Date: 20071206
Docket: IMM-499-07
Citation: 2007
FC 1284
Vancouver, British
Columbia,
December 6, 2007
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
BYRON
ESTUARDO AMEZQUITA GALINDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the present Application, the Applicant
challenges a decision of the Refugee Protection
Division of the Immigration and Refugee Board (RPD), dated January 16, 2007, excluding
him from being considered a refugee by application of Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees (Convention). By
application of that provision, the RPD found that there are serious reasons for
considering that the Applicant has committed a serious non-political crime
outside of Canada; the
authorities in Guatemala have
issued a warrant for the arrest of the Applicant on a charge of murder.
[2]
The
Applicant is a citizen of Guatemala. In his Personal Information
Form (“PIF”) Narrative, the Applicant states that in Guatemala he was in the business of trading,
buying and selling vehicles. In 2004, the Applicant started buying and selling vehicles
in other countries, and in April 2004, he went to Honduras and purchased three vehicles
which he took to Panama where he registered them and paid
taxes and customs duties. In August 2004, the Applicant was arrested by the
Panamanian police who found that one of the vehicles he purchased in Honduras was stolen and belonged to
the recently murdered president of the National Institute of Electrification (INDE)
in Guatemala. The Panamanian police
informed the Applicant that they believed he was part of the plot to kill the
president of the INDE and detained him until October 2004. The Applicant feared
returning to Guatemala because he heard that Guatemalan Military Intelligence
was looking for him, his family had received threats, and the media in Guatemala had been widely reporting
that he killed the president of the INDE. The Applicant and his family fled to Honduras where they remained for five
months before arriving in Canada to make a refugee claim.
[3]
The
Minister of Citizenship and Immigration (Minister) intervened in the RPD’s processing
of the Applicant’s refugee claim with a request that the Applicant be found to
be inadmissible under Article 1F(b).
[4]
The
central issue before the RPD was whether there are serious reasons for
considering that the Applicant committed the murder. In support of the
application under Article 1F(b) of the Convention the evidence produced
before the RPD by the Minister consists of a warrant from Guatemala for the
Applicant’s arrest, information from Interpol, newspaper reports from Guatemala
reporting that the Applicant is the murderer, and a “criminal record” for arrests
in Guatemala and outstanding charges there for fraud. The Applicant denies
committing the murder, and in the hearing before the RPD presented what is
essentially an alibi defence. In addition, in support of his position that he
is wrongly accused, the Applicant attacked the existence of an important piece
of evidence used against him: he denies ever having been arrested in Guatemala. In addition, the Applicant
tendered an official record dated June 15, 2006, issued by the “Judicial Body,
Supreme Court of Guatemala” confirming that he does not have “a criminal
record” for criminal convictions in Guatemala (Certified Tribunal Record (CTR),
p.835) and his lawyer in Guatemala wrote a statement that as of June 1, 2006,
the Applicant “has not been charged or tried, according to the procedural
requirements of Guatemala” (Applicant’s Application Record, p.70). With respect
to the existence or non-existence of an arrest record for the Applicant, fingerprint
evidence linking the Applicant to such a record became an element of the RPD’s
decision-making.
[5]
Throughout
the arguments placed before the RPD, and in the decision under review, the
“arrest record” relied upon by the Minister is referred to as a “criminal
record”. As a result, for continuity, the term “criminal record” is used in
these reasons when referring to the alleged “arrest record” unless specified
otherwise. The criminal record placed before the RPD by the Minister is as
follows:
According to an email from
Interpol Guatemala, the Claimant has the following criminal record in Guatemala
(Ex. 7, pp.16-17):
29/02/1980, Arrested for violent
aggression
30/10/2002, Arrested for special
case of fraud, use of false documents and customs evasion
24/03/1996, arrested for illegal
carrying of firearms
15/02/1994, arrested for
misrepresentation of facts
19/01/1992, arrested for fraud
involving cheques
01/11/2002, arrested for an
unspecified offence
There are several arrest warrants
for the Claimant in Guatemala in addition to the one dealing with Knox’s
murder:
1.
customs fraud and use of falsified documents dated October 14,
2004, (Ex. 7, p.7);
2.
customs fraud and use of falsified documents dated March 22,
2001, (Ex. 7, p.11);
3.
fraud and misrepresentation dated November 4, 2000, (ex. 7,
p.13).
(CTR,
p.324)
[6]
Given the
nature of the evidence produced by the Minister and the Applicant on the
Article 1F(b) issue, the RPD properly engaged in determining whether the
Applicant is credible. Justice von Finckenstein’s decision in Qazi v. Canada (Minister of Citizenship and
Immigration)
2005 FC 1024 at paragraphs 18 and 19 presents a cogent reason for this approach:
The Board has to satisfy
itself that there are “serious reasons for considering that [the Applicant] has
committed a serious non-political crime outside the country of refuge prior to
his admission to that country as a refugee”. Normally the Board does not
inquire into the guilt or innocence of an applicant charged abroad (see Moreno v. Canada (M.E.I.) [1994] 1
F.C. 298). The existence of a valid warrant issued by a foreign country would,
in the absence of allegations that the charges are trumped up, satisfy the
“serious reasons for considering” requirement.
When, however, as in this
case, the Applicant alleges that the charges are fabricated, the Board has to
go further. It has to establish whether to accept the allegations or not. i.e.
whether the Applicant is credible. If he is found to be credible, then the mere
existence of a warrant may not be enough.
[7]
The RPD
agreed with the Minister’s arguments that the Applicant is not credible as set
out in the following passage from the reasons:
Included in both the
Minister’s and Counsel’s submissions are extensive News articles in respect to
Knox’s murder and the outstanding warrant of the accused. The panel agrees with
the Minister’s representative that there were serious concerns in respect to
the claimant’s credibility, including his oral testimony.
The Minister’s representative
has detailed the claimant’s criminal history which is included in the complete
page 13 and on page 14 in the Minister’s representative’s submissions [CTR,
p.324]. It
states:
The Minister recognized that
there is no evidence to establish the claimant was ever convicted for these
offences. However, it is more than merely speculative that he committed these
offences given the existence of outstanding warrants and records on Interpol.
Accordingly, the Minister submits that little weight can be placed on the
claimant’s evidence, in particular the documentary evidence that he has
provided. If he had been arrested and is currently wanted for using false
documents, misrepresentation and fraud, it stands to reason that he may have
fabricated documents to corroborate his refugee claim.
The panel agrees with the
portion of the Minister’s submissions that there are serious credibility
concerns in regards to the claimant’s oral and written testimony pertaining to
his presence in Panama during Knox’s murder:
[…]
(Emphasis added)
(Decision, p.8)
[8]
Thus it is
obvious that the criminal record alleged by the Minister played a central role
in the negative credibility finding made, which, in turn, is central to the Article
1F(b) decision rendered.
[9]
It is
agreed that Counsel for the Applicant’s written argument, with minor amendment,
provides a concise description of the conduct of the criminal record issue as
follows:
The Applicant
indicated at the outset of his claim that he was very concerned that the
government of Guatemala might have produced a false criminal record for him in
the course of its efforts to hold him responsible for the murder of Mr. Knox.
In his Personal Information Form, filed on 7 June 2005, he stated that “the
government and the police forces in my country are corrupt and I knew that I
would be made a scapegoat. I am afraid that the government of Guatemala has
invented a criminal record for me”.
Certified Tribunal Record (CTR), p.349
At an early
stage, the Minister also focused on the importance of a criminal record with
respect to the claimant. In its “Notice of Intention to Participate” dated 9
February 2006, the Minister stated that in her opinion the Applicant was
complicit and/or had committed serious non-political crimes and that her
opinion was based in part on the fact that according to a national newspaper
the claimant had been accused by the Guatemalan authorities of at least nine
judicial processes, including murder.
CTR,
p.744
Furthermore,
in her disclosure to the Board dated 5 June 2006, the Minister provided the
Board with a number of documents including a copy of an email which stated that
the Applicant had an extensive criminal record in Guatemala dating back to
1980, which included arrests for “violent aggression” when the claimant was
eight years old, fraud, use of false documents, customs offences, illegal
carrying of firearms, misrepresentation of facts, fraud involving cheques, and
in 2002 of an arrest for “an unspecified offence.”
CTR,
p.765
On 20 June
2006, the Applicant wrote to the Board enclosing a criminal record check that
he had obtained from Guatemala and which indicated that he did not have a
record for criminal convictions.
CTR,
p.835
In the letter
of June 20th the Applicant asked for a postponement of the hearing so that the
competing documents could be checked and so that the Minister’s representative
could be allowed to provide some evidence based on fingerprints that the
Applicant is the person mentioned in the criminal record. In the alternative,
the Applicant requested that the criminal record submitted by the Minister be
excluded from consideration for lack of reliability and extreme prejudice
against the Applicant’s credibility.
CTR,
p.834
By letter
dated 26 June 2006, the Board denied the Applicant’s request for a
postponement.
CTR,
p.222
When the
hearing got underway on 28 June 2006 the Applicant renewed his request for a
postponement. The Board denied this request stating, “if any further time
was needed with respect to fingerprints … that further time would be given…”
(Emphasis
added)
CTR,
p.76
The Board then
asked the Minister if “… you are able to find out any information as to whether
there is fingerprinting done in Guatemala.” The Minister responded that she had
spoken to her enforcement officers and that to the best of their knowledge
there was not a fingerprint database in Guatemala but that she intended to look
into the matter further.
CTR,
p.76
The
Applicant’s counsel then indicated to the Board that the Applicant was adamant
that he had never been arrested in Guatemala, that he had no criminal record
and that the Guatemalan authorities did take fingerprints when anyone was arrested,
and that finally, the whole issue was extremely relevant. Since [sic] if the
Applicant was shown to be telling the truth it would go a long way to
buttressing his other claims of innocence and of non-involvement which rested
in part on his own credibility.
CTR,
pp.79-80
However, later
in the hearing the Minister defended the alleged criminal record saying, “aside
from the charge of violent aggression, the documents have more consistencies
than inconsistencies. I mean with the respect to the charges of fraud and
misrepresentation, there are indications in the news articles that the claimant
had some history with the police, more than what he’s told us.”
CTR,
p.85
The member
also questioned the Applicant directly, under oath, and asked him if he had
ever been fingerprinted in Guatemala. The Applicant stated that he had not been
fingerprinted in Guatemala because he was never arrested there.
CTR,
p.83
After hearing
further submissions from the Minister, the Board reiterated its denial of the
request for postponement stating however, he would afford further time if
needed before making a decision.
CTR,
p.90
Later in the
hearing on cross-examination the Minister returned to the question of the
alleged criminal record and cross-examined the Applicant extensively on that
issue. The Minister attempted to impugn the Applicant’s credibility when he
denied ever having been arrested in Guatemala. The Applicant maintained that he
had never been arrested there.
CTR,
p.148-153
At the end of
the day, before adjourning the hearing to 9 August 2006, the Board Member asked
the Minister to look into the question of whether the Guatemalan authorities
took fingerprints. The Applicant then said to the Board Member “I believe the
fingerprints will be something very important for the judge to have. I thank
you for having requested that”.
CTR,
p.164
On 4 July
2006, the Minister wrote to the Board strenuously objecting and in effect
refusing to follow the direction of the Board that she try to obtain
fingerprint evidence. She stated that such evidence was irrelevant and
unnecessary and completed by saying “if the Board or counsel could explain the
probative value of a fingerprint analysis I will gladly assist.”
CTR,
p.868
On 31 July
2006, the Board responded to the Minister’s letter saying that her argument
could be addressed after resumption of the hearing.
CTR,
p.210
The same day,
on 31 July 2006, the Minister wrote again to the Board, this time requesting a
postponement. Her letter stated that she had just received police incident
reports and fingerprints from Guatemala and Panama
regarding the principal claimant. She requested time to translate these
documents from the Spanish. She added that the police reports and
fingerprints will likely provide further information regarding the veracity of
the civil charges against the principal claimant.
(Emphasis
added in the original)
CTR,
p.871
On the same
date, the Minister disclosed further documents including a statutory
declaration, which stated that the Guatemalan authorities had a central
registry where they keep fingerprints and pictures of persons charged of any
crimes and that they could compare the fingerprints and pictures that Canada
would send them to their database.
CTR,
p.887
On 21
August 2006, the Minister provided further disclosure. This disclosure included
fingerprint evidence from Panama, but not from Guatemala. The
documents of Guatemala consisted of confirmation that the
Applicant had arrest warrants issued against him dating back to 2000 but this
was not supported by any fingerprints confirmation.
(Emphasis
added)
CTR,
p.927
The hearing resumed on 1 November
2006 when the following exchange took place:
PRESIDING MEMBER: And you seem to
be strongly objecting to the request you had put for the analysis of the
claimant’s fingerprints. I listened to the ending of the tape of the last
hearing date. I think at first I had written down that I was asking just
basically any information on the normal procedure of taking fingerprints but
had stated it would be useful, obviously, if we had had the information, but
that was just my own -- and I think the request was more from counsel. But we
have all that information now --
MS. CHAN: Yes
PRESIDING MEMBER: -- in any case.
MS. CHAN: Yeah.
PRESIDING MEMBER: But it just
seemed to be very strong objections from the Minister’s representative that we
were even asking for this information in the first place. Did you wish to
comment further or has the matter been dealt with?
MS. CHAN: I think the matter’s
been dealt with, yeah.
PRESIDING MEMBER: Counsel, did
you wish to make any comments?
MR. DANTZER: Well, in part, I
guess. The -- I think -- I don’t know if now is the time for submissions on
exactly what the Minister’s disclosure of – the most recent disclosure of I
guess the 21st of July is, but it does have some information with
respect to the fingerprints.
PRESIDING MEMBER: Right.
MR. DANTZER: But of course it
doesn’t have the key part, which in other words, there are fingerprints from Panama
--
PRESIDING MEMBER: Right
MR. DANTZER: -- which is really
not in issue and there --
PRESIDING MEMBER: I assumed we
were going to have the opportunity for --
MR. DANTZER: To do that later.
Sure.
PRESIDING MEMBER: I’d prefer if
that would be questions today.
MR. DANTZER: Yeah.
(Emphasis
added)
CTR,
pp.5-6
At the
conclusion of the hearing the Board Member, after speaking off the record to
get a date for resumption in order to hear oral submissions, declared that submissions
would be in writing.
CTR,
p.71
The Minister’s
representative submitted a lengthy twenty-page submission on 14 November 2006.
In those submissions the Minister wrote at some length on the Applicant’s
alleged criminal record in Guatemala, stating that the Applicant had failed to
disclose it on his Personal Information Form and invited the board to draw a
negative inference with respect to this credibility. The Minister also made no
mention of the fact that the purported criminal record was not supported by
fingerprints.
CTR,
p.324
The Applicant
submitted his written submissions on 28 November 2006. In those submissions he
again raised the issue of the fact that the alleged criminal record was not
supported by fingerprints, and stated that the Minister’s own evidence
established that fingerprint evidence was available and the Minister had been
unable or unwilling to provide any evidence that the claimant had ever had his
fingerprints taken in Guatemala. The Applicant then argued that a government
who would prepare a false criminal record would not likely be too concerned
with the niceties of issuing a properly based arrest warrant.
CTR,
pp.307-308
On 1 December
2006, the Minister provided a reply to the Applicant’s submissions; she stated
in response to the issue of the lack of fingerprints “it is not incumbent on the
Minister to prove that the civil record is valid. The Minister has no reason to
question the veracity of a document from Interpol Guatemala. The Minister
simply does not have the resources to obtain the fingerprints of every arrest
on the record dating back to 1980 to prove that they actually occurred.”
CTR,
p.181
In his final
reply on 8 December 2006, the Applicant repeated the importance of the alleged
criminal record and the significance of the lack of fingerprint evidence to
support its voracity.
CTR,
p.179
(Applicant’s Further
Memorandum of Argument,
Sept. 19, 2007, pp.1-7)
[10]
Counsel
for the Applicant argues that the conclusion should be drawn that the RPD
undertook to determine whether fingerprint evidence confirming the existence of
a criminal record in Guatemala does exist, and its failure
to reach a conclusion on this issue constitutes a breach of a duty of fairness.
While Counsel for the Applicant did refer throughout to the lack of confirming
fingerprint evidence, at no time was the RPD tasked with resolving the
fingerprint issue. As a result, I find no duty of fairness was breached.
[11]
However,
Counsel for the Applicant also advances a strong argument that the RPD’s
decision is rendered in reviewable error because of a fundamental erroneous
finding of fact. This argument is based on this finding:
The panel has taken in
consideration counsel’s written submissions in respect to the evidence quoted
above of the Minister. I find that the Minister has responded to counsel’s
concerns of the claimant’s criminal record, including the charge of
violence, aggression, when the claimant would have been eight years old and,
further, that even though the Minister did not respond to the initial request
to have copies of the claimant’s fingerprints from Guatemala submitted I note
that in a letter from Becky Chan, Hearings Officer, dated 31st of
July 2006 she wrote:
I have just received police
incident reports and fingerprints from Guatemala and Panama regarding the principal claimant. I
received these documents on July 26 2006 by mail from Interpol – I submit that
these documents are relevant to the determination of the issue of Article
1F(b), exclusion in this refugee claim. The police reports and fingerprints
will likely provide further information regarding the veracity of the criminal
charges against the principal claimant.
(Emphasis added)
(Decision, pp.11-12)
I agree with Counsel for the Applicant that it is obvious
that, perhaps given the confusion exposed in the November 1, 2006 quote from
the Certified Tribunal Record, in failing to apply the Minister’s retraction of
August 21st, this finding of fact is patently unreasonable. The
question is: What is the effect of the erroneous finding on the decision
rendered?
[12]
I agree
with Counsel for the Minister that the answer to the question relates to a
finding of whether the error is central to the decision rendered. Counsel for
the Minister argues that the issue before the RPD was whether there are “serious reasons for considering that the Applicant has committed
a serious non-political crime outside of Canada” and that the issue of the
criminal record, and the error that relates to it, is not central but
peripheral: that is, there is ample evidence to support the finding regardless
of a proper resolution to the criminal record issue. With respect, I cannot
agree with this submission.
[13]
In the
present case the Applicant alleges that the Guatemalan police have trumped up a
charge of murder against him, and, therefore, by the decision in Qazi,
the RPD is obliged to make a determination on the Applicant’s credibility. In
my opinion, the RPD’s confused decision-making on this issue should be interpreted
as follows: the finding of the existence of fingerprints in Guatemala confirms
the existence of a criminal record in Guatemala as alleged by the Minister; the
existence of the criminal record is central to the finding of negative
credibility against the Applicant; and, in turn, the negative credibility
finding has the effect of negating the Applicant’s evidence that he has never
been arrested in Guatemala..
[14]
The result
of the RPD’s decision-making is that, because of a patently unreasonable
factual finding, the Applicant is deprived of his ability to establish that the
charges in Guatemala are brought against him with
ill motive on the part of the Guatemalan police. In my opinion, since the error
has the effect of wrongly depriving the Applicant of a possible defence to the
Article 1F(b) intervention by the Minister, it is certainly central to the
disposition of the intervention.
[15]
As a
result, I find the decision under review was made in reviewable error.
ORDER
Accordingly, I set aside the
RPD’s decision, and refer the matter back to a differently constituted panel
for redetermination.
It is agreed that there is no
question to certify.
"Douglas
R. Campbell"
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