, and that he
had therefore not discharged his burden of proving that he was a victim of
persecution, under section 96 of the Act, or that he faced a risk to his life,
under section 97 of the Act.
ISSUES
[19]
A. Did the panel err in finding that the
applicant was subject to paragraph 1F(b) of the Convention and that he was
caught by the exclusionary provision?
B. Did the panel err in dismissing the applicant’s
refugee claim on the basis of his lack of credibility?
STANDARD OF
REVIEW
[20]
The first issue that arises from this judicial
review is the interpretation and application of paragraph 1F(b) of the
Convention. The Federal Court of Appeal recently held that the relevant
standard is correctness (Febles v Canada (Minister of Citizenship and Immigration),
2012 FCA 324 at paragraphs 24-25).
[21]
The second issue, however, addresses the RPD’s
findings with regard to the applicant’s credibility. Consequently, the
applicable standard is reasonableness (Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 at paragraph 4 (Aguebor)).
This Court must therefore exercise deference and great restraint in determining
whether the findings are justified, transparent and intelligible, and whether
they fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
paragraph 47).
ANALYSIS
[22]
In the case at bar, the applicant does not dispute the fact that he did
commit the alleged offence. Nor is there any dispute that the offence committed
by the applicant, had it been committed in Canada, could lead to 10 years’
imprisonment.
[23]
The applicant submits that the RPD did not assess the sentence, the
mode of prosecution or the constituent elements of the crime, as well as the mitigating
circumstances, factors established in Jayasekara, above. In his view, such errors are sufficient to set
aside the decision.
[24]
First, contrary to the applicant’s
assertions, the RPD did consider the fact that some of the charges had been dropped by
the U.S. prosecutor. The RPD stated the following at paragraph 38 of its
decision:
In this claim for
refugee protection, the panel has sufficient evidence to conclude that the
claimant was convicted of weapons trafficking in the United States, even though
the American prosecutor dropped certain charges.
[25]
Thus, the RPD was of the view that the seriousness of the crime was the
key factor, regardless of the fact that the prosecutor had dropped some of the
charges.
[26]
What is more, the actual sentence imposed on the applicant cannot by
itself determine the seriousness of the crime. As the Federal Court of Appeal
noted in Jayasekara, above, examining the sentence in an isolated manner
could affect the analysis of the seriousness of the crime. Thus, as paragraph
41 of the Court of Appeal’s reasons indicate,
if the length or
completion of a sentence imposed is to be considered, it should not be
considered in isolation. There
are many reasons why a lenient sentence may actually be imposed even for a
serious crime. That sentence, however, would not diminish the seriousness of
the crime committed.
[27]
The RPD therefore correctly considered the actual sentence that was
imposed as one of the factors to assess, but not as a determinative factor,
particularly in regard to the seriousness of the offence.
[28]
The applicant further submits that the mode of prosecution was not
taken into account. I disagree.
[29]
Although the RPD makes no specific reference to this factor, it notes
at paragraph 39 that “[t]he provisions of the Criminal Code also set out a minimum
penalty for a first offence, which makes it possible to consider that this type
of crime is serious”. That
distinguishes this case from Vucaj v Canada (Minister of Citizenship and Immigration),
2013 FC 381, in which the offences committed were prosecuted by way of summary
conviction, but in which this mode of prosecution had not been considered by
the RPD. In this case, not only was prosecution by way of summary conviction
not possible, but minimum sentences are prescribed for the offences committed
by the applicant.
[30]
The RPD also considered the applicant’s statements regarding the
context and the circumstances surrounding the offence. But inconsistencies and
omissions in the applicant’s testimony and the implausibility of several
statements led the RPD to question the applicant’s account of events and the
veracity of the alleged mitigating circumstances. It is true that applicant
pleaded guilty to avoid a lengthy trial, but that factor in itself cannot
outweigh the seriousness of the crime with which the applicant was charged.
[31]
Although the RPD did not conduct a “point-by-point” description of the
factors analyzed, I find that the reasons as a whole show that the criteria in Jayasekara,
above, were examined on the basis of the facts of this case (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraphs 14 and 16).
[32]
Therefore, I am of the view that the RPD correctly found that the
applicant was subject to the exclusion clause.
[33]
Given that the panel’s decision with regard to the exclusion clause is
correct, there is no need to review the second issue.
[34]
For these reasons, the application for judicial
review is dismissed.
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