Docket: IMM-2880-11
Citation: 2012 FC 191
Ottawa, Ontario, February 9, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ADOLFO MARTINEZ CUERO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Adolfo Martinez Cuero grew up in Colombia, but lived in the United
States
from 1987 to 2003. He returned to Colombia to support his ill father and was
targeted for extortion for the wealth he was perceived to have acquired in the US. He tried to
open a business in Colombia but was accused of being an informant. He fled
once again to the US in 2004, lived there until 2008, and then left
for Canada where he
made a refugee claim.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Cuero’s claim on the basis
that he was excluded from protection for having committed a serious,
non-political crime in the United States. In 1991, Mr. Cuero was
convicted of trafficking in cocaine. In Canada, the maximum
punishment for that offence would be life imprisonment.
[3]
Mr.
Cuero argues that he has been rehabilitated since he committed the crime. However,
the Board concluded that rehabilitation was not a relevant consideration – the
sole question before it was whether Mr. Cuero had been convicted of a crime
that could be characterized as a “serious, non-political crime”. That required
an evaluation of the elements of the crime, the mode of prosecution, the
penalty prescribed, the facts, and the mitigating and aggravating circumstances
underlying the conviction.
[4]
The
Board accepted that Mr. Cuero had a clean record, and has worked hard to make a
contribution to society and his family. However, the issue it had to consider
was the nature of the crime, not the behaviour of the applicant after the
offence.
[5]
Mr.
Cuero argues that the Board erred by failing to consider rehabilitation as a
factor in determining whether he was excluded from refugee protection. He asks
me to overturn the Board’s decision and order another panel to reconsider his
application.
[6]
I
can find no basis on which to overturn the Board’s decision and must,
therefore, dismiss this application for judicial review. The Board correctly
concluded that rehabilitation is not a relevant factor in determining whether a
refugee applicant is excluded on the basis of a serious, non-political crime.
[7]
The
sole issue is whether the Board erred in refusing to consider the issue of
rehabilitation.
II. Did the Board err in
refusing to consider Mr. Cuero’s rehabilitation?
[8]
Mr.
Cuero submits that the Board’s finding, based primarily on its reading of Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FCA 404 [Jayasekara], that
all post-conviction events are irrelevant to an analysis under Article 1F(b),
is both an error in law and an unreasonable position. For example, in Jayasekara,
the Board considered post-conviction conduct – namely, the applicant’s
violation of probation – in its analysis. The Federal Court of Appeal did not
conclude that this factor was irrelevant to the issue of exclusion.
[9]
Mr.
Cuero maintains that, if a violation of probation was held to be a valid part
of the Board’s Article 1F(b) analysis, other post-conviction conduct, such as
rehabilitation, should also be considered.
[10]
In
my view, the Board must simply determine whether a crime was committed, and
whether it was a “serious non-political crime”. Factors extraneous to the
conviction, such as rehabilitation, should not be considered in evaluating the
seriousness of an applicant’s offence: Rojas Camacho v Canada (Minister of
Citizenship and Immigration), 2011 FC 789, at paras 15-16; Hernandez Febles v Canada (Minister of
Citizenship and Immigration), 2011 FC 1103, at paras 48, 50-52, 59
[Febles].
[11]
Regarding
the relevance of probation, as in Jayasekara, this factor is part of the
sentence for the crime itself. Rehabilitation, on the other hand, is not
connected to the conviction or sentencing.
[12]
Mr.
Cuero relies on Guerrero
v Canada (Minister of
Citizenship and Immigration), 2010 FC 384. However, in that case,
the Court simply stated that the Board had not made it clear why it was not
persuaded by the overall mitigating circumstances, including the amount of time
that had passed since the crime. It did not conclude that rehabilitation was a relevant
factor.
[13]
I
note that in Febles, above, the evidence showed that the applicant had
been rehabilitated. Still, the Board concluded that it had to “respect the
legislation and the current jurisprudence that require that a person who has
been convicted of a serious non-political crime, as is the case here, must be
excluded from the application of the Convention” (at para 21). Nevertheless, in
dismissing the application for judicial review, Justice Scott concluded that
none of the Federal Court of Appeal jurisprudence had expressly decided the
issue. Accordingly, he certified the following question:
When applying article 1F(b) of
the United Nations Convention relating to the Status of Refugees, is it
relevant for the Refugee Protection Division of the Immigration and Refugee
Board to consider the fact that the refugee claimant has been rehabilitated
since the commission of the crime at issue?
[14]
The
parties agree that the same question should be stated here.
III. Conclusion and Disposition
[15]
I
cannot see any error on the Board’s part in disregarding evidence of
rehabilitation. I must, therefore, dismiss this application for judicial
review. Still, given that a certified question was stated by Justice Scott in Febles
on this issue, I would state the same question.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
The
following certified question is stated:
When applying article 1F(b) of
the United Nations Convention relating to the Status of Refugees, is it
relevant for the Refugee Protection Division of the Immigration and Refugee
Board to consider the fact that the refugee claimant has been rehabilitated
since the commission of the crime at issue?
“James
W. O’Reilly”
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