Date: 20080221
Docket: IMM-1603-07
Citation: 2008 FC 238
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
RUWAN
CHANDIMA JAYASEKARA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board) of March 22, 2007
concluding that the Applicant is not a Convention refugee and not a person in
need of protection, and that the Applicant is excluded from protection pursuant
to Article 1F(b) of the Convention.
Facts
[2]
The
Applicant is a citizen of Sri Lanka of Sinhalese ethnicity. He says that
between 1994 and about 1998 he and his father were targeted by the Sri Lankan
army as alleged sympathisers of the Tamil Tigers, the Tamil seperatist militia.
He left Sri
Lanka
and arrived in the United States in 1998 without status. In October, 2003
he married a United
States
citizen who then applied to sponsor him. In January, 2004 he was arrested in Orange
County,
New York on drug charges. He pleaded guilty to charges of criminal sale of the
controlled substance opium in the third degree and criminal possession of marihuana.
He was sentenced to 29 days in jail and to probation for a period of five
years. One month after completing his jail term, he was called to an
immigration hearing and was issued a voluntary departure order to leave the United
States
by October, 2004. Prior to that, on July 5, 2004 the Applicant entered Canada and claimed
refugee status.
[3]
After
a hearing by the Board, it concluded that he had not shown that he met the
criteria for either Convention refugee status or as a person requiring
protection. The Applicant does not contest this decision of the Board.
[4]
The
Board also concluded that the Applicant should be excluded from the status of
Convention refugee or person requiring protection by virtue of Article 1F(b) of
the Convention and section 98 of the Immigration and Refugee Protection Act
(Act). Article 1F of the covenant provides as follows:
|
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.
|
F.Les
dispositions de cette Convention ne seront pas applicables aux personnes dont
on aura des raisons sérieuses de penser :
***
b. qu'elles
ont commis un crime grave de droit commun en dehors du pays d'accueil avant
d'y être admises comme réfugiés ;
|
Section 98 of the Act 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.
|
98. La personne visée aux sections E
ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
|
[5]
The
Board concluded that the Applicant was such a person as defined in Article
1F(b). It determined that the offence for which he was convicted in the United
States was a non-political offence and that the equivalent offence in Canada would make
the Applicant liable to imprisonment for life. Therefore it concluded the
Applicant had committed a “serious non-political crime” in the United States as referred
to in Article 1F(b), thus excluding him from refugee status and status of a
person in need of protection by virtue of section 98 of the Act.
[6]
The
Applicant challenges two aspects of this decision. First, it is said that it
was wrong for the Board to consider this a “serious” crime because it only
involved the sale of $40 worth of cocaine and the possession of about 5 grams
of marihuana. Second, the Applicant says that an offender cannot be excluded
under Article 1F(b) if he has served his sentence for the crime, and that
although the Applicant completed his imprisonment term, he only involuntarily
failed to complete his probation by virtue of the fact that he was deported
before its expiry. In effect, the Applicant argues that he had constructively
served his sentence in the United States.
[7]
In
its Memorandum of Fact and Law, the Respondent contended that I should not
entertain arguments based on the validity of the exclusion finding because in
any event the Board had found the Applicant not to be a Convention refugee or a
person in need of protection on the facts of the case and the Applicant does
not dispute these findings. Therefore, there would be no point in sending the
matter back to the Board for reconsideration: whether or not he was properly
excluded from any possibility of a successful refugee or protection claim by
virtue of the exclusion order, he was disentitled on the facts of his own case
to succeed with these claims. At the hearing, counsel for the Respondent
withdrew this objection and submitted that I should decide the exclusion matter
because, while it could make no difference to the outcome of this case and
these refugee and protection claims, if the exclusion order stands it could
have an effect on the Applicant in other proceedings. For example, if the
Applicant successfully applied under section 112 of the Act for protection, he
could not by virtue of paragraph 112(3)(c) thereby obtain refugee
protection if he is deemed excluded on the basis of Article 1 F(b) of the
Convention.
