Docket: IMM-7327-10
Citation: 2011 FC 1103
Ottawa, Ontario, September 27, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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LUIS ALBERTO HERNANDEZ
FEBLES
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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
I.
Introduction
[1]
Luis
Alberto Hernandez Febles (the “Applicant”) brings this application for judicial
review of the decision of the Refugee Protection Division, Immigration and
Refugee Board (the “Board”), dated October 27, 2010. The Board determined that,
by virtue of section 98 of the Immigration and Refugee Protection Act,
SC 2001 c 27 [IRPA] and article 1F (b) of the United Nations’
Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can TS
No 6 (the “Convention”), the Applicant is excluded from refugee
protection and from status as a person in need of protection.
[2]
The
Deputy Attorney General, on behalf of the Minister of Citizenship and Immigration
(the “Respondent”), opposes this application.
[3]
For
the reasons that follow, this application for judicial review is dismissed.
II.
Background
A. FACTS
[4]
The
Applicant is a citizen of Cuba, born on December 4, 1954.
[5]
According
to his Personal Information Form [PIF], the Applicant left Cuba on May 14,
1980, because he opposed that country’s repressive political system. Upon
arrival in the United States, the Applicant claimed asylum, which he
was granted the same year.
[6]
On
July 2, 1984, the Applicant, who was boarding with a man and his wife, attacked
the man with a hammer while both were sleeping in their bed. The man fled to
the living room, where the Applicant continued his attack. The man escaped to a
neighbour’s house. Instead of pursuing him, the Applicant smashed the man’s car
windows with the hammer. He then went back to the apartment, changed his
clothes and fled. After running a few blocks, the Applicant called the police
from a phone booth to turn himself in.
[7]
The
Applicant was charged with attempted murder. On November 20, 1984, he entered a
guilty plea to a charge of assault with a deadly weapon other than a firearm
laid under paragraph 245 (a) (1) of The Penal Code of California (California Penal Code). He was
sentenced to a term of one year in jail and three years’ probation. The
Applicant believes that he lost his asylum status as a result of that
conviction.
[8]
The
Applicant was convicted of a number of offences between 1985 and 1989,
including petty theft, probation violations, theft, assault, and battery.
[9]
On
October 3, 1993, the Applicant was drinking with his roommate. His roommate’s
girlfriend came over and began insulting the Applicant. She accused him of
encouraging his roommate to sleep with other women. Angered, the Applicant
intimidated the woman with a knife, and threatened to kill her.
[10]
The
Applicant was charged with attempted murder and assault with a deadly weapon
other than a firearm. He pleaded guilty to the latter offence on October 8,
1993 and was sentenced to two years’ imprisonment and three years’ probation.
[11]
The
Applicant completed his probation in 1998, at which time he was detained by United
States
immigration authorities until 2002. From 2002 to 2005, the Applicant held work
visas and was gainfully employed. After 2005, the Applicant continued to work,
but without a visa.
[12]
Before
the Board, the Applicant testified about his alcohol dependence, which had led
to a number of breaches of parole after his first conviction, and ultimately to
the second conviction for assault with a deadly weapon. The Applicant claims to
have ceased consuming alcohol since August 1993, and to have completed an
Alcoholics Anonymous course while in custody from 1998 to 2002.
[13]
The
Applicant attempted to enter Canada on February 29, 2008, but was refused
entry. He was then detained by United States immigration until July
2008. The Applicant entered Canada illegally on October 12, 2008, and claimed
refugee status on October 14, 2008.
[14]
As
of July 26, 2010, there is an outstanding administrative warrant of removal
against the Applicant, issued by the United States in 1998.
B. Procedural Background
[15]
The
Applicant was interviewed by immigration officer Carl St.-Laurent on December
15, 2008, at which time he submitted his application for refugee status.
[16]
On
April 8, 2009, a report pursuant to section 44 of the IRPA was issued
against the Applicant. On June 3, 2010, member Yves Dumoulin of the Board’s Immigration
Division concluded that the Applicant is inadmissible pursuant to paragraph
36(1) (b), of the IRPA for having committed a serious
non-political crime. Consequently a deportation order was issued against him.
[17]
The
Board received the Applicant’s PIF on January 8, 2009. On August 2, 2010, the
Minister of Public Safety and Emergency Preparedness (the “Minister”) filed a
Notice of Intervention in the Applicant’s refugee claim, alleging that the
Applicant is excluded from claiming refugee status by virtue of article 1F (b)
of the Convention.
