Date: 20051209
Citation: 2005 FC 1674
BETWEEN:
Applicant
and
The Minister of Citizenship and Immigration
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant Jackeline Maria Paris Montoya and her two minor children, citizens of Venezuela, filed an application for leave with the Registry of this Court from a decision by the Immigration and Refugee Board – Refugee Protection Division (the panel) – dated March 22, 2005 by member Donald Archambault.
[2] The panel found that the applicant was not a refugee nor a person in need of protection under paragraph 1F(b) of the United Nations Conventions relating to the Status of Refugees (the Convention). It should be noted that the applicant’s original application was accompanied by a claim for refugee protection for her two children, Jonathan David Fernandez Paris and Abby Jackeline Fernandez Paris. The hearing of the children’s claim for refugee protection was postponed to a later date.
[3] On August 28, 2004, the applicant and her two children filed a refugee claim in Canada. The applicants claimed that they feared persecution for their political opinions and membership in a particular social group, namely women and families who are victims of violence. They further claimed that they are persons in need of protection as they are also exposed to a risk of torture, to threats to their lives or to a risk of cruel or unusual treatment or punishment if they have to return to their country of origin (Venezuela). The case was duly referred to the Immigration Board – Refugee Protection Division, after the applicant was questioned by an immigration officer. On February 10, 2005, the Solicitor General of Canada sent counsel for the applicant a notice of intervention as the immigration officer had raised certain questions about the fact that the applicant came to Canada with her children without the father’s consent. Now, the notice sent by the Solicitor General of Canada, citing article 1F(b) of the Convention, stated that, as the applicant left her usual place of residence with two children, this was a case of abduction within the meaning of the Criminal Code of Canada. On March 22, 2005, the hearing concerning only the applicant’s refugee claim was held and the ground of exclusion under article 1F(b) of the Convention upheld.
[4] The applicant worked at a hospital in Venezuela. In February 1999, the applicant and one of her friends, Carlos, allegedly reported to the hospital administrator a bizarre and highly unusual event involving police officers who transported bodies in black bags late at night without registering them at the morgue, which was contrary to the usual practice. The administrator warned the applicant and Carlos not to meddle in this matter. The following day, Carlos allegedly went to report what had happened at the hospital at the police headquarters of the Republic. A few days later, the applicant said she was advised to hand in her resignation. The applicant alleged that she was being persecuted and accordingly decided to take a month’s vacation in the Dominican Republic with her husband, who was a citizen of that country, commencing on July 2, 1999.
[5] The applicant alleged that, upon her arrival in the Dominican Republic, she wanted to come to Canada to settle since her sister lived there. The applicant and her mother were denied a residence application for Canada. The applicant then went to the U.S. on September 7, 2002 to look after her mother-in-law. She returned to the Dominican Republic on February 26, 2003.
[6] The applicant apparently began to have problems with her spouse after her return to the Dominican Republic. Further, following her departure from Venezuela, she also learned that her friend Carlos had been killed. It was these events that led the applicant and her children to leave their country and that they rely on to seek Canada’s protection.
[7] On March 22, 2005, the panel dismissed the applicant’s application on the basis of the exclusion ground in article 1F(b) of the Convention. The notice of intervention reads as follows: [translation] “The principal applicant left her usual place of residence with two children, which constitutes abduction within the meaning of the Criminal Code of Canada”. In particular, the panel cited section 283 of the Criminal Code of Canada:
|
283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of
|
283. (1) Quiconque, étant le père, la mère, le tuteur ou une personne ayant la garde ou la charge légale d’une personne âgée de moins de quatorze ans, enlève, entraîne, retient, reçoit, cache ou héberge cette personne, qu’il y ait ou non une ordonnance rendue par un tribunal au Canada relativement à la garde de cette personne, dans l’intention de priver de la possession de celle-ci le père, la mère, le tuteur ou une autre personne ayant la garde ou la charge légale de cette personne est coupable :
|
|
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
|
a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans;
|
|
(b) an offence punishable on summary conviction.
|
b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
|
[8] The panel concluded that the evidence clearly indicated that the applicant left her country with her children without the knowledge of her husband and with the intent never to go back to their country. The applicant testified that her husband would not have allowed or authorized their departure if he had known that she did not intend to return. Accordingly, when the applicant brought her children to Canada, she committed abduction within the meaning of section 283 of the Criminal Code and she could not invoke the defence of consent provided for in section 284 of the Criminal Code. As a person who contravenes that provision is liable to imprisonment for a term not exceeding ten years, the panel ruled that the exclusion ground provided for in section 98 of the Immigration and Refugee Protection Act applied.
[9] The panel considered the exception to the exclusion ground provided for in section 285 of the Criminal Code. However, after having examined the question of whether the applicant was fleeing to protect herself from danger of imminent harm, the panel ruled that the evidence offered by the applicant did not support the defence of imminent harm for her children.
|
285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
|
285. Nul ne peut être déclaré coupable d’une infraction prévue aux articles 280 à 283 si le tribunal est convaincu que les actes reprochés étaient nécessaires pour protéger la jeune personne en question d’un danger imminent ou si l’accusé fuyait pour se protéger d’un tel danger. |
[10] In particular, the panel mentioned that the applicant testified that her children had not been physically abused, but that it was she who had been mistreated. Further, the panel raised the fact that, while the applicant alleged she had been abused commencing in the year 2000, there was some documentation to suggest that the abuse did not begin before February 2003. Finally, the applicant filed in support of her application a complaint made to the police dated August 19, 2004: however, she said she wanted to leave the country on August 17, 2004. When the panel asked her why she had not made a complaint until August 19, 2004, the applicant replied that she had to garner evidence. Finally, the panel noted that the applicant claimed that she and her spouse no longer lived together, yet her documentation indicated that her most recent address was that of her spouse. Accordingly, the panel dismissed the applicant’s refugee claim application on the basis of article 1F(b) and decided that the children’s refugee claim would be heard at a later date.
[11] It is important to note that neither the applicant nor her children are citizens of the Dominican Republic. She claimed that her husband threatened to give information to the people persecuting her in Venezuela. Now, the applicant alleged that the panel should not exclude the applicant without hearing all the evidence. The panel only assessed her application in the light of article 1F(b) and the events which occurred in the Dominican Republic, without taking her situation in Venezuela into account. Accordingly, if the panel has not heard everything, it could not rule that the exception to section 285 did not apply. The fears of persecution in Venezuela and threats by her spouse to provide information to such people were of primary importance in the applicant’s decision to leave the Dominican Republic with her children.
[12] The applicant also asserted that, after the panel rendered its decision, she obtained her spouse’s consent. However, that consent was not offered in evidence before the panel; it emerged only after the decision had been rendered. Despite this, the applicant believed it should be considered in view of the importance of the matter.
[13] The respondent argued that the applicant was excluded pursuant to paragraph 1F(b) and that this decision was reasonable. In the respondent’s submission, the appropriate test pertaining to the exclusion ground was properly applied and the evidence offered by the applicant properly analyzed.
[14] With regard to the applicant’s argument that the panel did not assess her situation in Venezuela, the respondent noted that it was up to the applicant to present her arguments at the hearing, not at the leave stage. Further, he noted that the panel had no duty to rule on the merits of the refugee claim since it had held that the applicant should be excluded.
[15] While there are several points in dispute between the applicant and the respondent, the only point which this Court must deal with is whether the panel’s decision to exclude the applicant pursuant to paragraph 1F(b) of the Convention was reasonable.
[16] The standard of review to be applied in the case at bar is that of the reasonable decision. As mentioned by Mr. Justice Décary in Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108; 2003 FCA 39 (QL), at paragraph 14:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase “patently unreasonable”). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. (On the standard of review, see Shrestha v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at paras. 10, 11 and 12.)
[17] With regard to the application of paragraph 1F(b), in Moreno v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 912 (QL), the Federal Court of Appeal noted that, in order to make a finding that the applicant is guilty of a criminal offence, the Minister only has to comply with the standard of evidence underlying the phrase “serious reasons for considering”. As seen in Zrig v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 565; 2003 FCA 178 (QL), it is not necessary to offer conclusive evidence that the person concerned is the subject of criminal proceedings. The respondent argued that the applicant did not dispute that abduction is a “serious non-political crime”. In this case, the panel had serious reasons to believe that the applicant had committed abduction, but after having analyzed the facts, it ruled that she could not establish a danger of imminent harm, i.e. the defence provided for in section 285 of the Criminal Code.
[18] A priori, the applicant alleged that the panel erred when it considered that section 283 was applicable, regardless of the defence set out in section 285. On the one hand, she alleged she could not be excluded under 283 since she did not intend to deprive the father of possession of the children and that the father had tacitly given his consent: in particular, he allegedly assisted the applicant to obtain a visa from the Canadian authorities for a third child (a visa which, at the end of the day, was not issued by the authorities).
[19] I do not feel that there is any merit in this argument. The fact that the father may have contacted the Canadian authorities to assist the applicant in obtaining a visa for a third child does not mean that he consented to the children coming to Canada with no intention of returning to the Dominican Republic. In the absence of consent, abduction of the children deprives him of his right to custody. On the other hand, even if the panel correctly ruled that she abducted the children, the applicant argued that she acted out of necessity as her safety and that of the children were threatened by her spouse.
[20] However, the panel did not believe there was any danger of imminent harm requiring flight by the applicant with her children. That finding was based on the various contradictions noted in the evidence offered. In particular, the panel mentioned that it was not in dispute that the applicant and her spouse had problems, but there was no danger of imminent harm that could justify the applicant’s action in leaving the country with her children, and without her spouse’s consent.
[21] The panel argued that the contradictions in the evidence were sufficient for it to rule that the applicant did not meet the exception set out in section 285 of the Criminal Code. In particular, the panel dwelt on the fact that the applicant admitted that the children had not been subjected to physical abuse by her spouse. However, the applicant said that, having witnessed the physical abuse inflicted to their mother, the children suffered psychological harm. The applicant contended that she did not want to deprive her spouse of custody of her children but to protect them from the danger of psychological abuse.
[22] The applicant relied on Lai v. The Minister of Citizenship and Immigration, [2004] F.C.J. No. 113; 2004 FC 179 (QL) at paragraph 36, where Mr. Justice MacKay referred to the fact that “[t]he panel accepted the Minister’s argument that Article 1F(b) does not require an examination of the offence from the point of view of the prosecutor, stating ‘It is the motivation of the claimant when the crime was committed that is important’”. Whereas it is true that intention is one element the panel must consider, in this case the panel had to assess whether the applicant brought the children to Canada for the purpose of protecting them from danger of imminent harm. As mentioned earlier, the panel was not satisfied on the evidence submitted that this danger existed.
[23] At first sight, and even after analysis, the panel’s decision was not unreasonable. Paragraph 1F(b) of the Convention excludes the applicant and she therefore cannot be regarded as a refugee. The panel was under absolutely no duty to make an exhaustive analysis of her contentions regarding refugee status, since that is not in issue. The panel only had to rule on the question of exclusion under paragraph 1F(b). As cited by Mr. Justice Robertson at paragraph 32 of Moreno v. Canada (Minister of Employment and Immigration), supra:
Whether or not the record supports the perceived inconsistencies identified by the Board is, in my opinion, an issue which we need not address. It was agreed at the outset of this appeal that this Court would not be asked to make a refugee determination. While the appellant’s reasons for forsaking the military, and the timing of that decision, are critical to his refugee claim, they are not relevant to the determination regarding the applicability of the exclusion clause.
[24] The findings regarding the evidence offered by the applicant in relation to section 283 of the Criminal Code, and the defence provided for in section 285 of the Criminal Code, were not unreasonable. The panel analyzed the applicant’s arguments, but the abduction of the children could not be justified.
[25] Despite the foregoing analysis, this Court cannot ignore certain practical facts which have an impact on this application. While an application for judicial review is clearly not an appeal de novo and this Court must absolutely not rule on evidence that was not before the panel, mention should be made of the fact that the applicant received a letter of consent from her ex-husband regarding the children on May 17, 2005. The letter was received after the panel rendered its decision.
[26] The respondent argued, and this Court agrees with his contention, that as regards the evidence that emerged after the panel rendered its decision, namely the consent of her ex-husband, the case law is clear: a decision must be arrived at on the basis of the evidence that was before the panel, and in judicial review proceedings, new evidence not presented to a panel cannot be offered in order to challenge its decision: see Noor v. Canada (Human Resources Development), [2000] F.C.J. No. 574 (QL).
[27] If a refugee application were at issue and there were subsequent evidence, the applicant might possibly initiate a pre-removal risk assessment proceeding (PRRA) so as to offer this new evidence. However, as what is at issue is the exclusion ground provided for in paragraph 1F(b) of the Convention, this proceeding is not open to the applicant. This evidence might have a major impact on the outcome of her application. Ignoring this new evidence would be unfair to the applicant and this Court cannot in all conscience fail to recognize the existence of this letter. Inter alia this Court would find it unreasonable to deny the applicant justice on account of an abstruse point of procedure. However, the binding precedents must nevertheless be followed. Accordingly, since I cannot allow the application for judicial review, I can suggest that the applicant make use of subsection 55(1) of the Refugee Protection Division Rules. Under that subsection, the applicant could try to have her case reopened.
|
55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
|
55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement. |
[28] It is true that subsection 55(1) of the Refugee Protection Division Rules provides for the reopening of a claim for refugee protection; however, as mentioned by Mr. Justice Mosley in Ali v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1394; 2004 FC 1153 (QL), an application to reopen a claim may be granted when there has been a violation of natural justice. A distinction must accordingly be made. If the applicant does not have an opportunity to offer this new evidence, there will in fact be a violation of natural justice. An application to reopen will eventually enable the applicant to offer her evidence in a proper forum for determining whether the evidence should be considered.
[29] Once again, it is highly possible that her application under that subsection will also be dismissed. However, the applicant can file a claim for judicial review if it is dismissed.
[30] As to the applicant’s allegation that the panel erred in not addressing her fear of persecution in Venezuela, the panel ruled that exclusion applied and that it did not have to consider the persecution allegations.
[31] To conclude, since the panel’s decision was reasonable, I cannot allow the application for judicial review. However, I would strongly suggest that the applicant take advantage of the remedy provided for in subsection 55(1), and if this is granted, the applications of the applicant and her children will be heard together.
JUDGMENT
The application for judicial review is dismissed.
Deputy Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2107-05
STYLE OF CAUSE: JACKELINE MARIA PARIS MONTOYA
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 5, 2005
REASONS FOR JUDGMENT BY: Paul U.C. Rouleau D.J.
APPEARANCES:
|
Michel Le Brun
|
FOR THE APPLICANT |
|
Suzon Létourneau
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Michel Le Brun 6981 Marie-Guyart Montréal, Quebec H8N 4C9
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |