Docket: IMM-7186-13
Citation:
2014 FC 753
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, July 28, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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GLADYS MEJIA FRIAS
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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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JUDGMENT AND REASONS
[1]
The applicant is challenging the lawfulness of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (panel) allowing the application of the Minister of Public Safety and
Emergency Preparedness (Minister) to vacate her refugee protection status under
section 109 of the Immigration and Refugee Protection Act, SC 2001, c 27
(Act).
[2]
The applicant is a citizen of the Dominican
Republic. She arrived in Canada via Mexico on September 23, 2006. She claimed
refugee protection on October 3, 2006, and obtained refugee status on August 27,
2008. In 2009, she was denied admission to the United States. A comparison of
her fingerprints showed that she has a criminal record there: she had been arrested
by the Rhode Island police on October 11, 1991, under the name Mary Mendez, and
had been detained for several days. Following her detention, the applicant had
been charged with “delivery of cocaine” and “conspiracy to traffic in cocaine” on December 6, 1991, and
the Rhode Island Supreme Court had issued an arrest warrant against her on
September 20, 1992, for failure to appear for her trial. In fact, it seems as
though the applicant left the United States in 2000 to return to the Dominican
Republic.
[3]
On February 18, 2013, the Minister filed an
application to vacate refugee protection, alleging that the status was obtained
on the basis of misrepresentation and that, by not disclosing her criminal
record in the United States, the applicant prevented the initial panel from
assessing whether the exclusion clause applies.
[4]
Section 109 of the Act reads as follows:
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109. (1) The
Refugee Protection Division may, on application by the Minister, vacate a
decision to allow a claim for refugee protection, if it finds that the
decision was obtained as a result of directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter.
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109. (1) La Section
de la protection des réfugiés peut, sur demande du ministre, annuler la
décision ayant accueilli la demande d’asile résultant, directement ou
indirectement, de présentations erronées sur un fait important quant à un
objet pertinent, ou de réticence sur ce fait.
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(2) The Refugee
Protection Division may reject the application if it is satisfied that other
sufficient evidence was considered at the time of the first determination to
justify refugee protection.
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(2) Elle peut
rejeter la demande si elle estime qu’il reste suffisamment d’éléments de
preuve, parmi ceux pris en compte lors de la décision initiale, pour
justifier l’asile.
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(3) If the
application is allowed, the claim of the person is deemed to be rejected and
the decision that led to the conferral of refugee protection is nullified.
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(3) La décision
portant annulation est assimilée au rejet de la demande d’asile, la décision
initiale étant dès lors nulle.
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[5]
Section 98 of the Act reads as follows:
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98. 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.
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98. 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.
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[6]
Specifically, Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951,
[1969] Can TS No 6 (Convention) reads as follows:
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1F. The provisions
of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:
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1F. Les dispositions
de cette Convention ne seront pas applicables aux personnes dont on aura des
raisons sérieuses de penser :
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. . .
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[…]
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(b) he has
committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee;
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b) Qu'elles ont
commis un crime grave de droit commun en dehors du pays d'accueil avant d'y
être admises comme réfugiés;
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. . .
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[…]
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[7]
First, the panel found that the Minister
established that the applicant misrepresented the facts. In her Personal Information
Form (PIF), the applicant replied “no” to question 9(a), which reads as follows:
“Have you ever been sought, arrested, or detained by the police or military or
any other authorities in any country, including Canada?” She also replied “no”
to question 10, which states the following: “Have you ever committed or been
charged with or convicted of any crime in any country, including Canada?” The panel specifically examined the applicant’s claim that
she failed to disclose the charge in Rhode Island because, first, she
thought that the relevant period was from 1996 to 2006 and her counsel committed
an administrative error by blindly copying the responses into the PIF, and
second, because the immigration officer apparently explicitly limited the
questions [translation] “to the past
ten years”. The panel found those explanations not credible. The panel also
found that that misrepresentation concerns a material fact relating to a
relevant matter, Article 1F(b) of the Convention, and specifically that “the
effect of a finding under this article is that the refugee protection claimant
is excluded from accessing the refugee determination process in Canada.”
[8]
Second, the panel examined whether the applicant
committed a serious non-political crime while outside Canada. In light of the guidance
provided in Jayasekara v Canada (Minister of Citizenship and Immigration),
2008 FCA 404 (Jayasekara), the panel considered the delivery of cocaine
and conspiracy to traffic in cocaine serious crimes. If that offence was
committed in Canada, it would constitute trafficking in a substance pursuant to
subsection 5(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. According to subsection 5(3) of
that same Act, that crime is liable to imprisonment for life. After considering
the list of factors stated by the Court of Appeal in Jayasekara that
could rebut the presumption of seriousness (the elements of the crime, the mode
of prosecution, the penalty prescribed, the facts and the mitigating and
aggravating circumstances), the panel found that the exclusion clause applies.
[9]
The standard of review that applies to the
panel’s decision regarding the vacation of refugee protection status is
reasonableness. The same is true for the question of whether a person is
subject to Article 1F(b) of the Convention. After carefully considering the
arguments of the parties in light of the panel’s reasons and the evidence in
the record, this application must be dismissed. It was clearly reasonable for the
panel to find that the decision allowing the applicant’s refugee claim was made
based on her misrepresentation, and that, were it not for her
misrepresentation, the initial panel would have found that the applicant was
excluded under Article 1F(b) of the Convention.
[10]
The applicant, who does not challenge the second
part of the panel’s decision, continues to submit before this Court that she
sincerely replied to the questions asked in the course of her refugee claim and
in her statement given to the officer at the point of entry. According to her,
the questions asked referred only to crimes committed in the past 10 years. The
crime in question dated back to 1991 and therefore more than 10 years had
elapsed. Thus, the applicant did not misrepresent the facts. Furthermore, the
applicant notes that there is evidence in this case that justifies refugee
protection in spite of the misrepresentation. I am not convinced by the
applicant’s arguments and they show only that the applicant disagrees with the
credibility issues. This is not an appeal but a judicial review.
[11]
Counsel for the applicant also argues before me
that the panel’s analysis was flawed from the outset because the actus reus was not considered. I do not agree. The panel did assess whether the applicant
provided “information” before considering whether it would be considered material
facts relating to a relevant matter of the refugee claim. The finding that the
applicant engaged in misrepresentation seems reasonable to me. The record
clearly shows that the applicant did not disclose her criminal record in the
United States. The applicant admitted during the hearing before the panel that
she used the alias of Mary Mendez and that she was arrested in the State of Rhode
Island on October 11, 1991.
[12]
Counsel for the applicant also argues before me
that the panel did not take into account the presumption of good faith. That
argument is irrelevant. Section 109 of the Act does not require that the
applicant intended to misrepresent the facts. Instead, that provision sets out
that the panel may vacate the decision “ . . . if it finds that the decision
was obtained as a result of directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter.”
See Canada (Minister of Citizenship and Immigration) v Wahab, 2006 FC
1554 at paragraph 29 (Wahab); Canada (Minister of Citizenship
and Immigration) v Pearce, 2006 FC 492 at paragraph 36; Zheng v
Canada (Minister of Citizenship and Immigration), 2005 FC 619 at paragraph
27. Moreover, the panel determined that the applicant’s explanation that the
officer had asked her only about the past 10 years is not credible: for example,
the PIF was signed one month after her interview with the officer; she had the benefit
of an interpreter and a lawyer when she stated that the information in her PIF
was complete.
[13]
It was also reasonable for the panel to find
that if the panel initially seized with the refugee protection claim had been
aware of that misrepresentation, its determination would have been different
because it would have found that she was excluded under Article 1F(b) of the
Convention. Even though the applicant does not challenge that last finding, I
nonetheless note that the panel did consider all of the elements listed by the
Court of Appeal in Jayasekara in determining whether the applicant
committed a serious non-political crime while outside Canada, and is therefore inadmissible.
Finally, as the panel found in favour of exclusion under the Convention, it was
not necessary to proceed with an analysis pursuant to subsection 109(2) of the
Act, which sets out that the panel “ . . . may reject the application if it is
satisfied that other sufficient evidence was considered at the time of the
first determination to justify refugee protection.”
See Wahab, above, at paragraph 29.
[14]
This application for judicial review must be
dismissed. No question of law of general importance was raised by the parties.
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