[18]
On
October 14, 2010, the Board held a hearing to determine whether the Applicant
is excluded from refugee status on the basis of article 1F (b) of the Convention.
III. IMPUGNED
DECISION
[19]
In
its decision, the Board sets out the circumstances surrounding the Applicant’s
convictions in 1984 and 1993. The Board then refers to section 98 of the IRPA
and article 1F (b) of the Convention. It also relies on the Federal
Court of Appeal’s decision in Chan v Canada (Minister of Citizenship
and Immigration), [2000] 4 FC 390, 190 DLR (4th) 128, which states “that a
serious non-political crime is to be equated with one in which a maximum
sentence of ten years or more could have been imposed had the crime been
committed in Canada” (Board’s Decision at para 17). The Board then quotes
subsection 245 (a) (1) of the California Penal Code and section
267 of the Criminal Code, RSC 1985, c C-46. The Board notes that the
Applicant did not take issue with the Minister’s argument that those provisions
are equivalent.
[20]
The
Board also relies on paragraph 44 of Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FCA 404, [2008] FCJ No 1740 (QL), 305
DLR (4th) 630 [Jayasekara], noting that the 10-year threshold, which the
Applicant argued is unfair, is an indicator of the seriousness of the crime,
but is not decisive.
[21]
The
Board concludes that the offence giving rise to the 1984 conviction is in
itself a serious non-political crime. It notes the Applicant’s past alcoholism,
the fact that he served his full sentences, and that he “took the second chance
that life was offering him 17 years ago and chose to follow a straighter path”
(Board’s decision at para 24). The Board concludes nonetheless that it must “respect
the legislation and the current jurisprudence that require that a person who
has been convicted of a serious non-political crime, as is the case here, must
be excluded from the application of the Convention” (Board’s decision at para
24).
IV. Issues
[22]
Three
issues arise in this application for judicial review:
(1) What
are the appropriate standards of review?
(2) Did
the Board err in law by failing to determine, before excluding him, whether or
not the Applicant posed a danger to the Canadian public or whether he had been
rehabilitated?
(3) Did
the Board unlawfully fetter its discretion in failing to consider the absence of
danger to the Canadian public as a result of the Applicant’s rehabilitation?
V.
ARGUMENTS
& ANALYSIS
(1) What
are the appropriate standards of review?
Applicant’s arguments:
[23]
The
Applicant portrays the second issue as involving an error of statutory interpretation,
which, in light of Canada (Minister of
Citizenship and Immigration) v Khosa 2009 SCC 12, [2009] 1
SCR 339 [Khosa], he argues is reviewable on the standard of correctness.
[24]
The
Applicant submits that the determination whether the Applicant is a person
described by article 1F (b) involves a question of mixed fact and law
reviewable on the standard of reasonableness (Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FC 238, [2008] FCJ No 299 (QL) at
para 10).
[25]
The
Applicant makes no explicit submissions on the standard applicable to the third
issue.
Respondent’s
arguments:
[26]
The
Respondent makes no submissions on the applicable standards of review.
Analysis:
[27]
With
regard to the second issue, the Applicant questions the test applied by the
Board in determining whether the Applicant committed a serious non-political
crime. As the appropriate test emanates from the IRPA and the Convention,
the question raised is a matter of statutory interpretation.
[28]
In
Smith v Alliance Pipeline Ltd, [2011] 1 S.C.R. 160, 2011 SCC 7 at
para 37, the Supreme Court of Canada held that
. . . a tribunal’s interpretation of its home statute, the
issue here,
normally attracts the standard of
reasonableness (Dunsmuir, at para. 54), except where the question raised
is constitutional, of central importance to the legal system, or where it
demarcates the tribunal’s authority from that of another specialized tribunal .
. . .
[29]
There
is no doubt that the IRPA is the Board’s “home statute”, and it is
equally clear that the question raised is not constitutional, of central
importance to the legal system, or in relation to the Board’s jurisdiction. As
a result, the applicable standard of review is reasonableness.
[30]
The
fettering of discretion, which the Applicant also raises, is a matter of
procedural fairness, reviewable on the standard of correctness (Khosa at
para 43).
(2) Did
the Board err in law by failing to determine, before excluding him, whether or
not the Applicant posed a danger to the Canadian public or whether he had been
rehabilitated?
Applicant’s arguments:
[31]
Quoting
Pushpanathan v Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982, 160 DLR (4th) 193 at paras 56-57, the Applicant argues that
the Convention is a human rights instrument and that it must be
interpreted as such. He submits that the legislation must be interpreted
in a manner that is consistent with the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11, and more precisely, that article
1F (b) must be interpreted in a way that is neither vague nor overly broad, so
as to avoid infringing section 7 of the Charter.
[32]
The
Applicant canvasses what he describes as three periods of case law on article
1F (b) of the Convention. He concludes that Jayasekara and Zrig
v Canada (Minister of Citizenship and Immigration), 2003 FCA
178, [2003] FCJ No 565 (QL), 229 DLR (4th) 235, are now the binding
authorities. In his opinion, these cases demonstrate that the protection of the
public against dangerous individuals is an important consideration in
evaluating whether a person is excluded from refugee status under article 1F (b).
[33]
The
Applicant refers to paragraphs 28 and 29 of Jayasekara, above, in which the
Federal Court of Appeal endorsed Justice Décary’s assessment of the primary
purpose of article 1F (b) of the Convention as it relates more
specifically to the fourth purpose stated in paragraph 28, namely:
. . . “that while the signatories were prepared to sacrifice
their sovereignty, even their security, in the case of perpetrators of
political crimes, they wished on the contrary to preserve them for reasons of
security and social peace in the case of the perpetrators of serious ordinary
crimes. This fourth purpose also indicates that the signatories wanted to
ensure that the Convention would be accepted by the people of the country of
refuge, who might be in danger of having to live with especially dangerous
individuals under the cover of a right of asylum.”
[34]
The
Applicant submits that the thrust of the judgement of the Federal Court of
Appeal was that article 1F (b) can be applied to claimants who have completed
their sentences, regardless whether they are or are not fugitives. He therefore
contends that article 1F (b) must be interpreted in a manner consonant with the
fourth purpose and with the harmonization of refugee and extradition law.
[35]
The
Applicant acknowledges that under an article 1F (b) analysis the seriousness of
the crime is not balanced against the risk of excluding an individual from
refugee protection (Xie v Canada (Minister of
Citizenship and Immigration), 2004 FCA 250, [2004] FCJ No 1142 (QL)
[Xie]). He argues, however, that this does not preclude considering
whether a person is currently a danger to the public in evaluating whether that
person committed a serious non-political crime.
[36]
The
Applicant submits that corollary to determining if an individual is a danger to
the public is an assessment of expiation and rehabilitation. Therefore, a determination
of exclusion under article 1F (b) should include, in his opinion, an assessment
of factors relating to rehabilitation, expiation, recidivism and ongoing
danger. To support this interpretation he refers to international jurisprudence,
primarily cases from Australia (Dhayakpa v
Minister of Immigration and Ethnic Affairs, [1995] FCA 1653, Ovcharuk
v Minister for Immigration and Multicultural Affairs, [1998] FCA 1314
and Minister for Immigration and Multicultural Affairs v Singh,
[2002] HCA 7, (2002), 186 ALR 393). In essence, he submits that courts in other
common law jurisdictions have taken the position that the protection of the
public in the host country is the predominant purpose underlying article 1F (b),
which provision, he contends, is often explained as creating a compromise
between the protection needs of the refugee claimant and the dangers that a
host society could be expected to tolerate.
[37]
The
Applicant also refers to the United Nations High Commissioner for Refugees’ [(UNHCR])
Guidelines on International Protection: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (the
“Guidelines”). Paragraph 23 of the guidelines explains:
23. Where expiation of the crime is
considered to have taken place, application of the exclusion clauses may no
longer be justified. This may be in the case where the individual has served a
penal sentence for the crime in question, or perhaps where a significant period
of time has elapsed since the commission of the offence. Relevant factors would
include the seriousness of the offence, the passage of time, and any expression
of regret shown buy the individual concerned.
[38]
On
the facts of this case, the Applicant submits that the Board erred by failing
to consider the possibility that the Applicant’s rehabilitation and expiation
would render article 1F (b) inapplicable.
[39]
In
his Reply, the Applicant further adds that adopting the Respondent’s position
would lead to a mechanical application of article 1F (b) of the Convention.
This should be avoided since, in his opinion, it runs counter to the scheme of
the IRPA.
