Date:
20120730
Docket:
IMM-8733-11
Citation:
2012 FC 937
Ottawa, Ontario, July 30, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
GUSTAVO ADOLFO POGGIO GUERRERO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated October 28, 2011
made after a de novo hearing pursuant to the decision of Justice James Russell
dated April 12, 2010 (2010 FC 384, [2010] FCJ no 448), in which he quashed
the Board’s decision because its reasons were inadequate. The Board determined
that the Applicant is excluded from refugee protection pursuant to
Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951,
[1969] Can TS No 6 (Convention) because he has been convicted of a serious,
non-political crime.
I. Facts
[2]
The
Applicant, Gustavo Adolfo Poggio Guerrero, is a citizen of Colombia born on November 25, 1962. In October 2006, he fled Colombia for the United States, where his brother lives. He stayed there for two months before coming to Canada, where his sister lives. He arrived on December 6, 2006 and sought refugee
protection the next day.
[3]
Although
it is unclear when he arrived, it appears that he also lived in the United States for some time in the 1980s and 1990s. He was arrested in New York State on November 26, 1990 (erroneously shown as 1994) and charged with the possession
and sale of cocaine. He was sentenced to incarceration for eight years to life
for the offence. On his release in January 1997, he was deported to Colombia and ordered not to return to the United States. According to his Personal Information Form
(PIF) narrative, he had previously been arrested for possessing cocaine in 1987
and was sentenced to probation.
[4]
After
being deported to Colombia, he began a romantic relationship in 2005 with the
woman who became his common-law wife. He then began experiencing problems with
the Fuerzas Armadas Revolucionarias de Colombia (FARC) because of her brother’s
involvement with the Autodefensas Unidas de Colombia (AUC). He then fled to
the United States, where he did not claim asylum, and then to Canada.
II. Decision
under Review
[5]
The
Board noted that the Minister did not appear at the hearing, but did make
documentary submissions. The Board found that this was a factor to be weighed,
although it was insufficient to make any finding that the Minister did not
believe the Applicant should be excluded.
[6]
The
Board found that there was no evidence the crime was political, and noted that
the Canadian equivalent of the Applicant’s crime is subsection 5(3)(a) of the Controlled
Drugs and Substances Act, SC 1996, c 19, which carries a maximum penalty of
life imprisonment. The Board therefore found that the presumption of
seriousness was satisfied.
[7]
The
Board then turned to the factors enumerated in Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2008] FCJ no 1740, for
rebutting the presumption of seriousness. The Board again noted that the
equivalent Canadian offence carries a maximum punishment of life imprisonment
and that the Applicant was sentenced to eight years to life after prosecution
by indictment presented by a Grand Jury. The Board found that there was no
evidence the Applicant was motivated by anything other than personal profit. The
Board rejected the argument that there were mitigating circumstances because
the Applicant was not aware of the consequences of pleading guilty, as it was
contradicted by the record from the original refugee hearing, which showed that
he had been informed of and had agreed to a plea bargain.
[8]
The
Board rejected the Applicant’s contention that his clean record since his
incarceration should be considered a mitigating circumstance, citing Canada
(Minister of Citizenship and Immigration) v Pulido Diaz, 2011 FC 738,
[2011] FCJ no 926 and Rojas Camacho v Canada (Minister of Citizenship and
Immigration), 2011 FC 789, [2011] FCJ no 994, both of which found that the Jayasekara
analysis does not involve post-conviction circumstances as a mitigating factor.
The Board further found that, even if the post-conviction conduct was
considered a mitigating factor, it was outweighed by the aggravating factors;
namely, that he had sold cocaine to police officers on three separate
occasions, violated an order not to return to the United States, and had a previous
conviction for which he received probation.
III. Issue
[9]
The
sole issue in this application is whether the decision is reasonable.
IV. Standard of Review
[10]
The
question raised by the Applicant should now be reviewed according to the
reasonableness standard. The Supreme Court recently reaffirmed that
administrative bodies’ interpretation of their home statute always requires
deference unless the question falls into one of the categories that requires
correctness, such as constitutional questions (see Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 SCR 654 at para 30). The interpretation of the criminality exclusion is not
a question of general importance, and therefore deference is required.
