Docket: IMM-2414-11
Citation: 2012 FC 232
Ottawa, Ontario, February
21, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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WISSAM MOHAMAD JAWAD
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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]
The
applicant, Wissam Mohamad Jawad, seeks judicial review of the decision of the
Immigration and Refugee Board, Refugee Protection Division which found that the
applicant was excluded from the definition of a Convention Refugee by reason of
serious criminality and, in the alternative, that he was not a person in need
of protection because he had internal flight alternatives in Lebanon.
[2]
I
find that the Board erred in its exclusion decision but reached a reasonable
determination on the existence of internal flight alternatives. For that
reason, the application is dismissed.
BACKGROUND:
[3]
Mr.
Jawad is a citizen of Lebanon. He was born and raised
in a neighbourhood of Beirut controlled by the Shi’a Muslim militant
group and political party, Hezbollah. His father was Shi’a but his Egyptian
mother belonged to the Sunni branch of Islam. The applicant and his siblings
followed the mother’s tradition. He says that they were harassed by their
neighbours for that reason. The mother continues to live in the same
neighbourhood with the applicant’s sister. His brother also continues to live
in Beirut.
[4]
The
applicant says he encountered difficulties with Hezbollah following the death
of his father in 1989. He claims that a death threat was issued against him for
having defaced posters of the Hezbollah leader. In 1995 he went to the United States
of America
as a visitor and obtained a work permit. He was married in1996 and received permanent
residence status in 1997. He divorced his first wife in 2000 and remarried in
2002.
[5]
In
2004, the applicant was charged in Florida with trafficking in cocaine
following the search of his car on a tip from an informant. The applicant was
found in possession of an amount variably referenced in the arresting officers’
reports as 83 and 70 grams. In court, the charge was amended by the state
prosecutor and the applicant pleaded no contest to possession of 70 grams. Under
a procedure known as “adjudication withheld”, no formal finding of guilt was
made but a term of probation with a recommendation for drug treatment was
imposed. The applicant also had to make a payment of US $50.00. It is not clear
whether that was a fine or for costs.
[6]
In
April 2006, Mr. Jawad was arrested by US immigration authorities and detained
for several months pending removal from the United States because of
the possession offence. Deportation was deferred due to the situation at that
time in Lebanon. He was
released pending a change in the country conditions and informed that he had
the option to voluntarily leave the USA. The applicant chose to
do so notwithstanding that he was still under a State probation order requiring
regular reporting.
[7]
In
August 2006 the applicant entered Canada with his wife and first
child. He did not disclose his status in the US to an
immigration officer at the Port of Entry but later sought legal advice in Montreal regarding
his options. A second child was born to the couple in Canada. The applicant’s
wife attempted to obtain residency in Canada for herself and the children by
applying from the United States. When that was unsuccessful, she remained
there with the children. Jawad stayed in Canada without
status.
[8]
When
he did not report as required, an arrest warrant was issued against Mr. Jawad for
breach of the probation order in Florida. In April 2009, he was
arrested after being stopped for running a traffic light in Surrey B.C. and
turned over to the Canada Border Services Agency. He then applied for refugee
status.
[9]
The
applicant claims that if required to return to any place in Lebanon he would be
persecuted by Hezbollah due to his prior activities and recent public
statements. In 2010, he posted negative comments on the social media website
Facebook criticizing Hezbollah and its leader, Nesrallah.
[10]
Following
his arrest in 2009, the Minister initially sought an order of inadmissibility
against the applicant under s. 36 (2) (b) of the Immigration and Refugee
Protection Act ,SC 2001, c 27 on the ground that he had been convicted of an
offence outside Canada that would constitute an indictable offence in Canada.
That application was withdrawn. Thus there was no determination of
inadmissibility precluding referral of the claim to the Refugee Protection
Division.
DECISION UNDER REVIEW:
[11]
The
Board noted that for the applicant to be excluded under Article 1 F (b) of the Convention
Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (“the
Convention”) required a finding of serious reasons for considering that he had
committed a serious, non-political crime prior to his entry into Canada. The
Board gave the applicant the benefit of the doubt arising from the
discrepancies as to the quantity of cocaine in question and accepted that it
was 70 grams.
