Date: 20250326

Docket: IMM-7635-24

Citation: 2025 FC 562

Toronto, Ontario, March 26, 2025

PRESENT: Madam Justice Go

JUDGMENT AND REASONS

I. Overview

[1] Maryan Ahmed Mohamed [Applicant], a citizen of Somalia, seeks judicial review of the decision of the Refugee Appeal Division [RAD] finding that the Applicant is excluded from refugee protection under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees [Refugee Convention] [Decision]. The Decision under review was the second decision issued by the RAD with respect to the Applicant’s refugee claim.

[2] The Applicant fears gender-based persecution in Somalia. With the aid of a smuggler, the Applicant travelled to Sweden via Greece in May 2007 and made a claim for asylum upon arrival in Sweden. However, since the Applicant had arrived in the European Union by way of Greece, Swedish authorities informed her that her claim must be decided in Greece pursuant to Council Regulation, (EC) No 343/2003.

[3] Instead of returning to Greece, the Applicant purchased a Swedish residency card in January 2008 from a woman named Asha, assumed Asha’s identity, and lived in Sweden under this false identity for over a decade. In 2008, the Applicant married her second husband, a Swedish citizen, and had four children with him.

[4] In 2017, the Applicant applied for Swedish citizenship and obtained a Swedish passport under Asha’s name, which she used to enter Canada with her children in 2019. When she filed a claim for refugee protection upon arrival, the Applicant disclosed her use of a non-genuine passport.

[5] The Minister of Public Safety and Emergency Preparedness [Minister] intervened in the Applicant’s claim on the issue of Article 1F(b), arguing that the Applicant fraudulently obtained Swedish documents and lived in Sweden under the identity of Asha from January 2008 to June 2019. The Minister also submitted that the Applicant failed to establish her claimed identity.

[6] In the Decision, the RAD agreed with the Refugee Protection Division in its redetermination decision that the Applicant established her identity on a balance of probabilities. However, the RAD determined that the Applicant is excluded from refugee protection under Article 1F(b) and granted the Minister’s appeal.

[7] For the reasons set out below, I find the Decision unreasonable and I grant the application.

II. Issues and Standard of Review

[8] The Applicant raises only one issue in her written submission, namely, whether the RAD erred in finding that the Applicant is excluded from refugee protection pursuant to Article 1F(b). For ease of analysis, I have sub-divided and re-organized the Applicant’s arguments into the following four issues:

1. Did the RAD err in its finding that the Applicant’s use of a “fraudulent passport” is equivalent to the indicatable offence under subsection 57(1) of the Criminal Code of Canada, RSC, 1985, c. C-46 [Criminal Code];

2. Did the RAD err by finding that the Applicant likely received more than five thousand dollars in services while living under the assumed identity of Asha, equivalent to a crime under subsection 380(1) of the Criminal Code;

3. Did the RAD err in finding that the Applicant does not benefit from the protection of section 133 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]; and

4. Did the RAD err when it determined the presumption that the Applicant’s crimes are serious had not been rebutted, based on the factors set out in Jayasekara v Canada (Citizenship and Immigration), 2008 FCA 404 (CanLII), [2009] 4 FCR 164 [Jayasekara] and the relevant jurisprudence?

[9] The Applicant does not make submissions regarding the standard of review.

[10] The Respondent submits the standard of review is reasonableness. I agree. As per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25, the Court should assess whether the decision bears the requisite hallmarks of justification, transparency, and intelligibility: Vavilov at para 99. The Applicants bear the onus of demonstrating that the decision was unreasonable: Vavilov at para 100.

III. Analysis

[11] Article 1F(b) of the Refugee Convention states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee.

[12] Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

[13] While the Refugee Convention does not define “serious non-political crime,” the Federal Court of Appeal [FCA] in Jayasekara, at para 44, found that the elements of the crime, mode of prosecution, penalty prescribed, specific facts of the case, and mitigating and aggravating circumstances are relevant factors to consider when assessing the seriousness of a crime.

[14] There is a rebuttable presumption that a non-political crime is serious where a maximum sentence of 10 years or more could have been imposed had the act been committed in Canada: Gardijan v Canada (Citizenship and Immigration), 2022 FC 421 at para 39. While crimes attracting a maximum sentence of 10 years of more in Canada will generally be sufficient to warrant exclusion, the 10-year rule should not be applied in a mechanistic, decontextualized, or unjust manner: Febles v Canada (Citizenship and Immigration), 2014 SCC 68 at para 62.

[15] In the Decision, the RAD found that the Applicant’s actions in Sweden are equivalent to multiple crimes in Canada, including the use of a fraudulent passport, the use of a fraudulent document, identity fraud, and fraud. In particular, the RAD noted that the crime of using a fraudulent passport is an indictable offence that carries a penalty of imprisonment for a term of up to 14 years, and that crimes with a maximum sentence of ten years or more are generally considered serious crimes, citing paragraph 122(1)(b) of the IRPA and subsection 57(1) of the Criminal Code.

[16] The Applicant submits that the RAD erred by equating her use of a genuine passport issued for an assumed identity to the use of a fraudulent passport under subsection 57(1) of the Criminal Code which states that every one who forges a passport, or knowing that a passport is forged, uses, deals with, or acts on it, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[17] The Applicant argues there was no forgery by the Applicant. Rather, the passport she used was a genuine passport. The Applicant cites Hasani v Canada (Citizenship and Immigration), 2020 FC 125 [Hasani], where the Court found that forgery “has a specific meaning in Canadian law … [and that] to make a false document includes making material changes to a genuine document:” Hasani at para 61. The Court also found that in the absence of any evidence that the documents were not genuine or, if genuine, had been altered in a material way, it was unreasonable for the decision-maker to have concluded that they were forged: Hasani at para 61.

[18] The Respondent concedes that subsection 57(1) would not apply to the Applicant’s case as the Swedish passport was fraudulent, not forged.

[19] The parties thus agree, as do I, that the RAD erred by finding that the Applicant’s use of a “fraudulent passport” is equivalent to the indicatable offence under subsection 57(1) of the Criminal Code. I also agree with the Applicant that her case is more in line with section 57(2) of the Criminal Code, which provides that it is a hybrid offence for anyone to, for the purpose of procuring a passport for himself or any other person or for the purpose of procuring any material alteration or addition to any such passport, makes a written or an oral statement that he knows is false or misleading.

[20] I note that the RAD also based its finding that the Applicant committed a serious non-political crime outside of Canada by relying on paragraph 380(1)(a) of the Criminal Code, which is likewise an indictable offence carrying a maximum sentence of 14 years. I therefore conclude that the RAD’s error with respect to subsection 57(1) is not dispositive of the application.

[21] Paragraph 380(1)(a) of the Criminal Code states that everyone who defrauds the public or any person of any property or service is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years if the value of the subject matter of the offence exceeds five thousand dollars. Since the Applicant could receive a sentence of at least ten years, the RAD determined that this offence is presumed to be a serious crime.

[22] The Applicant submits the RAD erred by finding that the Applicant likely received more than five thousand dollars in services while living under the false identity of Asha. The Applicant argues this was an argument put forth by the Minister that was not based on evidence and should not have been accepted by the RAD. The Applicant contends that to compute the amount of the benefits she received while living in Sweden, whether tangible or intangible, is a very difficult task, if not impossible. This is especially so, given that the Applicant is an unsophisticated individual.

[23] I am not persuaded by the Applicant’s arguments.

[24] The RAD’s finding that paragraph 380(1)(a) of the Criminal Code applied to the Applicant was not based solely on the Applicant’s receipt of social assistance payments. As argued by the Minister, having given birth to six children in Sweden, the RAD reasoned that it is also more likely than not that the Applicant received health care services as a presumed resident of Sweden. Thus, the RAD found that it is probable, likely, and reasonable to conclude that the value of the services the Applicant received while living in Sweden under a fake identity exceeds five thousand dollars.

[25] Other than arguing that the RAD’s finding with respect to the social assistance was speculative and reiterating that the Applicant testified during the RPD hearing that she only collected social assistance benefits for two months, the Applicant makes no argument about the RAD’s finding with respect to the receipt of health care services. I further note that the RAD did consider the Applicant’s testimony that she only received social assistance for two months. However, the RAD found that by knowingly assuming a fake identity, the Applicant’s credibility was at issue, thus rebutting the presumption of truthfulness of her testimony. The Applicant makes no argument to challenge the RAD’s credibility finding.

[26] Given that the Applicant was a resident of Sweden between 2007 and 2019, and had six children while living in Sweden under a fraudulent resident identity card, I find it reasonable for the RAD to conclude that the value of the health care services she received under her assumed identity exceeds five thousand dollars.

[27] As noted above, the RAD cited paragraph 122(1)(b) of the IRPA in finding that the Applicant used a non-genuine passport to enter or remain in Canada.

[28] Subsection 122(1) reads:

[29] However, section 133 of the IRPA states that a refugee claimant who entered Canada with a fraudulent document, directly or indirectly from the country in which they are seeking protection, cannot be charged under the IRPA or the Criminal Code for using a false document in relation to coming into Canada, while their claim is still pending, or if refugee protection is eventually granted.

[30] Specifically, section 133 reads:

[31] The RAD determined that the Applicant does not benefit from the protection of section 133 of the IRPA.

[32] The Applicant challenges this finding on several grounds. I do not find many of the Applicant’s submissions persuasive.

[33] First, the Applicant argues that section 133 does not use the word “fraudulent,” and it is unclear from where the RAD adopted this word. I conclude the RAD’s adoption of the term “fraudulent document” was reasonable in light of Uppal v Canada (Citizenship and Immigration), 2006 FC 338 [Uppal], a case cited by the RAD, where the Court accepted the determination of the Immigration Division [ID] that “an individual could be sheltered from a finding of inadmissibility only in relation to a fraudulent document that was obtained for the purpose of entering Canada:” [emphasis added] Uppal at para 22.

[34] Second, contrary to the Applicant’s submission, I find the RAD reasonably looked to Article 31 of the Refugee Convention and the UNHCR Handbook as sources in interpreting section 133, as this provision was Canada’s way of complying with the Refugee Convention obligation of not imposing penalties on asylum seekers who enter Canada through irregular means.

[35] The central matter before me is the reasonableness of the RAD’s finding that the Applicant did not come to Canada “directly or indirectly from the country in respect of which the claim is made” under section 133. Specifically, the RAD found:

• a.The Applicant did not obtain her Swedish passport for the purpose of entering Canada, but for the purpose of remaining in Sweden;

• b.The Applicant did not come to Canada directly or indirectly from Somalia, as she left Somalia in 2007 and did not come to Canada until 2019, and it cannot be said that she was transiting through Sweden on her way to seek protection in Canada as she lived in Sweden from 2007 to 2019;

• c.The purpose of section 133 of the IRPA is to provide protection from punishment to a person who is fleeing danger in their home country and who had to obtain fraudulent travel documents to make their way to a safe country, and the Applicant did not obtain a Swedish passport to get out of Somalia unharmed but rather to unlawfully establish Swedish citizenship;

• d.The Applicant’s use of a fraudulent Dutch passport to enter the European Union by way of Greece in 2007 is the type of action that section 133 of the IRPA is meant to offer protection from, but not the subsequent passport the Applicant obtained in Sweden in 2017; and

• e.The Applicant did not use the Swedish passport to come to Canada right away, but rather, she remained in Sweden for two years after obtaining the passport, had another child there in 2018, and then came to Canada in 2019. She was not under direct threat of being deported from Sweden back to Somalia at the time. It is therefore more likely than not that the Applicant obtained a Swedish passport in 2017 for the purposes of formalizing and confirming her fraudulent Swedish citizenship and to take advantage of the security and benefits that citizenship granted her.

[36] The RAD thus concluded the Applicant did not come directly or indirectly from Somalia, did not obtain her Swedish passport for the purpose of coming to Canada, and therefore section 133 of the IRPA does not offer the Applicant protection from the crimes she committed.

[37] In considering the reasonableness of the RAD’s finding, I begin my analysis by reviewing the relevant jurisprudence from the Court. To date, there has only been a handful of decisions from the Court dealing with section 133.

[38] Beginning with Uppal, a pre-Vavilov decision, the applicant in that case lived in the United Kingdom [U.K.] for almost ten years, obtained a British passport under an assumed identity, and used it to obtain a driver’s licence before coming to Canada. Canadian authorities issued a report to find him inadmissible based on his fraudulent application for a British passport and using the fraudulent passport to obtain the driver’s licence. Mr. Uppal sought to rely upon section 133. The Immigration Division [ID] decided that Mr. Uppal was not entitled to the protection of section 133, as the provision only protected illegal conduct that related to coming to Canada. The ID concluded that the use of the passport to obtain the driver’s licence had nothing to do with his journey to Canada. On judicial review, the Court confirmed the decision of the ID. At paras 21-22, the Court in Uppal stated:

[21] Applying the reasoning in Vijayakumar in relation to inadmissibility, section 133 provides shelter, to refugees and refugee claimants, for possessing and using false documents. However, it does not provide carte blanche immunization. On a plain reading of the provision, the protection extends to documents “in relation to the coming into Canada of the person”. The intent is to allow bona fide refugees and refugee claimants to use false passports and supporting documents obtained by them for the purpose of making their way into Canada and to shelter them from a finding of inadmissibility for holding and using those documents. The English version of the pertinent portion of the provision is in harmony with the French version: “à la condition que l’infraction ait été commise à l’égard de son arrivée au Canada” (subject to the condition that the infraction was committed with reference to his or her arrival in Canada).

[22] In examining the question of inadmissibility, the ID determined that an individual could be sheltered from a finding of inadmissibility only in relation to a fraudulent document that was obtained for the purpose of entering Canada. In my view, that interpretation is correct. To hold otherwise would be to ignore the plain meaning of the text and would not accord with the previously noted general objectives of the IRPA in the context of immigration, and more specifically, inadmissibility.

[39] Further, at para 24, the Court continued:

[24] Mr. Uppal argues that the ID wrongly considered section 133 as being inapplicable to all documents other than passports. I disagree. The ID did not conclude that section 133 was inapplicable to the driver’s licence because the licence was not a passport. Rather, it concluded that section 133 was inapplicable because he had not obtained the driver’s licence in relation to “his coming into Canada.”

[Emphasis added]

[40] The Court followed Uppal in Kathirgamathamby v Canada (Citizenship and Immigration), 2013 FC 811 [Kathirgamathamby] where an officer denied an applicant’s permanent residence application on the basis that he was inadmissible for criminality. The applicant was a citizen of Sri Lanka who pled guilty to entering the United States [U.S.] on a fraudulent passport. After his release from custody, the applicant, his wife, and their children came to Canada and were found to be Convention refugees. The applicant applied for permanent residence and explained he had to obtain a fraudulent passport in order to escape Sri Lanka because his life was in danger. The officer found the applicant was inadmissible for the offence of fraud. The applicant argued he could not be charged or convicted of fraud in Canada because of section 133 and because the essential element of identity theft was not established. The Court found the application of section 133 did not arise, citing Uppal and noting that the Applicant used a fraudulent document to enter the U.S., not Canada. However, the Court allowed the application for judicial review on the basis that the officer did not provide any details about the test of equivalency conducted.

[41] The Court had another opportunity to consider section 133 in the case of Bellevue v Canada (Public Safety and Emergency Preparedness), 2018 FC 926 [Bellevue 2018], where Justice St-Louis (now Associate Chief Justice) undertook an in-depth review of Uppal and its reasons. One of the issues in Bellevue 2018 was whether section 133 should be considered as an “immunity” or as a “defence.” The Court concluded that it was the former, and not the latter: Bellevue 2018 at para 33.

[42] Another issue was how the section should apply to offences arising from a foreign jurisdiction. In that regard, the Court took care to note that Justice Heneghan’s comment about section 133 in Kathirgamathamby was made “in passing” and was a case of “obiter dictum:” Bellevue 2018 at paras 41-42.

[43] Specifically, the Court in Bellevue 2018 concluded that the Court in Uppal addressed the scope of the immunity granted by section 133 only in the context of offences committed in Canada as opposed to in a foreign jurisdiction, and in the situation where one of the offences involved a fake document used in relation to coming into Canada and another offence involved a fake document not used in relation to coming into Canada. The Court found that in Uppal, no equivalency exercise was involved: Bellevue 2018 at para 38.

[44] The Court in Bellevue 2018 concluded at paras 43-44 that it was unreasonable for the ID in that case to exclude section 133 from its test of equivalency, as the jurisprudence of this Court indicates that a test of equivalency must include defences, even more so an immunity.

[45] The requirement to consider equivalency under the section 133 test was discussed again in Bellevue v Canada (Public Safety and Emergency Preparedness), 2020 FC 560 [Bellevue 2020]. In that case, the applicant took a flight to Miami in 2010, and on his arrival at the Miami airport, presented a Canadian passport issued in the name of another person. The applicant later admitted to the fraudulent use of a passport and was given a short prison term. The applicant managed to stay in the U.S. until 2017, when he came to Canada and claimed refugee protection. The ID concluded that the applicant was inadmissible on grounds of serious criminality. The ID found that the applicant could not rely on the immunity set out in section 133 in connection with his equivalency assessment because he would not be able to rely on it in Canada, having never sought asylum in the U.S. The applicant argued that the ID’s decision was unreasonable.

[46] The Court dismissed the application. Of note is the Court’s discussion at para 40 of the policy reasons for why section 133 must be part of the equivalency assessment, in light of Article 31 of the Refugee Convention, which prohibits the contracting states from imposing penalties on refugees on account of their illegal entry or presence. The Court went on to quote from R v Appulonappa, 2015 SCC 59 at paras 42-43, noting as follows:

The Refugee Convention reflects humanitarian concerns. It provides that states must not impose penalties for illegal entry on refugees who come directly from territories in which their lives or freedom are threatened and who are present on the territory of the foreign state without authorization, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”: art. 31(1).

Consistent with this, s. 133 of the IRPA provides that foreign nationals who enter Canada without documents cannot be charged with illegal entry or presence while their refugee claims are pending. As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.

[47] The Court in Bellevue 2020 agreed with the ID that since the applicant never formally sought asylum in the U.S., he would not have benefitted from the immunity provided by section 133 even if he were in Canada. The Court concluded that the reasonableness of the ID’s decision rests on its conclusion that no claim was made at the time of the applicant’s conviction in the U.S., which would otherwise have resulted in the application of section 133 of the IRPA.

[48] Finally, in Uraj v Canada (Citizenship and Immigration), 2022 FC 1635, the Court considered a case where the applicant was convicted in the U.K. for trying to leave the country using a false passport. The ID found the applicant inadmissible under subsection 36(1)(b) of the IRPA. It also found that the same reasoning in Bellevue 2020 applied in the applicant’s case because he never made a claim in the U.K., where the facts had occurred. The Court found the ID’s determination that section 133 did not apply to applicant’s scenario was reasonable.

[49] Based on my review of the jurisprudence, I draw the following principles:

1. Section 133 provides immunity from charges under section 122 with respect to the use of a non-genuine document: Bellevue 2018 at para 33;

2. Section 133 is only applicable if the applicant uses such a document “in relation to their coming into Canada:” Uppal at para 24 and Bellevue 2018 at para 37;

3. Section 133 may apply not only to offences committed in Canada, but also to offences committed in a foreign jurisdiction: Bellevue 2018 and Bellevue 2020; and

4. With respect to offences committed in a foreign jurisdiction, section 133 would apply if the applicant has sought asylum in the foreign jurisdiction, and the decision-maker is required to take into account section 133 in assessing equivalency. If, on the other hand, the applicant never sought asylum in the foreign jurisdiction, they would not benefit from the immunity provided by section 133 even if they were in Canada, and as such, the provision would not apply: Bellevue 2020 at para 51.

[50] I note that in none of these cases did the Court focus on how long the applicant had lived in the foreign jurisdiction before coming to Canada. For instance, in Uppal, the Court refused to apply section 133 not because Mr. Uppal had lived in the U.K. for almost a decade, but because his use of the passport to obtain the driver’s licence had nothing to do with his journey to Canada. Similarly, in Bellevue 2020, the determinative factor was that the applicant had never sought asylum in the U.S., not that he had spent seven years in that country.

[51] The Respondent relies on Lasisi v Canada (Citizenship and Immigration), 2011 FC 495 [Lasisi] at para 24, where the Court found that section 133 of the IRPA is intended to allow bona fide refugees and refugee claimants to use false passports to make their way to Canada and prevents them from being charged with an offence but does not legalize their use of false identification.

[52] I find Lasisi distinguishable on many grounds, but most notably because of the fact that there was no pending refugee claim in the applicant’s case.

[53] In sum, to be consistent with the jurisprudence, the RAD in the matter herein should have considered the following questions when assessing the applicability of section 133. First, did the Applicant use her Swedish passport “in relation to her coming to Canada?” Second, did the Applicant seek asylum in Sweden, and if so, should section 133 be considered when assessing equivalency?

[54] However, rather than asking these questions, the RAD instead focused more on when the Applicant left Somalia, and the length of time she had spent living in Sweden. As the case law suggests, these are not relevant considerations in applying section 133.

[55] The RAD also found that the Applicant did not use the Swedish passport to come to Canada “right away.” This was unreasonable, as cases like Uppal, Bellevue 2018, and Bellevue 2020 did not limit the application of section 133 only to situations where an applicant came to Canada right after they obtained a non-genuine passport.

[56] For these reasons, I find the RAD applied section 133 in a manner that was inconsistent with the jurisprudence. As such, the RAD’s finding that the Applicant does not benefit from the protection of section 133 of the IRPA was unreasonable.

[57] The FCA decision in Jayasekara requires a decision-maker to consider factors including, among other things, the elements of the crime when considering whether the presumption that an applicant’s crimes are serious has been rebutted. In this case, the RAD made an error with respect to one of the elements of the crime by finding that the Applicant’s use of a non-genuine passport is equivalent to the indicatable offence under subsection 57(1) of the Criminal Code. The RAD’s error in this finding filtered into its analysis of the Jayasekara factors when it noted the Applicant fraudulently obtained a Swedish passport.

[58] The Court cannot be certain whether the RAD would have come to the same conclusion after applying the Jayasekara factors, had it not made the error it did. The Court must therefore return the matter back to a newly constituted panel to reconsider this issue.

IV. Conclusion

[59] The application for judicial review is allowed.

[60] There is no question to certify.

JUDGMENT in IMM-7635-24

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted.

2. The decision under review is set aside and the matter referred back for redetermination by a different decision‑maker.

3. There is no question to certify.

"Avvy Yao-Yao Go"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: