Date: 20110628
Docket: IMM-6140-10
Citation: 2011 FC 789
Ottawa, Ontario, June 28,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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MARCIA INES ROJAS CAMACHO
SAMANTHA
CATALINA RODRIGUEZ ROJAS
(a.k.a. SAMANTHA CATALI
RODRIGUEZ)
JOSE MIGUEL RODRIGUEZ ORTIZ
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision dated
September 16, 2010 wherein the Refugee Protection Division of the Immigration
and Refugee Board determined that Marcia Ines Rojas Camacho (“the female applicant”),
Jose Miguel Rodriguez Ortiz (“the male applicant”) and the applicants’ daughter
(the “minor applicant”) were not Convention refugees or persons in need of
protection.
BACKGROUND
[2]
The
female applicant, also the principal applicant in this judicial review, is a
dual citizen of Colombia and Venezuela. Her father was a
businessman who travelled between Venezuela and Columbia and came to
the attention of the National Liberation Army (“ELN”) who attempted to extort
him. When he refused to pay they began to threaten him, along with other
members of their family.
[3]
The
principal applicant left Colombia for the USA in 1999 but
returned to Colombia to care for
her father when he became ill. She remained there, however, until November 2001
and even after her father himself moved to the USA in late 1999/early
2000. She stayed in Colombia in order to complete her university education
there. At that time she was also involved in a radio show and claimed that the Revolutionary
Armed Forces of Colombia (“FARC”) began to threaten her due to certain
statements she made on-air about their activities. She then went back to the USA and lived
there illegally, although she did begin the process of applying to become a
permanent resident. She became frustrated with the processing time and came to Canada with her
husband and child to claim Convention refugee status in 2008. Her sister had
succeeded in a refugee claim in Canada.
[4]
The
male applicant, a Colombian citizen, initially went to the USA in 1983. He
acknowledged not having to seek protection because of problems in Columbia. In the US, he married
an American woman who sponsored his permanent residence. In 1988, he was
convicted of conspiracy to distribute cocaine and unlawful possession with intent
to distribute cocaine. He was sentenced to 27 months in jail. He lost his
permanent resident status and was deported to Colombia in 1991. In
1993, he illegally returned to the USA and re-established his
relationship with his American spouse and they had a second child. They separated
in 1997. In 2001, he met the female applicant. They began a common-law
relationship in 2003 and had a daughter, the minor applicant in this case. The
male applicant joined his partner and daughter in Canada in August
2008.
DECISION UNDER REVIEW
[5]
The
Board concluded there was insufficient subjective fear or an objective basis to
sustain the female applicant’s claim and held that the male applicant should be
excluded from the Convention refugee definition pursuant to Article 1F(b) for
serious non-political crime. The Board found the minor applicant did not make
an allegation of risk of harm against the USA and so
rejected her claim.
ISSUES
[6]
The
applicants do not challenge the Board’s finding with respect to the minor
applicant. The determinative issues raised by the parties are whether the
Board erred in excluding the male applicant and whether the Board’s finding
with respect to the female applicant was reasonable.
ANALYSIS
Did the Board err in
excluding the male applicant?
[7]
The
applicants rely on Chan v. Canada (Minister of
Citizenship and Immigration) (C.A.), [2000] 4 F.C. 390 for
the proposition that exclusion under 1F(b) of the Convention cannot be
invoked in cases where a refugee claimant has been convicted of a crime and has
served his sentence outside of Canada prior to arrival. In Chan, the
appellant was convicted of illegal use of a communication device as it had to
do with offences related to drug trafficking. After serving his sentence, he
was deported to China. In 1996, he claimed refugee status in Canada. The appeal
was allowed and the Federal Court of Appeal at that time determined that
article 1F(b) was not applicable to a refugee claimant who had been convicted
for a crime committed outside Canada and has served his or her sentence prior
to coming here.
[8]
Since
Chan, and with the coming into force of the new IRPA, the jurisprudence of
the Federal Courts has evolved. See, for example the concurring reasons of
Justice Robert Décary in Zrig v. Canada (Minister of Citizenship and Immigration),
2003 FCA 178, [2003] 3 F.C. 761 at paragraph 128 to the effect that Chan
should not be interpreted to mean that 1F(b) did not, under any circumstances,
apply to a refugee claimant who had served his or her sentence for a crime
committed outside Canada:
In short, in Chan the Court was dealing
with a different situation and the comments it made on Article 1F(b) of the
Convention must be read with caution, as the very wording of that article
indicates that it applies to more than the cases covered by Canadian law in the
three aforementioned sections. There is also no question, as the Court held in Chan,
that the country of refuge can certainly decide not to exclude the perpetrator
of a serious non-political crime who has already been convicted and has served
his sentence. However, I do not think the Court decided that the country of
refuge could not decide to exclude the perpetrator of a serious non-political
crime, whatever the circumstances, provided he has been convicted and has
served his sentence.
[9]
This
issue was again considered in Jayasekara v. Canada (Minister of Citizenship
and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, a case concerning an
individual who was arrested in New York State on drug charges and pleaded
guilty to the criminal sale of a controlled substance, namely opium, and to criminal
possession of marijuana. The Federal Court of Appeal considered two certified
questions, one of which is raised before this Court in the present matter: Does
serving a sentence for a serious crime prior to coming to Canada allow one to
avoid the application of Article 1F(b) of the Convention relating to the Status
of Refugees (Convention)?
[10]
In
answering this question in the negative, Justice Gilles Létourneau, writing for
a unanimous Court, said the following at paragraphs 26-27 of Jayasekara:
In my respectful view, the decision in Chan
stands for the proposition that, under the existing law at the time, which, as
we will see, has now been modified by the IRPA, a claimant who was convicted of
a serious non-political crime and who served his sentence was not necessarily
excluded from a refugee hearing or rendered ineligible to apply for the refugee
protection afforded by the Convention. He or she remained entitled to have
their refugee claim determined by the Refugee Division if the Minister
concluded that the claimant was rehabilitated and was not a danger to the
public.
While the decision in Chan afforded some
protection to a claimant and safeguarded the Minister's discretion, it did not
then, nor does it now, in my respectful view, stand for the proposition that,
whatever the circumstances, a country cannot exclude an applicant who was
convicted and served his sentence.
[11]
Jayasekara has been followed by
the Federal Court in Noha v. Canada (Minister of Citizenship and Immigration), 2009 FC 683 and Flores
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1147. In both of these cases the Court
held that sentence completion is no longer determinative of the application of
article 1F(b) of the Convention. See also Chief Justice Allan Lutfy’s
decision of Chawah v. Canada (Minister of Citizenship and Immigration), 2009 FC 324, 79 Imm.
L.R. (3d) 262, which recognized Jayasekara and set aside the Board
member’s decision which determined that 1F(b) would not apply to the refugee
claimant in that case because he had served a sentence outside of Canada for a
non-political crime. As Chief Justice Lutfy put it at paragraph 6, “the issue
has been clarified”.
[12]
At paragraph 44 of Jayasekara the Federal Court of Appeal
pointed to a general consensus among international courts in interpreting the
exclusion clause in Article 1F(b). It requires the following five factors:
- An evaluation of the elements of the
crime;
- The mode of prosecution;
- The penalty prescribed;
- The facts; and
- The mitigating/aggravating
circumstances underlying the conviction.
It went on to state that “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”.
[13]
In
the case at bar, the Board took into consideration these factors. First, it outlined
that in Canada, trafficking a substance is an offence under subsection 5(1) of
the Controlled Drugs and Substance Act (“CDSA”) and possession for the purpose
of trafficking is likewise and offence under subsection 5(2) of the CDSA. As
the substance in question was cocaine, a Schedule 1 drug, it noted that
offences under the aforementioned sections of the CDSA are liable to indictment
and are punishable under paragraph 5(3)(a) to imprisonment for life. As noted
above, it further held that in the Canadian context, paragraph 465(1)(c) of the
Criminal Code establishes that every person who conspires to commit such
an offence is guilty of an indictable offence and is liable to receive the same
punishment as that to which an accused who is guilty of that offence would, on
conviction, be liable. The Board thus concluded that the gravity of the
punishment to which the male applicant would have been liable, had he committed
the same crime in Canada, is sufficient to
conclude that he committed a “serious” criminal offence. The Board also noted
that the male applicant admitted that he committed the crimes for which he was arrested,
charged, convicted and sentenced.
[14]
Second,
it considered the mode of prosecution, stating that the male applicant “had
committed a serious crime in the USA for which he was punished after he received a
fair trial with legal representation”. Thirdly, it noted the penalty, the
sentence of 27 months imprisonment, finding it to be lengthy and indicative of
the gravity of the drug-related offences in the USA. It addressed the fourth factor by considering
other facts like his loss of permanent residency status in the USA, his
deportation to Colombia, an order not to
re-enter the USA for 10 years and the fact that he re-entered the USA illegally and was living
there illegally until coming to Canada in 2008.
[15]
At
the hearing, the applicant relied on the recent decision of Justice James Russell
in Guerrero v. Canada (Minister of
Citizenship and Immigration) 2010 FC 384, 88 Imm. L.R. (3d) 258. In
that case, Justice Russell set aside an exclusion decision on the ground that the
Board had failed to explain why the points put forward by the applicant in
mitigation were insufficient to rebut the presumption of a serious
non-political crime.
[16]
The
applicant argued
that the
fifth Jayasekara factor implicitly
calls for a balancing of the mitigating and aggravating circumstances since
the conviction. I don’t agree. The mitigating and aggravating circumstances
referred to in Jayasekara go to the
nature of the crimes committed, not to what might later be considered as
factors to be taken into account in determining whether the offender/claimant
has been rehabilitated. Thus, for the purpose of determining whether the
exclusion applies, it is not enough for a claimant to say he now regrets his
behaviour and has turned his life around if his behaviour at the time it was committed
constituted a serious non-political crime.
[17]
Here,
there was nothing put forward by the applicant upon which the Board could have
evaluated the circumstances of the offences to determine whether they were more
or less serious than they appeared to be on the face of his record.
[18]
It is clear from its analysis as a whole that the
Board properly analyzed the male applicant’s case and determined that he did
not rebut the presumption of seriousness so as not to be excluded pursuant to
1F(b).
[19]
Accordingly,
the determination regarding exclusion was reasonable and defensible in respect
of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 47; Flores, above, at para. 27.
Was the board’s decision with respect to the female
applicant reasonable?
[20]
It
was reasonable for the Board to conclude that the female applicant’s failure to
apply for asylum in the USA in 1999, together with her return to Colombia, the country
where she allegedly feared persecution, is indicative of a lack of subjective
fear in Colombia. This was
further reinforced, as reasonably noted by the Board, by her father’s decision
not to leave Colombia with her and
her mother in January 1999, especially since he was the prime target. The
applicant claims she returned to Colombia to care for her sick
father and to continue her education but she provided no documentary evidence
to show that her father was ill and needed her assistance. Moreover, even after
her father left Colombia, she stayed there until October 2001, participated
in university programs while being allegedly threatened by the FARC. It was
reasonable for the Board to find that these actions underscored her lack of subjective
fear.
[21]
After
having fled to the USA on November 15, 2001, the female applicant
received a six-month permit which she did not renew. She lived illegally in the
USA and did not seek protection in Canada even after learning of
her sister’s eligibility for protection here. It was open to the Board not to
accept that she feared being rejected and deported, especially since she had a
family member here who had been through the same process.
[22]
The
Board also reasonably concluded that the female applicant’s claim lacked
objective evidence. The Board found there to be no persuasive evidence before
it to indicate that the FARC and/or the ELN have shown interest in harming the
applicant after she left Colombia almost nine years ago. In
considering the documentary evidence, it found that the FARC and/or the ELN
guerrillas do not operate actively beyond the Venezuelan and Colombian border,
in Caracas or engage in
persecuting Colombians once sought by them.
[23]
It
was also open to the Board to find that her fear of the FARC was not reasonable
since her Personal Information Form indicated that she filed her denunciations
against the ELN and not the FARC and used her Venezuelan identity to do so.
[24]
No
questions were proposed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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