Docket: IMM-963-16
Citation:
2016 FC 981
Ottawa, Ontario, August 30, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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SAJID, MAHMOOD
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Court concurs with the Refugee Protection
Division [RPD] that the Applicant had misrepresented or withheld material facts
relevant to his refugee protection claim. Therefore, it is for that
misrepresentation that the Applicant’s refugee protection is vacated.
[2]
The RPD held that the omissions, or
withholdings, were directly related to alleged current criminal activities and
investigation in the United States. The RPD held that if it was not for the
omissions, the outcome of the refugee protection claim might have been
different as they are directly related to an exclusion for refugee protection
pursuant to section 98 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] and article 1Fb) of the United Nations Convention
Relating to the Status of Refugees, Can TS 1969 No 6 [Convention].
II.
Introduction
[3]
This is an application for judicial review by
the Applicant pursuant to subsection 72(1) of the IRPA of a decision by the RPD
of the Immigration and Refugee Board of Canada, dated February 16, 2016,
wherein the RPD allowed an application by the Minister of Public Safety and
Emergency Preparedness [Minister] to vacate the Applicant’s refugee protection
pursuant to section 109 of the IRPA.
III.
Background
[4]
The Applicant, Mahmood Sajid (age 34), is a citizen
of Pakistan. The Applicant was granted refugee protection by the RPD in a
decision dated September 12, 2014. In that decision, the Applicant
testified that he left Pakistan for the United States in January 2000 due to
persecution based on his sexual orientation. He remained in the United States
without status until he crossed the Canadian border on May 15, 2014. On
June 13, 2014, he claimed refugee protection which was granted in
September 12, 2014.
[5]
On April 20, 2015, the Minister filed an
application to vacate the decision for the Applicant’s refugee protection, in
accordance with section 109 of the IRPA [Application]. A hearing was held on
July 14, 2015. In a decision dated February 16, 2016, the RPD allowed
the Application.
[6]
In the Application, the Minister submitted
serious reasons for considering that the Applicant had committed serious
non-political crimes in the United States prior to his admission to Canada as a
refugee; hence, the Applicant was to be considered for exclusion from refugee
protection in accordance with article 1Fb) of the Convention and section
98 of the IRPA.
[7]
On December 16, 2014, the Applicant was
indicted by a Grand Jury of the United States District Court for the District
of Maryland for: i) Conspiracy to Defraud the United States under 18 USC
371 by conspiring to export firearms and related accessories to Pakistan;
ii) Unlawful Export of Defense in the Category I of the United States
Munitions List under 22 USC 2778 from the United States to Pakistan without
first obtained the required licenses or authorizations; and, iii) Unlawful
Export of Goods 50 USC 1705 [Indictment]. The Minister submitted to the RPD
that if committed in Canada, these offences would constitute:
a.
Conspiracy of Exporting knowing it is
unauthorized of a firearm, as described in paragraphs 465, 103(1)a) of
the Canadian Criminal Code, punishable by a maximum term of 10 years
imprisonment;
b.
Export or attempt to export, as described at
paragraphs 13 and 19 of the Export and Import Permits Act, punishable by a
maximum term of 10 years imprisonment;
c.
False or misleading information, and
misrepresentation, as described at paragraphs 17 and 19 of the Export and
Import Permits Act, punishable by a maximum term of 10 years imprisonment.
(Certified Tribunal Record [CTR], Application
to Vacate Refugee Protection at para 10, pages 28-29)
[8]
Moreover, the Minister submitted to the RPD that
the Applicant obtained refugee status by directly or indirectly misrepresenting
or withholding material facts in relation to his refugee protection claim. As
such, in support of his refugee protection application, the Applicant answered “No” to two questions in regard to possible prior
criminal activities in two different forms, signed on June 23, 2014.
First, in the Schedule A – Background/Declaration form, he answered “No” to the question “Have you
ever been convicted of, or are you currently charged with, on trial for, or
party to a crime or offence, or subject of any criminal proceedings in any
other country?” (see CTR at page 35). Secondly, in Schedule 12 –
Additional information – Refugee Claimants Inside Canada form, he answered “No” to the question “Have you
ever committed or been charged with or convicted of any crime, in any country,
including Canada?” (see CTR at page 244).
IV.
Impugned Decision
[9]
In a decision dated February 16, 2016, the
RPD allowed the Minister’s Application to vacate the Applicant’s refugee
protection status. The RPD held that the Applicant directly or indirectly
misrepresented or withheld material facts relating to his refugee protection
claim.
[10]
First, the Applicant withheld that he used an
alias while living in the United States: Shawn Chudhary. The Applicant is
referred to in the Indictment as “SAJID MAHMOOD, a/k/a
Shawn Chudhary”.
[11]
Secondly, the Applicant withheld that he had
been asked to voluntarily leave the United States. The Applicant’s answer in
the refugee claim form to which he wrote “No” to
the question “Have you [ever] been refused admission
to, or ordered to leave, Canada or any other country?”. The RPD relied
on a Report from US Homeland Security, dated October 7, 2014, which states
that “a Warrant of Removal/Deportation was issued for
MAHMOOD” (CTR at page 50).
[12]
Thirdly, there is an inconsistency as to when
the Applicant stopped to work at the pizza restaurant where the two other
alleged co-conspirators worked. In his refugee claim forms, the Applicant
stated that he had worked at the restaurant until May 2014. Conversely, in the
vacation hearing, the Applicant stated that he stopped working in mid-February
2014. According to the Report from US Homeland Security, the co-conspirators
were arrested in March 2014 for their participation in the smuggling of weapons
accusation; and the Applicant fled prior to his arrest for immigration
violations.
[13]
Fourthly, the RPD held that the Applicant had
misrepresented when he stated that he had not been aware of the investigation
in his regard when he left the United States; and, that he was not unaware of
the co-conspirators’ arrests in March 2014. According to the Report from US Homeland
Security, the investigation started in the fall of 2012. the RPD concluded that
the Applicant was aware of the investigation into the alleged criminal
activities in which he and the co-conspirators were implicated:
The panel finds it likely that the true
reason why the respondent left the United States when he did was because he was
aware of the investigation into the alleged criminal activities. As such, when
he claimed refugee protection in Canada and when he signed his refugee claim
forms, the panel concludes that the respondent knowingly withheld the fact that
he was aware that the American authorities were conducting an investigation
into the alleged criminal activities in which he was allegedly involved in the
United States.
(CTR at page 13, RPD’s decision at para 48)
[14]
The RPD held that the aforementioned omissions,
or withholdings, were directly related to alleged current criminal activities
and investigation in the United States. The RPD held that if it was not for the
omissions, the outcome of the refugee protection claim might have been
different as they are directly related to an exclusion for refugee protection
pursuant to section 98 of the IRPA and article 1Fb) of the Convention.
[15]
Turning to the determination as to whether the
Applicant is excluded from refugee protection, in accordance with section 98 of
the IRPA and article 1Fb) of the Convention, the RPD held that there
were serious reasons for considering that the Applicant had committed serious
non-political crimes in the United States prior to his admission to Canada as a
refugee. The RPD relied on the Indictment, as well as the inconsistencies and
contradictions made by the Applicant during the vacation hearing, to support
its conclusion that the Applicant committed non-political crimes in the United
States. The RPD agreed with the equivalencies suggested by the Minister as the
RPD was of the opinion that the wording of the American and Canadian articles
of law are similar; the equivalencies are regarding the same type of offences;
and, both include the requirement of knowledge and intent.
[16]
Applying the factors stated by the Federal Court
of Appeal in Jayasekara v Canada (Citizenship and Immigration), 2008 FCA
404 [Jayasekara], the RPD concluded that the offences under subsections
103(1) and 465(1) of the Criminal Code, RSC 1985, c C-46, are serious
offences. The RPD relied on the fact that a conviction under subsections 103(1)
and 465(1) of the Criminal Code could result in a person being found
guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years. The RPD noted that subsection 103(1) of the Criminal
Code is not a hybrid offence which may be prosecuted summarily. The RPD
found that there were no sufficient mitigating circumstances underlying the
convictions to rebut the presumption that the alleged crimes are serious.
Therefore, the RPD held that had the initial panel had been aware of the
investigation, it would have found in favour of an exclusion pursuant to
section 98 of the IRPA and article 1Fb) of the Convention. Given its
conclusions regarding the possible exclusion of the Applicant, the RPD held
that it was not necessary to proceed with the analysis provided at subsection
109(2) of the IRPA.
[17]
Consequently, the RPD allowed the Minister’s
application to vacate the Applicant’s refugee protection.
V.
Positions of the Parties
[18]
The Applicant submits that the RDP’s decision to
vacate the Applicant’s refugee protection is unreasonable as the RPD erred in
finding that the initial panel would have found in favor of the exclusion,
pursuant to section 98 of the IRPA and article 1Fb) of the Convention,
had it had been made aware of the investigation in the United States. As such,
the Applicant submits that the RPD erred in its negative credibility findings,
in accepting the equivalency of the infraction and in finding that there are
serious reasons for considering that the Applicant has committed serious
non-political crimes. Furthermore, the Applicant submits that the RDP erred by
failing to proceed with the second component of an application to vacate
refugee protection as provided at subsection 109(2) of the IRPA.
[19]
Conversely, the Respondent submits that the
RPD’s decision is reasonable as the RPD reasonably found that the Applicant had
misrepresented or withheld material facts which were relevant to the refugee
protection claim. The RPD reasonably held, based on the evidence, that there
are serious reasons for considering that the Applicant has committed serious
non-political crimes in the United States prior to his arrival to Canada as a
refugee. The Respondent also submits that a vacation hearing is not a criminal
hearing, hence, the fact that the evidence may fall short of the standard of
the proof in criminal proceedings is irrelevant. Finally, the Respondent submits
that it was reasonable for the RPD not to proceed to the second stage of the
analysis under subsection 109(2) of the IRPA as the misrepresentation or
withholding of material facts pertain to a possible exclusion under section 98
of the IRPA and article 1Fb) of the Convention (Canada (Minister of
Citizenship and Immigration) v Wahab, 2006 FC 1554; Parvanta v Canada
(Minister of Citizenship and Immigration), 2006 FC 1146).
VI.
Issues
[20]
The Applicant submits that the following issues
should be considered by this Court:
1)
Did the RPD err in finding that the Applicant
obtained refugee protection by misrepresenting or withholding material facts?
2)
Did the RPD err in finding that there are
serious reasons for considering that the Applicant committed the offence stated
in the Indictment?
3)
Did the RPD err by failing to conduct an
analysis under subsection 109(2) of the IRPA?
[21]
The Court is satisfied that the only issue that
needs to be addressed is whether the RPD’s determination that the non-political
crimes for which the Applicant is indicted are serious.
VII.
Standard of Review
[22]
The parties disagree on the applicable standard
of review. The Applicant submits that the interpretation and the application of
section 98 and article 1Fb) of the Convention are to be reviewed under
the correctness standard of review (Feimi v Canada (Citizenship and
Immigration), 2012 FCA 325 at para 14 [Feimi]; Hernandez Febles v
Canada (Citizenship and Immigration), 2012 FCA 324 at paras 24-25 [Febles
(FCA)]). The Respondent does not dispute that the correctness standard applies
to the interpretation by the RPD of article 1Fb) of the Convention,
however the Respondent submits that the standard of reasonableness applies to
the RPD’s findings of fact or a mix fact and law in a vacation proceeding (Feimi,
above at para 16).
[23]
Recently, in B010 v Canada (Citizenship and
Immigration), [2015] 3 S.C.R. 704, 2015 SCC 58, the Supreme Court reiterated
the principle that presumption exists that the standard of review of
reasonableness applies to the interpretation by a tribunal and a Minister of a
home statute (see Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, [2011] 3 S.C.R. 654, 2011 SCC 61 at para 34).
The Supreme Court noted that the Federal Court of Appeal took different views
regarding the standard of review applicable to statutory interpretation
involving consideration of international instruments. In Febles (FCA),
above, the Federal Court of Appeal applied the correctness standard while in B010
v Canada (Citizenship and Immigration), 2013 FCA 87, the Federal Court of
Appeal applied the reasonableness standard. The Supreme Court held that as it
was unnecessary to resolve this issue as such for the purpose of that decision.
The same reasoning is applicable to the present case; regardless of the
standard of review, the RPD’s statutory interpretation of the relevant section
is correct.
[24]
Nonetheless, the RPD’s determination that a
non-political crime is serious attracts the standard of reasonableness (Jung
v Canada (Citizenship and Immigration), 2015 FC 464 at para 28 [Jung]).
VIII.
Analysis
[25]
The RPD reasonably held that the Applicant
misrepresented or withheld material facts relevant to his refugee protection
claim as the RPD’s findings are supported by the evidence. It has been stated
on numerous occasions that the role of a review court is not to reweigh the
evidence considered by the tribunal (Canadian Artists’ Representation v
National Gallery of Canada, [2014] 2 S.C.R. 197, 2014 SCC 42 at para 30; Canada
(Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12 at
para 64).
[26]
Furthermore, on the basis of the evidence before
the RPD, the RPD reasonably held that there are serious reasons for considering
that the Applicant committed non-political crimes in the United States prior to
his admission to Canada as a refugee. The RPD’s equivalency findings are
reasonable as the RPD did more than just identify the relevant provisions in
the Criminal Code and the Export and Import Permits Act, RSC
1985, c E-19, and stated that they are sufficiently similar (Notario v
Canada (Citizenship and Immigration), 2014 FC 1159). The RPD analyzed the
provisions and explained how they share the same essential elements;
consequently, the RPD’s findings regarding equivalency are reasonable.
[27]
In its analysis to determine whether the
non-political crimes are serious, the RPD relied on the Federal Court of Appeal
decision in Jayasekara, above. As explained by Justice Mary J.L.
Gleason, then at the Federal Court, in Tabagua v Canada (Citizenship and
Immigration), 2015 FC 709 [Tabagua], the Supreme Court in Febles
v Canada (Citizenship and Immigration), [2014] 3 S.C.R. 431, 2014 SCC 68,
nuanced the presumption that a crime is serious if the offence is punishable by
a maximum term of at least ten years of imprisonment:
[14] Prior to Febles, as my
colleague Justice de Montigny recently noted at para 32 of Jung v Canada
(Minister of Citizenship and Immigration), 2015 FC 464 [Jung], “…
the presumption that a crime is ‘serious’ under Article 1F(b) if, were it
committed in Canada, it would be punishable by a maximum of at least 10 years’
imprisonment, was consistently applied by the Courts …”. The Supreme Court,
however, significantly nuanced this proposition in Febles. There, the
majority stated as follows regarding how the seriousness of a crime is to be
ascertained:
[62] The Federal Court of Appeal
in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4
F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum
sentence of ten years or more could have been imposed had the crime been
committed in Canada, the crime will generally be considered serious. I agree. However,
this generalization should not be understood as a rigid presumption that is
impossible to rebut. Where a provision of the Canadian Criminal Code,
R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten
years or more and the lower end being quite low, a claimant whose crime would
fall at the less serious end of the range in Canada should not be presumptively
excluded. Article 1F (b) is designed to exclude only those whose crimes are
serious. The UNHCR has suggested that a presumption of serious crime might be
raised by evidence of commission of any of the following offences: homicide,
rape, child molesting, wounding, arson, drugs trafficking, and armed robbery
(G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p.
179). These are good examples of crimes that are sufficiently serious to
presumptively warrant exclusion from refugee protection. However, as indicated,
the presumption may be rebutted in a particular case. While consideration of
whether a maximum sentence of ten years or more could have been imposed had the
crime been committed in Canada is a useful guideline, and crimes attracting a
maximum sentence of ten years or more in Canada will generally be sufficiently
serious to warrant exclusion, the ten-year rule should not be applied in a
mechanistic, decontextualized, or unjust manner. [Emphasis in original.]
(Tabagua, above at para 14)
[28]
In its decision, the RPD did in fact rely
heavily on the presumption that the crimes are serious as the Criminal Code
provides that the maximum term of imprisonment for offences under subsections
103(1) and 465(1) of the Criminal Code are for a term not exceeding ten
years. Nonetheless, the RPD did not stop its analysis there. The RPD considered
the factors outlined in Jayasekara, above, as well as the surrounding
documentary background of the alleged crimes; namely, that the Applicant had
illegally shipped to Pakistan, without a permit, large quantities of “high caliber” firearms, firearm parts and
accessories.
[29]
The present case is distinguishable from both Tabagua,
above, and Jung, above, wherein the Federal Court held that the RPD’s
decisions were unreasonable as the RPD did not take into consideration the
large sentencing range. In the present case, the RPD did not apply the ten-year
rule in a mechanistic or unjust manner. Rather, the RDP took into consideration
the context and the circumstances surrounding the crimes for which the
Applicant was indicted in the United States.
[30]
Given the findings that there are serious
reasons for considering that the Applicant committed serious non-political
crimes in the United States prior to his admission to Canada as a refugee, the
RPD did not have to proceed to an analysis under subsection 109(2) of the IRPA
(Omar v Canada (Citizenship and Immigration), 2016 FC 602 at para 49).
IX.
Conclusion
[31]
Consequently, the application for judicial
review is dismissed.
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