Date:
20130315
Docket:
IMM-4410-12
Citation:
2013 FC 273
Ottawa, Ontario,
March 15, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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JUAN CARLOS OSPINA VELASQUEZ,
VALERIA OSPINA, DAVID OSPINA
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Applicants
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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
[1]
The
applicants are citizens of Colombia. The male applicant, Juan Carlos Ospina
Velasquez, [the applicant] initially applied for refugee protection along with
his two children and his wife. His wife’s claim was accepted and those of the
children – who are US citizens – were rejected. Judicial review of the decision
with respect to the children is no longer being pursued, and this decision
therefore relates only to the applicant.
[2]
His
claim
is based on having been targeted for extortion by the Revolutionary Armed
Forces of Colombia [FARC] in the 1990s. The details of this targeting are not
at issue here, but suffice it to say, his wife’s claim was based on his experience
and was accepted by the Refugee Protection Division of the Immigration and
Refugee Board [the RPD or the Board]. However, in the decision under review,
even though the Minister of Public Safety and Emergency Preparedness [the
Minister] declined the opportunity to intervene in the proceedings in light of
the applicant’s rehabilitation, the Board found the applicant to be excluded
from protection by virtue of section 98 of the Immigration and Refugee
Protection Act SC 2001, c 27 [the IRPA], which incorporates Article 1F of
the Convention Relating to the Status of Refugees, 1951, Can TS 1969 No
6 [the Refugee Convention].
[3]
Section
98 of the IRPA provides that:
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A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention Refugee or person in need of protection.
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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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Article 1F of the Refugee
Convention states in relevant part that the Convention:
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[…]
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
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[…] ne
seront pas applicables aux personnes dont on aura des raisons sérieuses de
penser :
[…]
b)
qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiées;
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[4]
In
its decision, the RPD noted that the applicant had been charged with two crimes
in the United States: the first, in 1984 for armed robbery (although the
charges were dropped) and the second in 1988, for possession with intent to
distribute 500 grams of cocaine (for which the applicant was convicted and
served 33 months of a 36-month prison sentence, being paroled early for good
behaviour). The RPD then assessed whether the latter offence should be
considered a “serious crime” within the meaning of Article 1F(b) of the Refugee
Convention. In analyzing this issue, the Board held that the relevant factors
to be considered were the elements of the crime, the mode of prosecution, the
penalty prescribed, the facts, the mitigating and aggravating circumstances
underlying the conviction, as well as whether the offence would have given rise
to a sentence of a maximum term of at least 10 years in Canada. On the latter
point, the Board reasoned that a crime giving rise to a 10 year or greater
maximum sentence creates a presumption that the offence in question is serious,
which can be rebutted by consideration of the other factors.
[5]
The
Board then examined the elements of the offence by considering the equivalent
offence in the Canadian Criminal Code (which carries a maximum penalty
of life imprisonment, although the Board incorrectly stated the maximum penalty
to be 10 years imprisonment), noted that the U.S. is a democratic country in
which the applicant pled guilty before a judge, and considered the penalty and
facts of the offence. With respect to aggravating and mitigating factors, the
RPD held, in accordance with the case law, that consideration of what had
happened since the offence (i.e. whether the applicant had been rehabilitated)
and of his motives for committing the crime were irrelevant and that, rather,
the mitigating and aggravating factors were limited to consideration of what
happened during the commission of the offence and to the nature of the acts
committed. On the basis of these facts, the Board concluded that the offence
committed by the applicant was serious within the meaning of Article 1F(b) and
thus found the applicant to be excluded from protection.
[6]
In
this application, the applicant argues that the Board committed three
reviewable errors, and that its decision must accordingly be set aside. He
first argues that the Board erred in failing to consider his rehabilitation,
including that he served his entire sentence, has not reoffended, was fully
forthcoming regarding his record when questioned by immigration officials and
is eligible to have his conviction expunged. He argues that these facts should
have led the Board to find him eligible for protection under sections 96 and 97
of the IRPA as his exclusion does not further any of the purposes behind
Article 1F(b) of the Refugee Convention. Second, he argues that the fact that
the Minister chose to not intervene is significant and that the Board erred in
failing to give adequate weight to this fact. More precisely, he asserts that
the fact that the Canadian government does not think he ought to be excluded
demonstrates that the Board’s conclusion is unreasonable. Finally, the
applicant argues that the Board’s decision is unreasonable because it does not
include any analysis but simply recites the evidence and reaches a conclusion.
He asserts that in the absence of any meaningful reasoning for the conclusion
reached, the decision lacks transparency and is thus unreasonable.
[7]
After
leave was granted in this case, the Federal Court of Appeal issued its
decisions in Hernandez
Febles v
Canada (Minister of Citizenship and Immigration), 2012 FCA 324 [Febles] and Feimi v Canada (Minister
of Citizenship and Immigration), 2012 FCA 325 [Feimi]. In these
cases, the Federal Court of Appeal answered the following certified question in
the negative:
When
applying Article 1F (b) of the United Nations Convention relating to the Status
of Refugees is it relevant for the Refugee Protection Division, Immigration and
Refugee Board to consider whether the refugee claimant has been rehabilitated
since the commission of the crime at issue?
[8]
In Feimi,
the Court additionally indicated that it is not relevant for the RPD to
consider the fact that the Minister of Citizenship and Immigration has
determined the refugee claimant to not be a danger to the public in Canada in
examining whether a claimant should be excluded for serious criminality.
[9]
On February
5, 2013, Mr. Febles filed an application for leave to appeal the Federal Court
of Appeal’s application to the Supreme Court of Canada. In light of the pending
application, counsel for the applicant sought an adjournment of the hearing in
this matter until the Supreme Court finally disposes of Mr. Feimi’s case. The
respondent resisted the adjournment, relying on Poggio Guerrero v Canada
(Minister of Citizenship and Immigration), 2012 FC 937 at para 22 for the
proposition that a pending appeal does not change that law and that lower
courts are required to continue to apply the law as it stands until it is
overturned. I refused the adjournment request because the respondent is correct
in this regard: the mere fact of a pending application for leave to appeal in a
related matter does not entitle a party to an adjournment where the issue in
his case might be considered by a higher court if it grants leave. Were it
otherwise, the justice system would grind to a halt.
[10]
The
respondent, however, conceded that if the matter proceeded, it would be
appropriate to certify the same question as was certified in Febles if
my decision were to turn in whole or in part on the appropriateness of the
Board’s decision to decline to consider the applicant’s rehabilitation. I
concur as to do otherwise would unfairly deprive the applicant of the
opportunity to benefit from a favourable ruling in Mr. Febles’ case should the
Supreme Court so rule.
[11]
Turning,
then, to the arguments advanced by the applicant, in my view, the decisions of
the Federal Court of Appeal in Febles and Feimi foreclose the
first argument. In short, the Court of Appeal’s rulings definitively establish
that the fact that the applicant was convicted many years ago, served his
sentence, and has been a law-abiding citizen since, cannot serve as mitigating
factors in the determination of whether he should be excluded from refugee
protection under Article 1F(b) of the Refugee Convention. Contrary to what the
applicant asserts, these decisions bar reliance not only on rehabilitation
generally, but also on the fact of a sentence having been served. In this
regard, Justice Evans, writing for the Court on this point, stated at para 34
in Febles:
First,
[this Court’s decision in Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FCA 404] explains why the
length of a sentence is an unreliable guide to the seriousness of a crime, and
hence is often of little value on assessing the seriousness of the crime. The
completion of a sentence is not even mentioned in this discussion. Second,
neither the length nor completion of a sentence is included in the factors
[identified in Jayasekara] that may rebut the presumption of seriousness
arising from the maximum sentence that could be imposed if the crime had been
committed in Canada. Third, to interpret Jayasekara as allowing members
of the RPD the discretion to consider completion of a sentence would likely
lead to a lack of consistency in RPD decision-making bordering on
arbitrariness.
[12]
Thus, the
Board did not err in this case in refusing to consider the applciant’s rehabilitation
or having served his sentence as mitigating factors.
[13]
Insofar as
concerns the second argument,
the applciant attempts to distinguish Feimi and Febles on the
basis that here the Minister did not intervene in the refugee hearing after
having reviewed the applicant’s file but did intervene in Feimi and Febles.
He argues that the Minister took the position in this case that exclusion was
not warranted and that the RPD erred in failing to accept that position. More
specifically, while the applicant does not dispute the jurisdiction of the RPD
to inquire into exclusion on its own motion given the duty and role of the
Board under the IRPA, he asserts that the position taken by the Minster should
have mandated a different conclusion.
[14]
I
disagree for several reasons. First, as noted by the respondent, the applicant
has not correctly characterized the position taken by the Minister, who chose
not to intervene in light of the applicant’s rehabilitation, but did not
actually take a position in favour of the applicant. This is apparent from the
August 24, 2010 letter to the Board, which states in relevant part: “Please be
advised that the decision not to intervene should not be interpreted as an
opinion as to the merits of this refugee claim.”
[15]
Second,
and more fundamentally, the Board is not bound to accept the position of a
party in any case and, instead, is required to carry out its statutory duty of
applying the IRPA. Under the Act, the RPD’s role is an inquisitorial one (see
e.g. Board Chairperson’s Guideline 7 Concerning Preparation and Conduct of a
Hearing in the Refugee Protection Division at ss 2.1 and 2.2). Accordingly, it
was required to determine whether section 98 of the Act was applicable and was
not required to agree with the position advanced by the Minister (although it
did consider the fact of that position as a factor in its determination). Thus,
the second argument advanced by the applicant is without merit.
[16]
Finally,
insofar as concerns the reasonableness of the Board’s determination, contrary
to what the applicant asserts, the RPD did not merely recite the facts and
reach a conclusion without any analysis. Rather, the Board conducted a fairly
detailed analysis. It first correctly canvassed the factors relevant to its
analysis. These factors were outlined
by the Federal Court of Appeal in Jayasekara at para 44, which the Board
cited, and consist of the elements of the crime, the mode of prosecution, the
penalty prescribed, the facts and the mitigating and aggravating circumstances
underlying the conviction. The Board then correctly held that it could not
consider motive or rehabilitation (citing Jayasekara and Diaz v Canada (Minister of Citizenship and Immigration), IMM-4878-10). It then went on to consider
each of the relevant factors in the applicant’s case and concluded that his
drug trafficking offense amounted to a serious crime for the purposes of
Article 1F(b). It was not necessary for the Board to explain why it weighed the
factors the way it did or to provide longer reasons. The decision reveals how
and why it came to its conclusion, which is all that the reasonableness
standard requires in terms of transparency and intelligibility of reasons (Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65; Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62).
[17]
In
addition, the outcome reached by the Board was certainly reasonable. There is a
wealth of authority supporting an exclusion for similar offences (see e.g. Jayasekara;
Guerrero v Canada (Minister of Citizenship and Immigration), 2012 FC
937; Cuero v Canada (Minister of Citizenship and Immigration), 2012 FC
1919 (upheld on appeal in a January 22, 2013 Order in File A-79-12); Camacho
v Canada (Minister of Citizenship and Immigration), 2011 FC 789).
[18]
Thus, none of
the grounds advanced by the applicant warrants intervention and this application
will therefore be dismissed. However, in light of the potential pending appeal
in Febles, the following question is certified under section 74 of the
IRPA:
When
applying Article 1F (b) of the United Nations Convention relating to the Status
of Refugees is it relevant for the Refugee Protection Division, Immigration and
Refugee Board to consider whether the refugee claimant has been rehabilitated
since the commission of the crime at issue?
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed.
2.
The
following question of general importance is certified under section 74 of the
IRPA:
When
applying Article 1F (b) of the United Nations Convention relating to the Status
of Refugees is it relevant for the Refugee Protection Division, Immigration and
Refugee Board to consider whether the refugee claimant has been rehabilitated
since the commission of the crime at issue?
3.
There
is no order as to costs.
“Mary J.L. Gleason”
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