Docket: IMM-1086-13
Citation:
2015 FC 464
Ottawa, Ontario, April 15, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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MYUNG SOO JUNG
SUN KYUNG LEE
SANG WUN JUNG
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA or the Act) seeking to set aside a January
25, 2013 decision by the Refugee Protection Division of the Immigration and
Refugee Board (RPD or the Board) rejecting the Applicants’ refugee claims. The
Board found that the Applicant, Myung Soo Jung, was excluded from the
definition of Convention refugee under Article 1F(b) of the Convention Relating
to the Status of Refugees, Can TS 1969 No 6 (Refugee Convention),
and that the Applicant’s wife and son were neither Convention refugees nor
persons in need of protection.
[2]
At the beginning of the hearing, counsel for the
Applicants informed the Court that the Applicant’s wife and son were no longer
in Canada and had returned to South Korea. As a result, it was agreed that
their application should be considered as having been withdrawn, and the Court
will therefore only deal with Myung Soo Jung’s application.
[3]
For the reasons that follow, I find that this
application ought to be granted. The exclusion determination must be quashed,
despite the fact that it is thorough and ably canvasses a huge amount of
evidence. In light of the recent decision reached by the Supreme Court of
Canada in Febles v Canada (Citizenship and Immigration), 2014 SCC 68 [Febles
SCC], the exclusion analysis of the Board cannot stand.
[4]
The Board did not make an explicit inclusion
determination for the Applicant, and did not need to, once it had found that he
was excluded. In her written memorandum, counsel for the Respondent had nevertheless
argued that the Board’s inclusion analysis, though strictly speaking only directed
to the Applicant’s wife and son, must be taken to apply equally to the
Applicant as it was explicitly based on the Applicant’s claim. Considering that
the Applicant’s wife and son have now withdrawn their application, however, counsel
for the Respondent conceded at the hearing that the Applicant should have a
fresh hearing at the RPD for his entire claim if the Court comes to the
conclusion that the exclusion finding of the Board is quashed. Therefore, since
I have found that the exclusion determination must be quashed, I need not deal
with the inclusion analysis. These reasons deal only with the exclusion issue.
I.
Facts
[5]
The Applicant is a businessman from South Korea.
He claims refugee protection because of the danger he allegedly faces as a
result of his business dealings.
[6]
The Applicant holds a Bachelor of Law. He started
his career as the owner and operator of a private educational institute. He
also worked as a business manager for two law firms. In 2003, he switched to
real estate investment and development. He ran real estate investment companies
in Korea and Canada, among other places.
[7]
The Applicant alleges persecution on the basis
of social group and political opinion; he also alleges he faces a risk of grave
harm. The basis of this fear is that, following some business deals gone sour,
he is being pursued by gangsters with connections to corrupt elements in the
Korean government and the judiciary. In particular, he alleges that as a result
of business dealings in relation to his real estate companies, two men (Mr.
Hwang Eui Huyn and Mr. Kim Jung Gum) are pursuing him for money allegedly owed
to them. Mr. Kim Jung Gum allegedly threatened and kidnapped the Applicant. The
Applicant also alleges that Mr. Kim made complaints and allegations to the
Korean police against the Applicant, and bribed a prosecutor to reopen the case
against him. In 2010, Mr. Kim and Mr. Hwang came to Canada and assaulted and
threatened the Applicant. The Applicant eventually contacted the RCMP, who
arrested Mr. Kim for uttering threats and for extortion.
[8]
The Applicants claimed refugee protection in
Canada in September 2010.
[9]
The Minister of Safety and Emergency
Preparedness (the Minister) intervened on the matter of exclusion. The Minister
argued that the Applicant should be excluded under section 98 of the IRPA
and Article 1F(b) of the Convention based on three allegations of serious
criminality:
•
1997/1998 conviction for fraud: The Applicant
was convicted of fraud and imprisoned for five months. While he was head of a
private school, he took “employment deposits” of
about $50,000 from an employee (So Uyeong), and failed to return the deposit.
He was sentenced to 10 months in jail but served only about half this sentence
(165 days); at the victim’s request, his sentence was suspended.
•
Interpol Red Notice of an arrest warrant for
fraud: The Red Alert was dated October 2009, and alleged that the Applicant had
embezzled USD 8.8 million.
•
Detention Warrant with Seoul Central District
Court for fraud: This is the result of the March 2008 police investigation. The
Applicant left Korea before the investigation was concluded, and as a result, the
matter is unresolved and a detention warrant has been issued.
[10]
The hearing at the RPD lasted 11 days over a
period of 9 months. Five witnesses were called, and two other individuals
provided affidavits. The RPD rendered a decision on January 25, 2013, and leave
for judicial review was granted August 7, 2013.
[11]
In the meantime (on July 4, 2013), the Supreme
Court granted leave to appeal in Febles v Canada (Citizenship and
Immigration), 2012 FCA 324 [Febles FCA]. On November 12, 2013, the
Applicant requested a stay of this proceeding pending the SCC decision in Febles.
The Applicant also requested to make further submissions after the Febles
SCC decision was rendered.
[12]
On November 26, 2013, Chief Justice Crampton
granted the request. The SCC decision in Febles was rendered on October
30, 2014. On January 13, 2015, Justice Beaudry ordered that the parties make
submissions on the impact of the Supreme Court’s decision in Febles.
II.
The impugned decision
[13]
The Board found that the Applicant was excluded
from refugee protection under section 98 of the IRPA, and Article 1F(b)
of the Convention. There were serious reasons to believe the Applicant had
committed a serious non-political crime. The Board based this finding only on
the first allegation, i.e. the 1997/1998 conviction for fraud.
[14]
The Board’s analysis was in two parts: (1)
whether there were serious reasons for considering the Applicant committed the
crime; and (2) whether the crime was serious.
[15]
The Board easily found the Minister had met its
burden to show serious reasons to consider the Applicant had committed a
non-political crime outside Canada. The Applicant confirmed his fraud
conviction under Article 347(1) of the Korean Criminal Act at the
hearing. This admission and the court documents in evidence met the “serious
reasons” test, according to the Board, and this finding is not challenged on
judicial review.
[16]
The Board then set out the framework from Chan
v Canada (Citizenship and Immigration), [2000] 4 FC 390 (FCA) [Chan]
and Jayasekara v Canada (Citizenship and Immigration), 2008 FCA 404 [Jayasekara]
to assess whether the crime was serious.
[17]
The Board found there was prima facie
evidence that the crime was serious as envisioned by Chan. According to
an obiter in Chan, a serious crime is one in which the Canadian
equivalent carries a maximum sentence of ten years or more. In the case at bar,
the Canadian equivalent is the crime of fraud, found at subsection 380(1)(a) of
the Criminal Code, RSC 1985, c C-46. This offence carries a maximum
sentence of fourteen years. The Board therefore concluded that there was prima
facie evidence that the Applicant has committed a serious crime, as
envisioned by the Chan decision. The remaining issue, therefore, was
whether this presumption of seriousness can be rebutted, through analysis of
the factors set out in Jayasekara, as well as assessing the applicable
Korean and Canadian laws and evidence adduced regarding the crime.
[18]
The Board then considered the Jayasekara factors:
(1) elements and facts of the crime; (2) mode of prosecution; (3) penalty
prescribed; and (4) mitigating and aggravating circumstances.
[19]
The Board first noted that the Applicant failed
to disclose the conviction until after the Minister disclosed the charges in
January 2012. The Applicant’s explanation for this omission evolved: first he
said he believed he had been pardoned, then he alleged the conviction had been
expunged. This detracted from his credibility. Moreover, the Personal
Information Form expressly indicates that he was to identify if he had ever
been sought, arrested or detained by the police in any country, or if he had
been charged or convicted of any crime in any country. Finally, the Board found
that the convictions were not in fact expunged. The police clearance showed the
Applicant had no criminal record. However, the only corroborating evidence of
the expungement comes from the affidavit of Chul Min Lee, a Korean police
officer. The Board did not find this affidavit credible: it appears Chul Min
Lee was in contact with the Applicant during the course of the hearing, he
failed to appear as a witness, and when contacted by a liaison officer for the
Minister he refused to provide a written statement for the Applicant.
Therefore, the Board did not believe the Applicant’s assertion that his
conviction was expunged. In the alternative, the Board found that the fact of
an expungement does not negate the seriousness of the crime or serve as a
mitigating factor:
Owing to the claimant’s explanations for the
omissions of his crime from his immigration documentation, which I do not find
credible, and a lack of reliable and trustworthy corroborative evidence, I do
not find credible the claimant’s assertion that his convictions were pardoned
or expunged. If I am wrong, even if the charges were expunged from the
claimant’s criminal record pursuant to some aspect of Korean criminal law that
is not in front of this panel, it does not negate the fact of the conviction,
nor does it lessen the seriousness of the crime or serve as a mitigating
factor.
Board’s reasons, para 77, p 21.
[20]
The Board then reviewed the facts of the crime,
as presented in the Korean judgment. The Board found that both the Applicant’s
testimony and the facts of the crime as outlined by the judge are consistent in
that the Applicant obtained the employment deposits from Mr. So Uyeong, a
former employee, and did not return these deposits.
[21]
As for the mode of prosecution, the Board noted
that the Applicant was convicted in a court of law on April 29, 1998. He was
represented by counsel. He maintains he was innocent, but discontinued his
appeal apparently due to financial constraints. There was no duress or coercion
in regards to the judicial process.
[22]
Regarding the penalty prescribed, the Applicant
was sentenced to 10 months in jail and served 165 days; at the victim’s
request, the sentence was suspended for two years for the rest of the sentence.
He did not receive a monetary penalty. While the sentence appears on the lower
end of what could have been imposed, the judgment does not indicate why the
penalty was applied. Since the reasons for the sentence were not articulated,
and may take into account factors other than the seriousness of the crime (such
as the fact that the Applicant had no money and the amount owing to the victim
had been reimbursed by the Applicant’s sister), the Board concluded that the
perspective of the receiving state cannot be ignored in determining the
seriousness of a crime.
[23]
Finally, the Board turned its attention to
mitigating and aggravating circumstances. The Board considered counsel’s
submissions that the Korean sentencing judge did not give an aggravated
punishment, the Applicant’s claim that taking the bond money was a requirement
for teaching institutions, the victim’s vulnerability, and the fact that the
evidence does not indicate what actually happened to the bond money. The Board
found that some of these factors were aggravating factors. The Board also
rejected the argument that the Applicant was not a habitual criminal because
although he had a prior 1997 conviction for cheque fraud, it was unrelated to
the 1998 conviction: the Board found that the underlying cause in both cases
was the Applicant’s inability to manage debt in relation to his business. The
Board also found that the Applicant was aware at the time that what he was
doing was wrong. Not only did he impose an arbitrary increase in the bond, he
did so with no intent to actually employ So Uyeong in accordance with what was
promised, and kept the alleged bond money as a form of retribution towards him
for having taken clients with him, also knowing that what he was doing was
wrong. Moreover, the Board did not find credible the allegation that the
Applicant won a civil suit against So Uyeong, and did not accept the argument
that this would be a mitigating factor. The Board also found that the lack of
violence was a mitigating factor, but did not lessen the seriousness of the
crime.
III.
Issue
[24]
The only question to be decided in this case is
whether the Board’s exclusion analysis is reasonable.
IV.
Analysis
[25]
Subsection 107(1) of the IRPA requires
the RPD to accept a claim for refugee protection “if it
determines that the claimant is a Convention refugee or person in need of
protection”; otherwise, the claim shall be rejected. A Convention
refugee is defined at section 96 of the IRPA and a person in need of
protection is defined at section 97 of the IRPA.
