Date:
20130409
Docket:
IMM-8616-11
Citation:
2013 FC 359
Vancouver, British Columbia,
April 9, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
|
|
AURELIO VALDESPINO PARTIDA
VICTORIA VALDESPINO
LLOYD
ESPERANZA VALDESPINO
LLOYD
ISABEL VALDESPINO
LLOYD
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
ORDER AND ORDER
[1]
The
Applicants, citizens
of Mexico,
challenge by way of judicial review the decision of the Refugee Protection Division
of the Immigration and Refugee Board (the RPD), dated October 27, 2011,
excluding Aurelio Valdespina Partida [the Principal Applicant] from
refugee protection pursuant to Article 1F(b) of the Refugee Convention.
The refugee claims of the Principal Applicant and his three minor daughters are
based on the Principal Applicant’s fear of persecution in Mexico of members of a fundamentalist Mormon group. The RPD did not evaluate these claims
because, pursuant to s. 98 of the IRPA, it found the Principal Applicant
committed serious non-political crimes in the US and was therefore excluded
from the refugee protection.
[2]
The
RPD determined that the Principal Applicant had committed serious non-political
crimes in the US and was therefore excluded from refuge protection. It is
undisputed that the Applicant committed acts in November 1988 in Utah which led to convictions for “theft from a building” and “interstate transportation of
a stolen vehicle”. Upon reviewing comparable Canadian criminal offences, the
RPD concluded that the Applicant was party to a crime of theft of property with
a value of over $5,000 being an offence for which a punishment of imprisonment
could be imposed for a term with a maximum sentence of ten years.
[3]
The
RPD also found that the Applicant’s conduct with respect to the offence was as
follows:
This disclosure leads me to
conclude that at a minimum the claimant's role in the crime included the things
he said in the addendum that he did: that he was a co-conspirator with his
friends from the planning stages of the crime, that he played an active role in
passing car keys from one person to another, that he was the one who actually
asked other people to get involved in the scheme, and that he had the intention
to sell the stolen goods. Statements that he made at other stages in the
refugee process--either that his crime was merely failing to report what other
people were doing, or that he provided only advice or a back-up role--are
misrepresentations of his level of involvement and demonstrate a deliberate
attempt to downplay his responsibility. His lack of credibility is evidenced in
his evasiveness, his inconsistent testimony, and his attempts to minimize his
role in the crime.
(Decision, para 24)
[4]
It
is well recognized that the purpose of this exclusion provision is to “ensure
that the country of refuge can protect its own people by closing its borders to
criminals whom it regards as undesirable because of the seriousness of the
ordinary crimes which it suspects such criminals of having committed” (Zrig
v Canada (Minister of Citizenship and Immigration), [2003] 3 FC 761 (FCA)
at para 118-119.
[5]
The
exclusion analysis requires the RPD to make a determination with respect to the
“seriousness” of an offence, an exercise in judgement and factual analysis that
is of central importance. In Jayasekara v Canada (Minister of Citizenship
and Immigration), [2009] 4 FCR 164 at para 44, the Federal Court of Appeal
set out the factors to be considered when determining the seriousness of a
crime for the purposes of Article 1F(b) as follows:
•
Evaluation
of the elements of the crime
•
The
mode of prosecution
•
The
penalty prescribed
•
The
facts
•
The
mitigating and aggravating circumstances underlying the conviction
[Emphasis added]
[6]
This
decision and others have clarified how the Court is to approach the assessment
of the above factors. In Jayasekara, the Federal Court of Appeal stated
that circumstances outside the conviction are not to be balanced against the
seriousness of the offence. Most recently, in Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, the Federal Court of Appeal held
that when applying Article 1F(b), the RPD is not to consider the fact that the
refugee claimant has been rehabilitated since the commission of the crime at
issue. Rather, the seriousness of the crime is to be assessed on the basis of
factors that existed at the time of the crime’s commission. In Guerrero
v Canada (Minister of Citizenship and Immigration), 2010 FC 384, this Court
determined that the RPD cannot simply list relevant mitigating/aggravating
factors and then come to a conclusion without evaluating why the
mitigating factors, when weighed against other aspects of the crime, did not
have the weight to rebut the presumption of the seriousness of the crime.
[7]
In
this case, the RPD excluded the Principal Applicant on a finding that he had
indeed committed a serious non-political offence in the US. The Applicant argues that the assessment of one of the essential factors of the
seriousness of the crime analysis - the mitigating and aggravating
circumstances - was made in reviewable error. The RPD’s findings with respect
to mitigating factors are found at paragraph 43 of the decision:
The claimant's counsel
advanced several points that she says are mitigating factors surrounding the
crime, including the claimant's age of 24 at the time of the offense, his
guilty plea and completion of his sentence, and the limiting of the offense to
monetary damage with no violence or weapons involved. However, the claimant did
not present any evidence to indicate that he faced any circumstances that
demonstrated that he was forced to commit the crime, and he appeared to have
been the one who got his friends involved in the transport of the stolen goods.
Although I accept that the claimant eventually dealt with all of the sentences
prescribed, he did breach his probation in attempting to return to the United States before his probation was complete. I also note that the restitution payment
was subject to a civil suit, with a complaint filed on June 26, 1990, over a
year after his arrest. This provides some evidence that the claimant was not
immediately forthcoming with the restitution payment.
[8]
The
RPD did accurately state the argument put forward by Counsel for the Applicant
that the following mitigating factors should be considered:
- The
Principal Applicant was 24 years old when he committed the offences
- The
offences were committed more than 22 years ago
- Impact on
society was limited to monetary damages
- The crimes
did not involve use of a weapon nor any violence
However, the RPD also included
post-offence factors for consideration, such as the Applicant’s failure to make
restitution payments and the breach of his parole terms.
[9]
In
my view, the RPD’s treatment of the mitigating element of the seriousness of
the crime analysis reveals two reviewable errors.
[10]
First,
paragraph 43 reveals no actual analysis or balancing of the mitigating and
aggravating factors, as required by Guerrero. The RPD simply identified
the mitigating factors raised by Counsel for the Applicant without actually
engaging with these factors and balancing them against proper aggravating
factors. The RPD’s failure to provide analysis as required is especially
significant in the circumstances of the present case because the RPD’s judgment
call with respect to the seriousness of the offence committed bars the
Applicant from having his refugee claim assessed.
[11]
And
second, the RPD’s inclusion of negative post-offence factors for consideration
is contrary to law. The decision in Febles makes it clear that the only
factors to be considered are those in play at the time of the commission of the
offence. While Febles was rendered subsequent to the RPD’s decision, it
confirms the earlier decision in Jayasekura and the view that there can
be no balancing with factors extraneous to the facts and circumstances
underlying the conviction.
[12]
Accordingly,
I find that the RPD’s decision is unreasonable.
ORDER
THIS
COURT ORDERS that:
1. The
decision under review is set aside, and the matter of the Principal Applicant’s
claim for protection and those of his dependent children are referred back for
redetermination by a differently constituted panel.
2. There
is no question to certify.
“Douglas R. Campbell”
Email this Content