[12]
Based
on the applicant’s evidence, the Board found that the value of 70 grams was about
$1200.00 and that such quantity was sufficient for approximately six months of
personal consumption. The Board found the applicant’s explanation that he would
buy 6 months worth of cocaine for personal consumption to be implausible,
considering his financial situation at the time. The Board determined that the
applicant’s possession of cocaine was for the purpose of trafficking
notwithstanding that the disposition by the Florida court was
for the lesser offence of simple possession. The Board justified this on the
ground that the language of Article 1 F (b) refers to “commission” not
“conviction”.
[13]
The
Board found that the equivalent crime in Canada was trafficking
in a controlled substance pursuant to s. 5 (1) of the Controlled Drugs and
Substances Act, SC 1996, c 19 (“CDSA”). S. 5 (3) of the CDSA provides that
the maximum sentence for an offence under s. 5 (1) is imprisonment for life.
[14]
The
Board also looked at the criteria for seriousness set out in Jayasekara v Canada (Minister of
Citizenship and Immigration) 2008 FCA 404 at paragraph 44. The Board
found that the amendment of the charge was an element in favour of the
applicant, but his failure to complete his sentence in the USA and the type
of crime initially charged were elements pointing to the seriousness of the
crime. The Board thus concluded that the applicant was excluded pursuant to
Article 1 F (b) of the Convention.
[15]
The
Board considered that the applicant’s failure to claim asylum in the USA and delay
in claiming refugee status in Canada raised concerns regarding his credibility.
It found that his evidence was not credible with regard to whether his fear of
persecution or harm upon a return to Lebanon was well-founded.
[16]
The
Board found that the applicant had an internal flight alternative in the
Lebanese cities of Halba, Tripoli and Albirah. The Board
noted the violence in Lebanon and the omnipresence of
the Hezbollah. Nevertheless, the Board found that because the applicant was not
well known, was not politically involved and was well educated, it was
reasonable for him to move to one of those cities.
ISSUES:
[17]
The
issues arising from the Board’s decision are:
a.
Was the
Board’s decision relating to its exclusion findings reasonable?
b.
Was the
Board’s decision relating to the merits of the refugee claim reasonable?
RELEVANT LEGISLATION:
[18]
Section
98 of the Immigration and Refugee Protection Act, SC 2001, c 27 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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[19]
Article
1 F (b) of the Convention Relating to the Status of Refugees, 28 July
1951, 189 UNTS 137, found in schedule 1 of the IRPA, states:
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Article 1
F.
The provisions of this Convention shall not apply to any person with respect
to whom there are serious reasons for considering that:
(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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Article 1
F.
Les dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser :
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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ANALYSIS:
Standard of
Review
[20]
The
standards of review for the questions of fact and law before this Court have
been satisfactorily determined by the jurisprudence and a further analysis
applying the factors set out in Dunsmuir v New Brunswick, 2008 SCC 9 is
not necessary.
[21]
The
standard of review for the application of Article 1 F (b) of the Convention is
reasonableness: Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FC 238, aff’d by 2008 FCA 404; and Flores
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1147 at para 27.
[22]
Decisions
determining the existence of an internal flight alternative are also reviewed
on the reasonableness standard: Soto v Canada (Minister of Citizenship and
Immigration), 2011 FC 360 at para 19; and Guerilus v Canada (Minister of
Citizenship and Immigration), 2010 FC 394 at para 10.
[23]
Reasonableness
is premised on the existence of justification, transparency and intelligibility
within the decision-making process and whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law: Dunsmuir, above, at para 47; and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59.
Was the
Board’s finding of exclusion reasonable?
[24]
The
applicant argues that there was no evidence to support an Article 1 F (b)
finding. The sole indicium of trafficking was the quantity of cocaine found in
his possession. There is no presumption in law that quantity alone is
sufficient to establish trafficking: R v McCallum, 2006 SKQB 287 at para
28. Unresolved criminal charges are, until proven otherwise, mere allegations: Thuraisingam
v Canada (Minister of
Citizenship and Immigration), 2004 FC 607 at para 35; and Bakchiev v
Canada (Minister of
Citizenship and Immigration), 2000 CanLII 16489 (FC), 196 FTR 306 at
para 12. Further, the applicant contends, the fact that the original charge was
reduced should be considered prima facie evidence that the applicant did
not commit the crime: Arevalo Pineda v Canada (Minister of
Citizenship and Immigration), 2010 FC 454 at para 31.
[25]
The
respondent submits that it was reasonable for the Board to conclude,
considering the applicant’s financial situation, that the purchase of a
quantity of cocaine worth approximately $1200.00 (the applicant’s estimate) for
personal consumption was not credible. It was also open to the Board to take
into account the original charge of trafficking. Considering that the maximum
penalty in Canada for
trafficking in a controlled substance is life imprisonment, it was reasonable
for the Board to conclude that the applicant had committed a serious crime. According
to Chan v Canada (Minister of Citizenship and Immigration), [2000] 4 FC
390 (CA), a serious crime is to be equated with a crime which has a maximum
sentence of at least 10 years of imprisonment.
[26]
Exclusion
hearings under Article 1 F (b) of the Convention are not in the nature of a
criminal trial: Lai v Canada (Minister of Citizenship and Immigration),
2005 FCA 125 at para 23; and Xie v Canada (Minister of
Citizenship and Immigration), 2004 FCA 250, leave to appeal refused,
[2004] SCCA No 418, at para 23.
[27]
The
test of serious reasons for considering that a refugee claimant has committed a
serious non-political offence within the scope of Article 1 F (b) is similar to
the evidentiary standard of reasonable grounds to believe. It is more than mere
suspicion but less than the civil standard of a balance of probabilities: Ramirez
v Canada (Minister of
Employment and Immigration), [1992] 2 FC 306 (CA) at para 4-6. The test
requires compelling and credible information: Mugeresa v Canada (Minister
of Employment and Immigration), 2005 SCC 40 at para 114.
[28]
At
the hearing of the refugee claim, counsel for the applicant filed excerpts from
the Florida statutes
regarding the punishment for simple possession of cocaine in that state. The
offence is described as a third degree felony punishable by a term of
imprisonment not exceeding five years and a $5000 fine. It was argued that the equivalent
offence in Canada under the Controlled
Drugs and Substances Act is simple possession of a Schedule I substance for
which the penalty on indictment is seven years or less and on summary
conviction, no more than six months and a fine of up to $1000.
[29]
The
informant’s untested disclosure to the police was not in itself compelling and
credible information on which to make a finding that the applicant possessed
the cocaine for the purpose of trafficking. At best, it gave rise to suspicion
calling for further investigation. It appears from the arrest that the extent
of the further investigation conducted was the search of the applicant’s
vehicle. The applicant denied having the cocaine in his possession for the
purpose of trafficking at the time of his arrest.
[30]
It
was open to the Board to consider the quantity found in the applicant’s
possession and to find his explanation for why he had such a large quantity
implausible. The Board erred in finding that the equivalent offence in Canada was
trafficking under s. 5 (1) of the CDSA. The equivalent offence in Canada is possession
for the purpose of trafficking under s. 5 (2). This error would not, in itself,
have been material as the maximum penalty for the offence of possession for the
purpose of a Schedule I substance under the CDSA is the same as that for
trafficking in such a substance; life imprisonment.
[31]
I
note that the Board also erred in finding that the accused pleaded guilty. The
actual plea was no contest, a practice in the USA that has no
direct equivalent in Canada but amounts to a concession by the
defendant that on the evidence disclosed the charge can be proven. This is done
without an admission of guilt. Again, the error was not material. However, the
Board failed to properly take into account the disposition of the offence by
the foreign court in considering whether the offence committed was serious.
[32]
Notwithstanding
the seizure of a significant amount, the Florida prosecutor
and court accepted a no contest plea to simple possession and imposed a
suspended sentence that would be satisfied by the completion of five years of
probation, drug treatment and payment of a minimal fine. The applicant
testified that this was done because he was not in fact trafficking and was
prepared to contest the warrantless search of his automobile. That evidence
was, of course, self-serving but there is no evidence in the record to the
contrary, other than the informant’s untested statement.
[33]
While
I don’t agree with the applicant that the reduction of the charge is prima
facie proof that he was not trafficking, the laying of a charge by the
police does not establish that the crime charged was committed, as the Board
appears to have assumed. In exclusion cases, police arrest reports may serve as
credible and compelling evidence. But here there was no evidence of trafficking
in the reports other than the informant’s untested statement and none of the
usual indicia of trafficking such as prior convictions or the separation of the
drug into quantities suitable for sale.
[34]
The
Board correctly noted that in applying the criteria set out in Jayasekara,
above, to interpret the seriousness of the foreign offence, it was required to
take into account the elements of the crime, the mode of prosecution, the
penalty prescribed, the facts and the mitigating and aggravating circumstances
underlying the conviction. In referring to these criteria, the Board
acknowledged that the reduction of the original charge and the “relative
lighter punishment for that offence” weighs in favour of the crime being less
serious.
[35]
The
Board then states that the “circumstances surrounding the commission of the offence
and the initial charges [sic] weigh in favour of the crime being serious.” The
Board does not identify the circumstances to which it is referring. Nor does it
explain why the initial charge should be given greater weight than the ultimate
disposition. The “relative lighter punishment” is in stark contrast
with the mandatory minimum term of three
years imprisonment and substantial fine that Florida
imposes for trafficking in cocaine. I
acknowledge that in Jayasekara, at paragraph 54, the Federal Court of
Appeal noted that a probation order, particularly one of five years, is not
necessarily a light sentence because of the restrictions on liberty and
possibility of further consequences if breached. In this instance, however,
the probation order coupled with the withheld adjudication appears to have been
a lenient disposition for possession of a substantial amount of cocaine.
[36]
I
find that the Board’s decision with respect to exclusion lacks the
justification, transparency and intelligibility that would make it reasonable
within the meaning of the standard set out by the Supreme Court of Canada in Dunsmuir,
above, at paragraph 47.
[37]
In
the event that its decision as to exclusion was in error, as I have found, the
Board proceeded to an analysis of the merits of the refugee claim. This Court
must do the same.
Was the
Board’s decision relating to the merits of the refugee claim reasonable?
[38]
The
applicant submits that the Board did not explain why it did not accept the
reasons he provided with regard to his delay in claiming refugee status in
Canada and his failure to claim asylum in the USA. In addition, the applicant
submits, the Board erred in finding that his 2010 anti-Hezbollah posts on the
social media site Facebook were not public and accessible by Hezbollah
militants.
[39]
In
its internal flight alternative analysis, the applicant contends, the Board did
not consider the small size of Lebanon, ignored letters from his friends and
family in Lebanon and did not address his concern about the documented Hezbollah
presence at the Beirut airport where he would arrive if deported. Overall, the
applicant submits, the Board minimized the factional violence between Sunni and
Shi’a Muslims in Lebanon and Hezbollah’s role in controlling large
portions of the country and much of the state apparatus.
[40]
It
was open to the Board to consider the applicant’s failure to claim asylum in
the USA and his delay in claiming in Canada: Djouadou v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 1568 at para 8. Contrary to
the applicant’s submissions, the Board did consider his explanation for failing
to claim in the USA. The Board also considered that his delay in Canada was an
informed choice made by the applicant after he had received the advice of a
lawyer as to his available options. The Board found that these omissions raised
concerns about the validity of his allegations of fear.
[41]
The
Board considered the letters from family and friends which indicated that the
applicant continued to be sought by Hezbollah and the documentary evidence
about country conditions submitted by the applicant. It was open to the Board
to give this evidence little weight and to make its own assessment of the
country conditions based on all of the evidence.
[42]
The
Board did err in finding that the Facebook posts were not publicly
accessible. That error was not material in the context of the Board’s overall
finding that the applicant would not be a person of interest to Hezbollah
fifteen years after he had left Beirut simply because he had posted
criticisms online. The Board recognized that “Hezbollah generally poses a
threat to people who are not supporters of their agenda” and targets certain
people. However, it found that the applicant had not been politically active
and posed no threat to the organization.
[43]
The
determinative issue for the Board was the availability of internal flight
alternatives in several cities in the north of Lebanon. The Board
considered whether there was a serious possibility of persecution or harm in
other parts of the country on a balance of probabilities and whether it was
unreasonable, considering the circumstances, for the applicant to live in those
areas: Rasaratnam v Canada (Minister of Employment and Immigration),
[1992] 1 FC 706 (CA). The Board found that the applicant’s previous problems
with Hezbollah were localized to the neighbourhood in which he had been raised.
While the Board did not expressly deal with the question of identification at
the airport it considered the applicant’s concern that he would be recognized
if he returned to the south to visit his family, the main concern raised by the
applicant during the hearing.
[44]
The
Board was not persuaded that the applicant would face persecution or harm in
the proposed internal flight alternatives or that moving to those cities would
be unreasonable. I am unable to find that the Board erred in reaching those
conclusions.
[45]
In
conclusion, while I may have arrived at a different conclusion on the evidence
I find that the Board’s decision that the applicant is not a Convention refugee
or a person in need of protection was within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law.
[46]
No
serious questions of general importance were proposed by the parties and none
will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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