Docket: IMM-5863-13
Citation:
2014 FC 520
Ottawa, Ontario, May 30, 2014
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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FELIX EBERECHUK NWOBI
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Respondent
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JUDGMENT AND REASONS
[1]
The respondent, Mr. Felix Eberechuk Nwobi, is an
Igbo Christian with Nigerian citizenship. On October 14, 1991, there were
violent clashes between Muslims and Christians in the northern Nigerian city of
Kano. Mr. Nwobi participated in burning down a mosque after a violent riot in
which Igbo Christians, including his uncle, aunt and their child, were killed
and churches and other property were destroyed. Fearing for his life because he
burnt down the mosque, Mr. Nwobi moved to the city of Kaduna and then again to
the southern city of Ibadan. In September 1992, Mr. Nwobi fled to Germany where he obtained a European Union residence permit. In 2006, after being laid off
from his job and being ineligible for unemployment benefits, he agreed to
transport cocaine from Cologne to Munich for 500 Euros. He was arrested and
charged with possession of 300 grams of cocaine for the purpose of trafficking.
He pled guilty and was sentenced to three years and nine months in prison. He
was released on July 15, 2010 and given a permit to stay in Germany for three additional months. On October 15, 2010, he came to Canada and claimed refugee status.
[2]
The Minister of Public Safety intervened,
alleging that Mr. Nwobi was inadmissible under Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951,
[1969] Can TS No 6 [the Convention] on the basis that he had committed a
serious non-political crime in Germany. Had his offence been committed in Canada, it would be punishable by a maximum term of life imprisonment. Consequently, the
Minister argued that he should be excluded by virtue of section 98 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA] which provides that “a
person referred to in section E or F of Article 1 of the Refugee Convention is
not a Convention refugee or person in need of protection.” However, in its
decision dated August 15, 2013, the Refugee Protection Division, Immigration
and Refugee Board [the Board] found Mr. Nwobi to be a Convention refugee by
virtue of section 96 of the IRPA and held that he was not excluded from refugee
protection pursuant to section 98 of the IRPA and Article 1F(b) of the
Convention.
[3]
The present applicant, the Minister of
Citizenship and Immigration [the Minister], now challenges the legality of this
decision on two grounds. First, the Board’s finding that possession of cocaine
for the purpose of trafficking is not a serious non-political crime is unreasonable.
Second, as a subsidiary ground of attack, the Board has also failed to consider
whether the respondent’s role in burning down a mosque in Nigeria constitutes a serious non-political crime. The Minister does not challenge the
Board’s findings regarding the respondent’s credibility or his fear of persecution.
[4]
The parties agree that the Board’s determination
of exclusion from refugee protection pursuant to section 98 of the IRPA
involves questions of mixed fact and law, and thus should be reviewed against
the standard of reasonableness: Jayasekara v Canada (Minister of Citizenship
and Immigration), 2008 FCA 404 at paragraph 14, [2009] 4 FCR 164 [Jayasekara].
While the Board’s analysis involves “some degree of discretion” as the Court of
Appeal states, the Board’s decision must “[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, [2008] 1 S.C.R. 190).
[5]
The Court is of the opinion that the finding of
non exclusion under Article 1F(b) made by the Board in this case is not an
acceptable and defensible outcome in respect of the facts and law. At the
outset, however, it must be emphasized that a conviction for possession of
cocaine for the purposes of trafficking does not automatically make a person
inadmissible under Article 1F(b). As the Board correctly pointed out, the
presumption of seriousness may be rebutted by consideration of the five factors
identified in Jayasekara: the elements of the crime, the mode of
persecution, the penalty prescribed, the facts and the mitigating and
aggravating circumstances underlying the conviction (at paragraph 12).
[6]
The Minister concedes that the Board was well
aware of the Federal Court of Appeal’s decision in Jayasekara, which it
identifies in the impugned decision as “a leading case” with respect to the
interpretation of Article 1F(b) of the Convention. There is a presumption of
seriousness where, in the absence of any political factors, the offence, if
committed in Canada would have been punishable by a maximum term of at least
ten years. Yet, the presumption is not absolute and can be rebutted following
the Board’s assessment of all the surrounding circumstances (Jayasekara at
paragraph 44; Feimi v Canada (Minister of Citizenship and Immigration),
2012 FC 262 at paragraph 22, 406 FTR 14 [Feimi] confirmed by the Federal
Court of Appeal, 2012 FCA 325, 442 NR 374).
[7]
The Court has upheld decisions by the Board
where a range of “mitigating and aggravating factors” have been taken into
account. These include: admission of guilt by the claimant, a favourable plea
bargain and a troubled childhood (Gudima v Canada (Minister of Citizenship
and Immigration), 2013 FC 382, [2013] FCJ 405); the claimant’s age, lack of
previous convictions, limited amount of drugs and fact that the substance
contained methamphetamine as opposed to pure methamphetamine (Sanchez v
Canada (Minister of Citizenship and Immigration), 2013 FC 913, 19 Imm LR
(4th) 275; as well as the claimant’s refugee status and life in a marginalized
neighbourhood (Shire v Canada (Minister of Citizenship and Immigration),
2012 FC 97, [2012] FCJ 111]. In Vucaj v Canada (Minister of Citizenship and
Immigration), 2013 FC 381 at paragraphs 38-40, 431 FTR 53, the Court accepted
the judicial review of a claimant in part because the Board had failed to
examine mitigating and aggravating factors. These included the claimant’s
addiction to painkillers resulting from an injury occurred during a criminal
gang fight, his cooperation with authorities and his role as an instrumental
key witness for the Crown as well as the lack of weapons in the drug
trafficking offence and that absence of serious injury resulting from the
offence.
[8]
However, as stated by the Court in Partida v
Canada (Minister of Citizenship and Immigration), 2013 FC 359, 430 FTR 197
[Partida], the Board “cannot simply list relevant mitigating/aggravating
factors and then come to a conclusion without evaluating why the mitigating
factors, when weighed against other aspects of the crime, did not have the
weight to rebut the presumption of the seriousness of the crime” (at paragraph
6, referring to Guerrero v Canada (Minister of Citizenship and Immigration),
2010 FC 384 [Guerrero]). There must be an actual balancing by the Board of
the mitigating and aggravating factors to show how the lack of violence and
weapons would mitigate the presumptively serious offence of possession of
cocaine for the purpose of trafficking. If there is any such “balancing” by the
Board, it would be in three paragraphs of the decision (paragraphs 16, 17 and
18) which both parties agree are the only problematic ones.
[9]
While the Board noted that “Canada considers drug trafficking to be a serious crime, and a person convicted of such an
offence could face imprisonment for life”, it apparently refused to accept that
it “should be considered as harmful as murder, rape, arson or armed
robbery because of the harm inflicted upon society” [emphasis added]. But why
so? The answer to this question of “lesser harm” is provided with the following
observation and finding made by the Board:
On July 11, 2013 sub-section (3) of section 5
of the Controlled Drugs and Substance Act was modified, and now
indicates the minimum punishment of imprisonment to be imposed on a person
convicted of trafficking in a substance included in Schedule I. There is a
minimum punishment of imprisonment for a term of one year if the person used or
threatened to use violence in committing the offence; if the person carried,
used or threatened to use a weapon in committing the offence; or if the person
was convicted of a designated substance offence or had served a term of
imprisonment for a designated substance offence within the previous ten years. This
would indicate to the tribunal that trafficking in cocaine could well be
treated as a summary conviction offence. [emphasis added]
[10]
In the next two paragraphs, the Board goes on to
note that that there was no evidence that Mr. Nwobi used or threatened to use
violence, was carrying a weapon or was previously convicted of a designated
substance offence. The Board also noted that Mr. Nwobi was not involved in the
distribution or sale of cocaine and that this appeared to be the only time he
was ever involved in drug trafficking. In addition, the Board noted that person
who had employed Mr. Nwobi to transport cocaine received a ten year sentence in
Germany while Mr. Nwobi was sentenced to three years and nine months. The
Board stated that “the sentence imposed in Germany would indicate that German
authorities did not believe that the claimant’s involvement merited a more
severe punishment.”
[11]
First and foremost, I entirely agree with the
Minister’s learned counsel that the Board completely misunderstood Parliament’s
intention and misread the amendments made in 2013 to the Controlled Drugs
and Substances Act, SC 1996, c 19 [CDSA]. Indeed, counsel for Mr. Nwobi
concedes the Board misstated the law: while the CDSA provides for a minimum
mandatory imprisonment term where there are aggravating factors, it does not
lessen penalties for trafficking. Thus, both parties agree that the trafficking
cocaine could not be treated as a summary conviction offence. Yet counsel for
Mr. Nwobi submits that this error did not have any real impact on the decision
because Mr. Nwobi would not have received the mandatory minimum sentence if he
had committed the offence in Canada since it did not involve any of the
enumerated aggravating circumstances. I respectfully disagree with her. The
Board misinterpreted the CDSA as lessening the seriousness of the crime where
there were no aggravating factors. It was for this reason that the Board
emphasized the lack of such weapons or violence. Thus the Board’s comment
regarding a “summary conviction offence” was not merely a statement on the
seriousness of the penalty in Canada, but rather an erroneous belief
that certain manifestations of the offence, itself, could be less serious under
Canadian law. Thus although the Board correctly noted that the maximum penalty
for trafficking is life imprisonment, the Board was under the false view that
the crime for which Mr. Nwobi was convicted could, as a possible summary
conviction offence, have a maximum penalty of only six months imprisonment
pursuant to section 787(1) of the Criminal Code, RSC 1985, c-14 [Criminal
Code].
[12]
In my humble opinion, the error of law made by
the Board is determinative and taints its conclusion that the respondent “did
not commit a serious non-political crime in Germany”. I also find that the
Board erred in considering the tougher sentence served by the person who paid
the respondent to traffic cocaine. In Jayasekara at paragraph 44, the
Court of Appeal stated that “factors extraneous to the facts and circumstances
underlying the conviction” are not to be taken into account in considering the
seriousness of the offence. The fact that the drug distributor received a more
severe sentence is extraneous to the facts and circumstances underlying the
respondent’s conviction. It does not indicate that Mr. Nwobi’s sentence was any
less serious: he received a sentence of almost four years in prison. While the present
judicial review is welcomed solely on the basis of the Board’s decision
regarding Mr. Nwobi’s exclusion for his conviction in Germany, I will address the Minister’s secondary contention that the Board also erred in not considering
whether burning down a mosque in Nigeria constitutes a serious non-political
crime.
[13]
The Minister argues that burning down the mosque
in Nigeria constitutes arson under section 434 of the Criminal Code, an
indictable offence for which a person is liable to imprisonment for a term not
exceeding 14 years. The Minister submits that even though its representative
did not raise this issue at all in its notice of intervention or during the
hearing, the Board was nonetheless required to determine if the exclusion
clause was applicable. Counsel for Mr. Nwobi, on the other hand, argues that
the Minister had an obligation to raise the burning of the mosque as a
potential ground for exclusion. Failure to do so precludes the Minister from
now raising this factor in the judicial review. During the hearing, counsel for
Mr. Nwobi seemed to liken the proposed preclusion to the doctrine of estoppel:
the Minister had a full and fair opportunity to raise the issue during the
inadmissibility hearing but did not. It is now unfair that the Minister can
raise a new issue on judicial review.
[14]
Counsel for Mr. Nwobi identified jurisprudence
stating that if a claimant does not advance a claim at a hearing, the RPD
cannot be faulted for not dealing with it. In particular in Emamgongo v
Canada (Minister of Citizenship and Immigration), 2010 FC 208, [2010] FCJ 244 [Emamgongo], the Court reaffirmed that
the Board did not err in failing to provide an analysis of the claim under
section 97 of the IRPA as separate and distinct from the analysis of the claim
under section 96 where the Board had already found that there was no evidence
that the applicants were in need of protection. In my opinion this
jurisprudence is different since it is based on the rationale that if the
evidentiary basis for both claims is the same, given that the claimant had not
provided further information for a section 97 claim, then there is no need to
proceed on a separate 97 analysis (see also Ayaichia v Canada (Minister of
Citizenship and Immigration), 2007 FC 239 at paragraphs 19-20, 309 FTR 251 cited in Emamgongo).
[15]
Moreover, while the jurisprudence of this Court
affirms that “within the context of an application for judicial review, the
Court cannot decide a question which was not raised before the authority whose
decision is being reviewed” (Tozzi v Canada (Attorney General), 2007 FC
825 at paragraph 22; citing Toussaint v Canada (Labour Relations Board),
160 NR 396 at paragraph 5, [1993] FCJ 616 (FCA), the Court in the present case
does not seek to decide the question of whether Mr. Nwobi should be excluded
under Article 1F(b) of the Convention based on burning a mosque. The Court
would certainly overstretch its role if it sought to do so. However, the Court
does have the discretion to consider whether the Board erred in failing to raise
this as a possible ground for exclusion even if the parties did not raise it
themselves.
[16]
It must be stressed that the Board’s role in
determining whether a person is inadmissible under Article 1F(b) of the
Convention on the basis that he had committed a serious non-political crime is
distinct from the role of a judge in civil litigation. In Ospina Velasquez v
Canada (Minister of Citizenship and Immigration), 2013 FC 273 at paragraph
15, 429 FTR 143, Justice Gleason considered whether the Board erred in finding
that the claimant was inadmissible under Article 1F(b) of the Convention even
though the Minister had not intervened. While the claimant did not dispute the
Board’s jurisdiction “to inquire into exclusion on its own motion given the
duty and role of the Board under the IRPA”, he claimed that the Board did not
give adequate weight to the fact the Minister chose not to intervene (at
paragraph 13). In rejecting this claim Justice Gleason stated that “the Board
is not bound to accept the position of a party in any case and, instead, is
required to carry out its statutory duty of applying the IRPA. Under the Act,
the RPD’s role is an inquisitorial one” (at paragraph 15).
[17]
Justice Gleason referred to the Board
Chairperson’s Guideline 7 Concerning Preparation and Conduct of a Hearing in
the Refugee Protection Division which states that:
2.1 Under the IRPA, RPD members have the same
powers as commissioners who are appointed under the Inquiries Act. They may
inquire into anything they consider relevant to establishing whether a claim is
well-founded. This means that they define what issues must be resolved in order
for them to render a decision.
2.2 A member's role is different from the role
of a judge. A judge's primary role is to consider the evidence and arguments
that the opposing parties choose to present; it is not to tell parties how to
present their cases. Case law has clearly established that the RPD has control
of its own procedures. The RPD decides and gives directions as to how a hearing
is to proceed. The members have to be actively involved to make the RPD's
inquiry process work properly.
[18]
Moreover, this Court has found that a Board may
be bound to consider grounds not raised by parties. In Varga v Canada
(Minister of Citizenship & Immigration), 2013 FC 494 at paragraph 5, 18
Imm LR (4th) 96 [Varga], Justice Rennie recently held that the Board had
to “consider any ground raised by the evidence even if not specifically
identified by the claimant: Canada
(Attorney General) v Ward, [1993]
2 SCR 689; Viafara v Canada (Minister of Citizenship and Immigration), 2006
FC 1526 at paragraph 13.” In
particular, he stated that “[t]he failure of the Board to address a ground of
persecution, raised on the face of the record, is a breach of procedural
fairness” (at paragraph 6). While the decision in Varga is rooted in the
view that the Board must draw the claimant’s attention to a point which could
materially improve the outcome of the claimant’s case, it nonetheless indicates
that the Board, having an inquisitorial role, is not limited to the pleadings
of the parties where the evidence on the record speaks otherwise, or in
addition, to those pleadings (at paragraph 7, citing the English Court of
Appeal in R v Special Adjudicator Ex p. Kerrouche (No 1) (1997), [1997]
EWCA Civ 2263, [1997] Imm AR 610).
[19]
The Board has the important responsibility of
ensuring that Canada meets its obligations under the Convention by not
providing shelter to people to whom there are serious reasons for considering
that they have committed war crimes or crimes against humanity, serious
non-political crimes or are guilty of acts contrary to the purposes and
principles of the United Nations. Thus, the Board cannot be limited to
considering the grounds raised by either the applicant or the respondent where
a ground for exclusion is at the very heart of the claim. In this vein, the
Court concludes that the Board has erred in failing to consider or enquire into
other possible grounds of exclusion that is at the heart of the claim. In the
current case, Mr. Nwobi’s claim for refugee status revolves around his
participation in burning down a mosque.
[20]
For these reasons, the application must succeed.
The Board’s finding of non exclusion under Article 1F(b) of the Convention
taints its ultimate conclusion that Mr. Nwobi is a “Convention refugee” in
virtue of section 96 of the IRPA. Counsel agree that there is no question of
general importance warranting certification by the Court.
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