Date: 20121207
Docket: A-90-12
Citation: 2012 FCA 325
CORAM: EVANS
J.A.
SHARLOW
J.A.
STRATAS
J.A.
BETWEEN:
ERIK FEIMI
Appellant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This
is an appeal by Erik Feimi, a national of Albania, from a decision by the
Federal Court (2012 FC 262), in which Justice Martineau (Application Judge)
dismissed his application for judicial review to set aside a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB),
dated July 26, 2011.
[2]
In
that decision, the RPD rejected Mr Feimi’s claim for refugee protection, on the
ground that he was excluded from the definition of a refugee by Article 1F (b)
of the United Nations Convention relating to the Status of Refugees,
July 28, 1951, [1969] Can. T.S. No. 6 (Convention), which is incorporated into
Canadian domestic law by section 98 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). On the basis of Mr Feimi’s
conviction in Greece in 1997 for the crime of murder in a fit of anger, the RPD
held that there were serious reasons for considering that he had committed a
“serious non-political crime” within the meaning of Article 1F (b).
[3]
The
Court heard this appeal after Febles v. Minister of Citizenship and
Immigration (Court File No. A-379-11). The issues in the two cases overlap
to a significant degree, but not entirely. Central to both is the following
question: is a claimant’s rehabilitation and current dangerousness relevant to
an assessment by the RPD of whether a crime committed by a refugee claimant
before arriving in Canada is “serious” for the purpose of Article 1F (b), and
thus excludes her from obtaining refugee status?
[4]
In
Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA
324 (Febles), the Court decides that a claimant’s rehabilitation and
current dangerousness are not relevant to an exclusion determination under Article
1F (b). A copy of the reasons given in Febles will be inserted into Mr
Feimi’s file (Court File No. A-90-12). It is not necessary to repeat here the
reasons given in Febles on the issues common to both cases, or to set
out again the relevant provisions of IRPA.
B. FACTUAL BACKGROUND
[5]
A
Greek court found that, while living in Greece, Mr Feimi had fatally stabbed
another Albanian in the course of a fight that had resulted from his attempt to
protect his sister from a sexual assault by the deceased. He was convicted of
murder in a fit of anger, carrying arms without a licence, and the illegal use
of arms. He was sentenced to imprisonment for 12 years and six months, which a
Greek appellate court subsequently reduced by 12 months.
[6]
Mr
Feimi was released from prison on June 11, 2003, after serving half of his
original sentence. Greek authorities escorted him to the Albanian border. He
and his family say that they could no longer live in Albania because the
killing had provoked a blood feud between them and the family of the deceased.
[7]
Mr
Feimi arrived in Canada in December 2004 and claimed refugee protection. He was
referred to the Immigration Division of the IRB. On April 12, 2005, it found
him inadmissible for serious criminality and issued a deportation order against
him.
[8]
On
June 1, 2005, the Canada Border Services Agency (CBSA), an agency of the
Ministry of Public Safety and Emergency Preparedness, informed Mr Feimi that it
was seeking an opinion on whether he was a danger to the public in Canada. On January 4, 2007, a delegate of the Minister of Citizenship and Immigration (MCI)
declined to provide an opinion that Mr Feimi was dangerous. Accordingly, his
claim for refugee protection was not ineligible to be referred to the RPD:
IRPA, para. 101(2)(b).
[9]
On
March 22, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP)
served notice that he intended to intervene at the RPD hearing to make
submissions that Mr Feimi was excluded from refugee protection by Article 1F
(b) of the Convention on the ground that there were serious reasons for
considering that he had committed a “serious non-political crime” before his
arrival in Canada.
C. DECISION OF THE RPD
[10]
On
July 26, 2011, the RPD held that the crime of which Mr Feimi had been convicted
in Greece was the equivalent of manslaughter. The crime was presumptively
“serious” because if it had been committed in Canada it would have been
punishable by a maximum of at least 10 years’ imprisonment. The RPD also
considered the factors listed in Jayasekara v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164 (Jayasekara)
for determining if Mr Feimi’s crime was “serious”.
[11]
The
RPD concluded that the circumstances surrounding the commission of the crime
and the judicial process in Greece were insufficient to rebut the presumption
of seriousness arising from the length of the maximum sentence that the
equivalent offence carried in Canada. Having found that Mr Feimi had not shown
remorse for his crime, the RPD did not accept that he was rehabilitated.
D. DECISION OF THE
FEDERAL COURT
[12]
In
dismissing Mr Feimi’s application for judicial review of the RPD’s decision,
the Application Judge reached the following conclusions. First, the MPSEP is
entitled to intervene at an RPD hearing, even though the MCI had previously denied
a request for an opinion that the claimant was a danger to the public in Canada, and that his claim for refugee protection was therefore not ineligible to be
referred to the RPD. Second, since a claimant’s dangerousness is not relevant
to a determination of whether a claim for refugee protection is excluded, the
RPD did not err in law by failing to take into account the fact that Mr Feimi
had not re-offended, and to adequately consider whether he was rehabilitated
and posed a current danger. Third, on the basis of both the material before it
and the Jayasekara factors, the RPD’s conclusion that there were serious
reasons for considering that Mr Feimi had committed a serious crime for the
purpose of Article 1F (b) was not unreasonable.
[13]
The
Application Judge certified the following questions for appeal pursuant to
paragraph 74(d) of IRPA.
1. Once the
Minister of Citizenship and Immigration denies the request of the Canada Border
Service Agency in the Ministry of Public Safety and Emergency Preparedness for
a danger opinion for the purpose of paragraph 101(2)(b) of the Immigration
and Refugee Protection Act can the Minister of Public Safety and Emergency
Preparedness seek exclusion at a refugee protection hearing of the Refugee
Protection Division, Immigration and Refugee Board based on the same underlying
criminal conduct on which the Canada Border Service Agency sought a danger
opinion?
2. 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:
(a)
whether the refugee claimant has been rehabilitated since the commission of the
crime at issue; and
(b)
the fact that the Minister of Citizenship and Immigration has determined the
refugee claimant not to be a danger to the public in Canada?
E. ANALYSIS
(i) Standard of review
[14]
The
principal legal issue underlying the certified questions is the interpretation
of Article 1F (b): in particular, whether a refugee claim is excluded by Article
1F (b) when a person who has committed a serious crime before arriving in
Canada is rehabilitated and poses no current danger to the public. For the
reasons given in Febles (at paras. 22-25), correctness is the standard
of review applicable to this question.
[15]
The
second issue is whether, on the facts of this case, the MPSEP exercised his
discretion unlawfully by intervening in Mr Feimi’s exclusion hearing to make
representations that his refugee claim was excluded by Article 1F (b).
Reasonableness is the standard of review applicable to the exercise of
statutory discretion: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 53 (Dunsmuir).
[16]
In
addition to the certified questions, Mr Feimi challenges the conclusion of the
RPD that his crime was “serious”, even if it was not required to consider
whether he was currently dangerous. Reasonableness is the standard applicable
when, as here, questions of law and fact are “intertwined … and cannot be
readily separated”: Dunsmuir at para. 53.
[17]
On
an appeal from the Federal Court in an administrative law judicial review
matter, this Court in effect stands in the shoes of the Federal Court and asks
if the Application Judge selected the appropriate standard of review and, if
so, applied it correctly: Prairie Acid Rain Coalition v. Canada (Minister
of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 at paras. 13-14;
Canada Revenue Agency v. Telfer, 2009 FCA 23, [2009] 4
C.T.C. 123 at paras. 18-19.
(ii) The certified questions
Question 1: Once
the Minister of Citizenship and Immigration denies the request of the Canada
Border Service Agency in the Ministry of Public Safety and Emergency
Preparedness for a danger opinion for the purpose of paragraph 101(2)(b) of the
Immigration and Refugee Protection Act can the Minister of Public Safety and
Emergency Preparedness seek exclusion at a refugee protection hearing of the
Refugee Protection Division, Immigration and Refugee Board based on the same
underlying criminal conduct on which the Canada Border Service Agency sought a
danger opinion?
[18]
The
claimant’s dangerousness is the key component of a danger opinion given by the
MCI at the request of the CBSA for the purpose of determining whether a refugee
claim is eligible to be referred to the RPD. However, the Court has held in Febles
that a claimant’s current dangerousness is not relevant to a determination of
whether the claim is excluded from the refugee definition by Article 1F (b).
[19]
IRPA
imposes no express limitations on the discretion of the MPSEP to intervene
before the RPD:
|
170. The Refugee Protection
Division, in any proceeding before it,
…
(e) must give the person and the
Minister a reasonable opportunity to present evidence, question witnesses and
make representations;
…
|
170. Dans toute affaire dont
elle est saisie, la Section de la protection des réfugiés :
[…]
e) donne à la personne en cause
et au ministre la possibilité de produire des éléments de preuve,
d’interroger des témoins et de présenter des observations;
[…]
|
[20]
Mr
Feimi’s argument that the MPSEP improperly exercised his discretion to
intervene at the exclusion hearing was based largely on the fact that the MCI
had declined to give an opinion that Mr Feimi was a danger to the public in Canada and that his claim was therefore not ineligible to be referred to the RPD. Mr Feimi submits
that the fact that the MCI did not consider him a danger in effect estops the MPSEP
from intervening before the RPD to argue for exclusion on essentially the same
materials as those on which the MCI denied a request for a danger opinion.
[21]
I
do not agree. Since we have held in Febles that current dangerousness is
not an issue at an exclusion hearing, there is no possible basis for concluding
that the MCI’s refusal of a danger opinion at the eligibility stage made it
unreasonable for the MPSEP to intervene at Mr Feimi’s exclusion hearing to
argue that his crime was serious and Article 1F (b) applies. The issues at the
eligibility and exclusion stages of processing a refuge claim are not the same.
Thus, no question of estoppel can arise, even when the same criminal conduct
underlies both the danger opinion at the eligibility stage and intervention at
the exclusion hearing.
[22]
Finally,
the broad scope of the discretion of the MPSEP to intervene before the RPD
imposes a heavy burden on an applicant to establish that it was exercised
unreasonably. Mr Feimi has not even come close to discharging it.
[23]
Accordingly
I would answer Question 1 in the affirmative.
Question 2: 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:
(a) whether the
refugee claimant has been rehabilitated since the commission of the crime at
issue?
(b) The fact that the
Minister of Citizenship and Immigration has determined the refugee claimant not
to be a danger to the public in Canada?
[24]
Febles answers both parts of
this question. The rehabilitation of a claimant after the commission of a crime
and his current dangerousness are irrelevant at the exclusion stage.
Consequently, the fact that the MCI refused to give a danger opinion at the
eligibility stage of the process is immaterial at the exclusion stage.
[25]
Mr
Feimi advanced an argument about the interpretation of Article 1F (b) based on
the structure of the IRPA that was not made in Febles. He submitted
that, if dangerousness is not relevant at the exclusion stage, a person who has
not been found at the eligibility stage to be a danger, but whose claim is nonetheless
excluded by Article 1F (b), would inevitably be granted protection at the
pre-removal risk assessment stage (PRRA). This is because section 113 of the
IRPA states that at a PRRA, the Minister is to weigh the risk to the individual,
if removed, against the risk to the public in Canada posed by the claimant’s
dangerousness.
[26]
Mr
Feimi argues that since the MCI has already refused to give a danger opinion
there is nothing to weigh in the PRRA, and protection must automatically be
granted. He concludes that an interpretation of Article 1F (b) that makes the
PRRA pointless and creates unnecessary and wasteful administrative duplication cannot
be correct. This problem would not occur, he says, if the RPD took current
dangerousness into account in determining whether the claimant should be
excluded from the status of refugee.
[27]
I
do not agree that interpreting Article 1F (b) to exclude a refugee claim by a
person who has committed a serious crime, but is not now a danger, is inconsistent
with the PRRA provisions of IRPA. First, an application by Mr Feimi for
protection in a PRRA would not be pointless, because it would provide an
opportunity for him to satisfy the MCI that he is a person at risk. Second, if
Mr Feimi were found to be at risk, it would be open to the MCI to consider
whether he is a danger to the public in Canada in light of the information then
available, and to balance the risk to him if he is removed against the danger
to the public if he is not.
[28]
For
these reasons, and those given in Febles, I would answer both parts of
Question 2 in the negative.
(iii) Was the decision
of the RPD that Mr Feimi’s crime was “serious” unreasonable?
[29]
The
argument here is that, even if a claimant’s dangerousness is irrelevant to a
determination by the RPD of whether a crime is “serious” so as to exclude a refugee
claim, the RPD in this case applied the Jayasekara factors unreasonably.
[30]
Mr
Feimi challenged the RPD’s reasoning on some of the circumstances surrounding
the crime and the fairness of the process before the Greek courts. As for the circumstances
surrounding the crime, Mr Feimi relies principally on what he says is an
erroneous finding by the RPD on the number of stab wounds that he inflicted on
the deceased and the RPD’s apparent confusion over whether there was one
coroner’s report or two. As evidence of the unfairness of the Greek judicial
process, Mr Feimi claims that he was not provided with an interpreter at the
trial and that his legal representation was inadequate.
[31]
The
question before the RPD was whether there were “serious reasons for
considering” that Mr Feimi had committed a “serious non-political crime”. It is
undisputed that his crime was not political and that it was presumptively
serious because, if he had been found guilty in Canada of the equivalent crime
of manslaughter, he could have been sentenced to a maximum of at least 10 years’
imprisonment.
[32]
After
a careful examination of the record, including the RPD’s reasons, the
Application Judge was not satisfied that the decision under review was
unreasonable on the basis of either the evidence before the RPD or the factors
identified in Jayasekara.
[33]
For
substantially the reasons given by the Application Judge, I am of the view that
the intervention of this Court is not warranted, even though parts of the RPD’s
reasons may be open to question. The RPD’s overall conclusion on the material
before it that there were serious reasons for considering that Mr Feimi had
committed a serious crime was not unreasonable.
F. CONCLUSIONS
[34]
For
these reasons, I would dismiss the appeal and answer the certified questions as
follows.
Question 1: Once
the Minister of Citizenship and Immigration denies the request of the Canada
Border Service Agency in the Ministry of Public Safety and Emergency
Preparedness for a danger opinion for the purpose of paragraph 101(2)(b) of the
Immigration and Refugee Protection Act can the Minister of Public Safety
and Emergency Preparedness seek exclusion at a refugee protection hearing of
the Refugee Protection Division, Immigration and Refugee Board based on the
same underlying criminal conduct on which the Canada Border Service Agency
sought a danger opinion?
Answer : Yes
Question 2: 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:
(a) whether the
refugee claimant has been rehabilitated since the commission of the crime at
issue?
(b) The fact that the
Minister of Citizenship and Immigration has determined the refugee claimant not
to be a danger to the public in Canada?
Answer: (a)
No
(b)
No
“John M. Evans”
“I
agree
K.
Sharlow J.A.”
“I
agree David Stratas J.A.”
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