Date: 19990423
Docket: IMM-2154-98
BETWEEN:
SAN TONG CHAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MACKAY J.
[1] The applicant seeks judicial review of a decision by the Convention Refugee Determination Division (the "CRDD"), rendered with written reasons on May 27, 1998, whereby the panel concerned determined the applicant not to be a convention refugee. That decision was based on the panel's determination, as a preliminary issue, that the applicant was not a Convention refugee pursuant to the definition in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), since he was excluded by the terms of that definition. The definition specifically excludes "any person to whom the Convention [i.e., The United Nations Convention Relating to the Status of Refugees, as identified in the Act] does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.". By that schedule section F of Article 1 of that Convention provides
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
| (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; |
| (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; |
| (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
[2] The CRDD decision in question here was made with reference to an application for Convention refugee status by the applicant after his arrival in Canada in 1996. This was his second entry to Canada and his second refugee claim. The first of those claims, filed in 1988, was not dealt with when, some years ago, he left Canada for the United States. While there illegally, he was convicted in 1992 upon pleading guilty to having committed the offence of illegal use of a communication facility, contrary to Title 21 of the United States Code, s. 843(b), an offence defined in connection with offences relating, inter alia, to trafficking or distribution of narcotics. That conviction, in California in 1992, was entered after a plea bargain following the applicant's arrest as a result of an investigation concerning illegal drug trafficking. He was sentenced to 14 months imprisonment with credit for time served and upon release, for a term of 3 years under supervision, and on his agreement to be deported to China, his country of origin, without contest. Upon his release he was deported from the United States. In 1996 he arrived in Canada again and filed the refugee claim that gives rise to this proceeding.
[3] His conviction in 1992 in the United States was the principal factor giving rise to the question for preliminary consideration by the CRDD, raised on intervention on behalf of the Minister. The panel did not find credible the applicant's explanation of the circumstances surrounding that earlier offence, in California.
[4] In its decision the panel stated, in part,
| I am mindful too that the threshold of proof with respect to exclusion cases is lower than a balance of probabilities, referring to the words "serious reasons for considering". |
| Now, I do also find that irrespective of the named title of the offence, it is clearly related to trafficking in a substantial amount of a very serious, dangerous narcotic, heroin. We have in Exhibit 4 excerpts from section 843, and it is useful on a review of that to clearly link the offence with, indeed, the trafficking in drugs. I can infer, and indeed do infer, that the named offence, that is, illegal use of a communication facility, is so named because of bargaining in the event of a guilty plea, wherein the claimant may have been convicted of a lesser offence. |
[5] The decision then refers to the Court of Appeal decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.). In that decision the Court upheld a finding that an applicant who had been found guilty of drug trafficking could be excluded from status as a Convention refugee under Article 1F(c) as one guilty of acts contrary to the purposes and principles of the United Nations. In this case the CRDD followed that decision and went on to add that in the alternative the applicant was excluded under Article 1F(b) as one who had committed a serious non-political crime outside of Canada prior to his arrival here on the second occasion when he claimed refugee status.
[6] Soon after the decision of the CRDD was rendered, the Supreme Court of Canada overturned the decision of the Court of Appeal in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. That Court held that drug trafficking offences were not included in Article 1F(c).
[7] When this matter came on for hearing it was conceded on behalf of the respondent that the CRDD decision, insofar as it was based on Article 1F(c) of the Convention, could no longer be supported in view of the decision of the Supreme Court in Pushpanathan. It was agreed that the issue of significance before this Court was the finding by the panel that the applicant was excluded, under Article 1F(b) of the Convention, from consideration as a refugee claimant.
[8] For the applicant it is urged that the panel erred in its determination that he is excluded from Convention refugee status pursuant to s. 2(1) of the Act and Article 1F(b) of the Convention on the grounds that he committed a "serious non-political crime" by his conviction for the unlawful use of a communication facility in connection with an offence involving drugs. It is pointed out that he was not convicted of trafficking in drugs or of possession of drugs.
[9] For the respondent it is urged that the CRDD did not err in relying upon Article 1F(b) in these circumstances which, it is urged, must fully be taken into consideration in assessing whether the offence which the applicant committed could be considered a "serious non-political crime" within that article. The circumstances here were that the offence for which the applicant was convicted, upon a plea bargain arrangement, while referred to as unlawful use of a communication facility, was an offence defined in the U.S. Code, Chapter 21, concerning Drug Abuse Prevention and Control, for knowingly or intentionally using a communication facility in committing or facilitating commission of a felony under the statute, in this case trafficking in narcotic drugs. The applicant's arrest, leading to his conviction on a plea bargain, was made as a result of an investigation into trafficking in narcotic drugs, a substantial volume of which, with a very high street value, was seized, and the applicant and one or more of those engaged with him in apparent movement of the drugs involved, were arrested. Upon his conviction he was sentenced to 14 months in prison including time served, and three years supervision thereafter, a significant penalty reflecting the seriousness of the offence. Upon his release he was deported from the United States to his country of origin, China.
[10] In Pushpanathan Mr. Justice Bastarache for the majority of the Supreme Court of Canada made reference to Article 1F(b) as an aid to his determination that Article 1F(c) did not include conspiracy to engage in drug trafficking. While his comments on Article 1F(b) are obiter in Pushpanathan, they warrant repetition here. He said in part, at pp. 1033-1034,
| It is also necessary to take account of the possible overlap of Article 1F(c) and F(b) with regard to drug trafficking. It is quite clear that Article 1F(b) is generally meant to prevent ordinary criminals extraditable by treaty from seeking refugee status, but that this exclusion is limited to serious crimes committed before entry in the state of asylum. Goodwin-Gill, supra, at p. 107, [G. S. Goodwin-Gill, The Refugee in International Law (2nd ed. Oxford: Clarendon Press, 1996)] says: |
| With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. |
| The parties sought to ensure that common criminals should not be able to avoid extradition and prosecution by claiming refugee status. Given the precisely drawn scope of Article 1F(b), limited as it is to "serious" "non-political crimes" committed outside the country of refuge, the unavoidable inference is that serous non-political crimes are not included in the general, unqualified language of Article 1F(c). Article 1F(b) identifies non-political crimes committed outside the country of refuge, while Article 33(2) addresses non-political crimes committed within the country of refuge. Article 1F(b) contains a balancing mechanism in so far as the specific adjectives "serious" and "non-political" must be satisfied, while Article 33(2) as implemented in the Act by ss. 53 and 19 provides for weighing of the seriousness of the danger posed to Canadian society against the danger of persecution upon refoulement. This approach reflects the intention of the signatory states to create a humanitarian balance between the individual in fear of persecution on the one hand, and the legitimate concern of states to sanction criminal activity on the other. The presence of Article 1F(b) suggests that even a serious non-political crime such as drug trafficking should not be included in Article 1F(c). This is consistent with the expression of opinion of the delegates in the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), Vol. III, at p.89. |
[11] In Pushpanathan, Bastarache J. also determined that the standard of review in considering a decision on a question of law by the Refugee Board, as in that case a decision to exclude a person from refugee status under Article 1F(c) of the Convention, is a determination, of abstract principle with wide application, to which a correctness standard applies. In my view that same standard is appropriate in review of the decision in this case by the CRDD.
[12] In my opinion the panel was correct in its determination that in the circumstances of this case the applicant was excluded by reason of Article 1F(b) as having committed a serious non-political crime outside the country of refuge (Canada) prior to his admission as a refugee claimant. That determination was made in light of the circumstances of the offence committed by the applicant. In this regard the panel's decision includes the following (at p. 3):
| Now, the claimant is linked to this information set out in the conviction, particularly by his admission of it today and by a fingerprint comparison performed by the FBI, U.S. Department of Justice in a statement sent to the Citizenship and Immigration office in Vancouver, a copy of which is found in Exhibit 4. Further in Exhibit 4, there is a personal history statement of the claimant, and I quote the actual drug quantity documented: |
| On 11/17/92 approximately 700 grams of No. 4 SEA heroin was delivered/seized from Chan, San Tong as he delivered the heroin to an undercover agent and SR3-92-0082 in Room 256 of the Best Western El Rancho Inn, Millbrae, California. |
| Moving on from this quote, the laboratory revealed that normally heroin of this sort is between 80 per cent and 90 per cent pure. |
| The report of the investigation, contained in six pages concerning this transaction, is worth reviewing carefully. It is a detailed record of the times and involvements of the parties, both the police officers and the claimant and his colleagues at the time. I will just refer to some facets on the day in question. At 1:03, the claimant's colleague, Ma, was seen to have arrived in a Buick and was seen to be waiting, moving his car about the parking-lot of the Best Western Inn. As I understand it, at that time already the undercover agent, Tse, was in Room 256. At 1:35 p.m. the claimant arrived carrying a handbag under his left arm, entered the Buick and sat behind Ma. Two minutes later Ma exited the Buick with a white plastic shopping bag. A minute later Ma placed this bag on the table in Room 256, took out a square brick, though apparently the claimant, Chan, was not inside the room. But Ma took out a square brick with the undercover agent, and shortly thereafter the parties, including the claimant, were arrested. The brick proved to be 882.46 grams of suspected heroin, later confirmed indeed to be heroin. The inference that I draw from this report of the investigation is strongly that Ma waited for Chan to deliver this quantity of narcotic to Ma, who then took it into the room to deliver to the undercover agent. |
| ... |
[13] In my opinion the CRDD was correct in concluding that in the circumstances of this case, while the applicant's conviction was for unlawful use of a communication facility, that conviction arose out of an offence involving serious drug trafficking in which the applicant and at least one other person were involved. True, he was not convicted of drug trafficking but rather of the offence of using communication facilities in connection with drug trafficking.
[14] In the decision of the Supreme Court in Pushpanathan, both in the majority decision by Bastarache J. and in the minority dissenting opinion of Cory J, there is substantial review of concern, both national and international, about the serious criminal nature of narcotic drug trafficking. In my view it requires no separate analysis here to support the conclusion that the CRDD was correct in the circumstances of this case in finding, implicitly that an offence associated with narcotic drug trafficking is a serious non-political crime, and that the applicant was excluded from consideration of his claim to refugee status because of Article 1F(b) of the Convention.
[15] I turn to another matter raised by the applicant in this application for judicial review, that is, the submission that the CRDD erred in law in relying upon the applicant's criminal record in Canada when he was first here in the 1980s as one basis for its conclusion that his explanation of the events giving rise to his conviction in California in 1992, given to the CRDD panel whose decision is here in question, was not credible. I agree that in this case reliance upon that earlier criminal record, which did not apparently involve drug-related offences, is not relevant to an explanation of the subsequent criminal conviction elsewhere. But that is not the only basis on which the panel found the applicant's explanation not to be credible. Its decision also refers to specific aspects of the applicant's explanation which were not accepted as plausible, and reasons for that are stated. There is no basis to intervene in relation to the CRDD decision insofar as it concluded that aspects of the evidence of the applicant were not credible.
Conclusion
[16] In the circumstances an Order goes dismissing the application for judicial review.
[17] After conclusion of the hearing, counsel for the applicant raised with the registrar, written questions for consideration pursuant to s-s. 83(1) as serious questions of general importance for consideration by the Court of Appeal. I directed, through the registry, that the respondent have opportunity to comment in writing on those questions proposed and to advise counsel for both parties that I would consider written submissions relating to questions under s. 83(1). Those submissions have now been received and considered.
[18] In my view, not all of the questions proposed are appropriate for consideration under s-s. 83(1). In view of the decision of the Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), a question certified "must be one which in the opinion of the motions judge, transcends the interests of the immediate parties ... and contemplates issues of broad significance or general application ... but it must also be one that is determinative of the appeal".
[19] I note that the issue of determining that a drug related offence committed abroad falls within Article 1F(b) was considered by my colleague Mr. Justice Gibson in Malouf v. Canada (Minister of Citizenship and Immigration), (1994) 86 F.T.R. 124 reversed on other grounds (1995) 190 N.R. 230 (F.C.A.). In that case the questions here proposed for certification by counsel did not include any of those proposed.
[20] After review of the submissions of counsel I certify the following questions as serious questions of general importance that, in my view, are appropriate for consideration by the Court of Appeal, if an appeal be initiated.
| Where the Convention Refugee Determination Division determines that a conviction for a crime, prior to the admission to Canada of one who claims refugee status, is evidence of the commission of a serious non-political crime within Article 1F(b) of the United Nations Convention as incorporated in the Immigration Act, R.S.C. 1985, c. I-2 as amended, by s-s 2(1) defining "Convention refugee" and the schedule to the Act, |
| (i) Is that determination subject to judicial review on the standard of "correctness"? |
| (ii) If so, is the determination correct that conviction abroad for a crime, such as unlawful use of telecommunication equipment, committed in connection with trafficking in narcotic drugs, with a resulting penalty of significant incarceration, constitutes a serious non-political crime within Article 1F(b) of the Convention, and thus of the Act? |
"W. Andrew MacKay"
Judge
TORONTO, ONTARIO
April 23, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2154-98
| STYLE OF CAUSE: SAN TONG CHAN |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, APRIL 13, 1999
PLACE OF HEARING: VANCOUVER, BC
REASONS FOR JUDGMENT BY: MacKAY J.
DATED: FRIDAY, APRIL 23, 1999
APPEARANCES: Mr. Milan Uzelac
For the Applicant
Ms. Sandra Weafer
For the Respondent
SOLICITORS OF RECORD: Milan Uzelac Law Offices
Barristers & Solicitors
Suite 202- 938 Howe St.
Vancouver, BC
V6Z 1N9
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990423
Docket: IMM-2154-98
Between:
| SAN TONG CHAN |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER