Date: 20070215
Docket: IMM-1800-06
Citation: 2007 FC 172
Ottawa, Ontario, February 15,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ANGHEL
VLAD
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Anghel
Vlad (the Applicant), a citizen of Romania, was a police officer
in that country from 1991 to 1999. He was charged and convicted of the crime of
accepting a bribe and was sentenced to three years of prison in a penitentiary.
Before he could be incarcerated, the Applicant fled Romania on February
18, 2000 to France, and then to Austria, where his sister
resides, and arrived in Canada on June 24, 2000, where he immediately
claimed Convention refugee status. He based his claim on an alleged fear for
his life by reason of his political opinion. Specifically, he believes that the
charges against him were part of an elaborate frame-up and that, as a police
officer serving time in a prison in Romania, he would be killed by
prison inmates.
[2] In a decision
dated March 7, 2006, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) determined that the Applicant was not
a Convention refugee and was not a person in need of protection.
[3] The
Applicant seeks judicial review of the Board's decision.
Background
[4] According to his
Personal Information Form (PIF) Narrative, the Applicant was assigned to an
area in Bucharest where a
fashionable nightclub, frequented by politicians, mafia and other members of the
elite, was located. The Applicant often stopped and fined frequenters of the
club for various traffic infractions, and often came into conflict with these
persons. He was warned by his superiors to “use discretion” and “close his
eyes” when dealing with high-profile persons.
[5] On March 22,
1998, the Applicant and his partner stopped two vehicles by reason of defective
front lights. The drivers did not have all of their documentation and offered
to bring the documentation later if the Applicant wanted to hold on to their
licences. The Applicant did not fine them the 15,000 lei normally given for
defective lights, but gave them a warning. Fifteen minutes later, one of the
drivers returned, wanted to thank the Applicant, and offered him a bribe. The
Applicant allegedly refused the offer. A few minutes later, the Applicant was
arrested by the Military Prosecutor's Office and was charged with taking a
bribe in the amount of 100,000 lei (US$5.00).
[6] On May 25,
1998, the Applicant was sentenced to three years of prison with a conditional
suspension of the punishment for five years by the Military Regional Court. The
Military Prosecutor's Office appealed this sentence and on January 12, 1999, the
Military
Appeal Court
sentenced the Applicant to three years of prison in a penitentiary. On June 10,
1999, the Applicant appealed to the Supreme Court of Justice, but the Military
Appeal Court's decision
was upheld. On June 23, 1999, the Applicant wrote to the President to request a
pardon, claiming he was innocent.
[7] The Applicant
maintains that he was framed and that the trials and appeals were not fairly
conducted.
Key Findings
of the Board
[8] The Board
based its decision on two key determinations. First, the Board concluded that
the Applicant was excluded pursuant to Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees (the Convention) since
there were serious reasons for believing that he had committed a serious
non-political crime in Romania. The Board found that the Applicant is wanted in
Romania for the conviction of accepting a bribe as a police officer which, in Romania, incurs a
penalty of three to 12 years. The equivalent law in Canada is s. 120 of
the Criminal Code, the penalty of which is imprisonment for a term not
exceeding fourteen years. The Board found that, according to Article 1F of the Convention,
refugee status is denied to persons found to have committed a serious
non-political crime outside the country of refuge prior to his admission to
that country of refuge, and that a serious non-political crime is one in which
a maximum sentence of ten years or more could have been imposed had the crime
been committed in Canada. Central to the decision of the Board was that the
Applicant's claim, that
he was set up and framed by the club owner and other authorities, was not
credible.
[9] In the
alternative, the Board concluded that the Applicant did not have a well-founded
fear of persecution for a Convention ground; nor, were there substantial
grounds to believe that his removal to Romania would
subject him personally to a danger of torture.
[10] The Board
also found that, if the Applicant were to return to Romania, he would
serve time, if any, out of the general population, and thus would not be
subject to persecution or a risk to his life.
Issues
[11] The Applicant
raises the following issues:
1.
Did
the Board properly assess the issue of exclusion under Article 1F(b) of the
Convention?
2.
Did
the Board base its finding, that the Applicant's story of being framed
was not credible, on erroneous findings that were made in a perverse or
capricious manner and/or without regard for the material before it?
Analysis
Issue #1: Exclusion
[12] The issue
before the Board was whether the Applicant was excluded from protection by the
operation of Article 1F(b) of the Convention. More specifically, the
Board was to determine whether the crime for which the Applicant was convicted
is one that meets the test of “serious non-political crime” in Article 1F(b) of
the Convention.
[13] In assessing the question of exclusion, the
Board stated:
The Minister submits that the claimant is
wanted in Romania for the charge of accepting a
bribe, which in Romania incurs a penalty of three to
12 years. The equivalent law in Canada is s. 120 of the Criminal Code of
Canada which states, in part, that “Every one who (a) being a justice,
police commissioner, peace officer, public officer or officer of a juvenile
court, or being employed in the administration of criminal law, corruptly (i)
accepts or obtains,…(iii) attempts to obtain, for himself or any other person
any money, valuable consideration, office, place or employment with intent (iv)
to interfere with the administration of justice, (v) to procure or facilitate
the commission of an offence,… is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
… The Federal Court of Appeal has held
that a serious non-political crime is one to be equated with one in which a
maximum sentence of ten years or more could have been imposed had the crime
been committed in Canada…. On a balance of
probabilities, I find the Minister has established a prima facie case through
the documents submitted which are the Romanian court proceedings.
[14] The Applicant
does not dispute that he was convicted of the crime in question or that s. 120
of the Criminal Code carries a maximum sentence in Canada of more than
10 years. The Applicant argues that the Board erred by not carrying out an
examination of the equivalency of the Canadian Criminal Code provision
and by failing to consider mitigating factors. He also submits that his
conviction was the result of a frame-up by a corrupt police and judiciary; this
issue is dealt with under Issue #2 below.
[15] Article 1F(b)
of the Convention is as follows:
|
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;
…
|
|
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;
…
|
[16] As the
Federal Court of Appeal stated in Lai v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 584 (C.A.)(QL) at para.
22, the primary purpose of Article 1F of the 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. This
principle is embedded in s. 98 of IRPA which provides 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.
|
|
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.
|
Thus, the
effect of a Board finding that this Article is applicable to a claimant is that
the claimant cannot be found to be a Convention refugee or a person in need of
protection pursuant to s. 96 or s. 97 of the IRPA.
[17] In Xie v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1142 (C.A.) (Q.L.) at
para. 23, the Federal Court of Appeal established that an exclusion hearing
under Article 1F of the Convention is not in the nature of a criminal
trial where guilt or innocence must be proven by the Minister beyond a
reasonable doubt. It is not the Board's role to establish the actual innocence or
guilt of the claimant (see Moreno v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 912 (C.A.) (QL) at
para. 21). Rather, the onus upon the Minister is to establish, based on
the evidence presented to the Board, that there are “serious reasons for
considering” that a claimant committed a serious non-political crime outside of
Canada, prior to his arrival in Canada. The standard of
evidence to be applied to this threshold test is higher than a mere suspicion
but lower than proof on the civil balance of probabilities standard (see Zrig
v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C.
761 (T.D.) at para. 174 and Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306 at 312-314 (C.A.)).
[18] The Federal
Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration),
[2000]
F.C.J. No. 1180 (C.A.) (QL) discussed how Article 1F of the Convention was
a means of bringing refugee law into line with the basic principles of
extradition law, by ensuring that fugitives are not able to avoid the
jurisdiction of a state in which they may lawfully face punishment. In keeping
this principle in mind, the Court in Chan, supra stated at para. 9 that,
“a serious non-political crime is to be equated with one in which a maximum
sentence of ten years or more could have been imposed had the crime been
committed in Canada.”
[19] Unfortunately
for the Applicant, the jurisprudence does not support the notion that the past
record of the Applicant or other mitigating factors should be considered in
excluding the Applicant under s. 98 of the IRPA. On the contrary, as in Xie,
supra at paras. 33-35, the Federal Court of Appeal held that other
mitigating factors, such as risk of torture, are not salient in the Board's decision to
exclude an Applicant under Article 1F of the Convention. The only
consideration the Federal Court of Appeal finds salient is if the Applicant had
served his sentence already, which is not applicable in this case (see Chan,
supra).
[20] The onus is on
the Minister to establish an exclusionary claim (see, for example, Lai v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 584
(C.A.) (QL) at para. 34). In this case, the Minister provided detailed evidence
of the charge, the convictions and decisions of all levels of court involved.
There were no allegations by the Applicant that the documents were fraudulent. The
existence of a conviction, and even a warrant, issued by a foreign country may
be sufficient “serious reasons for considering” (see Qazi v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 1461 (T.D.)
(Q.L.) at para. 18). The equivalent Canadian Criminal Code provision (s.
120(a)) provides for imprisonment for a maximum of 14 years thus meeting the
standard for a “serious non-political crime” set out in Chan, supra. It follows
that the Applicant's conviction is strong prima facie evidence to
support the Article 1F(b) finding. This is particularly so, in this case, where
the Board had before it evidence that the Applicant has had access to three
levels of judicial oversight.
