Date: 20110621
Docket: IMM-4878-10
Citation: 2011 FC 738
Ottawa, Ontario, June 21, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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PAOLA ANDREA PULIDO DIAZ
aka Paola Andrea Pulido-Diaz
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Minister of Citizenship and Immigration (Minister) seeks judicial review of a
decision that Ms. Diaz (the Respondent) was a Convention refugee and was not
“excluded” from admission to Canada despite her lengthy record of criminal
convictions in the United States.
II. BACKGROUND
[2]
The
Respondent, a citizen of Colombia, claims a fear of
persecution by FARC. She says that she was raped by 15 FARC members because her
mother refused to give FARC money.
[3]
Ms.
Diaz fled to the U.S. While there, she says that her mother and
grandmother continued to be threatened by FARC. When they finally fled to the U.S. as well, Ms.
Diaz was in jail on one of her numerous convictions.
[4]
Ms.
Diaz was deported from the U.S. to Colombia in 2002 but quickly returned
to the U.S. illegally. She
remained there until 2007, when she was once again deported to Colombia.
[5]
This
time Ms. Diaz left Colombia for Canada in 2008, again under a
false passport.
[6]
In
the course of Ms. Diaz’s time in the U.S. she was convicted seven
times. The details of which are:
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Date
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Arrested by
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Charge
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Conviction
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Sentence
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1
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Oct 12, 1996
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NYPD
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petit larceny;
criminal possession of
stolen property
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petit larceny
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6 months confinement
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2
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Nov 19, 1998
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Bayonville (NJ) PD
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theft
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dismissed
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-
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3
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Jan 26, 2001
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NYPD
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robbery;
criminal possession
of a weapon in the 4th degree
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pleaded guilty to
attempted robbery in the 3rd degree
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6 months 4 days confinement
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4
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Feb 12, 2001
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NYPD
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robbery;
attempted grand
larceny
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attempted grand
larceny
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6 months confinement
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5
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Sept 3, 2004
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Doraville (GA) PD
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criminal conspiracy;
forgery
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unknown
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-
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6
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Oct 9, 2004
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Gwinnet Cty (GA) PD
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theft by shoplifting
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theft by shoplifting
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3 years probation
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7
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Feb 19, 2007
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Dekalb City (GA) PD
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financial transaction
card theft
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no disposition yet
reached
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-
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[7]
The
Immigration and Refugee Board (Board) found that there was a reasonable chance
that Ms. Diaz (and her mother and grandmother) would be persecuted by FARC upon
return to Colombia. The Board
found that there was neither state protection nor a reasonable IFA.
[8]
The
Board then went on to determine whether Ms. Diaz was excluded by operation of
s. 98 and Article 1F(b) for having committed serious non-political crime(s).
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98. 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.
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98. 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.
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Immigration and Refugee
Protection Act,
S.C. 2001, c. 27
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;
United Nations
Convention Relating to the Status of Refugees, Article 1
[9]
The
Board explained away the seriousness of some convictions by reference to
mitigating factors, such as that Ms. Diaz had been a minor or had been raped.
The Board explained away other offences on the grounds that they did not meet
the “threshold penalty” of 10 years – a reference to s. 36(1)(b) of
the Act.
III. ANALYSIS
[10]
The
interpretation of s. 98 and Article 1F(b) of the Refugee Convention is a pure
issue of law to which the correctness standard applies (Pineda v Canada (Minister of
Citizenship and Immigration), 2010 FC 454). The same standard applies
to “adequacy of reasons”. The application of the facts to these provisions is a
matter of mixed law and fact for which reasonableness is the standard of review
(Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FCA 404).
[11]
There
are a number of problems with the Board’s decision. The most fundamental is
that the Board failed to apply the principles set out in Jayasekara,
above, which is the leading authority on exclusions under Article 1F(b).
[12]
In
this regard the Board failed to apply the facts in the crime to Canadian
criminal law. It did not ask what would be the result if those facts were heard
by a Canadian court. Instead the Board looked for equivalent criminal provisions
to those of the U.S. offences. That involved the Board probing into
the legal elements of each U.S. provision rather than focusing on what Canadian
criminal provision(s) would apply to the facts of each U.S. case.
[13]
The
Board erred in respect of the “10 year threshold” by considering the length of
sentence actually imposed in the U.S. rather than the length
of sentences that could be imposed in Canada. The Board misapplied
or misunderstood Hill v Canada (Minister of Employment
and Immigration), [1987] FCJ No. 47, as supporting this threshold analysis.
In Hill, above, the Federal Court of Appeal did not deal with Article
1F(b).
[14]
The
Board further erred in its consideration of contextual matters. Jayasekara,
above, specifically rejects inclusion of personal circumstances in the serious
crime analysis. Factors such as age, economic condition or tragedy (such as
rape) may have been relevant to sentencing in the U.S. but they do
not address the seriousness of the offence itself. Taking these factors into
account in balancing the seriousness of the offence distorts the picture of the
offences themselves (Jayasekara, above).
[15]
While
it is unnecessary to make a finding on the issue of well-founded fear – there
being other grounds for quashing the decision – the Court has serious
reservations with this finding. The finding is unduly brief and does not touch
on credibility even in the face of discrepancies between the POE Notes and the
Respondent’s two PIFs.
[16]
Lastly,
the reasons in this case are not adequate. It is not only difficult but
impossible to divine the logic applied in respect of Article 1F(b). It is
unclear whether the conclusion on “seriousness” was based on the length of
sentence imposed, the lack of equivalent Canadian law or the overriding impact
of hardship suffered by Ms. Diaz.
IV. CONCLUSION
[17]
For
these reasons, this judicial review is granted, the decision is quashed and the
matter remitted back for a new consideration before a different panel.
[18]
The
Applicant had proposed a question for certification to which the Respondent did
not object. Given these reasons, the proposed question is academic and I see no
other question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
decision is quashed and the matter is to be remitted back for a new
consideration before a different panel.
“Michael
L. Phelan”
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