Date: 20110728
Docket: IMM-6580-10
Citation: 2011 FC 959
Ottawa, Ontario,
July 28, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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YESENIA NELLY AGUILAR VALDES
and
ESTEBAN GUADALUPE HERNANDEZ JIMENEZ
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Applicants
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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]
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 14 October 2010 (Decision), which excluded
the Applicants from refugee protection pursuant to section 98 of the Act.
BACKGROUND
[2]
Both
the Female Applicant and the Male Applicant are citizens of Mexico. They allege
that they have both suffered persecution at the hands of the Female Applicant’s
former common-law partner, Carlos, whom she met and with whom she began a
relationship in 1999 in the U.S. The Female
Applicant and Carlos have a child together. She alleges that he verbally,
physically and sexually abused her throughout their six-year relationship and
that he has continued to harass and threaten her despite the fact that they ended
their relationship in 2005. Sometime thereafter, she and the Male Applicant
began a relationship and took up residence, together with a roommate, in Ohio.
[3]
The
Applicants separated for a period but, eventually, they reconciled and the
Female Applicant moved back into their apartment. Two days later, they were
arrested for drug-related offences. They pled guilty to the
charges. They admit that the Male Applicant kept drugs in their apartment for
his personal use and that their roommate also kept drugs there, likely for sale,
but they claim that the Female Applicant knew nothing about them.
[4]
The Applicants pled guilty for various reasons explained in their
Personal Information Form (PIF) narratives. In particular, the Female Applicant
was pregnant and had been advised by counsel that, if she waited for a trial,
she would have to stay in jail for so long that she would have to give birth
there. She was advised that the trial itself would be long and expensive with
little chance of success and that, if she remained detained, Carlos might get
custody of her son.
[5]
In February 2007, the Female Applicant was convicted of conspiracy
to traffic in cocaine, possession of cocaine (two counts) and aggravated
possession of drugs. She was sentenced to a prison term of nine months for each
count to be served concurrently in the U.S. Similarly,
in March 2007, the Male Applicant was convicted of trafficking in cocaine
(three counts), possession of cocaine and aggravated possession of drugs and
was sentenced to a prison term of nine months for each count to be served
concurrently in the U.S.
[6]
Upon their release from prison, each Applicant was deported to Mexico,
where they reunited and settled. The Female Applicant alleges that, a few
months later, Carlos’ family informed her that Carlos was, himself, soon to be
deported to Mexico and was threatening to kill both Applicants.
Eventually, Carlos did return and continued to threaten the Applicants. They
reported the threats to the Mexican police, who advised them that nothing could
be done until the Applicants incurred physical injury. They moved to another
state but were forced to return to Mexico City
because the Female Applicant’s eldest child requires specialized medical
treatment.
[7]
The Applicants fled to Canada in October
2008. Carlos currently lives with the Female Applicant’s relatives and,
therefore, would easily be able to locate the Applicants. For this reason, they
cannot return to Mexico.
[8]
The Applicants appeared before the RPD on 23 February, 26 May and
22 July in 2010. They were represented by counsel and an interpreter was
present. The Minister intervened in the claims, being of the opinion that
Article 1F(b) of the United Nations Convention Relating to the Status of
Refugees was engaged due to the Applicants’ criminal activities in the U.S.
[9]
The RPD concluded that the Applicants should be excluded from the
refugee protection afforded to Convention refugees and persons in need of
protection because there were “serious reasons for considering that [they]
committed a serious non-political crime (or crimes) within the meaning of
Article 1F(b).” This is the Decision under review.
DECISION UNDER REVIEW
[10]
The RPD acknowledges the position of the Minister’s counsel that
the convictions alone amount to serious reasons for considering that the
Applicants committed the crimes. However, there is additional evidence in the
form of statements by two cooperating defendants implicating the Female
Applicant.
[11]
Nevertheless, the Applicants cannot be excluded if their evidence
of the circumstances of their convictions is credible. The RPD
concludes, however, that the Applicants’ evidence is not credible for the
following reasons.
[12]
First, the Applicants did not mount a defense against the
drug-related charges. If the Applicants had had evidence to establish their
innocence, it is reasonable to expect that they would have mounted a defense in
the Ohio criminal court. The RPD drew a negative
inference from the Applicant’s failure to present such evidence to the criminal
court and from their failure to explain why they did not present such evidence.
[13]
Second,
the RPD acknowledges the Applicants’ claim that their
legal representation in the U.S. was
inadequate but notes that this claim is unsupported by any evidence such as,
for example, a complaint to the U.S.
authorities. Regardless of the competency of counsel, the Applicants could have
themselves presented exculpatory evidence to the criminal court.
[14]
Third, regarding the seriousness of the crimes, the RPD finds that
they are crimes for which a maximum sentence of ten years or more could have
been imposed had the crimes been committed in Canada.
Although the amount of drugs in question was not large, a small quantity of
drugs can amount to a serious crime in the context of Article 1F(b).
[15]
On
this basis, the RPD determined that the Applicants were excluded from the
protection afforded Convention refugees and persons in need of protection.
ISSUES
[16]
The
Applicants formally raise the following issues:
i.
Whether
the RPD’s credibility and plausibility findings were in error; and
ii. Whether the RPD’s
assessment of the seriousness of the offence was flawed, specifically with
respect to its treatment of the factors relevant to this assessment.
[17]
The
Applicants also raise the following issue in their argument:
Whether the RPD unfairly
deprived them of an opportunity to respond to its concerns.
STATUTORY PROVISIONS
[18]
The
following provision of the Act is applicable in these proceedings:
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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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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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[19]
The
following provision of the United Nations Convention Relating to the Status
of Refugees, July 28, 1951, [1969] Can.
T.S. No. 6, Art. 1, is
applicable in these proceedings:
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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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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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STANDARD OF REVIEW
[20]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, 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.
[21]
Credibility
and plausibility findings are within the RPD’s areas of expertise and,
therefore, deserving of deference. They are reviewable on a standard of
reasonableness. See Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR 315, 42
ACWS (3d) 886 (FCA); and Dunsmuir, above, at paragraphs 51 and 53.
[22]
On a
question of exclusion under Article 1F of the Convention, the standard
is reasonableness. This accords with Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FC 238 at paragraph 10 [Jayasekara FC],
wherein Justice Barry Strayer of this Court found:
In
the matter of the standard of review, I respectfully concur with other judges
of this Court in the view that on a question of exclusion under Article 1F, the
standard should be that of reasonableness. The decision which the Board must
make is as to whether “there are serious reasons for considering that ... he
has committed a serious non-political crime outside the country ....” This is a
mixed question of fact and law and involves some discretion in assessing what
is a “serious” reason: see Médina v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 86
at paragraph 9, and other cases referred to therein.
[23]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[24]
In
their arguments the Applicants contend that the RPD deprived them of their
rightful opportunity to respond to its concerns. This is a question of fair
process and is reviewable on a standard of correctness. See Khosa, above,
at paragraph 43.
ARGUMENTS
The Applicants
[25]
The
Applicants argue that the RPD
erred in three ways. First, its credibility and plausibility findings were
unreasonable. Second, it deprived the Applicants of the opportunity to respond
to these credibility and plausibility concerns. Third, it failed to consider
most of the factors relevant to an assessment of the seriousness of the offences.
Credibility Findings
[26]
The
Applicants submit that the RPD’s credibility findings are perverse. They fail
to consider any of the traditional credibility factors such as contradictions,
inconsistencies or evasion. Rather, the RPD’s reasons for excluding the
Applicants under Article 1F(b) of the Convention are based almost entirely on a
single plausibility finding: that, had the Applicants been innocent, they would
not have pled guilty in the Ohio
criminal court.
[27]
The RPD’s finding that the
Applicants “did not provide a reasonable explanation” for failing to present to
the Ohio criminal court evidence of their innocence, and choosing instead to
plead guilty, wholly ignores the detailed evidence presented in the Female
Applicant’s PIF, which addresses this very point. It indicates that the Female
Applicant pled guilty because: she was pregnant and did not want to give birth
in jail; she had been advised that a trial would be long and expensive with
little chance of success; and she had been told and believed that, if she remained
in detention too long, Carlos might get custody of their child. The Applicants
submit that the spirit of the Gender Guidelines and the Supreme Court
decision in R v Lavallee, [1990] 1 S.C.R. 852, [1990] SCJ No 36 (QL),
should have led the RPD to consider the actions
of the Female Applicant in her unique circumstances rather than on a reasonable
person standard.
[28]
The
Applicant contends that the RPD finds these explanations implausible because
innocent people do not plead guilty. This is absurd. It is a “well-known
reality” that, in a “slow and overburdened” justice system, people sometimes
plead guilty even though they are innocent, as the Applicants’ evidence
indicates. The RPD offers no explanation
for why it adopts the contrary view, but it relies on this view as a
justification for excluding the Applicants from refugee protection.
[29]
The
presumption of the truth of the Applicants’ explanations was not rebutted.
Indeed their explanations were never challenged. In light of this, the RPD’s
finding that the Applicants were not credible is tantamount to ignoring
evidence without explanation.
Credibility Concerns
Demanded an Opportunity to Respond
[30]
The
RPD clearly had concerns regarding the Applicants’ credibility and the
plausibility of their explanations but it failed to raise them despite ample
opportunity to do so during the three days of hearings. This represents a
violation of the principles of natural justice. Had the RPD advised the Applicants
of its concerns with respect to the Applicants’ reasons for pleading guilty and
for not filing a formal complaint against their U.S. counsel, the Applicants could have sought to
address these concerns at the hearing.
[31]
The
Applicants, however, having decided to rely on their unchallenged written
evidence, had no way of knowing that the RPD doubted them and no opportunity to
dispose of these doubts. To find the Applicants not credible, despite the fact
that their credibility was never tested, is a violation of the principles of
natural justice.
Assessment of the Seriousness
of the Offence
[32]
The
Applicants argue that the RPD’s
assessment of the seriousness of the offences is “truly minimal.” The Handbook
on Procedures and Criteria for Determining Refugee Status published by the
United Nations High Commissioner for Refugees (UNHCR) states that to qualify as
a serious crime pursuant to Article 1F(b), an offence must be a capital crime
or a very grave punishable act. It also states that one of the main purposes of
Article 1F(b) is to protect the community of the receiving country. Tribunals
such as the RPD, in evaluating the seriousness of the offence, must consider “all
relevant factors,” including mitigating circumstances and whether the claimant
has served his or her sentence. The Federal Court of Appeal, in Jayasekara v
Canada (Minister of Citizenship and Immigration), 2008 FCA 404 [Jayasekara
FCA], above, at paragraphs 27-29, held that, although the mere serving of
the sentence does not mean that Article 1F(b) could not apply, the factors that
govern the assessment are the continuing dangerousness of the claimant and the
protection of the public. It further stated at paragraph 44 that:
I believe 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 …. In
other words, whatever presumption of seriousness may attach to a crime
internationally or under the legislation of the receiving state, that
presumption may be rebutted by reference to the above factors.
The RPD’s assessment is inadequate. The only factor it
considered was the length of the sentence that would have been imposed in Canada had such an offence
been committed here.
[33]
Factors
that should have been considered but were disregarded include: the Female
Applicant’s completion of her sentence; the Male Applicant’s subsequent abstention
from drugs; the four years that have passed since the offences were committed;
the Applicants’ lack of dangerousness and “criminal character”; the brevity of
their actual sentences; and the Female Applicant’s ignorance of the presence of
drugs in the apartment. Moreover, the RPD’s flawed credibility findings taint
the assessment of the seriousness of the offence as they prevented the RPD from properly assessing
the true character of each Applicant and the circumstances of the offences.
The Respondent
The
Applicants Improperly Invite the Court to Re-Weigh the Evidence
[34]
The
Respondent contends that the RPD’s exclusion finding was reasonable. The crimes
for which the Applicants were convicted met the requisite level of seriousness
because of the length of sentence that could have been imposed under Canadian
law. The RPD found that the
Applicants had offered no persuasive evidence that the crimes were not serious,
despite the fact that the amount of drugs involved was relatively small.
[35]
Although
the Applicants claimed that they were innocent, they offered no evidence of
their innocence or of the failure of the Ohio criminal court properly to carry out its duties
with respect to the adjudication of the Applicants’ guilt or innocence. It was
reasonably open to the RPD to prefer the documentary evidence establishing the
Applicants’ convictions for serious criminality over their assertions of
innocence.
The Applicants’ Reply
[36]
The
Applicants argue that the Respondent’s submissions are unresponsive to the substance
of their arguments. The Respondent merely re-states the RPD’s findings but in no
way addresses the Applicants’ challenges to the findings.