[21] The relevant
provisions of the Criminal Code of Canada and the Romanian Code of
Criminal Justice are set out in Appendix A to these reasons. While the
Board discussed the elements of the Canadian offence, it did not carry out an
express equivalency analysis of the Romanian law and s. 120(a) of the Criminal
Code as the Applicant submits it is required to do so.
[22] This
argument misses the purpose of the Board's analysis. There is no need for the foreign law to be
absolutely equivalent to the relevant Canadian offence. Foreign legislation is
not determinative of whether a serious non-political crime has been committed
for Canadian immigration purposes, although it may be helpful in assessing the
crime. The focus must be on whether the acts of the claimant could be
considered crimes under Canadian law. The words of a relevant foreign law may
be helpful but need not be identical. In this case, I am satisfied that the
Board carried out the necessary analysis.
[23] The
Board did not err in its approach to assessing exclusion.
[24] On
a final note, the Applicant asserts that the Board ignored evidence before it
of the lack of independence and corruption of the judiciary in Romania. This
argument could have applicability if the Applicant had presented evidence that
linked his conviction to the alleged corruption. A review of the record does
not show that corruption of the judicial system (if it exists) was a factor in
the Applicant's conviction.
The Board, in its reasons, recognized and addressed this issue. There is no
error.
Issue #2: Credibility
[25] As noted above,
the existence of a conviction, and even a warrant, issued by a foreign country
may be sufficient “serious reasons for considering” (see Qazi, supra at
para. 18). When, however, as in this case, the Applicant alleges that the
charges and conviction were brought falsely upon him, the Board has to go
further and establish whether to accept his story or not. Essentially, the
Board has to decide whether the Applicant is credible (Qazi, supra at
para. 19). Thus, the credibility finding of the Board is of critical
importance to its decision. Had the Board believed the Applicant's story that
he had been framed, it is likely that the Board would not have concluded that
there were reasonable grounds to consider that the Applicant had committed a
serious non-political crime.
[26] The Applicant
submits that the Board erred in finding the Applicant's story that he was
framed and falsely convicted as not credible. Specifically, the Applicant
argues that all of the Board's findings were based on implausibilities, which
the Court should examine on a lower standard (Giron v. Canada (Minister of
Employment and Immigration) [1992] F.C.J. No. 481 (C.A.) (QL)). In
particular, the Applicant points to the following findings:
- The
Board found it not credible that the Applicant “did not know of corruption
at every level”;
- The
Board found that he could simply have been reassigned by his superior to
be moved out of the way;
- The
Board drew a negative inference from the omission, in his Personal
Information Form, of an altercation with the owner of the club in his
policing area.
[27] The
standard of review of the Board's findings of credibility, including
plausibility findings, is patent unreasonableness (Miranda v. Canada
(Minister of Employment and Immigration), [1993]
F.C.J. No. 437 (C.A.) (QL); Rahman v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1235 (C.A.) (QL)). With respect
to plausibility findings that underlie conclusions related to the credibility of a refugee claim,
the Federal Court of Appeal held in Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL) at para. 4
that, as a specialized tribunal, the Board has "complete jurisdiction to
determine the plausibility of testimony":
...
who is in a better position than the Refugee Division to gauge the credibility
of an account and to draw the necessary inferences? As long as the inferences
drawn by the tribunal are not so unreasonable as to warrant our intervention,
its findings are not open to judicial review. ...
[28] Thus, as long as there is evidence to support the Board's
plausibility finding in relation to credibility or plausibility – and even if I
would have interpreted that evidence differently or come to a different
conclusion – the Board's decision should not be disturbed.
[29] It is
important to review the Board's decision as a whole and not just short
extracts. In this case, the Board simply did not believe the Applicant's entire
story of being framed. At the hearing, the Applicant explained that the set-up
or his being framed was planned in advance, that he stopped a burgundy car that
had its front light disabled, that the driver returned fifteen minutes later,
after filling out declarations with military authorities, with fluorescent
power on his hand, and that he was wrongly convicted in three courts in
Romania. The Board concluded that, “For this to be a planned operation, too
many things could have gone wrong…”. This is a rational conclusion that relies
on common sense.
[30] However, the Board did not rely solely on this overall
perspective of the Applicant's
claim. Rather the Board described many areas of the Applicant's testimony that were
implausible or inconsistent. Given the number and cumulative effect of the many
problems with the Applicant’s testimony, the overall finding of lack of
credibility is not unreasonable.
[31] With respect
to the individual errors alleged by the Applicant, I have reviewed the findings
of the Board and the record before it in light of the appropriate standard of
review. In my view, each of the findings of the Board can be supported by the
evidence. There is no finding that can be described as pure speculation. For
example, the Board's conclusion that the Applicant could be transferred was not
speculative. When asked about the possibility of a transfer, the Applicant did
not deny the possibility (CTR 469). Thus, it was not unreasonable to infer
that, if the police supervisor had wished to avoid the problems with the
Applicant and the club owner, he could have transferred the Applicant rather
than arranging an elaborate frame-up. It was also open to the Board to draw an
adverse inference from the omission in the PIF of the altercation with the
owner of the night club. Similarly, a reading of the testimony of the Applicant
reveals that a possible interpretation of his words is that he denied knowing
the existence of corruption in Romania; the Board was acting
reasonable in relying on the Applicant's own testimony.
[32] There is one
area where the Board makes a finding that is difficult to reconcile with
evidence before the Board. The Applicant argues that the Board erroneously
found that the “bribe was too small” and ignores the relative size of the
alleged bribe. I agree with the Applicant that the Board ignored the fact that
the fine for a disabled headlight was smaller than the bribe the Applicant was
convicted of receiving. Indeed Justice Mactavish, in a previous judicial review
of the same file (Vlad v. Canada (Minister of
Citizenship and Immigration) 2004 FC 260), suggested that it would be
implausible for someone to pay a $5 bribe to get out of paying a 75 cent fine.
However, in balancing other findings the Board made, I do not find that the
overall credibility finding was based solely on this factor, and thus did not
lead to a patently unreasonable decision.
[33] In sum, there
is no reviewable error; the finding of lack of credibility was open to the
Board.
Conclusion
[34] The issue
before the Board was whether there are serious reasons for considering that the
Applicant had committed a serious non-political crime in Romania and was thus
excluded from protection pursuant to Article 1F(b) of the Convention. The
equivalent offence in Canada – that being s. 120 of the Criminal
Code – has a maximum sentence of more than 10 years, thus meeting the test
for a serious non-political crime. The evidence before the Board of the
conviction and the circumstances surrounding that conviction, coupled with the
Board's finding
that the Applicant's claim of a frame-up lacked credibility, is capable of
supporting the Board's conclusions. This application for judicial review will be
dismissed.
[35] Neither party
proposed a question for certification. No question of general importance is
raised in this case and, accordingly, no question will be certified.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
____________________________
Judge
APPENDIX “A”
to the
Reasons for Order and Order
dated February 15, 2007
In
ANGHEL
VLAD
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-1800-06
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Criminal Code ( R.S.,
1985, c. C-46 )
120. Every one who
(a)
being a justice, police commissioner, peace officer, public officer or
officer of a juvenile court, or being employed in the administration of
criminal law, corruptly
(i) accepts or
obtains,
(ii) agrees to accept, or
(iii) attempts to obtain,
for himself or any other person
any money, valuable consideration, office, place or employment with intent
(iv) to interfere with the
administration of justice,
(v) to procure or facilitate the
commission of an offence, or
(vi) to protect from detection or
punishment a person who has committed or who intends to commit an offence, or
…
|
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Code criminel ( L.R.,
1985, ch. C-46 )
120. Est coupable d’un acte criminel et passible d’un emprisonnement
maximal de quatorze ans quiconque, selon le cas :
a) étant juge de paix, commissaire
de police, agent de la paix, fonctionnaire public ou fonctionnaire d’un
tribunal pour enfants, ou étant employé à l’administration du droit criminel,
par corruption :
(i) soit accepte
ou obtient,
(ii) soit
convient d’accepter,
(iii) soit tente
d’obtenir,
pour lui-même ou
pour une autre personne, de l’argent, une contrepartie valable, une charge,
une place ou un emploi, avec l’intention :
(iv) soit
d’entraver l’administration de la justice,
(v) soit de
provoquer ou faciliter la perpétration d’une infraction,
(vi) soit
d’empêcher la découverte ou le châtiment d’une personne qui a commis ou se
propose de commettre une infraction;
…
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Romanian Code of Criminal Justice
Accepting a Bribe
***
Art. 254 – Every one
who, being an official, directly or indirectly attempts to obtain or accepts
any money or other undue valuable consideration, or accepts or does not reject
the promise of such consideration, for the purpose of doing, of refraining from
doing or of delaying an act in connection with his official duties, or for the
purpose of performing an act contrary to his official duties, is guilty of an
indictable offence and liable to imprisonment for a term of 3 to 12 years and
interdiction of certain rights.
If the offence specified in paragraph 1 is committed by an official with
supervisory duties, the offence is punishable by imprisonment from three to 15
years and interdiction of certain rights.
The money, valuable consideration or other property which constituted the bribe
shall be confiscated; if it cannot be found, the offender shall pay an
equivalent amount in cash.
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