Date:
20130416
Docket:
IMM-9996-12
Citation:
2013 FC 382
Ottawa, Ontario,
April 16, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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ANDREY GUDIMA
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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. INTRODUCTION
[1]
The
Applicant, a person who claims to be stateless, was excluded from refugee
status because he had committed a serious non-political crime. He was excluded
by virtue of s 98 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] and Article 1F of the Convention Relating to the
Status of Refugees, 1951, Can TS 1969 No 6.
II. BACKGROUND
[2]
The
Applicant considered himself stateless because he did not have U.S. citizenship (where he lived prior to coming to Canada) and had lost his Russian citizenship
when his parents moved to the United States [U.S.].
[3]
In
2003 he was charged with assault in the second degree by assaulting another
person with a car. He entered into a plea bargain under which he was sentenced
to 14 months imprisonment and 18 months supervised custodian probation. He had
completed his U.S. sentence when he walked into Canada.
[4]
The
Applicant has a considerable criminal record, both pre and post conviction,
generally related to alcohol-driving offences.
[5]
The
Refugee Protection Division Member [Member] found that the U.S. crime of second
degree assault, a B class felony, was a serious crime similar to “assault with
a weapon” (Criminal Code, RSC 1985, c C-46, s 267(a)) which can be an
indictable offence subject to a maximum sentence of 10 years or summary
conviction for a term not exceeding eighteen months. The Applicant admitted it
was a “serious crime”.
[6]
The
Member then considered the elements of the crime, the mode of prosecution, the
penalty, the facts of the crime and the mitigating and aggravating
circumstances as required by Jayasekara v Canada (Citizenship and
Immigration), 2008 FCA 404, [2009] 4 FCR 164.
[7]
The
Member found that the aggravating factors such as driving under the influence
without a licence, previous DUI convictions and leaving the scene of the
assault having injured a person outweighed the mitigating factors of admitted
guilt, favourable plea bargain and a troubled childhood.
[8]
The
Member also rejected the submissions of the Applicant that his circumstances
should be examined under a rehabilitation analysis. It was noted that the issue
was pending before the Court of Appeal at the time of the judicial review.
[9]
The
critical issues in this judicial review are:
(a) Did
the Member consider the relevant factors in assessing the seriousness of the
crime?
(b) Was
that consideration reasonable?
III. ANALYSIS
[10]
I
adopt Justice Manson’s analysis of the applicable standard of review set forth
in Diaz v Canada (Minister of Citizenship and Immigration), 2013 FC 88, 2013
CarswellNat 114, where Justice Manson considered the ratios in Feimi v
Canada (Minister of Citizenship and Immigration), 2012 FCA 325, 353 DLR
(4th) 536, and Febles v Canada (Minister of Citizenship and Immigration),
2012 FCA 324, 223 ACWS (3d) 1012 . The conclusion is that in respect of the
interpretation of IRPA, s 98 and Article 1F(b), that standard of review
is correctness. The standard of review in respect of the application of the law
to the facts is reasonableness.
[11]
The
Applicant contends that the Member erred by including in the analysis of the
“seriousness of the crime” and the “aggravating factors”, the Applicant’s other
convictions and behaviours.
[12]
In
Jayasekara, above, the Federal Court of Appeal held that factors
extraneous to the seriousness of the offence should not be considered, such as
the potential for persecution in the claimant’s country.
[13]
However,
in the present circumstance, the circumstance of the previous conviction, the
repeated nature of drinking and driving – matter directly related to the type
of crime committed – are relevant considerations. Repeat offences and repeat
conduct impact the seriousness of the crime as held in Guerrero v Canada (Minister of Citizenship and Immigration), 2012 FC 937, 223 ACWS (3d) 181.
[14]
Therefore,
the Member committed no error in taking these factors into consideration as
aggravating factors.
[15]
On
the issue of the Member’s application of the facts to the legal test and
relevant factors to consider, the Applicant’s contention that the Member did
not identify and assess the facts underlying the conviction is unsustainable.
[16]
A
fair reading of the Member’s reasons establishes that the Member considered
documentary evidence (including police and witness statements) preferring it
over the Applicant’s version of events. The Member considered the nature of the
offence both in Canada and the U.S.; the fairness of the process; the fact that
the Applicant pled guilty; and the mitigating and aggravating factors.
[17]
The
Member considered the facts surrounding the offence in a manner consistent with
Lai v Canada (Minister of Citizenship and Immigration), 2005 FCA 125,
253 DLR (4th) 606, in particular paragraph 50:
The Applications Judge determined that the essential
requirement for the Minister’s notice was the identification of the Article 1F
sub-clause that forms the basis of the intervention. He also found that the
adult appellants were advised that they were considered excluded in relation to
their commission of the serious non-political crimes of smuggling, fraud, tax
evasion and bribery and that their exclusion was based on the information
disclosed in their Personal Information Forms. Finally, he noted that the
requirements in an exclusionary intervention are not the equivalent of the
disclosure requirements in a criminal prosecution, because the purposes of the
two processes and legislation are very different. In this case, he found that
the Minister’s notice of intent to participate met the requirements under the
Act.
IV. CONCLUSION
[18]
Therefore,
this judicial review is dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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