V. Analysis
[11]
The
Applicant submits that the Board erred in ignoring evidence, misconstruing the
evidence before it, making findings not supported by the evidence in the
record, and failing to properly analyze Article 1F(b) of the Convention.
[12]
The
Applicant submits that the Board erred by relying on decisions of this Court
stating that post-conviction circumstances are not a relevant factor. He cites
two other decisions of this Court with certified questions about whether
post-conviction rehabilitation can be considered and argues that the law is
therefore unsettled. He also cites two decisions of this Court that considered
post-conviction evidence, although both of those decisions upheld the Board’s
finding of exclusion and in neither case did the Board or the Court actually
consider rehabilitation specifically. He also cites Australian decisions that
consider rehabilitation.
[13]
The
Applicant claims that, since Justice Russell quashed the first decision because
the Board did not adequately explain why the mitigating factors were not
sufficient, it was “implicit in Justice Russel’s [sic] reasoning [that]
post-conviction mitigating factors are relevant.”
[14]
The
Respondent submits that a claimant’s personal circumstances after the
conviction are not a relevant consideration. The Respondent argues that the
jurisprudence has established this principle and that it is clear from both the
Act and the Convention as well. It cites Rojas Camacho, above, and
other decisions. The Respondent also notes that excluded persons can apply for
protection pursuant to section 113(d) of the Act, citing Xie v Canada
(Minister of Citizenship and Immigration), 2004 FCA 250, [2004] FCJ no
1142, which affirmed that applications under that section can take into account
factors that cannot be considered in the exclusion analysis. The Respondent
also notes that the cases cited by the Applicant in which questions were
certified actually found the Board’s refusal to consider rehabilitation to be
reasonable.
[15]
The
Respondent notes that the Australian cases cited by the Applicant are not
binding on this Court, in contrast to Jayasekara and Xie, both above.
The Respondent notes that Parliament could have specifically referenced
rehabilitation if it was meant to be considered.
[16]
In
his reply, the Applicant notes that Parliament could have expressly excluded
rehabilitation if it was not meant to be considered.
[17]
In
his further memorandum, the Applicant cites two decisions in which the Federal
Court of Appeal has considered international decisions to aid its
interpretation of Article 1F(b), apparently to validate his reliance on similar
foreign jurisprudence. He also cites Chan v Canada (Minister of Citizenship
and Immigration), [2000] 4 FC 390, [2000] FCJ no 1180 (CA) for the
principle that interpreting Article 1F(b) to exclude those who have served
their sentence was inconsistent with the law’s contemplation of rehabilitation,
and argues that a similar inconsistency is created here if rehabilitation is
ignored. He further submits that the Board’s interpretation renders
section 104(1)(b) of the Act meaningless, as that provision was included in the
Act in recognition of the fact that a conviction does not automatically
preclude someone from refugee protection. He also cites a Regulatory Impact
Analysis Statement without providing any citation information or clarifying
which section of the Act the statement discusses, although the quoted passage
seems to refer to the criminal inadmissibility provisions in section 36.
[18]
In
its further memorandum, the Respondent notes that the Act provides for
sequential decisions about eligibility, exclusion and removal and argues that
the fact that a claimant is found eligible to have their claim heard pursuant
to section 101 of the Act does not prevent the Board from finding that they are
excluded from refugee protection. The Respondent also distinguishes between
exclusion from refugee protection and total exclusion from protection, noting
that those excluded from refugee protection can still apply for a Pre-Removal
Risk Assessment prior to their removal.
[19]
The
Applicant also submits that, in the alternative, the Board erred in finding
that the aggravating factors outweighed the mitigating ones, as it committed
the same error as in the previous decision: its reasons are inadequate with
respect to how the conclusion was reached. He argues that the Board also erred
by treating the crime itself as an aggravating factor, as evidenced by its
reference to the three occasions on which he sold cocaine to a police officer. Finally,
he submits that the Board misconstrued evidence about his guilty plea and
ignored the reason for his violation of the order not to return to the United States – that is, the persecution by FARC.
[20]
The
Respondent submits that the Board’s reasons demonstrate its consideration of
all relevant factors. It argues that the fact that the Applicant sold cocaine
on three separate occasions is relevant, as it is directly related to the
offence in question.
[21]
The
Respondent notes that the Board’s statement about the mitigating factors being
outweighed by the aggravating ones was made in the alternative to the previous
finding that the rehabilitation was not relevant, and that this argument
therefore need not be considered further. It argues that the Applicant is
merely disputing the weight given to the evidence, which is not a basis for the
Court’s intervention.
[22]
Although
the Federal Court of Appeal has yet to answer the certified questions noted by
the Applicant, the general principle in litigation is that a decision stands
until such time as it is overturned on appeal. The existence of a pending
appeal or a certified question does not alter the final nature of the decision.
This is not an instance where the appellate court granted leave to bring the
appeal and where it can therefore be inferred that the appeal is likely to
change the law; here, there is nothing to indicate how the Federal Court of
Appeal will respond to the certified questions. If the Applicant believed that
the law was unsettled and wanted to have the benefit of the Federal Court of
Appeal’s decision, he could have sought to adjourn his refugee hearing until
the appeals are decided.
[23]
None
of the Applicant’s statutory interpretation arguments are of assistance. The
question is whether the Board’s determination was unreasonable. He has not
established that this was the case. Further, the Court in Jayasekara at
paras 25-27, 31-33 found that Chan, both above, did not create a general
principle that claimants who were rehabilitated could not be excluded and
explicitly found that the inconsistency from Chan no longer existed
under the current Act:
In order to give meaning to the rehabilitation
provisions of the former Act, Robertson J.A. found in Chan that Article
1F(b) of the Convention could not be given an interpretation which would have
resulted in a blanket exclusion of those who had been found guilty of serious
crimes as defined in the Act. Such interpretation would have deprived a
claimant of the protection offered by the exception to the inadmissibility
rule. I should add, it would have also divested the Minister of his
discretionary power under paragraph 19(1)(c.1) of that Act.
In my respectful view, the decision in Chan stands
for the proposition that, under the existing law at the time, which, as we will
see, has now been modified by the IRPA, a claimant who was convicted of a
serious non-political crime and who served his sentence was not necessarily
excluded from a refugee hearing or rendered ineligible to apply for the refugee
protection afforded by the Convention. He or she remained entitled to have
their refugee claim determined by the Refugee Division if the Minister
concluded that the claimant was rehabilitated and was not a danger to the
public.
While the decision in Chan afforded some
protection to a claimant and safeguarded the Minister’s discretion, it did
not then, nor does it now, in my respectful view, stand for the proposition
that, whatever the circumstances, a country cannot exclude an applicant who was
convicted and served his sentence.
[…]
There is, however, a notable difference between the
IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i)
of the former Act, a claimant was ineligible for a refugee hearing if he was
inadmissible to Canada on account of serious criminality unless, as previously
stated, the Minister was satisfied that the claimant had rehabilitated himself
or herself and five years had elapsed since the expiration of any sentence
imposed for the offence or since the commission of the act or omission.
Under the IRPA, the rule as to ineligibility has
changed. By virtue of subsections 101(2), a claimant, who is inadmissible by
reason of serious criminality, now remains eligible for a refugee hearing
unless the “Minister is of the opinion that the person is a danger to the
public in Canada and the conviction is for an offence that, if committed in
Canada, would constitute an offence under an Act of Parliament that is
punishable by a maximum term of imprisonment of at least 10 years”.
In other words, under
the former Act, there was a rule of ineligibility for a refugee hearing if a
claimant was inadmissible on account of serious criminality. That rule operated
unless the exception applied. Under the IRPA the rule is reversed. A claimant remains
eligible unless the exception applies.
[Emphasis added]
[24]
It
is clear from this passage that the inconsistency from Chan, above, is
no longer an issue under the current Act, and that the Applicant’s argument
must therefore fail.
[25]
The
Board did not err in its weighing of the factors before it. Contrary to the
Applicant’s argument, the repeated nature of his offence was reasonably
considered an aggravating factor, especially when taken together with the prior
conviction for the same crime.
VI. Conclusion
[26]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
Email this Content