Date: 20020704
Docket: IMM-3921-01
Ottawa, Ontario, the 4th day of July 2002
Present: The Honourable Mr. Justice Pinard
Between:
ARNALDO ACHI DELISLE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated June 11, 2001, determining that the applicant is not a Convention refugee is dismissed.
JUDGE
Certified true translation
Mary Jo Egan, LLB
Date: 20020704
Docket: IMM-3921-01
Neutral Citation: 2002 FCT 737
Between:
ARNALDO ACHI DELISLE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J. :
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division dated June 11, 2001, determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
[2] The applicant is a citizen of Cuba. He claims that he has been persecuted in that country by reason of his imputed political opinion and says he fears the Cuban authorities if he had to return there.
[3] The Convention Refugee Determination Division rejected the applicant's claim for refugee status under Article 1F(b) of the 1951 Convention, because it found that he committed a serious non-political crime outside the country of refuge, that is, in the United States. The panel gave the following reasons in support of its refusal:
- During his oral testimony, the applicant told the Board that he trafficked in cocaine for more than a year while in the United States. He said he had begun his illegal activities in early 1996 and that, within three months, he had his own suppliers and was himself trafficking in cocaine.
- The applicant also testified that he sold and used drugs in Miami, Florida and in Las Vegas, Nevada.
- Lastly, he said that he was earning $200 a day by trafficking in cocaine.
[4] Article 1F(b) of the Convention is meant to prevent ordinary criminals extraditable by treaty from seeking refugee status. However, this exclusion is limited to serious crimes committed before entry in the state of asylum. In Pushpanatan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, the Supreme Court of Canada noted at pages 1033 and 1034:
. . . It is quite clear that Article 1F(b) is generally meant to prevent ordinary criminals extraditable by treaty from seeking refugee status, but that this exclusion is limited to serious crimes committed before entry in the state of asylum. Goodwin-Gill, supra, at p. 107, says:
With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery.
(Emphasis added)
[5] Section 5 of the Controlled Drugs and Substances Act, S.C.1996, c. 19, provides as follows:
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
5. (1) Il est interdit de faire le trafic de toute substance inscrite aux annexes I, II, III ou IV ou de toute substance présentée ou tenue pour telle par le trafiquant.
(2) Il est interdit d'avoir en sa possession, en vue d'en faire le trafic, toute substance inscrite aux annexes I, II, III ou IV.
(3) Every person who contravenes subsection (1) or (2)
(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
. . .
(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.
(3) Quiconque contrevient aux paragraphes (1) ou (2) commet :
a) dans le cas de substances inscrites aux annexes I ou II, mais sous réserve du paragraphe (4), un acte criminel passible de l'emprisonnement à perpétuité;
[. . .]
(4) Quiconque contrevient aux paragraphes (1) ou (2) commet, dans le cas de substances inscrites à la fois à l'annexe II et à l'annexe VII, et ce pourvu que la quantité en cause n'excède pas celle mentionnée à cette dernière annexe, un acte criminel passible d'un emprisonnement maximal de cinq ans moins un jour.
[6] It is to be noted that cocaine is listed in Schedule I, subsection 2(2). Therefore, since the applicant was liable to imprisonment for life, I am of the view that the Board was correct in characterizing that act as a serious non-political crime.
[7] In fact, Article 1F(b) applies to any person with respect to whom the Convention Refugee Determination Division has serious reasons to consider has committed a serious non-political crime and who has not been convicted of a crime for which he or she has served his or her sentence outside Canada, before arriving in the country. In Chan v. Canada (M.C.I.), [2000] 4 F.C. 390, Mr. Justice Robertson, for the Federal Court of Appeal, stated:
[4] In my respectful view, the appeal must be allowed. Assuming without deciding that the appellant's conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. . . .
[8] In this case, in his reply to question 37 of his Personal Information Form, the applicant stated:
. . . I met a Mexican. He sold drugs. He told that if I wanted. I said no, but eventually I was forced into it and I did it. I helped support my whole family in Cuba, my mother, brother, son and a niece. I was caught on October 15, 1996 and on December 11, 1997 for possession, I went to jail. I spent 15 months in jail. . . .
(Emphasis added)
[9] In his testimony, he stated that on October 15, 1996, he was charged with possession for the purposes of trafficking and was given a suspended sentence. He was also ordered to keep the peace for a period of three years. On December 11, 1997, approximately one year after the first charge, the applicant breached his undertakings by being arrested, this time for simple possession, and spent 15 months in prison.
[10] The applicant testified that he had also used and sold narcotics in Miami, Florida and in Las Vegas, Nevada (panel record, pages 241 to 245).
[11] The applicant claims that he has already been convicted of the offence of selling controlled substances and that he has served his sentence. He refers to pages 21 to 23 of his record to prove that the Minister of Citizenship and Immigration filed evidence indicating that he was charged with selling a controlled substance, namely, cocaine. He claims that, in accordance with the principle of natural justice, he should have had access to the evidence that was filed.
[12] After reviewing the entire record of the panel, I have not found any evidence similar to what is found in the applicant's record. Therefore, I cannot take into consideration pages 17 to 23 of Exhibit "A" of his affidavit, because they were not part of the record at the time of his hearing before the Board. I need only mention what Mr. Justice Muldoon repeated recently in Momcilovic v. Canada (M.C.I.), [2001] F.C.J. No. 1375 (T.D.) (QL):
[11] Judicial review of a decision of a federal board, commission or other tribunal must proceed on the basis of the evidence, or other material which was before the decision-maker. Why? Because the tribunal, the parties and their respective counsel, and those members of the public, if any be admitted to witness the proceedings, are all present at the material time and place. These elements of the dynamic of a hearing cannot easily, if at all, be reconstituted and if so, at a demonstrably less propitious time than that for which notice has been given to all concerned. . . .
[13] In conclusion, considering that drug trafficking is one of the serious non-political crimes covered by the exclusion clause in Article 1F(b) of the Convention; considering that the applicant served a sentence for simple possession, and considering the applicant's testimony as well as the documentary evidence in the record, I am of the view that the Convention Refugee Determination Division had sufficient evidence to have serious reasons to consider that the applicant had committed a serious non-political crime in the United States and had not been convicted or punished for it.
[14] Lastly, I do not agree with the applicant's argument that the Minister has an obligation to intervene in cases of exclusion from the Convention. To that end, the Federal Court of Appeal concluded in Ashari v. Canada (M.C.I.), [1999] F.C.J. No. 1703 (F.C.A.) (QL):
[5] The argument is based on two premises which, in our respectful view, are unsound.
[6] The first one is that the Board may not determine the issue of exclusion in the absence of the Minister. The argument has been rejected by this Court in Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392 (F.C.A.). Where, as here, neither the Act nor the Rules require the participation of the Minister in proceedings before the Board, the Board can simply not be said to be biased or to demonstrate a reasonable apprehension of bias by the mere fact of holding the inquiry in the absence of the Minister. We need not decide in this case what would be the sanction, if any, of the failure by the hearing officer to notify the Minister under Rule 9(2), because there is no evidence in the record that, before the commencement of the hearing, the refugee hearing officer or the Refugee Division was of the opinion that a Section E or F exclusion might be an issue.
[7] The second false premise is that the government cannot satisfy the burden of proof if the Minister does not participate in the proceeding. The onus of proof is not to be confused with the standard of proof. There is no reason, in principle, why a Board could not be satisfied, on the basis of the evidence filed by the hearing officer and by a claimant, that the claimant falls within the exclusion clause.
[15] In conclusion, because I am of the view that the Convention Refugee Determination Division discharged its obligations without making any reviewable error, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
July 4, 2002
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3921-00
STYLE OF CAUSE: Arnaldo Achi Delisle v. Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 4, 2002
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: July 4, 2002
APPEARANCES:
Manuel Centurion FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Manuel Centurion FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario