Date: 20100412
Docket: IMM-2723-09
Citation: 2010 FC 384
Ottawa, Ontario, April 12,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GUSTAVO
ADOLFO POGGIO GUERRERO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated April 17, 2009 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Colombia. He alleges he is wanted by the Fuerzas Armadas
Revolucionarias de Colombia (FARC) because they believe he is a member of the
Autodefensas Unidas de Colombia (AUC), due to his brother-in-law’s membership
in that group.
[3]
Upon
the advice of an uncle, the Applicant left Colombia. In October, 2006, the Applicant traveled
to the U.S. using a Spanish
passport. He did not claim asylum in the U.S. because of his entry into the U.S. on a false passport.
[4]
On
December 6, 2006 the Applicant entered Canada illegally. He claimed refugee protection the
following day.
[5]
The
Minister of Public Safety and Emergency Preparedness (Minister) intervened in
the Applicant’s claim for refugee protection. The Minister alleged that the
Applicant had committed a serious non-political crime in the U.S., because the Applicant had
been convicted in the early 1990s of possession of cocaine for the purpose of
trafficking. Such a crime, if committed in Canada, is punishable by life imprisonment.
[6]
The
Applicant was given a prison sentence of eight years to life. He was deported
from the U.S. after having
served a little over six years of his sentence. At that time, the Applicant
believed his sentence was no longer for life. However, the Minister’s delegate
supplied documents to the RPD from American authorities which stated that the
Applicant was still liable to serve the sentence.
DECISION UNDER REVIEW
[7]
The RPD
found that the main intention of Article 1F(b) of the Refugee Convention
is to “ensure that perpetrators of serious non-political crimes are not
entitled to international protection in the country in which they are seeking
asylum.” As such, an applicant who falls under this section is excluded from
receiving Convention refugee status.
[8]
The
standard of proof for determining whether a person has committed crimes or acts
contemplated in Article 1(F) is “serious reasons for considering.” This
standard is more than a mere suspicion, but less than a balance of
probabilities.
[9]
With
regard to the Applicant’s offence, the RPD found as follows:
Under Canadian law, according to the
evidence and the submissions presented by the Minister, the offences for which
the claimant was convicted in the United States of America in 1991, if
committed in Canada, could have resulted in a sentence
of life imprisonment.
Furthermore, the RPD noted that “Canadian
case law indicates that this reference to the manner in which Canada treats this
crime establishes a presumption that this is a serious non-political crime.” Nevertheless, the RPD found
that this presumption could be rebutted.
[10]
The RPD
considered the Applicant’s claims that “it was not until later in life that he
realized the significance and consequences of his actions,” and that he was not
“fully aware of the gravity” of his decision to plead guilty to the charge of
trafficking. The Applicant’s lawyer focused on the eighteen years which had
passed since these events, as well as the Applicant’s lack of criminal record
since this time.
[11]
The
Minister’s delegate focused on the seriousness of the sentence imposed in 1991,
and noted that this sentence had followed a previous conviction in 1987 for
similar charges. Furthermore, the Applicant had also violated an order he was given
not to return to the U.S.
[12]
The
Applicant’s counsel explained the Applicant’s 2006 return to the U.S. as necessary to “flee
the persecution and risks that he faced in Colombia.”
[13]
The RPD
determined that “in light of the claimant’s testimony and the submissions made
by both the Minister’s delegate and the claimant’s lawyer…that the presumption
that the offences of which the claimant was convicted…are serious non-political
crimes was not rebutted.” The RPD did not consider it necessary to determine
whether the Applicant completed his prison sentence of eight years or more in
the U.S.
[14]
In
summary, the RPD found that
the
Minister has discharged his burden and that…there are serious reasons for
considering that the claimant committed a serious non-political crime – possession
of cocaine for the purposes of trafficking – outside Canada, a crime that, if
committed in Canada, would be punishable by a sentence of life imprisonment.
ISSUES
[15]
The
issues on the application can be summarized as follows:
1.
Did
the RPD fail to provide adequate reasons for its Decision?
2.
Did
the RPD err in failing to provide an analysis for its determination that the
Applicant was excluded pursuant to Article 1F(b)?
STATUTORY PROVISIONS
[16]
The
following provisions of the United Nations Convention relating to the Status
of Refugees, July 28, 1951, [1969] Can. T.S. No.
6 are applicable in these proceedings:
|
E. This Convention shall
not apply to a person who is recognized by the competent authorities of the
country in which he has taken residence as having the rights and obligations
which are attached to the possession of the nationality of that country.
F. The provisions of this
Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
(a) he has committed
a crime against peace, a war crime, or a crime against humanity, as defined
in the international instruments drawn up to make provision in respect of
such crimes;
(b) he has committed
a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c) he has been
guilty of acts contrary to the purposes and principles of the United Nations.
|
E. Cette Convention ne sera
pas applicable à une personne considérée par les autorités compétentes du
pays dans lequel cette personne a établi sa résidence comme ayant les droits
et les obligations attachés à la possession de la nationalité de ce pays.
F. Les dispositions de
cette Convention ne seront pas applicables aux personnes dont on aura des
raisons sérieuses de penser :
a)
Qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime
contre l’humanité, au sens des instruments internationaux élaborés pour
prévoir des dispositions relatives à ces crimes;
b)
Qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiés;
c)
Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux
principes des Nations Unies.
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[17]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
Exclusion — Refugee Convention
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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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
Exclusion par application de la Convention sur les réfugiés
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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STANDARD
OF REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[19]
Correctness is
the appropriate standard of review when approaching issues of procedural
fairness and natural justice. See Weekes (Litigation guardian) v. Canada
(Minister of Citizenship and Immigration), 2008 FC 293, 71 Imm. L.R. (3d) 4.
As
such, the consideration of the adequacy of the RPD’s reasons is reviewable on a
standard of correctness.
ARGUMENTS
The Applicant
Reasons were Inadequate
[20]
The
Applicant submits that the RPD’s analysis of Article 1F(b) was “utterly
deficient.” According to Jayasekara v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 404, 305 D.L.R. (4th)
630 at paragraph 44:
…there is a consensus among the courts that the interpretation of
the exclusion clause in Article 1F(b) of the
Convention, as regards the seriousness of a crime, requires an evaluation of
the elements of the crime, the mode of prosecution, the penalty prescribed, the
facts and the mitigating and aggravating circumstances underlying the
conviction [citations omitted].
[21]
Although
the RPD made reference to Jayasekara, it simply summarized the Applicant’s
testimony and submissions of counsel and concluded that the presumption was not
rebutted. The RPD
erred in failing to analyze the factors enumerated in Jayasekara. The
Decision fails to demonstrate how the RPD reached its conclusion.
[22]
The
Applicant contends that the duty to provide reasons is set out in VIA Rail
Canada Inc. v. Lemonde, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 at
paragraphs 21-22:
The
duty to give reasons is only fulfilled if the reasons provided are adequate. What
constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case. However, as a general rule, adequate
reasons are those that serve the functions for which the duty to provide them
was imposed. In the words of my learned colleague Evans J.A., "[a]ny
attempt to formulate a standard of adequacy that must be met before a tribunal
can be said to have discharged its duty to give reasons must ultimately reflect
the purposes served by a duty to give reasons."
The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather, the
decision maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision maker must be set out
and must reflect consideration of the main relevant factors.
[23]
In
this case, the RPD did precisely what VIA Rail said it should not do: it
simply recited the submissions and evidence before it and then stated a
conclusion. The RPD neglected to address the major issues before it, set out
its process of reasoning, or show its consideration of relevant factors.
[24]
The
Applicant submits that it is not evident that the RPD determined that the
Applicant’s mitigating circumstances were “‘rebutted’ by the evidence and
arguments of the Minister.” While the Respondent may attempt to undertake the
analysis that ought to have been done by the RPD, the Applicant contends that
the Respondent cannot defend the RPD’s reasons by making “reference to findings
and analyses which the RPD itself did not make or undertake.”
[25]
In
the alternative, the Applicant suggests that the RPD erred in failing to
conduct the proper analysis under Article 1F(b), and that as a result, its
decision was made in reviewable error.
The Respondent
[26]
The
RPD began its Decision by recognizing the presumption that the crime committed
by the Applicant in 1991 was a “serious non-political crime.” It then
considered that, if committed in Canada, the crime committed by
the Applicant would have resulted in a sentence of life imprisonment.
[27]
After
a consideration of the evidence before it, the RPD determined that the
Applicant had not rebutted the presumption that the crime he had committed was
a serious non-political crime. The RPD’s reasons show that it considered the
mitigating factors put forward by the Applicant. However, it is evident from
reviewing the Decision that these mitigating circumstances were rebutted by the
evidence and argument presented by the Minister’s delegate.
[28]
The
Respondent contends that the Decision addresses the factors listed in Jayasekara.
For example, the RPD considered the following:
a.
Seriousness
of the crime
i.
The
crime was possession of 5 ounces of cocaine for the purpose of distribution;
ii.
The
Applicant was sentenced to eight years to life, but was deported after about 6
years;
iii.
The
Minister proved that the Applicant was liable to serve the sentence which could
last for life;
b.
Mitigating
circumstances
i.
The
amount of time that had elapsed since the crime;
ii.
The
Applicant was not aware of the gravity of his decision of pleading guilty;
c.
Aggravating
circumstances
i.
The
Applicant had another drug trafficking conviction;
ii.
The
Applicant violated an order not to return to the U.S.;
It was only after a full consideration of
these factors that the RPD determined that the Applicant had failed to rebut
the presumption that the crime he had committed was a serious non-political
crime.
[29]
Moreover,
in the similar case of Liang v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1501, 33 Imm. L.R. (3d) 262 at
paragraph 42, the Court determined that reasons are “not to be read
microscopically and held to a standard of perfection.” Instead, reasons must be
read as a whole. The Respondent submits that the reasons provided by the RPD,
when read as a whole, are adequate and support its conclusion.
ANALYSIS
[30]
I
accept the Respondent’s proposition that reasons cannot be perfect and need to
be examined in the full context of the Decision and the particular
circumstances of each case. See Via Rail, above, at paragraphs 21 and
22.
[31]
In
the present case, the RPD certainly refers to and lists the Jayasekara
factors and I think the Respondent is correct to say that, implicitly at least,
a weighing process is evident and, in the end, the RPD decided that the
mitigating factors put forward by the Applicant were not persuasive in
rebutting the presumption of a serious, non-political crime. But that is as far
as the Decision goes.
[32]
What
we do not know is why the RPD found some factors more persuasive than others.
There is no real evaluation of the various factors or explanation of how or
why, in the end, the conclusion was reached. The Decision remains a list of
factors followed by a bald conclusion, even though it is implicitly clear that
the RPD did not find the Applicant’s mitigating points persuasive in overcoming
the presumption.
[33]
Hence,
in my view, the Decision falls on the procedurally unfair side of the line
because neither the Applicant or the Court can tell why the mitigating factors,
when evaluated against the other aspects of the crime, did not have the weight
to rebut the presumption. The Decision remains a recitation of submissions and
evidence of the parties followed by a bald conclusion. As such, this Decision
cannot stand. See, for example, S.A. v. Canada (Minister of
Citizenship and Immigration), 2006 FC 515, [2006] F.C.J. No. 659 at
paragraphs 17-18.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is set aside and returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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