ALLEGED US HACKER SEEKS REFUGEE STATUS IN CANADA

This is a bizarre story. he will probably not be granted refugee status in the end.

American seeks refuge in Canada claiming persecution because of hacker connections | canada.com

REFUGEE CONVICTED OF CHILD MANSLAUGHTER LOSES BID FOR JUDICIAL REVIEW

See astonishing case below. An unfortunate chain of events lead to the death of a child. A person granted refugee status in Canada with a history of domestic violence and convicted of manslaughter was refused judicial review.

The policy question is why an individual who was convicted of such a serious offence, and who according to the decision still presents a risk to society, should have access to request to remain in Canada? His refugee status protected him from removal unless the Minister conducted an exhaustive review of his case.  Should persons who pose a risk to society have the ability to stall their removal for lengthy periods of time? In this case, six years passed since the offence. You decide.

Clarke v. Canada (Minister of Citizenship and Immigration)

Between Beyan Dunoh Clarke, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 985

2012 FC 910

Docket IMM-7453-11

Federal Court
Winnipeg, Manitoba

O'Reilly J.

Heard: April 16, 2012.
Judgment: July 20, 2012.

(43 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

·       I. Overview

1     In 2008, Mr. Beyan Dunoh Clarke, a refugee from Liberia, was convicted of manslaughter after beating his girlfriend's two-year-old son to death. He was sentenced to 8 years' imprisonment.

2     In 2011, the Minister of Citizenship and Immigration (by a delegate acting on his behalf) found that Mr. Clarke was inadmissible to Canada based on serious criminality, that he presented a danger to the public in Canada, and that he should be removed to Liberia. The Minister's decision weighed the risk that Mr. Clarke presented to Canadians and the risk he faced in Liberia, as well as humanitarian and compassionate factors in Mr. Clarke's favour.

3     Mr. Clarke argues that the Minister's decision was unreasonable because it discounted the risk he faces in Liberia and the favourable humanitarian and compassionate factors in his case. Mr. Clarke also submits that he was treated unfairly because the Minister relied on evidence that had not been disclosed to him. He asks me to quash the Minister's decision.

4     I can find no basis for overturning the Minister's decision. The Minister carried out a detailed analysis of the relevant evidence and balanced the applicable factors. His conclusion was a defensible outcome based on the facts and the law. In addition, the Minister did not treat Mr. Clarke unfairly in arriving at his conclusion; he did not rely on extrinsic evidence.

5     The issues are:

·       1. Was the Minister's analysis of the relevant evidence unreasonable? 

·       2. Did the Minister treat Mr. Clarke unfairly by relying on documents not disclosed to him? 

·       II. The Legal Framework

6     In general, refugees cannot be returned to a place where they risk persecution or other serious mistreatment (Immigration and Refugee Protection Act, [IRPA], SC 2001, c 27, s 115(1) - see Annex for provisions cited). However, that principle gives way when the person is inadmissible to Canada on grounds of serious criminality, and represents a danger to the Canadian public (s 115(2)(a)).

7     In deciding whether the person can be removed from Canada, the Minister must balance the risk faced by the refugee and the danger to the Canadian public (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 126). In order to respect the person's rights under s 7 of the Canadian Charter of Rights and Freedoms, the Minister must also assess whether, on removal, the refugee will likely face a risk to life, liberty or security, and balance that risk against the nature and severity of the person's conduct, the danger to Canadians, and the humanitarian and compassionate considerations in the person's favour (Suresh, at para 76-79; Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, at para 19).

8     In effect, the question to be asked is whether it would be disproportionately harsh to remove the person from Canada, considering the risk to Canadians, the risk of harm facing the person, and the humanitarian and compassionate factors in play. Obviously, there will almost always be some risk of persecution or other harm facing the person if removed from Canada because the person will have already demonstrated a well-founded fear of persecution or a substantial risk of other serious harm in his or her country of origin. Therefore, evidence of risk is not enough on its own to forestall removal if the person is inadmissible on grounds of serious criminality. To remain in Canada, the risks and hardships of removal must outweigh the danger to Canadians.

·       III. The Minister's Decision

9     The Minister concluded that Mr. Clarke was inadmissible to Canada on the basis of his manslaughter conviction. He went on to consider the circumstances of the offence, as well as Mr. Clarke's behaviour, including his previous and subsequent conduct. He then considered the nature of the risk facing Mr. Clarke if removed from Canada to Liberia, and the humanitarian and compassionate factors in his favour.

·       (a) The offence

10     Mr. Clarke lived with his girlfriend, Ms. Georgia Swaray, and her two-year-old son, Alfread. In February 2006, Mr. Clarke yelled at Alfread and beat him with a belt. Alfread suffered bruises on his back and, the next day, was lethargic. Later that month, contrary to Mr. Clarke's instructions, Ms. Swaray fed Alfread while Mr. Clarke was at work. When he arrived home, Mr. Clarke noticed that Alfread had been fed and beat him again until he lay unresponsive on the floor. Ms. Swaray carried Alfread to bed. She did not check on him when she left for work the next morning. Mr. Clarke called her shortly after she left and asked her to return home. When she arrived, Alfread lay dead in the bathtub. Mr. Clarke did not call for assistance.

11     Alfread died of brain trauma. His body was covered in bruises. He showed signs of fasting and dehydration.

·       (b) Mr. Clarke's conduct

12     Mr. Clarke had been charged with domestic abuse in 2005, but those charges were stayed in 2007. It was alleged that he had beaten his then-girlfriend's nine-month-old child.

13     After Mr. Clarke was arrested for manslaughter in relation to Alfread's death, he was released on bail. However, he breached the conditions of his release twice and was convicted of violating his bail restrictions.

14     The Correctional Service of Canada [CSC] assessed Mr. Clarke and found that he was unremorseful for his conduct. He attempted to justify his actions, attributing them, in part, to cultural factors.

15     However, Mr. Clarke wrote a letter of apology to the victim's family for his behaviour. His family, friends and church support him. He completed a number of programs in prison, including one relating to prevention of violence. Still, CSC thought he presented a moderate-to-high risk for re-offending, and a moderate risk to public safety.

16     The Minister reviewed Mr. Clarke's entire record, including all of the submissions that had been made on his behalf. He found the offence of manslaughter to be serious, and expressed strong disapproval of Mr. Clarke's behaviour. Regarding Mr. Clarke's suggestion that cultural differences were at play, the Minister cited the sentencing judge's comments that Mr. Clarke had crossed the line from discipline to abuse "no matter what society you belong to". The victims of Mr. Clarke's crime - Ms. Swaray and her family - had suffered greatly.

17     The Minister concluded that Mr. Clarke continued to minimize the seriousness of his conduct, and that he showed a "grave" risk of re-offending.

·       (c) The Risk to Mr. Clarke in Liberia

18     The Minister acknowledged that the human rights situation in Liberia is poor. Mr. Clarke pointed out that he has nowhere to stay in Liberia and has lost contact with his family there.

19     Mr. Clarke and his family left Liberia in 1999 and moved to Ghana where they lived in a refugee camp. His father had been an opposition politician in Liberia, so the family feared political persecution, as well as ethnic persecution as members of the Mandingo minority.

20     However, things have gotten better in Liberia, including reforms in justice and security, human rights, healthcare and education. Still, challenges remain in policing, the administration of justice, and corrections. Overall, however, things have improved considerably since Mr. Clarke left Liberia. The Minister concluded that there was no serious possibility that Mr. Clarke would face persecution if removed from Canada.

·       (d) Humanitarian and Compassionate Considerations

21     The Minister noted that Mr. Clarke had achieved a Grade 12 education in Canada, and had been gainfully employed at the time of his offence. His father and stepmother are stalwart supporters.

22     Mr. Clarke has two daughters, one with Ms. Swaray and one with another woman. However, he does not maintain a relationship with these children or their mothers.

23     The Minister concluded that Mr. Clarke's degree of establishment in Canada was not substantial, and that his removal from Canada would not cause him significant hardship.

·       (e) Conclusion

24     The Minister concluded that Mr. Clarke was not at risk of persecution or serious mistreatment in Liberia. Because he represented a substantial danger to the Canadian public, he should be removed. The humanitarian and compassionate factors in his favour did not outweigh that danger. Therefore, Mr. Clarke could be removed from Canada without violating his rights under s 7 of the Charter.

V. Issue One - Was the Minister's analysis of the relevant evidence unreasonable?

25     Mr. Clarke argues that the Minister focussed too much on the salacious aspects of his crime and failed to address the real issue: the danger he posed to Canadians in the future. He had no previous convictions, yet the Minister improperly alluded to his "previous dealings with the law," namely, his earlier dropped charges. This caused the Minister to give too much weight to the danger Mr. Clarke posed to Canadians and too little weight to the humanitarian and compassionate grounds in his favour. In fact, while the Minister found that Mr. Clarke posed a "grave" risk of re-offending, the evidence did not support that conclusion. The fact that the offence was serious did not mean the risk of re-offending was grave.

26     As mentioned, the question is whether the person should be removed from Canada notwithstanding the risk of mistreatment he or she may face in the country of origin. In these cases, it can be assumed that there will be some risk to the person because he or she will have already established a case for refugee protection in Canada. Therefore, the Minister must consider the magnitude of that risk, as well as the hardships that removal would create, and balance those considerations against the risk to Canadians if the person were permitted to remain here. A person who has committed a serious crime and presents a danger to Canadians should be removed unless doing so would be disproportionately harsh considering the risks and hardships the person would face on removal.

27     The Minister found that Mr. Clarke would, in fact, not be at risk if he returned to Liberia. He need not have gone that far - the issue is the degree of risk not whether there is no risk. However, I can find no error in the Minister's analysis of the evidence relating to the risk to Mr. Clarke in Liberia.

28     Mr. Clarke points out that hundreds of thousands of people have been killed in Liberia, whereas he has only killed one Canadian. Therefore, on balance, he should be allowed to stay in Canada. He faces a greater risk in Liberia than he presents to Canada.

29     I do not find Mr. Clarke's submission on this point to be persuasive. First, the question is not what has happened in Liberia in the past. (The civil war ended in 2003.) The Minister must assess the current situation and decide whether Mr. Clarke faces a risk of serious mistreatment in the future. Here, the Minister concluded that the current risk to Mr. Clarke is low, and I see nothing unreasonable in the Minister's weighing of the relevant evidence on that issue or his conclusion.

30     Second, the question before the Minister cannot be answered by a comparative body count. The issue is the nature and magnitude of the risk Mr. Clarke faces on his return, as compared to the risk he presents to Canadians. I accept, as did the Minister, that Mr. Clarke may encounter difficulties in Liberia. But he has killed a child here, and presents a risk of doing so again. Those are the factors that must be balanced, not the number of victims of the civil war in Liberia as compared to the number of Mr. Clarke's victims.

31     Mr. Clarke also argues that the Minister was not entitled to take into account the previous charge against him relating to another assault on an infant because that charge was stayed. While the Minister accepted that he could not take account of charges that did not result in a conviction, he noted that Mr. Clarke had had "previous dealings with the law."

32     It is true that the Minister cannot take into account dropped charges. However, he can consider the facts giving rise to those charges because they are relevant to the danger the person poses to Canadians (Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607, at para 35). Here, while the Minister noted Mr. Clarke's "previous dealings with the law" - admittedly an indirect reference to the dropped charges - he relied on the facts and circumstances surrounding those allegations, not the mere fact that Mr. Clarke had been charged. While it might have been better not to use the phrase "previous dealings with the law," the Minister clearly relied on the underlying facts, strikingly similar to the circumstances giving rise to Mr. Clarke's conviction, as he was entitled to do. That evidence was relevant to the issue of danger to Canadians.

33     Regarding the Minister's use of the word "grave" to describe Mr. Clarke's likelihood of re-offending, I note that the CSC's assessment used the words "moderate-to-high". The other evidence showed that Mr. Clarke had beaten a child before, lacked remorse, minimized the severity of his crime, and failed to abide by bail conditions. In the circumstances, I cannot conclude that the Minister's use of the term "grave" to describe Mr. Clark's likelihood of committing another serious crime was out of keeping with that evidence.

34     Finally, Mr. Clarke contends that the Minister gave too little consideration to the humanitarian and compassionate consequences of his removal. In particular, the Minister did not take into account the impact on Mr. Clarke's family.

35     The Minister considered a letter from Mr. Clarke stating that his father and stepmother were wonderful parents. The Minister also mentioned the other family members - Mr. Clarke's two sisters and brother. The only other evidence, which the Minister did not cite, was a letter from Mr. Clarke's father in which he described Mr. Clarke's efforts at rehabilitation, and mentioned his two Canadian-born children.

36     The evidence before the Minister of humanitarian and compassionate considerations in Mr. Clarke's favour was obviously scant. In the circumstances, I cannot fault the Minister's analysis of that evidence. The Minister cited the main evidence. His failure to mention the letter from Mr. Clarke's father was inconsequential in the circumstances.

37     Overall, therefore, I cannot conclude that the Minister's analysis of the relevant factors - risk, danger, and hardship - was unreasonable given the evidence before him. His conclusion fell within the range of defensible outcomes based on the facts and the law.

·       VI. Issue Two - Did the Minister treat Mr. Clarke unfairly by relying on documents not disclosed to him?

38     Mr. Clarke submits that the Minister relied on two documents of which he was unaware. The first was a "Section 44(1) Highlights Report". The second was a "CBSA A44 Narrative Report".

39     In fact, it appears, and Mr. Clarke concedes, that the two documents are the same, but referred to by different titles. Further, the document is contained in the Certified Tribunal Record, as well as the Applicant's Record. Therefore, there appears to have been no lack of disclosure, and no unfairness to Mr. Clarke.

·       VII. onclusion and Disposition

40     I find that the Minister's decision was not unreasonable and that it was not arrived at unfairly. The Minister considered the relevant evidence and the appropriate factors and rendered a defensible decision. In doing so, he did not rely on evidence undisclosed to Mr. Clarke. Therefore, I must dismiss this application for judicial review.

41     Mr. Clarke had sought an extension of time to file his application for leave and judicial review, and no express order has previously been issued in respect of that request. In the circumstances. I will grant the extension of time.

42     Mr. Clarke proposed the following questions for certification:

·       1. Does a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) breach the duty not to consider dropped charges by taking into account the fact that the person concerned had previous dealings with the law? 

·       2. Is a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) entitled to make a finding of a grave risk of reoffending when there is no such finding by any of the authors of the correctional reports or the sentencing judge? 

·       3. Should a Minister's delegate, when considering a danger opinion under Immigration and Refugee Protection Act section 115(2), treat the risk to the person concerned abroad if the person is removed the same as or differently from the risk to Canada if the person is allowed to stay? 

·       4. Does a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) have a duty to consider explicitly the hardship to the family of the person concerned on removal where the evidence is that the family is close knit and mutually supportive? 

·       5. Is the duty of fairness breached by non-disclosure to the applicant of a document the Canada Border Services Agency considered when deciding whether to seek a danger opinion from the Minister of Citizenship and Immigration under Immigration and Refugee Protection Act 115(2) if that document was not considered by the Minister's delegate in issuing the danger opinion? 

43     In my view, none of these questions should be certified. Question 1 does not arise in view of my conclusion that the Minister considered the facts and circumstances surrounding the dropped charge, not the charge per se. Question 2 need not be stated given that the Minister's conclusion was supported by the evidence. Question 3 relates to the balancing of risks, an exercise that is well-established in the case law. This is not a case in which Question 4 should be stated because there was little evidence of hardship to the family before the Minister. Because there was no lack of disclosure, Question 5 does not arise.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. The request for an extension of time is granted; 

·       2. The application for judicial review is dismissed; and 

·       3. No serious question of general importance will be stated. 

O'REILLY J.

* * * * *

Annex

Immigration and Refugee Protection Act [IRPA], SC 2001, c 27

Principle of Non-refoulement

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

·       (2) 

Subsection (1) does not apply in the case of a person 

·       (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Delegate, a danger to the public in Canada; 

Canadian Charter of Rights and Freedoms

PART I OF THE CONSTITUTION ACT, 1982

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

* * *

Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27

Principe du non-refoulement

115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.

·       (2) 

Le paragraphe (1) ne s'applique pas à l'interdit de territoire: 

·       a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada; 

Charte canadienne des droits et libertés

PARTIE I DE LA LOI CONSTITUTIONNELLE DE 1982

Vie, liberté et sécurité

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

INDIAN MILITARY MAN AND FAMILY TRAGIC STORY, CANADIAN CONNECTION

It is interesting that the first thing he did was to flee to Canada. It is also worrisome that Canada took two years to notify India of his presence in the country. Why is a person who is facing murder charges allowed to be in Canada for two years freely and why was not India notified immediately? That is no clear.


Ex-Indian army major takes flight, kills family | Fox News

Ex-Indian army major takes flight, kills family

Published June 16, 2012

| Associated Press

advertisement

SELMA, Calif. – At 6:15 a.m. last Saturday, Avtar Singh dialed 911 from his home in the Central Valley farming town 200 miles north of Los Angeles. He told police he had just killed four people and was about to kill himself. Then the line disconnected.
Selma police found Singh, 47, dead in his living room. His 36-year-old wife and three-year-old son were dead in a bed in the master bedroom. His 17-year-old son lay dead in his bedroom. A third son, 15 years old, was barely alive in another room and later died. All had been shot in the head.
The burst of bloodletting that wiped out Singh's family in their modest one-story house marked the end of a nine-year evasion of authorities for a once-feared military officer from India. Accused of murdering a human rights lawyer in his homeland, Singh took flight, living briefly in Canada, then the United States, building a family and a small trucking business along the way.
The two governments eventually found out about his past. But Singh stayed one step ahead of halting efforts to return him to India to face justice. He managed to stay free despite worldwide Interpol notices that he was wanted for murder, despite his arrest by U.S. immigration authorities for being here illegally and despite his prosecution by local authorities for domestic violence.
Even so, his family's immigration problems, strained finances and fears he would face extradition to India were weighing heavily on him, an associate said.
"When you look back on it, there were tell-tale signs," said Charles Stephens, a Fresno immigration consultant who assisted Singh with the family's asylum case. "He was basically on edge, anxious."
During the last year, Singh's past caught up with him.
In 2011, he was arrested after his wife said he choked her, and police discovered Singh was a former Indian Army major who was wanted for the 1996 killing of Jalil Andrabi, a lawyer and prominent human rights advocate in the disputed Himalayan region of Indian-controlled Kashmir.
Singh was posted to Kashmir in the 1990s, at the height of protests in the region, where rebel groups were fighting Indian security forces for independence or a merger with Pakistan.
Andrabi was abducted in 1996, just before he was to leave for Geneva to address a United Nations session about human rights violations by Indian forces in Kashmir.
He was picked up by Indian troops, tortured, and killed, according to a police investigation. His body was recovered in a river — shot in the head with eyes gouged out.
Singh was charged with Andrabi's killing. The probe also accused him of involvement in six other deaths.
Despite the charges, Singh was posted by the army to another region in India. A judge directed the Indian government to confiscate Singh's passport and not issue another one, but Singh fled India for Canada in 2003.
The Singhs lived in Canada with family relatives for two years and applied for asylum, but their claim was denied, according to Singh's U.S. asylum documents provided to The Associated Press by his immigration consultant.
Canadian authorities let Indian officials know Singh was living in Canada in 2004, according to court documents obtained by Andrabi's attorney, Hafizullah Mir, and shown to the AP.
After his cover was blown, Singh and his family crossed illegally into the U.S. and settled in Fresno County, where Singh filed an asylum case for himself in 2011.
"He told me, 'My job in India was to eliminate terrorists who were against the Indian government. I was good at that, they never found the bodies when I did it,' " said Stephens, Singh's immigration consultant.
In his asylum application, Singh said he did not kill Andrabi, but knew who did. "I am being made a scapegoat," he said, adding that he would be killed if he returned to India.
Singh lived quietly in California initially, working at a truck wash and at a sandwich shop. He eventually started a trucking business — he owned five tractors and trailers — which he named Jay Truck Lines, after his third son, a U.S. citizen.
"He was so nice with everyone, with our community. And he was very good to his wife and children," said Balvir Singh Grewal, who worked as a driver for Singh. "I never saw him angry."
Community members in Fresno said Singh did not hide that he was an Indian army major — but he omitted the salient detail that he was wanted for murder in his homeland.
"We don't go anywhere. We don't have outings or a happy life. We are fearful," Singh's wife told a social worker in March in preparing for an asylum claim.
Singh, working as a truck driver in 2007, was detained by immigration agents in Iowa. Immigration and Customs Enforcement had received an anonymous letter stating Singh may have committed fraud to obtain legal status in the United States, said ICE spokeswoman Virginia Kice.
At the time, Kice said, ICE did not know about Singh's murder charges in India. While he was placed in removal proceedings, Singh was released on a $4,000 bond.
Two years later, India requested that Interpol issue a so-called "red notice" that Singh was wanted in India.
When Singh resurfaced in Selma in the domestic violence case in 2011, Interpol in Washington passed the message of Singh's whereabouts to Interpol in India, said agency spokeswoman LaTonya Miller.
Interpol Washington officials said the U.S. does not consider an Interpol notice alone to be a sufficient basis for the arrest and detention of a person.
So Singh bailed out of jail on the felony domestic violence charges. He pleaded no contest to a misdemeanor of false imprisonment, and was sentenced to three years of probation and a 52-week batterer's treatment program, said Sonia De La Rosa, spokeswoman for the Fresno County District Attorney's Office.
In March 2011, immigration agents in Fresno were notified about the Interpol notice.
But, because Avtar and Singh are common names in India, ICE officials said, the agency tried contacting India through Interpol to obtain fingerprints and crime reports that would corroborate that the Singh residing in Fresno was the same person being sought for the Kashmir murder.
The Indian government did not respond to repeated inquiries, said Kice of ICE.
"Given the unresolved issues surrounding Singh's identity and possible role in a serious human rights crime, last year ICE attorneys in San Francisco moved to administratively close his removal proceedings — putting the deportation process on hold — until the outstanding evidence could be obtained," she said.
Indian officials have not responded to repeated requests from the AP about why they never sought to extradite Singh.
Investigators are still trying to determine what pushed Singh to kill his family and himself.
Grewal, Singh's truck driver, said he spoke with Singh by phone about 30 minutes before he shot his wife and kids. "He told me to pick up a load in Iowa. He was very nice. I don't know what happened, I was completely surprised."
_________
Associated Press writer Aijaz Hussain in Srinagar, India, contributed to this report.

DIPLOMAT'S REFUGEE STATUS REVERSED AMID MISAPROPRIATION ACCUSATION

I was quoted extensively in the national Post story below:

Diplomat accused of fraud in El Salvador loses bid to stay in Canada News National Post

Diplomat accused of fraud in El Salvador loses bid to stay in Canada

Adrian Humphreys

Nov 29, 2011 – 11:21 PM ET Last Updated: Dec 1, 2011 12:26 PM ET

A senior diplomat from El Salvador accused of squandering his government’s money — most of which was supposed to pay rent on its consulate in Vancouver — has had his refugee status in Canada withheld, with the Federal Court of Canada declaring fear of returning home to face trial for serious, non-political crime is not political persecution.
Joaquin Roberto Meza Delgado spent his professional life advocating for his Central American homeland as a minister of public works, head of a political party, former ambassador to the United Nations and, until 2006, the consul general in Vancouver.
He now wants to steer clear of it, fighting to remain in Canada with his wife and daughter after allegations he misappropriated US$60,000.
His efforts received a blow last week when a Federal Court decision reversed the decision by the Immigration and Refugee Board, finding errors of fact and law and blasting the board for losing key evidence on which its adjudicator based her decision.
Mr. Meza Delgado’s diplomatic posting in Canada started brightly with him opening the Vancouver consulate in 2001.
In 2004, the diplomatic post’s financial records were audited by the Court of Accounts, El Salvador’s comptroller’s office, and the following year revealed deficiencies.
In 2006, three Salvadoran newspapers reported accusations against Mr. Meza Delgado over the financial problems. He was accused of defrauding the government of US$49,000 by misrepresenting rents paid by the consulate; failing to remit about US$12,000, some of which was covered up with altered receipts; and overcharging Salvadoran citizens for consular service.
Mr. Meza Delgado said the accusations were politically motivated because they were made public during an election. He was not charged over the financial irregularities, nor was there a request for his extradition, according to court documents.
He said he would not receive a fair trial in El Salvador and his life would be in danger.
After the diplomat claimed refugee protection in Canada in 2006, the Canadian government argued before the IRB he was ineligible as someone believed to have engaged in serious, non-political crime.
The IRB did not agree he was excluded, questioning the credibility of the allegations, but dismissed his refugee claim nonetheless, finding the family did not have well-founded fear of persecution.
Mr. Meza Delgado appealed the decision to the Federal Court and, in 2009, Justice John O’Keefe overturned it, sending it back for a fresh IRB hearing.
The new IRB panel accepted Mr. Meza Delgado as a refugee. Ottawa, reiterating concern over criminal allegations, appealed this decision.
Last week, Justice Michel Shore, overturned the second IRB decision, sending it back for a third hearing by the IRB. He decried that much of the evidence relied on by the IRB had gone missing, making the case a “Kafkaesque situation.”
The former diplomat is disappointed with the latest twist
“It is very frustrating for my client,” said Mr. Meza Delgado’s Vancouver lawyer, Craig Costantino, in an interview. “They had two hearings where they accepted what he said about he nature of the allegations, that they were political motivated and not properly founded — so it is really frustrating for him, five years later, to go back a third time.”
The case suggests a problem in the refugee system, said Sergio Karas, a Toronto immigration lawyer and Past Chairman of the Ontario Bar Association’s Citizenship and Immigration Section.
“This case highlights the need for reform of our refugee determination system so persons accused of serious non-political crimes do not use the refugee system as a means to escape due process of law, or to thwart extradition,” he said.
“Refugee status should not be viewed as insulation from justice, nor as carte blanche to use Canada as a sanctuary.”
The IRB declined to comment on the specifics of the case, as it does in all refugee cases, said Melissa Anderson, an IRB spokeswoman.
Messages left with the embassy of El Salvador in Ottawa and its consulates in Vancouver and Toronto were not returned Tuesday.
National Post

COURT NOT AMUSED IN CASE OF ASYLUM FORUM SHOPPER

Note the language of the court in this case, the judge is not amused with either the actions of the refugee claimant which he describes harshly, nor with he apparent incompetence of the authorities which failed to determine if his asylum status in Denmark was still valid.

Valaei-Bakhshayesh v. Canada (Minister of Citizenship and Immigration)

Between


Ahad Valaei-Bakhshayesh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1391

2011 FC 1130

Docket IMM-7032-10

 Federal Court
Toronto, Ontario

Harrington J.


Heard: September 13, 2011.
Judgment: October 4, 2011.

(30 paras.)

·       REASONS FOR ORDER AND ORDER

1     HARRINGTON J.:-- Mr. Valaei-Bakhshayesh, an Iranian citizen, came to Canada in 2004 to seek refugee status; not that he feared persecution should he be returned to Iran, but rather that he feared persecution should he be returned to Denmark. Thus became a blatant attempt to asylum shop, an attempt which is not yet over.

2     As an Iranian, he was declared ineligible by the Immigration and Refugee Protection Board of Canada [IRB] to claim refugee status because he had already been accorded that status in Denmark. He then applied for a pre-removal risk assessment [PRRA] on the basis he should not be returned to Denmark because of then current conditions. That decision was negative, and his application for leave and judicial review thereof was dismissed.

3     He then claimed to have lost status in Denmark due to prolonged absence from that country. He applied for and was given a second PRRA, this time in relation to Iran. That assessment was also negative. He applied for and obtained leave to have that decision judicially reviewed. This is that review.

4     Although I shall grant judicial review, there are many disturbing elements and gaps in the record. The matter shall be referred back for re-determination in accordance with the directions set out herein. To put this matter in context, a timeline would be helpful.

TIMELINE

1979-1984

5     Mr. Valaei-Bakhshayesh served in the Iranian Air Force.

1979

6     The Shah of Iran was deposed.

1984

7     Mr. Valaei-Bakhshayesh left Iran for Turkey, allegedly because he could no longer accept the policies of the new regime. Unable to obtain status in Turkey, he was directed to Denmark by the United Nations High Commissioner for Refugees. He was found to be a Convention refugee and eventually became a permanent resident of Denmark.

24 March 2004

8     Mr. Valaei-Bakhshayesh arrived in Canada and sought refugee status.

22 November 2006

9     Two-and-a-half years later, he was found ineligible to claim refugee protection in accordance with section 101(1)(d) of the Immigration and Refugee Protection Act [IRPA]. That section provides that a claimant is ineligible to be referred to the Refugee Protection Division of the IRB if he has been recognized as a Convention refugee by another country "and can be sent or returned to that country". [My emphasis.]

10     The record does not indicate that he applied for leave and judicial review of that decision.

27 April 2009

11     Another two-and-a-half years later, a negative PRRA decision was issued with respect to Denmark.

27 November 2009

12     Mr. Valaei-Bakhshayesh's application for leave and judicial review of the negative PRRA was dismissed.

16 October 2010

13     He sought and obtained a second PRRA based on a potential return to Iran. That assessment was also negative and is the subject of this judicial review.

THE NEGATIVE PRRA

14     As a stand-alone decision, I hold the assessment to be unreasonable. The basis of the application was Mr. Valaei-Bakhshayesh's bold assertion in an affidavit that he has lost permanent resident status in Denmark, and that he would be at risk in Iran. The officer stated: "the evidence before me does not support that the applicant has attempted to determine whether avenues of recourse are available to him regarding the re-instatement of his Danish permanent residency." With respect, there is no hard evidence that Mr. Valaei-Bakhshayesh lost his permanent resident status in Denmark in the first place or even if so, that he has lost his status there as a Convention refugee.

15     Nevertheless, the officer went on to assess the risks facing Mr. Valaei-Bakhshayesh should he be returned to Iran.

16     At the heart of the officer's decision was her finding that there is no evidence that Mr. Valaei-Bakhshayesh is being sought by the Iranian authorities. While that finding is reasonable (the standard of review being reasonableness -- Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190), it is not the question which should have been asked. No doubt he has been out of sight and out of mind of the Iranian authorities for more than 25 years. The question is how would Mr. Valaei-Bakhshayesh, a successful refugee, be treated on return? That analysis was not really done. He claims that he would be persecuted because he joined the Air Force while the Shah of Iran was still in power. Assuming he was at risk in 1984, he may or may not have been at risk when the PRRA decision was rendered in 2010. It seems to me that the Iranian regime of 1984 should have been compared with the regime of 2010.

17     As a result, I find the decision unreasonable.

DISCUSSION

18     In November 2006, the IRB held that Mr. Valaei-Bakhshayesh was ineligible for consideration in Canada as a Convention refugee because he had been recognized as such in Denmark and could be returned to that country. He asserts that this is no longer the case due to his prolonged absence from Denmark. If that assertion is true, the situation is of his own making. In any event, all Mr. Valaei-Bakhshayesh says is that he lost his status as a permanent resident. He does not state one way or another whether he lost his status as a Convention refugee.

19     Unfortunately, the 2006 decision of the IRB is not in the record before me. However, it is common ground between the parties that the ineligibility decision was based on section 101(1)(d) of IRPA, rather than section 98 which provides that a person referred to in Article 1E of the U.N. Convention is neither a Convention refugee nor a person in need of protection. Article 1E thereof provides that the Convention does not apply to a person recognized in the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. The focus in section 101, unlike section 98, is on refugee status, not permanent residency, or nationality, status.

20     Mr. Valaei-Bakhshayesh should not have been allowed a second PRRA without his status in Denmark being clarified. The questions which should be put to the Danish authorities are both whether he has lost his permanent status there, and whether he has lost his status as a Convention refugee and would not be permitted to return.

21     It may well be that the PRRA with respect to Iran, and the judicial review thereof, is moot. For instance, in the case of a refugee claim by someone with dual nationality if it is found that the applicant is not at risk in one country, it is not necessary to assess the second country.

22     If due diligence was carried out by the authorities, there is no indication thereof in the record. I see a potential for great mischief. Suppose it had been held in the PRRA under review, or may be held in the new PRRA I have ordered, that Mr. Valaei-Bakhshayesh would be at risk of persecution were he to be returned to Iran. Would that mean that he would be entitled to remain in Canada even though it may well be that he is entitled to return to Denmark? What if a new PRRA, like the current PRRA, determines that he would not be at risk in Iran? If he is entitled to return to Denmark, there has been a considerable waste of time, resources and money. Consequently, the second PRRA must begin with an analysis of his right, if any, to return to Denmark. If he can return, that is the end of the matter.

23     There are a number of cases which are not precisely on point, but which nevertheless underscore the rationale behind IRPA.

24     In Canada (Minister of Citizenship and Immigration) v Zeng, 2010 FCA 118, 402 NR 154, the Court of Appeal wrestled with a decision based on section 98 of IRPA and the Article 1E exclusion clause. The applicants, Chinese citizens, enjoyed permanent resident status in Chile, a status which they alleged they lost.

25     In speaking for the Court, Madam Justice Layden-Stevenson pointed out at paragraph 19 that "asylum shopping is incompatible with the surrogate dimension of international refugee protection." The Minister had argued that the refugee claim process is not intended to provide a route to better protection when there is existing and available protection elsewhere. One concern in that case was that if Article 1E was applied to asylum shoppers who could not return to the third country, the potential for removal from Canada to the home country without the benefit of a PRRA would exist. If this were to occur, Canada might run afoul of its international obligations.

26     However, in this particular case, Mr. Valaei-Bakhshayesh was provided not with just one, but with two PRRAs.

27     Mindful that the case dealt with Article 1E of the U.N. Convention, rather than section 101 of IRPA, the decision of Mr. Justice Rothstein, as he then was, in Mohamed v Canada (Minister of Citizenship and Immigration), 127 FTR 241, [1997] FCJ No 400 (QL), illustrates the underlying philosophy of international protection. In that case, the applicant's refugee claim in Sweden had been rejected but nevertheless she had been granted permanent resident status there on humanitarian grounds. Even so, she sought protection in Canada because she claimed to have abandoned Sweden as her domicile and lost her permanent resident status. Mr. Justice Rothstein said at paragraphs 8 and 9:

·       [8] Applicants' counsel makes the argument that the applicants' status in Sweden is subject to expiry. Therefore they do not have the right of a national envisaged by section E of Article 1 of the Convention. However, the evidence is that having been granted permanent residence status in Sweden, it is only the certificate that must be periodically renewed. There is no evidence that permanent residence status in Sweden is subject to some form of arbitrary cancellation. 

·       [9] This case raises the disturbing question of asylum shopping. If applicants' counsel were correct in his domicile argument, applicants could, at their own will, reject the protection of one country by unilaterally abandoning that country for another. Indeed, that is what has occurred here. The Geneva Convention exists for persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind. 

28     Mohamed was relied upon by Mr. Justice Mosley in Wangden v Canada (Minister of Citizenship and Immigration), 2008 FC 1230, [2008] FCJ No 1541 (QL), appeal on a certified question dismissed, 2009 FCA 344, [2009] FCJ No 1540 (QL). It was held that the applicant was ineligible to make her refugee claim in Canada pursuant to section 101(1)(d) of IRPA, the same section which is in play in the case at hand.

29     Another instructive decision is that of Wassiq v Canada (Minister of Citizenship and Immigration), 112 FTR 143, [1996] FCJ No 468 (QL). That case dealt with Afghani applicants who had been granted refugee status in Germany. Ten years later they came to Canada and argued that their German residency permits had expired. As Mr. Justice Rothstein stated:

·       [10] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La Forest, J. notes at page 726: 

·       Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already. 

·       I would observe that if, by reason of their absence from Germany and sojourn in Canada, the applicants are, in effect, entitled to renounce the protection they received from Germany and claim protection from Canada, such a result is anomalous. In substance, it gives persons who have Convention refugee status in one country the right to emigrate to another country without complying with the usual requirements, solely by reason of their unilateral renunciation of the protection initially given to them by the first country. In effect, this means that they can "asylum shop" amongst countries who are signatories to the Geneva Convention and "queue jump" normal immigration waiting lists to the country of their choice. If this is the case, the applicants, who resided in Germany for ten years, may simply abandon Germany for Canada. They would have greater rights to emigrate to Canada than persons of German nationality. That is neither fair nor logical. 

CERTIFIED QUESTION

30     A draft of these reasons was circulated to the parties so as to give the Minister the opportunity to propose a serious question of general importance for certification. Counsel has informed the Court that the Minister does not propose a certified question, and none shall be certified.

ORDER

FOR REASONS GIVEN;

THIS COURT ORDERS that:

·       1. The application for judicial review is granted. 

·       2. The decision rendered by the pre-removal risk assessment officer is set aside and the matter is referred back to another pre-removal risk assessment officer for redetermination. 

·       3. There is no serious question of general importance to certify. 

HARRINGTON J.