Respondent’s
arguments:
[40]
The
Respondent quotes extensively from the Federal Court of Appeal’s decision in Xie,
cited above, to highlight the differences between the Respondent’s
discretion in an application for protection under section 112 of the IRPA
in the context of a pre-removal risk assessment and the Board’s jurisdiction under
section 98. The Respondent has the mandate to consider whether a person who is
inadmissible because of serious criminality is a danger to the Canadian public,
while the Board is prohibited from doing so.
[41]
The
Respondent also refers to paragraph 73 of Zrig, cited above,
arguing that the Federal Court of Appeal explicitly held that the Board must
only consider whether there are serious reasons to believe that a claimant has
committed a serious non-political crime.
[42]
As
a basic principle of statutory interpretation, the Respondent argues that article
1F (b) should not be rewritten to include a weighing of whether the
Applicant poses a danger to society or not. The language of the Convention
and the scheme of the Act are clear. There is no need to add to the terms thereof.
[43]
On
the basis of paragraph 44 of Jayasekara, the Respondent takes the
position that once the Board determined that the Applicant had committed a
serious non-political crime, there was nothing more it could consider. Sentence
completion, per se, does not exclude the application of article 1F (b).
Analysis:
[44]
Section
98 of the IRPA provides as follows:
98. 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.
[45]
Article
1F (b) of the Convention states:
F. The provisions of this Convention
shall not apply to any person with respect to whom there are serious reasons
for considering that:
. . .
(b) he has committed a serious
non-political crime outside the country of refuge prior to his admission to
that country as a refugee;
[46]
In
Xie, cited above, at paragraph 39, the Federal Court of Appeal
set out the difference between the role of the Board in applying section 98 of
the IRPA, and the role of the Respondent in exercising his discretion
when a claimant seeks a pre-removal risk assessment, as follows:
. . . The exclusion deals with denial of
refugee protection. Protection remains available, though subject to
considerations of public safety and security of Canada. The weighing which is called for by
subparagraphs 113(d)(i) and (ii) may well be subject to review to see if
those considerations constitute "exceptional circumstances" as
contemplated in Suresh. But that entire exercise will occur in the
context of the Minister's consideration of the application for protection at
the PRRA stage. It does not occur in the course of the Refugee Protection
Division's application of the exclusions referred to in section 98 of the Act.
This conclusion is consistent with prior jurisprudence of this Court as to
balancing in the application of the exclusion found in sections E and F of
Article 1 of the Convention. See Gil, and Malouf.
[47]
The
Board, in the Xie case, considered the risk of torture to a refugee
claimant who it found had committed a serious non-political crime. The Federal
Court of Appeal held that doing so was an error.
[48]
While
the Applicant concedes that the risk of being returned to one’s country of
origin is not to be considered in deciding whether there should be exclusion, Xie
demonstrates, more broadly, that the Board’s only duty in this regard is to
determine whether or not the refugee claimant committed a non-political crime.
The considerations of rehabilitation and of current dangerousness for the
Canadian public are not probative in making that determination.
[49]
In
Jayasekara, the Federal Court of Appeal held as follows:
[41] I agree with counsel for the
respondent that, if under Article 1F (b) of the Convention the length or
completion of a sentence imposed is to be considered, it should not be
considered in isolation. There are many reasons why a lenient sentence may
actually be imposed even for a serious crime. That sentence, however, would not
diminish the seriousness of the crime committed. On the other hand, a person
may be subjected in some countries to substantial prison terms for behaviour
that is not considered criminal in Canada.
. . .
[44] I believe 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 such as, for example, the risk of
persecution in the state of origin . . . . [Citations omitted.]
[50]
In
that case, the Federal Court of Appeal again emphasized that the Board should
not consider anything “extraneous to the facts and circumstances underlying the
conviction” in applying article 1F (b). Therefore, the fact that the Applicant
has served his full sentences in the United States can be considered as it
relates to whether he committed a serious non-political crime, but it cannot be
considered insofar as it relates to rehabilitation, expiation, recidivism and
ongoing danger.
[51]
The
Applicant’s position that the Board member should have considered whether he
currently posed a danger to the Canadian public and should consequently have
assessed his rehabilitation is not supported by paragraph 44 of the Federal
Court of Appeal’s decision in Jayasekara. The only balancing allowed
must be related to the circumstances underlying the conviction and the completion
of the sentence and not to events that occurred thereafter.
[52]
Furthermore,
this Court fully agrees with Justice Mosley who, in the recent decision of
Camacho v Canada (Minister of Citizenship and Immigration), 2011 FC
789, [2011] FCJ No 994 (QL), states, at para 16, in response to the applicant’s
position that the fifth factor identified by the Federal Court of Appeal in Jayasekara
permitted the Applicant to establish that he had turned his life around:
. . . 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.
[53]
The
Court does not agree with the Applicant’s argument that the Board had to
consider section 23 of the above-cited UNHCR Guidelines, since it has been
clearly established that it is not binding on the courts but is merely a
guideline (see Jayasekara at para 39).
[54]
As
the Board itself points out, the Applicant may find this unfair since he has
turned his life around, but he is still excluded from refugee protection. In
light of the pertinent legislation and jurisprudence, it is clear to this Court
that the Board’s decision not to make any findings on the current dangerousness
of the Applicant is reasonable.
(3) Did
the Board unlawfully fetter its discretion in failing to consider the absence
of danger to the Canadian public as a result of the Applicant’s rehabilitation?
Applicant’s arguments:
[55]
The
Applicant submits that although the Board may not have been required to make a
finding on his current dangerousness to the Canadian public, the Board ought to
have considered that factor in its analysis. He argues that the Board’s reasons
make it clear that it considered itself obliged to exclude the Applicant
despite his apparent rehabilitation. In doing so, the Board fettered its
discretion.
Respondent’s
arguments:
[56]
The
Respondent made no submissions on this question.
Analysis:
[57]
Fettering
of discretion ordinarily relates to an administrative decision-maker’s
over-reliance on policy guidelines. In Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 (QL),
the Court held as follows:
[33] An administrative decision maker
cannot fetter the exercise of its statutory discretion unless authorized to do
so under legislative authority. However, it is not inappropriate for
administrative decision makers to take into account guidelines and policies
which can enhance the quality of administrative decision making by reducing
inconsistencies in the treatment of applications. If the administrative
decision maker treats the guidelines or policy as immutable without the need to
consider any other factors which may apply to the particular circumstances of a
given case, then it may be found that the decision maker fettered discretion
[citation omitted].
[58]
It
is conceivable that the Board could fetter its discretion in applying article
1F (b) if, for example, it applied the threshold of a maximum sentence of at
least ten years, without considering other factors that may indicate that the
crime was not serious or non-political.
[59]
In
this case, the Applicant argues that the Board ought to have considered
rehabilitation and also whether the Applicant currently poses a risk to the Canadian
public. As discussed above, in analyzing the second issue, the Board is not
entitled to consider such factors, as they are not relevant to the question of
whether the Applicant committed a serious non-political crime. As a result:
·
The
Court finds that the Board did not fetter its discretion by failing to consider
those matters.
·
The
Board was reasonable in choosing which factors to consider in determining
exclusion, and it did not fetter its discretion.
VI. QUESTION
PROPOSED FOR CERTIFICATION
[60]
The
applicant proposes the following question for certification:
When applying
Article 1F (b) of the United Nations Convention relating to the Status of
Refugees to a person who is not a fugitive from justice and who has served his
or her sentence, 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(s) at issue and that,
therefore, he or she does not pose a danger to the Canadian public?
[61]
He
argues that the question meets the test for certification because it transcends
the interest of the parties, contemplates questions of broad significance and the
answer to it will be determinative of the case before the Court.
[62]
The
Respondent, on the other hand, opposes the certification of a question on the
basis that the wording of article 1F (b) of the Convention is clear as
far as the issue raised in this case is concerned, and reiterates the arguments
presented at the hearing and in his memorandum. Finally, he concludes, in his
letter of August 2, 2011, that if, despite the Minister’s submissions, the
Court is nevertheless of the view that a question should be certified, it
should certify the following question:
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?
[63]
The
Federal Court of Appeal, in Varela v Canada (Minister
of Citizenship and Immigration), [2010] 1 FCR 129, 2009 FCA
145 at para 29, states that a serious question of general importance arises
from the issues in the case and not from the judge’s reasons. In the present case,
the Court believes that there is such a serious issue and that it also meets
the second part of the test under paragraph 74(d) of the IRPA, namely,
that the issue be of general importance.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
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?
"André
F.J. Scott"
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