[sv 1,537] [sv 75,1] [sv 19,1995]
malouf v. canada
IMM-2186-94
François Malouf (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Malouf v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J."Vancouver, October 12; Ottawa, October 31, 1994.
Citizenship and Immigration " Exclusion and removal " Inadmissible persons " Judicial review of CRDD decision applicant not Convention refugee as excluded by Convention, Art. 1F(b) " Applicant, Lebanese citizen, went to U.S.A. " Charged with possession, trafficking in cocaine " Allegedly accepted voluntary deportation from U.S.A. when on bail after pleading guilty to charges " Whether American crimes serious non-political crimes within meaning of Convention " CRDD decision based on applicant's lack of credibility, implausibility of alleged voluntary deportation " Case law on interpretation of exclusion clause " CRDD failing to consider applicant's refugee claim as against Lebanon and to give notice exclusion clause would be considered " Applicant not given opportunity to present evidence, make representations " Failure to observe principle of procedural fairness.
This was an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) that the applicant was not a Convention refugee within the meaning of the Immigration Act because he was excluded by the United Nations Convention Relating to the Status of Refugees, Article 1F(b). The applicant is a citizen of Lebanon who claimed Convention refugee status by alleging a well-founded fear of persecution arising out of his active participation in the Lebanese civil war. After leaving Lebanon in 1977, he travelled to the United States, returned to Lebanon three years later for a visit during which he was detained by the Falangists, harshly beaten and threatened with death, and returned to the United States. In 1991, after pleading guilty to charges of possession and trafficking in cocaine and other offences, he left the United States while on bail, alleging that he accepted voluntary deportation, and claimed Convention refugee status in Canada. The CRDD found it implausible that immigration authorities in the United States would execute a deportation order against the applicant, convicted as he was of serious charges and on bail pending sentencing; it also found that the offences committed by the applicant in the United States were serious non-political crimes within the meaning of the Convention and concluded that the latter was clearly excluded from the definition of Convention refugee by the application of Article 1F(b) of the Convention. Three main issues were raised herein: 1) the credibility of the applicant; 2) the CRDD's application of the exclusion clause and 3) the issue of fairness.
Held, the application should be allowed.
1) The inferences drawn by the CRDD in light of the applicant's failure to file any documentary evidence to support his claim of voluntary deportation were reasonably open to it. While the finding of implausibility based upon a presumption that the laws of California and the U.S.A. are similar to those of British Columbia and Canada respectively was built on a rather fragile base, the applicant had failed to discharge the burden on him of showing that the CRDD could not have reasonably drawn such inference. The same could be said of the inference drawn regarding the implausibility that the applicant would voluntarily relinquish rights of appeal against deportation. There was no basis on which to interfere with the CRDD's finding regarding credibility.
2) There was no indication that the Minister had been notified in accordance with the provisions of subrules 9(2), (3) and (4) of the Convention Refugee Determination Division Rules. The CRDD, once it concluded that the exclusion clause might apply in respect of the applicant, should have, through the refugee hearing officer, given notice to the Minister and provided an opportunity for the Minister to make representations. Whether or not the Minister intervened, after taking into account the evidence and submissions of the applicant, it would still have been open to the CRDD to conclude, as it did here, that the exclusion clause applied on the basis of the evidence and submissions then before it. If it had followed such a procedure, there would at least have been a reasonable likelihood that the quality of the evidence before it would have been enhanced. The CRDD did not err in determining that there were serious reasons for considering that the applicant had committed a serious non-political crime. The latter was liable to sanction in another state, the United States, but he was not an accused person who was a fugitive from prosecution, at least in respect of the crimes to which he had pleaded guilty and that are acknowledged on the face of his personal information form. He was a convicted person who, if one rejects his allegation of voluntary deportation as the CRDD did, was a fugitive from incarceration. The CRDD did not focus on the second portion of Article 1F(b) which requires that the serious non-political crimes seriously considered to have been committed must have taken place "outside the country of refuge prior to his admission to that country as a refugee." The reference in Article 1F(b) is to "the" country of refuge rather than to "a" country of refuge. In circumstances such as those before the Court, where there has been more than one country of refuge since the applicant left the country against which Convention refugee status is claimed, "the" country of refuge must be the country of refuge at the time the application of Article 1F(b) was being considered. The applicant's country of refuge at the time his refugee claim was being considered by the CRDD was Canada and he had been admitted to Canada as a refugee at that time. It is settled law that the inclusion of the applicant as a refugee as against Lebanon need not have been considered, however desirable it might have been to do so, if the exclusion in question were under Article 1F(a) rather than Article 1F(b). The latter contains a qualitative qualifier, "serious," that has no equivalent in Articles 1F(a) and (c). The CRDD erred in law in failing to consider the applicant's Convention refugee claim as against Lebanon and in failing to balance the risk to the applicant that would flow from his return to Lebanon by reason of the exclusion clause against the seriousness of the serious non-political crimes here at issue.
3) The CRDD failed to provide the applicant with notice that an exclusion clause, particularly Article 1F(b), would be considered. This failure to effectively give notice and provide an opportunity to present evidence and make representations at any stage of the proceeding, tied as it was to the failure on the part of the CRDD and the refugee hearing officer to give notice to the Minister and an absence of involvement of the Minister on his own initiative, amounted to a failure to observe a principle of procedural fairness that went to the heart of this matter. In a matter such as this, an applicant is entitled to reasonable notice of the issues considered to be central to the tribunal's decision and to an opportunity to respond. The applicant was ambushed as to the basis for the CRDD's determination against him.
statutes and regulations judicially considered
Convention Refugee Determination Division Rules, SOR/93-45, R. 9(2),(3),(4).
Immigration Act, R.S.C., 1985, c. I-2, ss. 2 "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 69.1(5) (as enacted idem, s. 18; S.C. 1992, c. 49, s. 60), Sch. (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a), (b),(c).
United Nations Protocol relating to the Status of Refugees, January 31, 1967, [1969] Can. T.S. No. 29.
cases judicially considered
applied:
Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Kone v. Canada (Minister of Employment and Immigration), IMM-561-93, Nadon J., order dated 11/5/94, F.C.T.D., not yet reported; Fletes v. Canada (Secretary of State), A-1521-92, Noël J., order dated 16/6/94, F.C.T.D., not yet reported; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Thamotharampillai v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 99 (T.D.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 159 N.R. 210 (C.A.); Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398; (1991), 81 D.L.R. (4th) 244; 50 Admin. L.R. 269; 15 Imm. L.R. (2d) 204; 129 N.R. 262 (C.A.); Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.); Cardenas v. Canada (Minister of Employment & Immigration) (1994), 23 Imm. L.R. (2d) 244; 74 F.T.R. 214 (F.C.T.D.).
considered:
Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.).
authors cited
Goodwin-Gill, Guy S. The Refugee in International Law, Oxford: Clarendon Press, 1983.
Grahl-Madsen, Atle. The Status of Refugees in International Law, Leyden: A.W. Sijthoff, 1966.
United Nations. Office of the United Nations High Commissioner for Refugees. Canadian Branch. Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence, Paper 5, Ottawa, 1989.
Waldman, Lorne. Immigration Law and Practice, vol. 1, Toronto: Butterworths Canada Ltd., 1992.
APPLICATION for judicial review of a decision of the Convention Refugee Determination Division that the applicant was not a Convention refugee within the meaning of the Immigration Act. Application allowed.
counsel:
Renée Miller for applicant.
Esta Resnick for respondent.
solicitors:
Gounden & Miller, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.: This is an application for judicial review of a decision of the Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning of the Immigration Act.1*ftnote1 R.S.C., 1985, c. I-2, s. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1). The decision of the CRDD is dated March 24, 1994. The basis of the CRDD's decision is its conclusion that the United Nations Convention Relating to the Status of Refugees signed at Geneva on July 28, 1951 [[1969] Can., T.S. No. 6] including the Protocol [United Nations Protocol relating to the Status of Refugees] thereto signed at New York City on January 31, 1967 [[1969] Can. T.S. No. 29] does not apply to the applicant by reason of section F(b) of Article 1 thereof. Section F of Article 1 of the Convention is set out in the schedule [as enacted idem, s. 34] to the Immigration Act. The relevant portions of that section read 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.
The applicant alleges that he is a citizen of Lebanon. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Lebanon, on the basis of a Convention reason arising out of his alleged active participation prior to February 19, 1977 in the Lebanese civil war as a member of the bodyguard of the former Liberal Party leader and national president Camille Chamoun. He alleges that, by reason of his performance of his duties associated with that post, he attracted the undying enmity of a substantial but unknown number of potential persecutors in Lebanon.
BACKGROUND
The factual background to the applicant's claim may be briefly summarized as follows. The applicant left Lebanon in February 1977 by travelling to Jordan. In November, 1978, having obtained a visitor's visa to the United States, he travelled to that country. His step-mother, an American citizen, aided him in obtaining a "green card." With the green card, he was able to settle in the United States. Around Christmas, 1980, he returned to Lebanon for a visit. While in that country he alleges he was detained by the Falangists, harshly beaten, threatened with death and denied any medical attention. He returned to the United States. During the summer of 1991, he was charged with and pleaded guilty to charges that may generally be described as possession of a controlled substance for the purpose of sale, sale of a controlled substance, receiving stolen property and taking a vehicle without lawful authority. Before being sentenced, he left the United States while on bail, allegedly when he accepted voluntary deportation. He alleges that by such action, he lost the equivalent of permanent resident status that he had acquired in the United States. In late July 1991, he claimed Convention refugee status here in Canada. He alleges that this was his first ever claim to such status. On August 30, 1991, he was sentenced in California, in his absence, to ten years imprisonment.