[37]
The
Applicants’ submissions do not invite the Court to re-weigh the evidence. The
Applicants acknowledge that they were convicted of their offences. The issue is
that the RPD failed to consider factors beyond their convictions, factors which
this Court has held must be considered, such as the circumstances of the
offence. The Respondent has been unable to point to any part of the Decision
that addresses the circumstances of the offence.
The Respondent’s Further
Memorandum
[38]
The
Respondent further submits that the purpose of Article 1F(b) is not limited to
protecting the community of the receiving country from dangerous persons. It
also aims to ensure that the refugee system is not abused by criminals and that
signatory nations should not become havens for those who have committed serious
non-political offences. See Jayasekara FCA, above, at paragraphs 28-29;
and Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, [1998] SCJ No 46
(QL) at paragraph 73.
[39]
The
Federal Court of Appeal in Jayasekara FCA, above, at paragraph 40,
recognized that, for the purposes of excluding a person from refugee protection
on the basis of serious criminality, paragraph 101(2)(b) of the Act
requires a conviction outside Canada which under Canadian law would be
punishable by a maximum term of at least ten years. This, in the Federal Court
of Appeal’s view, was a “strong indication from Parliament that Canada, as a receiving state,
considers crimes for which this kind of penalty is prescribed as serious
crimes.”
[40]
The
presumption of the seriousness of the crime can be rebutted based on an
assessment of certain factors. See Jayasekara FCA, above, at paragraph
44. The Applicants argue that the evidence of convictions is rebuttable,
relying on Rihan v Canada (Minister of Citizenship and Immigration), 2010
FC 123, Gurajena v Canada (Minister of Citizenship and Immigration),
2008 FC 724, and Zeng v Canada (Minister of Citizenship and Immigration),
2008 FC 956. However, these cases concern claimants who were excluded from
refugee protection based on an outstanding warrant. In the instant case,
the Applicants were excluded on the basis of conviction by a court of
competent jurisdiction. It was reasonable for the RPD to rely on these
convictions as serious reasons for considering that the Applicants had
committed serious non-political crimes.
[41]
Although
the Applicants claim to be innocent, it was reasonable for the RPD to expect them to
support their assertions with evidence of their lack of involvement in the
drug-related offences for which they were charged.
[42]
As
the transcript of the hearing demonstrates, the Applicants elected not to
present oral evidence on the issue of exclusion, preferring to rely instead on
their PIF narratives and post-hearing submissions. They cannot now be heard to
complain that they did not have an opportunity to address the exclusion issue at
the hearing before the RPD. The jurisprudence of this Court indicates that the RPD is under no obligation
to provide an applicant with the opportunity to address its plausibility
findings. As Justice Edmond Blanchard stated in Khorasani v Canada (Minister of Citizenship
and Immigration),
2002 FCT 936 at paragraph 35:
With respect to the argument that the
applicants were not confronted with the Panel's credibility concerns, I agree
with the respondent's submission that the Panel is under no obligation to alert
an applicant, at the time of their hearing, of its concerns about weakness in
testimony giving rise to implausibilities.
ANALYSIS
[43]
The Decision
is based upon narrow grounds. The RPD rejects the Applicants’ evidence of
non-involvement in the drug-related crimes as being non-credible for the
following reasons:
a.
“Had
there been evidence which established that the claimants were not involved in
the crimes with which they were charged, it is reasonable to expect that the claimants
would have presented this evidence to support a not guilty finding by the Ohio Courts.”
(Paragraph 12 of the Decision);
b.
“The
claimants did not provide a reasonable explanation for why such evidence was
not presented in their defence.” (Paragraph 12 of the Decision);
c.
“Had
there been exculpatory evidence that demonstrated the claimants were not
involved in drug activities, I find that the Ohio court would not have ignored
such evidence and thus, I find that it is reasonable to expect that the
claimants would have presented such evidence in their own defence regardless of
the competency of their counsel.” (Paragraph 13 of the Decision);
d.
“As
submitted by Minister’s counsel, in order for Ohio courts to accept guilty pleas by these
claimants, the elements of the crime must be made out, the plea must be
voluntary and understood, and there must be no miscarriage of justice in
accepting the plea. The claimants did not provide any evidence that the Ohio court ignored these
conditions in accepting their guilty pleas.” (Paragraph 13 of the Decision);
e.
The
Applicants “did not provide a reasonable explanation for failing to present
such evidence to support their innocence during the criminal proceedings in
Ohio but, instead only presented such evidence in relation to the Minister’s
intervention seeking to exclude them from refugee protection in Canada.” (Paragraph 13 of the Decision).
[44]
Taken
as a whole, very little is being said here to support the finding by the RPD that
the Applicants’ evidence of non-involvement was not credible.
[45]
Essentially,
the RPD is saying that, if there was evidence of non-involvement in the crimes,
the Applicants would not have pleaded guilty but would have presented that
evidence to the Ohio court and pleaded not
guilty. Without mentioning the explanations provided by the Applicants as to
why they pleaded guilty to the charges in Ohio, the RPD simply says the “claimants did not
provide a reasonable explanation for why such evidence was not presented in
their defence.” This misses the point because some of the reasons were not related
to evidentiary issues.
[46]
The
RPD’s finding of no “reasonable explanation” is a conclusion without reasons.
It appears to be based upon the unproven and speculative premise that if the
Applicants had not been involved in serious crimes they would not have pleaded
guilty in Ohio but would have
proceeded with the trials and placed their evidence for non-involvement before
the Ohio court. This premise is
entirely speculative and unreasonable and cannot be the basis for a negative
credibility finding. See Douglas v Canada (Minister of
Citizenship and Immigration), 2007 FC 740 at paragraph 21. Innocent people
sometimes plead guilty for all kinds of reasons. The Applicants provided
several reasons as to why they had chosen to plead guilty to the crimes in question.
The RPD did not have to accept their evidence or the reasons that they gave for
pleading guilty, but the RPD did have to say why their evidence and their
explanations were unacceptable. A blanket statement that the “claimants did not
provide a reasonable explanation for why such evidence was not presented in
their defence” is not enough. It tells the Applicants and the Court nothing
about why their evidence on this point was unacceptable. In the end, the RPD is
simply saying that, if the Applicants had evidence of non-involvement in the
crimes, they would not have pleaded guilty in Ohio, but no reason or evidentiary basis is given
for this finding.
[47]
The
Female Applicant’s amended narrative included numerous compelling reasons for
pleading guilty despite her innocence. She explained that she pleaded guilty
while detained and pregnant, and on the advice of counsel. Her lawyer told her
that since both her name and Esteban’s name were on the lease of the apartment,
they would be found guilty “for sure.” He told her that waiting for trial would
require her to remain in detention for a long time, would be expensive and had
no chance of success anyway. He advised her that pleading guilty would allow
her to be released before she was due to give birth. He advised that pleading
guilty would help reduce the sentence of her common-law spouse, Mr. Hernandez.
She also decided to plead guilty because a detective had warned her that if she
remained in detention too long, her son’s father (the agent of persecution)
would get custody of their son.
[48]
In Jayasekara
FCA, above, the Federal Court of Appeal provides at paragraph 44:
I believe 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: see S v. Refugee Status Appeals
Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department,
[2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel
v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29,
2007, at pages 10856 and 10858. In other words, whatever presumption of
seriousness may attach to a crime internationally or under the legislation of
the receiving state, that presumption may be rebutted by reference to the above
factors. There is no balancing, however, with factors extraneous to the facts
and circumstances underlying the conviction such as, for example, the risk of
persecution in the state of origin: see Xie v. Canada,
supra, at paragraph 38; INS v. Aguirre-Aguirre,
supra, at page 11; T v. Home Secretary
(1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa
v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph
24.
[49]
The
RPD’s approach in the present case, its reliance upon speculative and unproven
assumptions and its failure to address the evidence and reasons put forward by
the Applicants as to why, notwithstanding their guilty pleas, they were not
guilty of serious crimes, means that an appropriate analysis with reasons that
accord with Jayasekara, above, was not conducted. Also, it means that there
was no assessing and weighing of the competing factors. See Lai v Canada
(Minister of Citizenship and Immigration), 2005 FCA 125 at paragraph 25; and
Xie v Canada (Minister of
Citizenship and Immigration), 2004 FCA 250. This alone renders the Decision
unreasonable and it should be returned for reconsideration.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James Russell”
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