Docket: IMM-1469-13
Citation:
2015 FC 26
Ottawa, Ontario, January 8, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ARLIND NARKAJ
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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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JUDGMENT AND REASONS
I.
Overview
[1]
In 2010, Mr Arlind Narkaj, a citizen of Albania, claimed refugee status in Canada. A panel of the Immigration and Refugee Board rejected Mr
Narkaj’s claim on the basis that he was excluded from refugee protection due to
his previous convictions in the United States on several counts of home
invasion.
[2]
Mr Narkaj maintains that the Board’s decision
was unreasonable as it ignored some important factors in his favour. He asks me
to overturn the Board’s decision and order another panel of the Board to
reconsider his claim.
[3]
I agree with Mr Narkaj that the Board failed to
consider certain factors that might have led to a conclusion that he should not
be excluded from claiming refugee status. Accordingly, the Board’s conclusion
to the contrary cannot be considered reasonable. I must, therefore, allow this
application for judicial review.
[4]
The sole issue is whether the Board’s decision
was unreasonable.
II.
The Board’s Decision
[5]
The Board noted that a person is excluded from
refugee protection under Article 1F(b) of the Refugee Convention if
there are serious reasons for considering that he or she has previously
committed “a serious non-political crime outside the
country of refuge”. Generally speaking, a serious non-political crime is
one for which a sentence of imprisonment of 10 years or more can be imposed (Chan
v Canada (MCI), [2000] FCJ No 1180 (CA) at para 9).
[6]
The Board then considered the nature of Mr
Narkaj’s crimes. Mr Narkaj admitted that he had been involved in five offences
of breaking and entering in Michigan. On one occasion, he entered a house in
order to steal goods that could be resold for cash. He was 17 at the time. On
the other occasions, he acted as a lookout. Those offences took place just
after his 18th birthday. The Board found that these crimes would be
punishable in Canada by a maximum sentence of life imprisonment under s
348(1)(b) of the Criminal Code. Therefore, Mr Narkaj had committed serious
non-political crimes.
[7]
The Board went on to consider other relevant
issues, including the mode of prosecution, the punishment imposed, and
aggravating or mitigating factors (relying on Jayeskara v Canada (MCI),
2008 FCA 404).
[8]
Regarding the mode of prosecution, the Board
found that Mr Narkaj was represented by counsel and received a fair trial.
There was no indication that he had been wrongfully convicted. Further, the
offences he had committed were regarded as serious in the United States, and resulted in his removal from that country.
[9]
In respect of the sentence imposed, the Board
noted that Mr Narkaj received two concurrent terms of three years’ probation
with the first twelve months spent in custody. However, as a youth offender
with no previous record, Mr Narkaj was offered a chance to avoid incarceration
by attending three months in boot camp. Still, according to the Board, the
sentence imposed on Mr Narkaj could not be considered lenient, given that it resulted
in his losing his permanent resident status in the United States. Further, he never
actually attended the boot camp; instead, he was held in custody pending
deportation.
[10]
The Board found no mitigating or aggravating
circumstances as the proceedings in the United States were not unfair.
[11]
Accordingly, as a person who had committed
serious non-political crimes, the Board found that Mr Narkaj did not deserve
refugee protection in Canada.
III.
Was the Board’s decision unreasonable?
[12]
I can overturn the Board’s application of
Article 1F(b) to the facts before it only if its decision was
unreasonable.
[13]
The Minister argues that the Board properly
considered the relevant factors and arrived at an intelligible, transparent,
and defensible conclusion.
[14]
I disagree. While the Board properly concluded
that Mr Narkaj had committed a serious non-political crime, it erred in
applying the other relevant factors.
[15]
First, the Board did not actually consider the
mode of prosecution. “Mode of prosecution” refers
to the manner in which the prosecution elects to proceed. In Canada, for
example, under the Criminal Code, RSC 1985, c C-46, some crimes are
prosecuted by indictment, some by summary conviction, and in respect of
so-called “hybrid” offences, either way (eg
theft under $5,000 (s 334(b))). The mode of prosecution selected by the
prosecutor is indicative of the seriousness of the offence; for example, a
hybrid offence prosecuted by indictment may be punishable by a maximum of five
years’ imprisonment while, on summary conviction, by no more than six months (eg
identify theft, s 402.2(5), s 787(1)). In addition, for some crimes or
certain offenders, a prosecutor may have a discretion to divert proceedings
away from the usual criminal process toward more suitable, less punitive
measures (eg a program of alternative measures (s 717)). Again, the
prosecutor’s choice would provide an indication of the seriousness of the
offence.
[16]
The Board did not consider the mode by which Mr
Narkaj’s crimes were prosecuted. It simply noted that he had been represented
by counsel and had a fair trial. On the evidence, the Board should have
considered that Mr Narkaj was charged with home invasion in the second degree,
which attracts a maximum sentence of 15 years, less than the corresponding
maximum in Canada. Further, Mr Narkaj was assigned “youthful
trainee status”, meaning that no conviction was actually entered against
him so long as he attended boot camp and respected the terms of his probation.
Finally, some charges against Mr Narkaj were dropped. In my view, these facts were
relevant to the mode of prosecution pursued by United States’ authorities.
[17]
Second, the Board should have considered that
the punishment imposed on Mr Narkaj was comparatively lenient, considering the
maximum sentence available.
[18]
Third, the Board did not consider the mitigating
and aggravating factors reflected in the record. On the mitigating side, the following
were relevant:
- Mr Narkaj’s
youth;his lack of a criminal record;
- his limited
involvement in the crimes;
- the absence of
violence;
- the absence of
any use of alcohol, drugs, or paraphernalia on Mr Narkaj’s part; and
- Mr Narkaj’s
guilty plea.
[19]
On the aggravating side, the Board should have
considered that Mr Narkaj committed crimes after having been given the
protection of the United States. In turn, his conduct led to the loss of status
in that country, forcing him to return to Albania where he faced possible
persecution.
[20]
Overall, therefore, I find that the Board’s
failure to consider numerous relevant facts led it to an unreasonable
conclusion.
IV.
Conclusion and Disposition
[21]
The Board should have considered a number of
factors before concluding that Mr Narkaj did not deserve refugee protection in Canada. Given the law and the facts before it, the Board’s decision did not represent a
defensible outcome. I must, therefore, allow this application for judicial
review and order another panel of the Board to reconsider Mr Narkaj’s claim.
Neither party proposed a question of general importance for me to certify, and
none is stated.
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