THE CRDD DECISION
In its reasons for decision, the CRDD described the issues before it in the following terms:
In my opinion, the determinative issues of the claim are:
(a) the application of exclusion clause F(b) of the schedule to the Immigration Act ("Act"), and
(b) the claimant's personal credibility respecting his allegation that he accepted voluntary deportation from the USA before he last came into Canada.
The CRDD went on to deal with the second issue first. It commented on the applicant's failure to file any documents to support his allegation that he had accepted voluntary deportation from the U.S.A. It stated:
Even in a non-adversarial refugee determination process, the burden of proving all the facts necessary for a determination of Convention refugee status must, of necessity, ultimately rest upon the persons seeking it. There is nothing unusual or unfair in obliging parties to a civil proceedings, which claimants in the Division are, to acquire and make available for the tribunal all reasonably available relevant evidence.
Later, the CRDD wrote:
The second relatively unusual factor which I have considered in assessing the claimant's credibility is a principle of the conflicts of laws. In assessing his allegations of events in the USA I have, in the absence of credible or trustworthy evidence to the contrary, presumed that the laws of California and the laws of the USA are similar to the laws of British Columbia and Canada respectively.
The CRDD then went on to examine the admissions in the applicant's personal information form regarding the convictions against him in the state of California previously referred to. It indicated that the "controlled substance" at the heart of certain of his convictions was cocaine.
The CRDD found it implausible that immigration authorities in the United States would execute a deportation order against the applicant, convicted as he was of serious charges and on bail pending sentencing and, apparently, while at least one further charge was outstanding against him. The CRDD further found it not to be plausible that the applicant would voluntarily relinquish the rights which it presumed he had, as the equivalent of a permanent resident of the United States, to appeal against any deportation order that might be made against him. It further found the applicant's testimony respecting the circumstances under which he allegedly lost his equivalent of permanent resident status in the U.S. to be inconsistent. Finally, it found contradictory evidence to some of the evidence of the applicant.
In the result, on the issue of "voluntary deportation," the CRDD concluded:
In my opinion, the claimant's testimony that he has been deported from the USA and has waived his right to appeal against any deportation order which might have been made against him was false.
The CRDD then turned to the first of the "determinative issues" described by it, that is, the application of exclusion Article 1F(b) set out in the schedule to the Immigration Act which is quoted earlier in these reasons. By reference to the maximum punishments provided in Canadian law for possession of cocaine for the purpose of trafficking and trafficking in cocaine, the CRDD concluded that:
. . . the claimant's own description of the charges to which he pleaded guilty in California establish serious reasons for believing that he has committed such an offence.
And further:
I have no doubt the California offenses [sic] fall within the range of serious crimes envisaged by clause F(b).
Further, the CRDD also concluded that:
. . . as offenses [sic] equivalent to offenses [sic] in Canada, committed in a democratic foreign state against a law of general application, they are patently non-political crimes.
The CRDD does not focus on the remaining portion of Article 1F(b), that is to say, the words "outside the country of refuge prior to his admission to that country as a refugee."
The CRDD does consider the allegation by the applicant that the charges of which he was convicted were the result of illegal entrapment in the United States. It disposes of that issue in the following terms:
Whether this may have been so under the criminal law of California is a moot question. He pleaded guilty to most of those offenses [sic]. Therefore, I can give no credit to the suggestion that the charges were improper.
Finally, the CRDD concluded that, since it had concluded that the claimant was clearly excluded from the definition of Convention refugee by the application of Article 1F(b), it was unnecessary for it, and indeed inappropriate for it, to examine the question of whether the applicant met the requirements of the inclusion clauses, that is to say, whether he would have been a Convention refugee as a national of Lebanon but for the application of Article 1F(b).
THE ISSUES BEFORE THE COURT
In her opening submissions, counsel for the applicant described three main issue areas. The first was the credibility of the applicant and within that area, the two components of concern were described as the CRDD's treatment of the applicant's failure to file supporting documents regarding the alleged voluntary deportation and the CRDD's finding of implausibility of the alleged voluntary deportation.
The second issue area related to the CRDD's application of the exclusion clause, and more particularly Article 1F(b) set out in the schedule to the Immigration Act. Within this issue area counsel made submissions with respect to notice, onus and process, the meaning of serious non-political crime, the factors which should be taken into consideration by the CRDD in its consideration of the exclusion clause, the concept of country of refuge prior to admission as a refugee, and finally the question of whether the CRDD must balance the risk to the applicant in returning to his country of origin, that is Lebanon, against the risk to society of allowing him to remain in Canada as part of its determination on the application of the exclusion clause.
The third issue area was fairness. Counsel addressed the question of the adequacy of notice to the applicant that the exclusion clause, and more particularly Article 1F(b), would be considered in relation to the applicant's claim, the question of onus of proof in applying the exclusion clause and finally whether the CRDD erred by refusing to grant an adjournment when requested at the first day of the applicant's hearing and by refusing to allow the applicant to file further material.
ANALYSIS
The issue of the CRDD's finding as to the credibility of the applicant's testimony as to voluntary deportation can be briefly disposed of.
I am satisfied that the inferences drawn by the CRDD in light of the failure of the applicant to file any documentary evidence to support his claim of voluntary deportation were reasonably open to it.
In Aguebor v. Minister of Employment and Immigration2*ftnote2 (1993), 160 N.R. 315 (F.C.A.), at pp. 316-317. Mr. Justice Décary J.A. states:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, 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. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.3*ftnote3 Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.).
While the finding of implausibility based upon a presumption, "in the absence of credible or trustworthy evidence to the contrary," that the laws of California and the laws of the U.S.A. are similar to the laws of British Columbia and Canada respectively is, I find, built on a rather fragile base, I nonetheless conclude that, as in Aguebor, the applicant herein did not discharge the burden on him of showing that the inference drawn by the CRDD could not reasonably have been drawn. The same can be said of the inference drawn regarding the implausibility that the applicant would voluntarily relinquish rights of appeal against deportation.
For the foregoing reasons, I find no basis on which to interfere with the CRDD's finding regarding credibility.
I turn then to the issues surrounding the CRDD's finding that the exclusion clause, and more particularly Article 1F(b), applies to the applicant, that is to say, that the applicant is a person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
The relevant portions of subsection 69.1(5) [as enacted idem, s. 18; S.C. 1992, c. 49, s. 60] of the Immigration Act read as follows:
69.1 . . .
(5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division
(a) shall give
. . .
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations.
No allegation was made before me that the Minister was denied a reasonable opportunity to present evidence in this matter. The Minister did not present any evidence. The Minister did not give notice to the CRDD as contemplated by subsection 69.1(5).
Subrules 9(2), (3) and (4) of the Convention Refugee Determination Division Rules4*ftnote4 SOR/93-45. provide as follows:
9. . . .
(2) Where, before the commencement of a hearing, the refugee hearing officer or the Refugee Division is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary.
(3) Where, during a hearing, the refugee hearing officer or a member is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer or the member shall so inform the presiding member and, if the presiding member so directs, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary.
(4) The refugee hearing officer shall serve the person concerned forthwith with a copy of all written information that the refugee hearing officer provides to the Minister pursuant to subrules (2) and (3). [Underlining added by me for emphasis.]
There was no indication before me that the Minister was notified in accordance with the provisions of these subrules.
In Ramirez v. Canada (Minister of Employment and Immigration),5*ftnote5 [1992] 2 F.C. 306 (C.A.), at p. 314. MacGuigan J.A., speaking for the Court stated:
There was no issue between the parties as to which party bore the onus. Both agreed that the burden of establishing serious reasons for considering that international offences had been committed rested on the party asserting the existence of such reasons, i.e., the respondent. Aside from avoiding the proving of a negation by a claimant, this also squares with the onus under paragraph 19(1)(j) of the Act, according to which it is the Government that must establish that it has reasonable grounds for excluding claimants. For all of these reasons, the Canadian approach requires that the burden of proof be on the Government, as well as being on a basis of less than the balance of probabilities.
In Kone v. Canada (Minister of Employment and Immigration),6*ftnote6 Court File: IMM-561-93, Nadon J., order dated May 11, 1994, F.C.T.D., not yet reported. the applicant argued that the CRDD failed to observe several principles of procedural fairness in that it failed to inform the applicant that the exclusion clause was being applied against him, informed him of this only after the evidence had been declared closed, failed to inform the Minister that in its opinion the exclusion clause was in issue, and denied the motion made by Counsel for the applicant that the Minister be invited to participate in the proceedings in order to protect his client's rights. I will turn to the issue of notice to the applicant that the exclusion clause might be applied later in these reasons. I will deal only with the failure to inform the Minister at this time.
In his reasons in Kone, Nadon J. cites Lorne Waldman in Immigration Law and Practice7*ftnote7 Butterworths Canada Ltd., 1992, vol. 1, paragraph 8.204 (at p. 8.188). to the following effect:
The Minister can intervene pursuant to s. 69.1(5) if "the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to cross-examine witnesses and make representations". The question arises as to what should be the appropriate conduct of the tribunal when it becomes aware that an issue of exclusion might arise at the hearing. Since the burden of proof falls squarely on the respondent, it is not appropriate for the tribunal members themselves to engage in an investigation with respect to the issue of exclusion. For them to do so would result in their becoming prosecutors seeking to establish that the claimant falls within the exclusion clauses. Moreover, given that the Act clearly provides that the Minister can intervene in the hearing in situations involving exclusion, once exclusion becomes an issue at the hearing the tribunal should adjourn, notify the Minister, and leave it to the Minister to determine whether the evidence in the particular case justifies his or her intervention.
As in this matter, the Minister did not intervene in Kone. Nonetheless, the CRDD considered the issue of exclusion. Nadon J., at page 11 of his reasons, states:
To all appearances, in my opinion, the tribunal tried, perhaps unconsciously, to take upon itself the role that belonged to the Minister and his representative, that is, of establishing that the applicant should have been excluded because he had done something or had committed a crime that fell within the exclusion in section F of Article 1 of the Convention. That is the only reasonable interpretation we can place on the questions asked by the tribunal if we want to understand why the exclusion clause was invoked at the end of the hearing on August 10, 1993.
Accordingly, I am of the opinion that during the hearing the tribunal played the roles of both judge and Minister's representative. In fact, the tribunal usurped the role that belonged to the Minister and his representative in respect of the exclusion clause.
In the end, Nadon J. set aside the decision of the CRDD.
In Fletes v. Canada (Secretary of State),8*ftnote8 Court File: A-1521-92, Noël J., order dated June 16, 1994, F.C.T.D., not yet reported. another case involving the application of the exclusion clause, the Minister was represented at the hearing before the CRDD. The Minister made no representations on the issue of the exclusion clause. Nonetheless, the CRDD applied the exclusion clause. The Court found that the evidence that was before the CRDD was sufficient to support its conclusion that the exclusion clause should apply. In the result, the Court dismissed the application for judicial review.
I conclude that the CRDD, once it concluded that the exclusion clause might apply in respect of the applicant, should have, through the refugee hearing officer, given notice to the Minister and provided an opportunity for the Minister to make representations, even if it reached that conclusion following the end of the hearing which took place over two days and thus at a time when the provisions of its own rule 9 were not clearly applicable. At that time, by analogy to subrule 9(4), the refugee hearing officer should have served the applicant with a copy of all written information that he or she provided to the Minister. Further, whether or not the Minister intervened, the CRDD should have provided the applicant an opportunity to provide evidence, orally or in writing or both, and to argue the issue of the applicability of the exclusion clause. More will be said about this later. As in Fletes, whether or not the Minister intervened, after taking into account the evidence and submissions of the applicant, it would still have been open to the CRDD to conclude, as it did here, that the exclusion clause applied on the basis of the evidence and submissions then before it. If it had followed such a procedure, there would at least have been a reasonable likelihood that the quality of the evidence before it would have been enhanced.
I turn then to the issue of whether the CRDD erred in reaching the conclusion on the evidence before it that there were serious reasons for considering that the applicant had committed a serious non-political crime.
In Canada (Attorney General) v. Ward,9*ftnote9 [1993] 2 S.C.R. 689. La Forest J., referring to Article 1F(b), the basis for exclusion here at issue, states at page 743:
Hathaway, supra, at p. 221, interprets this exclusion to embrace "persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status". In other words, Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway's interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law; see statement of United States delegate Henkin, U.N. Doc. E/AC.32/SR.5 (January 30, 1950), at p. 5. As such, Ward would still not be excluded on this basis, having already been convicted of his crimes and having already served his sentence.
I have no difficulty concluding that the CRDD did not err in determining that there were serious reasons for considering that the applicant committed a serious non-political crime. He acknowledged on the face of his personal information form that he had pleaded guilty to what would appear to be the equivalent of possession for the purpose of trafficking and to trafficking in cocaine. That those crimes are both serious and non-political is, I think, not open to question. But the applicant appears to fall between the Hathaway interpretation cited by Mr. Justice La Forest and the situation of Ward that was before the Supreme Court of Canada. The applicant is liable to sanction in another state, the United States, but he is not an accused person who is a fugitive from prosecution, at least in respect of the crimes to which he pleaded guilty and that are acknowledged on the face of his personal information form. He is a convicted person who, if one rejects his claim to voluntary deportation as the CRDD did, is a fugitive from incarceration.
In Thamotharampillai v. Canada (Minister of Employment and Immigration),10*ftnote10 [1994] 3 F.C. 99 (T.D.), at p. 109. a matter involving the interpretation of Article 1F(c) in the schedule to the Act, I quoted from Moreno v. Canada (Minister of Employment and Immigration)11*ftnote11 [1994] 1 F.C. 298 (C.A.), at p. 307. where Robertson J. A., speaking for the Federal Court of Appeal stated:
The thrust of the appellant's argument is that the Board, and this Court, should construe narrowly the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. I recognize that this view is echoed by all of the leading commentators and reinforced in the UNHCR Handbook: [Numerous authorities cited here are omitted.]
As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.
On the facts before me in Thamotharampillai, I concluded that the CRDD made no error of law or other reviewable error in concluding as it did that the applicant was excluded from Convention refugee status. I stated [at page 111]:
Assuming for the moment an unresolved ambiguity or issue that was before the CRDD, and I believe there to have been no unresolved ambiguity or issue arising out of the facts of this case, I conclude that the construction of section F(c) Article 1 of the Convention adopted by the CRDD is the construction most agreeable to justice and reason in all of the circumstances of this case.
I reach the same conclusion here with regard to the CRDD's conclusion that there were serious reasons for considering that the applicant herein had committed serious non-political crimes.
As indicated earlier in these reasons, the CRDD did not focus on the second portion of Article 1F(b) which requires that the serious non-political crimes seriously considered to have been committed must have taken place "outside the country of refuge prior to his admission to that country as a refugee."
The reference in Article 1F(b) is to "the" country of refuge rather than to "a" country of refuge. In circumstances such as those before me, where there has been more that one country of refuge since the applicant left the country against which Convention refugee status is claimed, I conclude that "the" country of refuge must be the country of refuge at the time the application of Article 1F(b) is being considered. Thus, on the facts of this case, "the" country of refuge is Canada. The question remains, was the applicant ever admitted to "that country," Canada, as a refugee?
In Mileva v. Canada (Minister of Employment and Immigration),12*ftnote12 [1991] 3 F.C. 398 (C.A.), at p. 411. Marceau J. A., in reasons concurring in the result, stated:
The first idea is that a person is necessarily a refugee before being recognized as such: he does not become a refugee because he is recognized, but is recognized because he is a refugee; there is first a situation of fact which gives rise to a condition, then recognition of a right which is expressed by a status.
Although Mr. Justice Marceau's reasoning in this passage may not have found favour with his colleagues in the context in which he expressed it, I find it apt to the circumstances before me. The applicant arrived in Canada on July 20, 1991. Four days later he indicated to a Canadian official that, for the first time in his life, he intended to claim recognition as a Convention refugee. Thus, in the terms of the quotation from Marceau J.A., a situation of fact was created that gave rise to a condition. The reality that the fact might subsequently be determined not to be a fact at all, and thus, no status would be created through recognition of a right, is of no consequence. I conclude that the applicant's country of refuge at the time his refugee claim was being considered by the CRDD was Canada and he had been admitted to Canada as a refugee at that time. There were serious reasons for considering that he had committed a serious non-political crime, prior to that time, outside of Canada, that is, in the United States.
I next turn to the question of whether the CRDD erred in failing to consider the inclusion of the applicant as a refugee as against Lebanon. In Gonzalez v. Canada (Minister of Employment and Immigration),13*ftnote13 [1994] 3 F.C. 646 (C.A.), at pp. 655-657. Mahoney J. A., in reasons concurred in by Robertson J.A., Létourneau J. A. having written concurring reasons, stated:
The applicant based the argument that a finding on the merits is essential because the quality of persecution which a claimant might suffer if returned must be weighed against the gravity of what had been done to engage the exclusion clause and that the balance was a factor which the Refugee Board was required to take into account in deciding whether or not the exclusion clause ought to be invoked. That argument finds support in commentary if not jurisprudence, for example:
Article 1F excludes [cad096]persons[cad039] rather than [cad096]refugees[cad039] from the benefits of the Convention, suggesting that the issue of a well-founded fear of persecution is irrelevant and need not be examined at all if there are [cad096]serious reasons for considering[cad039] that an individual comes within its terms. In practice, the claim to be a refugee can rarely be ignored, for a balance must also be struck between the nature of the offence presumed to have been committed and the degree of persecution feared. A person with a well-founded fear of very severe persecution, such as would endanger life or freedom, should only be excluded for the most serious reasons. If the persecution feared is less, then the nature of the crime or crimes in question must be assessed to see whether criminal character in fact outweighs the applicant's character as a bona fide refugee.
That passage appears under the subtitle of "Serious Non-Political Crimes" which are the subject of Article 1F(b), rather than 1F(a), but the commentary is not limited in its terms nor, given the way Article 1F is drafted, could the author apply his reasoning to anything but Article 1F in its entirety. Perusal of the other commentary to which we were referred satisfies me that it, too, finds its entire support in 1F(b).
Can crimes committed in the prosecution or suppression of a revolution be characterized as "non-political"? I doubt it. Perhaps the modifier "serious" in 1F(b) would make possible the balancing suggested but there is no room for it in 1F(a). The crimes of 1F(a) are, by any definition, extremely serious. In so far as the commentary has a message applicable to 1F(a), it may be that what has occurred in combat is not to be readily found to be a crime.
In my opinion, the reasoning of this Court in Rasaratnam v. Canada (Minister of Employment and Immigration) ([1992] 1 F.C. 706 (C.A.)), which held the internal flight alternative concept to be inherent to the Convention refugee definition has application here. If a claimant had an internal flight alternative, there is simply no question of that claimant having ceased to be a Convention refugee. If there was an internal flight alternative, the claimant never was a Convention refugee because the expressed unwillingness to return to the country of nationality by reason of fear of persecution was necessarily not well-founded objectively.
I find nothing in the Act that would permit the Refugee Division to weigh the severity of potential persecution against the gravity of the conduct which has led it to conclude that what was done was an Article 1F(a) crime. The exclusion of Article 1F(a) is, by statute, integral to the definition. Whatever merit there might otherwise be to the claim, if the exclusion applies, the claimant simply cannot be a Convention refugee.
In my opinion, there is no error in law in either approach but there is a practical reason for the Refugee Division to deal with all elements of a claim in its decision. If it were to hold without reviewable error that, but for the exclusion, a claim was not well-founded, it would not be necessary, as it was in Moreno, for the matter to be referred back for yet another full hearing should a court find that the exclusion had been wrongly invoked. On the other hand, if it were to hold, as it did in Ramirez and Sivakumar, that the claim was well-founded but for application of the exclusion and, unlike those cases, it were found on appeal to have erred in applying it, this Court could make the necessary declaration without requiring the Refugee Division to deal with it again. Taxpayers might appreciate the economies of that approach.14*ftnote14 The commentary quoted within the above quotation from Gonzalez is footnoted as follows: Guy S. Goodwin-Gill, The Refugee in International Law, Clarendon Press, Oxford, 1983, at pp. 61-62. See also Atle Grahl-Madsen, The Status of Refugees in International Law, A. W. Sijthoff, Leyden, 1966, Vol. 1, at pp. 297-298 and U.N.H.C.R., Canadian Branch, Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence, Paper 5, Ottawa, 1989. [Underlining added by me for emphasis.]
Thus, it is settled that inclusion need not have been considered as against Lebanon, however desirable it might have been to do so, if the particular exclusion here in question were under Article 1F(a) rather than Article 1F(b). Mahoney J. A. left the issue open, at least to some degree, on the fact situation that was here before the CRDD.
In Cardenas v. Canada (Minister of Employment & Immigration),15*ftnote15 (1994), 23 Imm. L.R. (2d) 244 (F.C.T.D.), at p. 252. the Associate Chief Justice, in considering a case involving the application of Article 1F(a), stated:
The board must be extremely cautious in its application of the exclusion clause, particularly in situations such as this one where it has concluded that the claimant has a well-founded fear of persecution in his country of origin. In light of the potential danger faced by such a claimant, the board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.
The CRDD was aware at the time that it dealt with this matter that bench warrants had been issued for the arrest of the applicant in the state of California and that extradition proceedings seeking return of the applicant to the United States had been commenced. There was no evidence before me that those proceedings had reached a conclusion by the time the CRDD issued its decision. If they had, and if it was clear that the applicant would leave Canada to return to the United States rather than to return to Lebanon, I would conclude that the CRDD made no error in failing to consider the applicant's Convention refugee status in respect of Lebanon. But that is not the case. As Mahoney J.A. pointed out in the quotation from Gonzalez above, the commentary which is also part of that quotation appears under the subtitle "Serious Non-Political Crimes" which are the subject of Article 1F(b), the Article here under consideration. That article contains a qualitative qualifier, "serious" that has no equivalent in Articles 1F(a) and (c). It is conceivable that what might, in abstract, be considered to be a serious non-political crime in respect of this applicant might not in relative terms be considered so "serious" when weighed against the risk that return of the applicant to Lebanon might present.
Against the cautionary note sounded by the Associate Chief Justice in Cardenas, a cautionary note with which I concur, I conclude that the CRDD erred in law in failing to consider the applicant's Convention refugee claim as against Lebanon and in failing to balance the risk to the applicant that would flow from his return to Lebanon by reason of the exclusion clause against the seriousness of the serious non-political crimes here at issue. Having conducted that balancing, the CRDD would have then been in a position to determine whether the serious non-political crimes were of such a nature as to warrant the application of the exclusion clause and the imposition on the applicant of the risk that would flow from his return to Lebanon. If on the other hand, the outcome of a consideration of the applicant's refugee claim against Lebanon was such that he was determined not to be a Convention refugee, then, of course, no balancing would be required and no resort to the exclusion clause would have to be considered.
Finally, I turn to the issues of fairness. Although a number of concerns are raised in the applicant's material under this head, I will only comment on the failure of the CRDD to provide the applicant with notice that an exclusion clause, and particularly, Article 1F(b) would be considered. This matter has been referred to and dealt with in part earlier in these reasons.
The applicant's activities in the United States that led to his arrival in Canada were discussed briefly at the first hearing on this matter before the CRDD on January 21, 1993. At that time, the applicant was not represented by counsel. Following that hearing, on February 2, 1993, the refugee hearing officer provided to the applicant documentation that included the applicant's criminal record and sentencing abstract, bench warrants for his arrest and a "sanitized" decision of another panel of the CRDD that involved the application of Article 1F(c). When counsel for the applicant attempted to address the issue of the applicant's convictions on the second day of hearing, that is on August 20, 1993, he was prevented from reopening the issue. The hearing was adjourned at the end of the August 20 process and time was allowed to the applicant to October 20, 1993 to file additional affidavit evidence and to November 10 for closing submissions by the applicant's counsel. The refugee hearing officer was given to November 24 to file his or her closing submissions. Finally, time was given to December 1, 1993 to file the applicant's reply. On November 23, the refugee hearing officer gave notice to the applicant that application of the exclusion clause and Article 1F(c) was being considered. Following the notice given on November 23, 1993, no opportunity was provided to the applicant to file additional evidence. In the result, in any event, the CRDD focussed its decision on Article 1F(b) and not on Article 1F(c).
I am satisfied that this failure to effectively give notice and provide an opportunity to present evidence and make representations at any stage of the proceeding, tied as it was to the failure on the part of the CRDD and the refugee hearing officer to give notice to the Minister and an absence of involvement of the Minister on the Minister's own initiative, amounted to a failure to observe a principle of procedural fairness that goes to the heart of this matter. It is trite law that, in a matter such as this and in circumstances such as those before me, an applicant is entitled to reasonable notice of the issues considered to be central to the tribunal's decision and to an opportunity to respond. Over the two days on which this matter was heard, virtually all of the evidence and argument presented by the applicant related to the Convention refugee status of the applicant as against Lebanon. Only on the first day, and then very briefly and in the absence of counsel, did the issue of the applicant's criminal conduct in the United States come up for consideration. In effect, the applicant herein was ambushed as to the basis for the CRDD's determination against him.
On the basis of the foregoing analysis and my conclusions that the CRDD erred in law in failing to consider the applicant's inclusion as against Lebanon and, if necessary, to balance its finding thereon against exclusion on the basis of Article 1F(b), and failed to observe a principle of procedural fairness in not notifying the applicant in an effective and timely way of the fact that it was proposing to rely on Article 1F(b) and providing an opportunity to respond, I have allowed this application and referred this matter back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
I turn then to the issue of certification of a question. At paragraphs 60 and 61 of the respondent's further memorandum of argument filed with the Court on September 28, 1994, the respondent requests certification of the following question:
Does the Board have the jurisdiction to apply the exclusion clauses as part of the definition of Convention refugee, without "Ministerial participation" at the refugee hearing?
The respondent goes on to request certification of a further question in the event that the Court answers the above question in the negative. The second question is in the following terms:
In the event there must be "Ministerial participation" at all refugee hearings where the Board considers the application of the exclusion clauses, does "Ministerial participation" mean personal participation by the Minister's representative at the hearing, or can "Ministerial participation" be satisfied by the Minister submitting relevant documentary evidence concerning the claimant (such as certificates of conviction or the activities of the group to which the claimant is alleged to belong), as well as written representation, to the CRDD registry, to be provided to the Board panel hearing the claim, (with a copy of the documentary evidence and written submission to the claimant) without personal participation by the Minister's representative at the hearing?
(The first question is slightly modified from the text contained in the respondent's further memorandum of argument in accordance with discussion that took place at the hearing.)
Counsel for the applicant supported certification of the two questions. Further, she recommended certification of a third question in the following terms:
What is the proper procedure before the IRB when considering the applicability of the exclusion clauses and whether they must consider the validity of the Convention refugee claim prior to the applicability of exclusion?
Counsel for the respondent opposed certification of the applicant's suggested question on the basis that the issue as stated is settled law by virtue of the Court of Appeal's decision in Gonzalez v. Canada (Minis-[qj]
ter of Employment and Immigration).16*ftnote16 Supra, footnote 13. I am in agreement only in part with the position of counsel for the respondent. As indicated in the rather lengthy quotation from Gonzalez that appears earlier in these reasons, Mahoney J.A. leaves open the issue where application of the exclusion clause is based on Article 1F(b). He states [at page 656]:
Perhaps the modifier "serious" in Article 1F(b) would make possible the balancing suggested but there is no room for it in Article 1F(a).
In the result, despite the fact that I have answered the respondent's first question positively, I will certify the two questions proposed on behalf of the respondent and agreed to on behalf of the applicant and a third question in the following terms:
3. Where the Convention Refugee Determination Division is considering exclusion under Article 1F(b) of the Convention, is it required to consider the well-foundedness of the Convention refugee claimants' claim and then, if it is determined to be well-founded, to balance the seriousness of the non-political crime considered to have been committed by the claimant against the persecution feared by the claimant?