[26]
However, the IRPA explicitly identifies
certain classes of persons who are excluded from these definitions. Section 98
of the IRPA states that a person referred to in Article 1E or Article 1F
of the Refugee Convention is not a Convention refugee or a person in
need of protection. With this provision, Parliament incorporated the exclusion
clauses of the Refugee Convention and, at the refugee status determination
stage, specifically extended the exclusion clauses to a “person in need of protection” as defined in section
97 of the IRPA. The relevant exclusion clause in the case at bar is
Article 1F(b) of the Refugee Convention, which reads as follows:
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1F. 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;…
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1F. Les
dispositions de cette Convention 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 réfugiés…
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[27]
There is no dispute between the parties as to
the applicable standard of review. First of all, the question as to whether the
Board erred in law by interpreting Article 1F(b) as precluding consideration of
the Applicant’s post-conviction rehabilitation and/or his present dangerousness
is correctness. While there is a presumption that reasonableness is the
applicable standard of review when a tribunal interprets its enabling statute,
the presumption does not come into play in the case at bar because provisions
of an international convention must be interpreted as uniformly as possible: Febles
FCA, at para 24.
[28]
The determination of whether a non-political
crime is serious, on the other hand, attracts a standard of reasonableness. The
Federal Court of Appeal recently held in Feimi v Canada (Citizenship and
Immigration), 2012 FCA 325 (at para 16), a companion case to Febles FCA,
that “[r]easonableness is the standard applicable when,
as here, questions of law and fact are ‘intertwined…and cannot be readily
separated’”.
[29]
Counsel for the Applicant submitted that the
Board erred in writing that the Court in Chan “made
obiter comments that a serious crime was to be equated with one in which a
maximum sentence of ten years or more could have been imposed had the crime
been committed in Canada” (Decision, para 57). According to counsel, the
Court in Chan made no such obiter comment, and in any event the ratio
decidendi for which Chan stood for is no longer binding.
[30]
I agree with counsel that a strict reading of Chan
does not support the Board’s interpretation. Writing for the Court of Appeal,
Robertson J.A. merely stated that “for present purposes
I will presume, without deciding, that a serious non-political crime is to be
equated with one in which a maximum sentence of ten years or more could have
been imposed had the crime been committed in Canada” (at para 9). Such a
presumption clearly does not have the same weight as a considered opinion
which, though not necessary for a decision, is nevertheless an articulated
reasoning.
[31]
Moreover, the ratio decidendi of Chan
had nothing to do with the seriousness of a crime. The central aspect of that
decision is that Article 1F(b) is not applicable to refugee claimants who have
been convicted of a crime committed outside Canada and who have served their
sentence prior to coming to Canada (see Chan, at para 16). On the basis
of that decision, the Applicant would clearly not fall within the ambit of
Article 1F(b). As the Court of Appeal noted in Febles FCA (at
para 39), however, the courts subsequently took a broader view of Article 1F(b)
and Chan is therefore no longer binding in that respect.
[32]
That being said, and despite the frailties of Chan
identified above, the presumption that a crime is “serious”
under Article 1F(b) if, were it committed in Canada, it would be punishable by
a maximum of at least 10 years’ imprisonment, was consistently applied by the
Courts and was indeed more or less taken for granted by the Federal Court of
Appeal in its Febles decision. It is true that seriousness of the crime
was not at issue in Febles, as the applicant had been convicted of
assault with a deadly weapon and had conceded that he had committed a serious
crime. The case turned on whether post-crime rehabilitation could be balanced
against seriousness under Article 1F(b). Evans J.A. nevertheless wrote:
[31] An argument that a crime may be
regarded as less serious years after its commission because the claimant is
rehabilitated and is no longer a danger to the public would seem inconsistent with
this passage [referring to paragraph 44 of Jayasekara]. Rehabilitation
is indisputably a factor “extraneous to the facts and circumstances underlying
the conviction”. It is therefore not to be balanced against the presumed
seriousness of the crime arising from the fact that, if committed in Canada,
the crime is punishable by a maximum of at least 10 years’ imprisonment.
(emphasis added)
[33]
Be that as it may, we now have the benefit of
the decision reached by the Supreme Court in Febles. At issue, once again,
was the question whether serious criminality under Article 1F(b) is simply a
matter of looking at the seriousness of the crime when it was committed, as
advocated by the Minister, or whether, as argued by Mr. Febles and the United
Nations High Commissioner for Refugees (UNHCR), it requires consideration of
other matters – whether the applicant is a fugitive and/or his current
situation, including rehabilitation, expiation and current dangerousness.
[34]
After having discussed that question at length
and concluded that Article 1F(b) applies to anyone who has ever committed a
serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee, the majority offered the following
comments as to how a crime’s seriousness should be assessed:
[61] The appellant concedes that his
crimes were “serious” when they were committed, obviating the need to discuss
what constitutes a “serious . . . crime” under Article 1F(b). However, a
few comments on the question may be helpful.
[62] The Federal Court of Appeal in Chan v.
Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.),
and Jayasekara has taken the view that where a maximum sentence of ten
years or more could have been imposed had the crime been committed in Canada,
the crime will generally be considered serious. I agree. However,
this generalization should not be understood as a rigid presumption that is
impossible to rebut. Where a provision of the Canadian Criminal Code,
R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten
years or more and the lower end being quite low, a claimant whose crime would
fall at the less serious end of the range in Canada should not be presumptively
excluded. Article 1F(b) is designed to exclude only those whose crimes
are serious. The UNHCR has suggested that a presumption of serious crime
might be raised by evidence of commission of any of the following offences:
homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed
robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed.
2007), at p. 179). These are good examples of crimes that are
sufficiently serious to presumptively warrant exclusion from refugee
protection. However, as indicated, the presumption may be rebutted in a
particular case. While consideration of whether a maximum sentence of ten
years or more could have been imposed had the crime been committed in Canada is
a useful guideline, and crimes attracting a maximum sentence of ten years or
more in Canada will generally be sufficiently serious to warrant exclusion, the
ten-year rule should not be applied in a mechanistic, decontextualized, or
unjust manner.
[35]
Before that decision, there was essentially a
two-step analysis: a crime was presumptively serious where, if it had been
committed in Canada, it would have been punishable by a maximum of at least 10
years’ imprisonment. However, this presumption could be rebutted based on the
circumstances set out in Jayasekara (elements of the crime, mode of
prosecution, penalty prescribed, mitigating and aggravating circumstances).
Unsurprisingly, the parties disagree as to the impact of Febles SCC and
to what extent (if any) it changed the previous framework of analysis.
[36]
Counsel for the Applicant submitted that in Febles,
the Supreme Court has established that a crime is not to be considered
presumptively serious where a provision of the Canadian Criminal Code
has a large sentencing range and the claimant has committed a crime which falls
at the less serious end of the range in Canada. In such a case, there is no
presumption that the crime is serious, and the onus falls on the Minister to
establish the seriousness of the crime rather than on the claimant to rebut the
presumption of seriousness.
[37]
As a result, no presumption should arise in the
case at bar. The fraud provision in the Criminal Code has a large
sentencing range (zero to fourteen years), and the Applicant’s actual sentence
(10 months, but only 165 days actually served) was at the low end of this
range. Consequently, the Board erred in considering the actual sentence as
relevant to whether the presumption was rebutted instead of determining whether
the presumption arose to begin with.
[38]
With all due respect, I am unable to agree with
that reading of Febles SCC. Nowhere does the Supreme Court do away with
the presumption of seriousness for crimes punishable by a maximum of at least
10 years’ imprisonment. Quite to the contrary, the Court explicitly endorses
that presumption. What the Court does is to stress the importance of a
contextual analysis, and to caution against a mechanistic, rigid application of
the presumption. Indeed, the Court adds a new factor – the Canadian sentencing
range – into the mix of considerations to be taken into account. The thrust of
the Supreme Court’s comments at paragraph 62 of its decision is that the
presumption of seriousness for crimes attracting a maximum sentence of ten
years or more in Canada is a useful guide but should not be applied blindly; it
can certainly be rebutted in certain circumstances, bearing in mind that
Article 1F(b) was meant to exclude only those whose crimes are serious, and
applicants whose crimes fall at the less serious end of the spectrum pursuant
to our Criminal Code ought not to be excluded only because they are
caught by the presumption. Had the Supreme Court intended to introduce a more
substantial change to the law, I believe it would have done so more explicitly and
certainly not under the guise of “a few comments”
in obiter. Accordingly, I am of the view that the above quoted
paragraphs in Febles confirm the approach flowing from Chan and Jayasekara,
somewhat relax the presumption (even referring to it as a “useful guideline”), and add a new relevant
consideration when deciding whether a crime is serious.
[39]
The Board was therefore entitled to consider
that the crime for which the Applicant was convicted was, prima facie, a
serious crime for the purpose of Article 1F(b), and did not err even with
hindsight of the Febles decision in the Supreme Court. There is no basis
for the proposition put forward by counsel for the Applicant, either in the
wording of Article 1F(b) or in the Travaux
préparatoires of the Refugee Convention,
that the true test of seriousness is whether the crime is such as to make the Applicant
undeserving of protection, and that the crimes encompassed in Article 1F(b) are
meant to be as serious as the crimes in Articles 1F(a) (crime against peace,
war crime, or crime against humanity). As Justice Décary wrote in Zrig v
Canada (Minister of Citizenship and Immigration), 2003 FCA 178, at para
119, Article 1F(b) was the result of a delicate compromise between state
sovereignty and human rights:
…[It] indicates that while the signatories
were prepared to sacrifice their sovereignty, even their security, in the case
of the perpetrators of political crimes, they wished on the contrary to
preserve them for reasons of security and social peace in the case of the
perpetrators of serious ordinary crimes. This […] purpose also indicates that
the signatories wanted to ensure that the Convention would be accepted by the
people of the country of refuge, who might be in danger of having to live with
especially dangerous individuals under the cover of a right of asylum.
[40]
This compromise, which underlies Article 1F(b)
of the Refugee Convention, was echoed by the majority of the Supreme
Court in Febles SCC, at para 35:
I cannot accept the arguments of Mr. Febles
and the UNHCR on the purposes of Article 1F(b). I conclude that Article
1F(b) serves one main purpose – to exclude persons who have committed a
serious crime. This exclusion is central to the balance the Refugee
Convention strikes between helping victims of oppression by allowing them
to start new lives in other countries and protecting the interests of receiving
countries. Article 1F(b) is not directed solely at fugitives and neither
is it directed solely at some subset of serious criminals who are undeserving
at the time of the refugee application. Rather, in excluding all claimants who
have committed serious non-political crimes, Article 1F(b) expresses the
contracting states’ agreement that such persons by definition would be
undeserving of refugee protection by reason of their serious criminality.
[41]
The Supreme Court has similarly put to rest the
Applicant’s contention that events post-dating the crime (including
rehabilitation) are relevant to the exclusion determination. At paragraph 60 of
its reasons, the majority wrote in Febles SCC:
Article 1F(b) excludes anyone who has
ever committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee. Its application is not
limited to fugitives, and neither is the seriousness of the crime to be
balanced against factors extraneous to the crime such as present or future
danger to the host society or post-crime rehabilitation or expiation.
[42]
As a result, the Applicant’s arguments that are
unrelated to the crime and conviction (the fact that the Applicant has served
his sentence, has been rehabilitated, and poses no danger to the public) are
therefore irrelevant. To the extent that the Board did not consider these
factors, it made no error.
[43]
Finally, counsel for the Applicant submitted
that the Board erred in failing to consider and make conclusions on all the
mitigating factors that were raised. According to counsel, the Board applied
the ten year presumption in a mechanistic, decontextualized or unjust manner.
[44]
As set out in Jayasekara, for the
purposes of Article 1F(b), the seriousness of a crime is to be assessed by reference
to international norms, the perspective of the receiving state, and other
factors related to the crime such as the elements of the crime, the mode of
prosecution, the penalty prescribed, the facts and the mitigating and
aggravating circumstances underlying the conviction.
[45]
I agree with counsel for the Applicant that the
Board’s analysis of the mitigating or aggravating factors is somewhat
deficient. First of all, the Board acknowledged that the Applicant did not use
violence and agreed that it was indeed a mitigating factor, but went on to say
(at para 107) that it did not lessen the seriousness of the crime. This is not,
as counsel for the Respondent would have it, a mere “slightly
awkward choice of words”; on the contrary, it appears to be a misunderstanding
of the very concept of a mitigating factor, without any reasoning that would
allow the Court to understand why the Board came to that conclusion.
[46]
I also note that at paragraph 100 of her
reasons, the Board member listed various factors and then stated that she
considers some of these factors to be aggravating without specifying which
ones. She seemed to be of the view that a conviction for failing to pay three cheques
in relation to his private teaching institute’s business is related to the
crime for which he has been excluded pursuant to Article 1F(b), as it shows a
problem with managing debt in relation to his business. Such a connection is,
to say the least, dubious if not specious. She also found that reimbursement to
the victim is an aggravating factor because it was done by the sister and not
by the Applicant himself; once again, I fail to see the logic of such a
finding. The Applicant’s sister presumably reimbursed the victim on the
instructions of the Applicant, and there may be any number of reasons why the
Applicant did not reimburse the victim himself.
[47]
I also agree with counsel for the Applicant that
the Board member did refer to submissions of counsel on some mitigating factors
but did not indicate whether she agreed or disagreed with counsel that these
factors were indeed mitigating. Such is the case, for example, for the fact
that the sentence was suspended, that the victim did not wish to see the
Applicant punished, and that the Court did not order restitution.
[48]
At the end of the day, however, the most
egregious error of the Board member was her failure to take into account what
the Supreme Court considered a critical factor in Febles, namely the
wide Canadian sentencing range and the fact that the crime for which the
Applicant was convicted would fall at the less serious end of the range. This
consideration was quite relevant in the case at bar: the Canadian sentence for fraud
over $5,000 has a large sentencing range (0 to 14 years), and the Applicant’s
crime – fraud of $50,000 with a 10 month sentence – prima facie falls at
the low end of this range. The wide sentencing range and the Applicant’s low
actual sentence (not only was the actual sentence only two years but it was
suspended and the only jail time was 165 days pre-trial custody) were clearly a
most relevant factor in determining whether the crime was serious.
[49]
On that basis alone, the decision of the Board
ought to be quashed and the matter returned for reconsideration by a different
panel of the Board.
[50]
Counsel for the Applicant has proposed three
questions for certification:
•
Is a test or valid criterion for serious crime
in Refugee Convention Article 1F(b) whether the crime is such as to make
the claimant undeserving of protection?
•
Should Article 1F(b) be read ejusdem generis
with 1F(a) and 1F(c) so that the only crimes serious enough to be encompassed
in Article 1F(b) are those at the same level of seriousness as those
encompassed in Articles 1F(a) and 1F(c)?
•
Is the statement of the Supreme Court of Canada
in the case of Febles v Canada (Citizenship and Immigration), 2014 SCC
68 at para 62 that “a claimant whose crime would fall
at the less serious end of the range in Canada should not be presumptively
excluded” to be interpreted to mean that there is no presumption in
favour of exclusion against a claimant whose crime would fall at the less
serious end of the range in Canada?
[51]
Counsel for the Respondent objected to the
certification of these questions, and particularly the first two of them. I
agree that the first two questions do not raise issues of general importance, as
they have already been answered in the negative by the Federal Court of Appeal
and, at least implicitly, by the Supreme Court in Febles. As for the
third question, it would not be dispositive of this application as I have
already found, quite apart from any applicable presumption, that the Board
erred in its assessment of the mitigating factors.
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