Ottawa, Ontario, March 9, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Bela Tamas Farkas (the Applicant) is a citizen of Hungary who bases his Convention refugee claim on an alleged fear of persecution by reason of his Roma ethnicity and his Jewish religion. In a decision dated March 31, 2006, a panel of the Immigration and Refugee Board, Refugee Protection Division (the Board) determined that the Applicant is excluded under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (the Convention) because there are serious reasons for believing that he committed a serious non-political crime in Hungary. The Applicant seeks judicial review of this decision.
Issues
[2] The issue raised by the Applicant is whether the Board erred in its finding of exclusion, because it:
(a) failed to assess the relevant Hungarian law on the basis of expert testimony; or
(b) erred in finding that the crime for which the Applicant had been convicted was a serious non-political crime.
Background
[3] The details of the Applicant’s alleged crime, as contained in the Certified Tribunal Record, are as follows. On March 13, 1999, the Applicant, as an accomplice, forced entry into a store and stole property with the total value of 2,978,025 Hungarian Forints (around $20,000 CDN). On October 18, 2000, the Applicant was convicted pursuant to the provisions of section 316 of the Hungary Penal Code and was sentenced to five years imprisonment and barred from public affairs for six years. On appeal to the Komarom-Esztergom County Court of Justice, his conviction was upheld, but his sentence reduced to two years and eight months imprisonment and three years abstinence from public affairs. The Applicant has not served his sentence in Hungary and the Hungarian officials have issued a warrant for his arrest. There is also an outstanding Interpol warrant for his arrest.
[4] In its decision, the Board made the following key determinations:
- The Interpol arrest warrant and the copy of the Hungarian Court judgment were sufficient evidence to establish that there were serious reasons for believing that the claimant, before coming to Canada, had committed a crime.
- The crime was not political in nature.
- The Applicant was found guilty of being an accomplice in the criminal offence of theft by force of property of high material value (almost $20,000 CDN), pursuant to section 316 of the Hungarian Criminal Code.
- Had the offence been committed in Canada, the Applicant would have been guilty of an offence under s. 334 of the Criminal Code of Canada and liable to a maximum sentence of ten years.
- The Applicant was dealt with fairly and in accordance with the rule of law by the Hungarian court.
- The Applicant has not served his sentence for the commission of the crime in question.
Analysis
[5] The issue before the Board was whether the Applicant was excluded from protection by the operation of Article 1F(b) of the Convention. Article 1F(b) of the Convention is as follows:
|
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
[…]
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee
|
|
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
[…]
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés
|
[6] As the Federal Court of Appeal stated in Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125, [2005] F.C.J. No. 584 at para. 22 (F.C.A.)(QL), the primary purpose of Article 1F of the Convention is to ensure that perpetrators of serious non-political crimes are not entitled to international protection in the country in which they are seeking asylum. This principle is embedded in s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) which provides as follows:
|
A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. |
|
La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
|
[7] Thus, the effect of a Board finding that this Article is applicable to a claimant is that the claimant cannot be found to be a Convention refugee or a person in need of protection pursuant to s. 96 or s. 97 of IRPA.
[8] In Xie v. Canada (Minister of Citizenship and Immigration), 2004 FCA 250, [2004] F.C.J. No. 1142 at para. 23 (F.C.A.) (Q.L.), the Federal Court of Appeal established that an exclusion hearing under Article 1F is not in the nature of a criminal trial where guilt or innocence must be proven by the Minister beyond a reasonable doubt. It is not the Board’s role to establish the actual innocence or guilt of the appellant (see Moreno v. Canada (Minister of Employment and Immigration), 107 D.L.R. (4th) 424, 159 N.R. 210, [1993] F.C.J. No. 912 at para. 21 (F.C.A.) (QL). Rather, the onus upon the Minister of Citizenship and Immigration (the Minister) is to establish, based on the evidence presented to the Board, that there are “serious reasons for considering” that the Applicant committed a serious non-political crime outside of Canada, prior to their arrival in Canada. The standard of evidence to be applied to this threshold test is higher than a mere suspicion but lower than proof on the balance of probabilities standard (see Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761 at para. 174 (F.C.A.) and Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 at 312-314 (F.C.A.)).
[9] The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390, 190 D.L.R. (4th) 128, [2000] F.C.J. No. 1180 (F.C.A.) (QL), discussed how Article 1F was a means of bringing refugee law into line with the basic principles of extradition law, by ensuring that fugitives are not able to avoid the jurisdiction of a state in which they may lawfully face punishment.
Standard of Review
[10] The standard of review to be applied to the decision of the Board concerning Article 1F(b) was dealt with by Justice Décary in Harb v. Canada (Minister of Citizenship and Immigration) 2003 FCA 39, 238 F.T.R. 194 (F.C.A.), where he stated 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. […]
[11] With these principles and the standard of review described above, I turn to the issues raised by the Applicant.
Issue #1: Did the Board err by failing to assess the relevant Hungarian law on the basis of expert testimony?
[12] In the Applicant’s submissions, the Board erred in its assessment of Hungarian law due to the fact that the Board did not rely on expert evidence. The Applicant relies on Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311 at para. 26, 206 D.L.R. (4th) 727, for the principle that findings pertained to foreign law are findings of fact, not law, and as such need to be proved as evidence through the use of expert testimony, in person or via affidavit. The Applicant submits that, in this case, the Minister did not put forward any expert evidence. In the absence of such testimony, the Board erred in making findings on the meaning of the law of Hungary. Further the Applicant submits that it is an error of law for the Board to rely on a mere provision of a document purporting to be the law of Hungary without the truth of its contents being attested to by an affiant expert in Hungarian legal terminology and fluent in English and Hungarian.
[13] As this is primarily a question of law, I will apply the standard of correctness to this issue.
[14] In my view, the Applicant is trying to impose an excessively high burden of proof on the Minister and the Board. I note first that the Board, in making its determination under Article 1F(b), is not attempting to establish guilt or innocence under Hungarian law. Rather, the Board is reviewing all of the evidence to determine whether there are serious reasons for believing that the Applicant has committed a serious non-political crime. The legal rules normally associated with the criminal context do not apply in a refugee context (Lai, above).
[15] In this case, the Board had before it significant evidence that supported its conclusion. The judgment of the court of first instance sets out the relevant provision of the Hungarian law and, of even more importance, a detailed description of the actions that led to the Applicant’s conviction under the law. The Minister, in his submissions to the Board, provided extracts from the Hungarian Criminal Code. The fact that this evidence may fall far short of the standard of proof in criminal cases is of no importance since the issue is not whether the Applicant committed the crime of which he is accused. The issue is whether there are serious reasons for considering that he did. The evidence before the Board is capable of supporting that conclusion. There was no need to “prove” the Hungarian law through expert testimony.
[16] Further, the case of Saini, above, is not relevant to this application. In that case, the main issue was whether Mr. Saini, who was convicted in Pakistan of hijacking an airliner and later pardoned by the Pakistani President, could be deported from Canada on the basis of subparagraph 19(1)(c.1)(i) of the Immigration Act, which, in effect excluded persons who have been convicted of a serious offence outside of Canada. In that context, the Federal Court of Appeal pointed out that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law. The issue of whether the Pakistani pardon had the effect of erasing the crime as a matter of Canadian law was central to the decision. In that context, it is apparent why each party to the hearing presented evidence on the meaning of the applicable Pakistani law. The case before me does not deal with a foreign pardon. Nor was there any dispute at the hearing as to the meaning of the Hungarian law.
[17] I finally note that the Board, as an expert tribunal, is entitled to make findings of fact based on the record before it. There is no need for each and every fact to be proven through expert witnesses.
Issue#2: Did the Board err by finding that the offence of the Applicant was a “serious non-political crime”?
[18] The Applicant submits that the Board erred in finding that the crime for which the Applicant was convicted is a serious crime. The Applicant points out that, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 867, 116 A.C.W.S. (3d) 570, the Court found that drug smuggling was not evidence of “serious criminality” for the purpose of exclusion. Thus, the Applicant submits that it is an error of law to find the charge of theft by force of property of high material value to be a serious non-political crime. As well, the Applicant relies on Knox v. Canada (Minister of Citizenship and Immigration), 71 A.C.W.S. (3d) 122, [1997] F.C.J. No. 530 (F.C.T.D.) (QL), in which the Court found that a theft of $58,000 USD (two sums of $29,000 USD) did not constitute a serious non-political crime.
[19] In my view, the Board’s determination of whether a crime is “serious” is a finding of fact that should be reviewed on a standard of patent unreasonableness. However, even on a standard of reasonableness simpliciter, my conclusion would be the same.
[20] It should be noted that the Applicant is not contesting that the alleged crime, if committed in Canada, would be punishable by a sentence of up to ten years. Committing the offence of theft over $5,000 described in subsection 334(a) of the Criminal Code renders an individual “liable to a term of imprisonment not exceeding ten years.”
[21] The Applicant relies on Knox, above, in which the Board found that the applicant did not commit a serious non-political crime when he conspired to defraud the United States. The first problem with this submission is that the facts in Knox were dramatically different from those before me.
[22] The second problem with this argument is that it ignores the more recent jurisprudence. In Chan, above at para. 9, the Federal Court of Appeal accepted that, “a serious non-political crime is to be equated with one in which a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada.” The ten-year threshold was affirmed by Justice Michael Kelen in Xie v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 372 at para. 34, aff’d 2004 FCA 250, after a careful analysis. Other Courts have endorsed the concept of referring to the penalty provided in Canadian law (see, for example, Medina v. Canada (Minister of Citizenship and Immigration), 2006 FC 62, [2006] F.C.J. No. 86 (F.C.). Accordingly, with the evidence that the crime, if committed under Canadian law, carries a penalty of ten years, the Board had an evidentiary base to conclude that the crime qualified as “serious” within the meaning of Article 1F(b) of the Convention.
[23] The Applicant also relies on Pushpanathan, above, to show that “if drug smuggling has been found to not be evidence of ‘serious criminality’ for the purpose of exclusion, then it is an error of law to find the charge and conviction herein to be such”. I do not agree with the Applicant’s characterization of Pushpanathan. In Pushpanathan, the Supreme Court was dealing with exclusions under Article 1F(a) and Article 1F(c) – not Article 1F(b) (which is the case here). Article 1F(c) states: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that (c) he has been guilty of acts contrary to the purposes and principles of the United Nations”. Consequently, Article 1F(c) does not require “serious criminality”. Thus, in my view, Pushpanathan cannot be of any assistance to the Applicant.
Conclusion
[24] In conclusion, the Board did not err; its decision should stand.
[25] The Applicant suggested that I certify a question to clarify whether Knox is still good law. In light of Xie and Chan, above, the law on how a Board assesses Article 1F(b) has been further refined. Knox, in my view, must be read in the context of its unusual facts and with recognition of the clarifications provided by the more recent jurisprudence. I do not believe that this is a question of general importance.
ORDER
THIS COURT ORDERS that:
- The application is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
_____________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2128-06
STYLE OF CAUSE: BELA TAMAS FARKAS v. MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 6, 2006
REASONS FOR ORDER
AND ORDER: Snider J.
APPEARANCES:
Mr. Peter G. Martin For the Applicant
Ms. Catherine Vasilaros For the Respondent
SOLICITORS OF RECORD:
Peter G. Martin FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada