Date:
20120907
Docket:
IMM-7323-11
Citation:
2012 FC 1061
Ottawa, Ontario,
September 7, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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PEDRO ANTONIO CASTILLO REYES
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, a Cuban national, lost his refugee status in the United States by reason of convictions for serious drug crimes. He served a long sentence
of incarceration. Upon his release in November 2009 he was ordered deported. He
failed to attend a meeting with the Homeland Security Department and, in July
2010, crossed the Canadian border illegally to claim protection.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board rejected the
applicant’s claim on the ground that section 98 of the Immigration and
Refugee Protection Act (“IRPA”) and Article 1F(b) of the United Nations
Convention on the Status of Refugees (“Refugee Convention”) operate to
exclude him from refugee protection in Canada.
[3]
In
assessing the “seriousness” of the offences at issue, the Board Member
considered the factors set out in Jayasekara v. Canada (Minister of
Citizenship and Immigration), [2009] 4 FCR 164 (CA) [Jayasekara]. The Member
observed that the United States is a democracy and that the applicant’s
prosecution was “fair and judicious.” There was no evidence of a miscarriage of
justice. Had he been convicted in Canada he would have been liable to a maximum
term of life imprisonment. The applicant does not dispute these findings.
[4]
In
the result, the Member concluded that “there are serious reasons for
considering that the claimant has committed a serious non-political crime
outside of Canada prior to coming to Canada”.
[5]
She
then went on to consider aggravating and mitigating circumstances related to the
applicant and his offences. Citing Jayasekara, she considered that “the
factors [to be] evaluated with regard to the seriousness of the crime are those
‘underlying the conviction’”. In other words, she found that evidence of
subsequent rehabilitation is not relevant to an Article 1F(b) determination.
[6]
The
applicant was twenty-four years old at the time of his first conviction. Given
the relative maturity to be expected of a person of that age, the Member
rejected the applicant’s assertion that he was badly influenced or manipulated
into his involvement in the drug trade. The Member noted that the applicant had
completed his jail sentence, but found, again citing Jayasekara, that
this did not preclude exclusion.
[7]
The
applicant seeks
judicial review of the decision on the ground that the Board erred in failing
to take into account evidence that he improved his education while imprisoned in
the United States; that he has not re-offended subsequent to his release; and
that he is presently gainfully employed on a work permit in Canada.
[8]
The
applicant submits that the Board counted a 2010 failure to appear as an
aggravating factor even though it occurred years after the applicant’s criminal
offences. Having done so, he argues, the Board had a duty to consider evidence
of positive post-offence conduct as well.
[9]
The
sole issue before me on this application is whether the Member erred
by concluding that the applicant’s criminal conduct was “serious” within the meaning
of Article 1F(b) of the United Nations Convention Relating to the Status of
Refugees without considering evidence that he reformed during his term in
prison and has been rehabilitated. This is a question of mixed fact and law
reviewable on the standard of reasonableness (Jayasekara, at para 14).
[10]
For
the reasons I expressed in Camacho v. Canada (Minister of Citizenship and
Immigration) 2011 FC 789 I am satisfied that the Board’s
conclusion falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law”: Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, at para 59.
[11]
As
the Court of Appeal stated in Jayasekara at paragraph 44:
…there is a consensus
among the courts that the interpretation of the exclusion clause in Article 1F(b) of the
Convention, as regards the seriousness of a crime, requires an evaluation of
the elements of the crime, the mode of prosecution, the penalty prescribed, the
facts and the mitigating and aggravating circumstances underlying the
conviction… In other words, whatever presumption of seriousness may attach to a
crime internationally or under the legislation of the receiving state, that
presumption may be rebutted by reference to the above factors. There is no
balancing, however, with factors extraneous to the facts and circumstances
underlying the conviction… Emphasis added]).
[12]
The
failure to appear in response to the notice from the Department of Homeland
Security was a factor extraneous to the facts and circumstances underlying the
conviction. However, the Member mentioned this only briefly, and only in
the context of her analysis as to whether the applicant’s completion of his
sentence should be taken into account as a mitigating factor. It did not
open the door to a review of his post-conviction efforts to reform.
[13]
The
applicant proposes that I certify the question certified by the Court in Hernandez
Febles v Canada (Minister of Citizenship and Immigration 2011 FC 1103:
When applying article 1F(b) of the United Nations Convention
Relating to the Status of Refugees, is it relevant for the Refugee
Protection Division of the Immigration and Refugee Board to consider the fact
that the refugee claimant has been rehabilitated since the commission of the
crime at issue?
[14]
The
same or a similar question has been certified by the Court in Feimi v Canada
(Minister of Citizenship and Immigration) 2011 FC 262 and Cuero v Canada
(Minister of Citizenship and Immigration) 2012 FC 191.
[15]
The
respondent opposes certification on the ground that the question has already
been determined by the Court of Appeal. I agree with the respondent but will
follow my colleagues’ lead in fairness to the applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application for judicial review is dismissed; and
2. the
following question is certified:
When applying article 1F(b) of the United Nations Convention
Relating to the Status of Refugees, is it relevant for the Refugee
Protection Division of the Immigration and Refugee Board to consider the fact
that the refugee claimant has been rehabilitated since the commission of the
crime at issue?
“Richard G. Mosley”
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