[8]
Counsel
also pointed out to me that there were other decisions of this Court in which
an exclusion order has been reviewed even though the Applicant has been found
to be ineligible for refugee or protection status: see e.g. Antonio v.
Minister of Citizenship and Immigration 2005 FC 1700. I will do the same.
[9]
The
Respondent, however, while urging the Court to decide the matter, contends that
the Board was right in its conclusion that the Applicant had committed a
“serious non-political crime” and that in the application of Article 1 F(b) it
is irrelevant whether the Applicant has completed his sentence abroad. However,
if that is relevant, in this case the Applicant did not complete his sentence
as he had not served his probation period in the United States.
Analysis
[10]
In
the matter of the standard of review, I respectfully concur with other judges
of this Court in the view that on a question of exclusion under Article 1F, the
standard should be that of reasonableness. The decision which the Board must
make is as to whether “there are serious reasons for considering that … he has
committed a serious non-political crime outside the country … .” This is a
mixed question of fact and law and involves some discretion in assessing what
is a “serious” reason: see Médina v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 86 at paragraph 9, and other cases referred
to therein.
[11]
On
the first issue raised by the Applicant, I am satisfied that it was reasonable
for the Board to conclude that the Applicant’s conviction in the United States
for an offence which would carry a maximum of life imprisonment in Canada gave
it a “serious reason” for concluding that he had “committed a serious
non-political crime outside the country”. See Medina, supra,
para. 23 and cases referred to therein. It was perfectly reasonable for the
Board to use as a measurement of a “serious” crime the view which Canadian law
takes of that offence, not the seriousness of the penalty imposed in the United
States.
In the Federal Court of Appeal in Chan v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1180, Justice Robertson
at para. 9 assumed, without deciding, that any offence for which a maximum
sentence of ten years could be imposed under Canadian law is a “serious” crime.
I make the same assumption.
[12]
The
second issue involves two aspects: can a person who is otherwise within the
language of Article 1F(b) be excluded if he has already served his sentence? If
not, should the Applicant here be treated as having served his sentence?
[13]
Taking
the second question first, because if I am right in respect to it this disposes
of the matter, I am satisfied that the Applicant did not complete his sentence
in the United
States.
He was sentenced to 29 days and five years probation. Within a few weeks of his
release, he was issued a “voluntary departure order” to leave the United
States
with a deadline of October, 2004. In fact, he left in July to go to Canada,
thus leaving unserved most of his five years probation. Counsel for the
Applicant now argues, in effect, that the Applicant constructively served his
sentence because he was prevented from being available for probation
surveillance in the United States because he had accepted a “voluntary
departure order” and left for Canada. I adopt the reasoning of Justice Noël in Médina,
supra, who was dealing with a similar case of an applicant sentenced to
60 months imprisonment and four months probation in the United
States.
After 52 months of imprisonment he was expelled to Mexico and did not
serve any probation in the United States. Justice Noël concluded
that he could not be considered to have completed his sentence, that probation
involved surveillance which had not been conducted and that surveillance would
resume if he should return to the United States where he might then
complete his sentence (paras. 25, 26). I am satisfied that the same is true in
this present case. See also Rodriguez v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 601.
[14]
If
I am wrong as to whether the Applicant served his sentence in the United States
I must then address the other issue raised by the Applicant; namely, is Article
1F(b) inapplicable to persons who have served their sentence abroad before
coming to Canada. Counsel for the Applicant relies heavily on the decision of
the Federal Court of Appeal in Chan, supra. That case involved a
Chinese citizen who had been convicted in the United States for
involvement with drug trafficking, was sentenced to 14 months, served that
sentence, was deported to China, but claimed refugee status in Canada. A board had
found him to be within Article 1F(b) and thus excluded from refugee status in
Canada. The Federal Court of Appeal set aside that decision on the ground that
Article 1F(b) applies only to those who have not completed their sentence
abroad. That Court regarded Article 1F(b) as confined to excluding only
fugitive offenders. There is of course no language in 1F(b) to support that
qualification. The Court’s interpretation would in effect add the following
qualification to that paragraph: “… unless he has been charged, convicted, and
sentenced for such a crime and has fully served his sentence before coming to Canada”. This
generous interpolation was based on what other sections of the Immigration
Act then said. In effect the Court held that the Immigration Act would not
make sense unless Article 1F(b) of the Convention was so interpreted. This
reasoning has subsequently been questioned by the Federal Court of Appeal in Zrig
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565.
In that case, the applicant who had been involved in a terrorist organization
in Tunisia was tried in
absentia in Tunisia for numerous
crimes, many of them not political. He sought refugee status in Canada. The
Board held him to be excluded from such status by virtue of Article 1F(b). It
based its finding not on the convictions made in absentia in Tunisia but on its
own conclusions that he had committed at least 12 serious non-political crimes.
This conclusion was upheld by the applications judge and the Federal Court of
Appeal. The Applicant had argued that the purpose of Article 1F(b) was only to
ensure that fugitives from justice could not avoid extradition proceedings, but
the board had applied the Article to him for crimes for which he had not been
convicted and in respect of which no extradition was being sought. Justice
Nadon with whom Justice Letourneau agreed, found that Article 1F(b) could not
be confined to excluding extraditable people: this would make no sense where
the two countries involved had no extradition treaty, for example. They cited
British and Australian decisions. In particular, they quoted the decision of
the Federal Court of Australia (on Appeal) in Ovcharuk v. Minister for
Immigration and Multicultural Affairs (1998), 158 A.L.R. 289. That Court
found no obvious reason for confining Article 1F(b) to fugitives from justice
or to people who had not served their sentences. They laid stress on the words
“has committed”, meaning paragraph (b) is not confined to those who have been
convicted and sentenced, but potentially covers anyone whom there are serious
reasons for considering that he has committed a serious crime.
[15]
Justice
Décary, who wrote a separate but concurring opinion in Zrig (differing
only on questions of what constitutes complicity in such a crime) also
disagreed with the interpretation of Article 1F(b) in the Chan case.
After a careful review of several authors, and of the travaux préparatoires
for the Convention, he expressed the following views:
118.
My reading
of precedent, academic commentary and of course, though it has often been
neglected, the actual wording of Article 1F of the Convention, leads me to
conclude that the purpose of this section is to reconcile various objectives
which I would summarize as follows: ensuring that the perpetrators of
international crimes or acts contrary to certain international standards will
be unable to claim the right of asylum; ensuring that the perpetrators of
ordinary crimes committed for fundamentally political purposes can find refuge
in a foreign country; ensuring that the right of asylum is not used by the
perpetrators of serious ordinary crimes in order to escape the ordinary course
of local justice; and ensuring that the country of refuge can protect its own
people by closing its borders to criminals whom it regards as undesirable
because of the seriousness of the ordinary crimes which it suspects such
criminals of having committed. It is this fourth purpose which is really at
issue in this case. (Emphasis added)
119.
These
purposes are complementary. The first indicates that the international
community did not wish persons responsible for persecution to profit from a
convention designed to protect the victims of their crimes. The second
indicates that the signatories of the Convention accepted the fundamental rule
of international law that the perpetrator of a political crime, even one of
extreme seriousness, is entitled to elude the authorities of the State in which
he committed his crime, the premise being that such a person would not be tried
fairly in that State and would be persecuted. The third indicates that the
signatories did not wish the right of asylum to be transformed into a guarantee
of impunity for ordinary criminals whose real fear was not being persecuted,
but being tried, by the countries they were seeking to escape. The fourth
indicates that while the signatories were prepared to sacrifice their
sovereignty, even their security, in the case of the 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. (Emphasis added)
…
127.
With
respect, I am not sure that this Court’s judgment in Chan can be given
the meaning suggested by counsel for the appellant. First, that judgment relies
on Ward and Pushpanathan and on Hathaway as a basis, for
all practical purposes, for the premise, which to me seems questionable, that
Article 1F(b) applies essentially to cases of extradition. Second, it relies on
ss. 19, 46 and 53 of the Immigration Act as a basis for concluding that
Article 1F(b) does not apply to claimants who have been convicted of a crime
abroad and have served their sentences before coming to Canada. Those sections do not cover
the situation in which the appellant finds himself. He was not convicted of a
serious offence before coming to Canada (the Minister did not argue that the
trial and conviction of the appellant in absentia after his departure from
Tunisia on a series of charges, which moreover were not laid in connection with
the crimes here attributed to the organization of which the appellant was a member,
constituted a conviction of a serious offence).
128.
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.
(Emphasis added)
129.
It is thus
easy to understand why, in dealing with “non-political crimes”, the courts of
the signatory countries have tended to refer to extradition treaties in
defining the seriousness of such crimes, and why those courts have tended to
limit these “political crimes” to crimes in which the political aspect
transcended everything else. It is a sort of compromise, which allows States to
leave their borders open to genuine political criminals and close them to
persons who have committed non-political crimes the seriousness of which, for
example, approximates to crimes generally covered by extradition treaties. It
follows that under Article 1F(b) it is possible to exclude both the
perpetrators of serious non-political crimes seeking to use the Convention to
elude local justice and the perpetrators of serious non-political crimes that a
State feels should not be allowed to enter its territory, whether or not they
are fleeing local justice, whether or not they have been prosecuted for their
crimes, whether or not they have been convicted of those crimes and whether or
not they have served the sentences imposed on them in respect of those crimes.
(Emphasis added)
With respect, I find
this analysis based on the history and context of the Convention to be more
relevant for present purposes than the analysis in Chan based on
internal evidence within the Immigration Act. The Chan analysis,
apart from requiring the reading in of several words into Article 1F(b) to
narrow its plain meaning, was based on the premise that the Convention should
be interpreted so as to make sense of Canada’s Immigration Act, a
questionable proposition.
[16]
I
therefore conclude that even if the Applicant were deemed to have constructively
served his sentence in the United States the Board was still correct to have
excluded him under Article 1F(b). In so concluding I have recognized that there
are conflicting views both in this Court and in the Federal Court of Appeal on
this matter and will address this in respect of the certification of questions.
Disposition
[17]
I
am therefore going to dismiss the application for judicial review. I do this
first because the Applicant does not contest the findings of the Board that he
is not a refugee or a person in need of protection. I can therefore not set
aside that part of the decision nor would there be any point in sending the
matter to the Board for reconsideration. With respect to the exclusion decision
of the Board, for the reasons stated I consider this to have been reasonable
and, indeed, if the standard of review were correctness, I would find it to be
correct as well.
[18]
At
the end of the argument counsel for the Applicant asked that I certify the same
questions which were certified in Husin v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 1823, questions which were not answered
because the matter did not proceed to appeal. Those questions were as follows:
1.
Does
serving a sentence for a serious crime prior to coming to Canada allow one to
avoid the application of Article 1F of the Convention?
2.
If
the answer to question 1 is affirmative, when and in what circumstances is a
sentence deemed served, specifically does a deportation have the effect of
deeming a sentence served?
Counsel for the
Respondent said that if I found the Applicant had not completed his sentence,
it was unnecessary to have the questions certified. He further submitted that
the Applicant’s departure from the United States was voluntary and was
not a “deportation”. Unfortunately, the record is not clear as to the precise
circumstances of his departure. In its decision the Board said that after he
had completed his jail term “he was called to an immigration hearing and issued
a voluntary departure order to leave the U.S. by October,
2004. The claimant entered Canada at Windsor, Ontario, on July 5,
2004 … .” According to the memorandum of fact and law of the Applicant “less
than two months into his probation, US immigration authorities ordered the applicant
to leave the United States knowing that he was on probation”. It appears to me
from the record that he was given the opportunity to leave voluntarily but that
if he did not leave by October, 2004, he would be deported. So his departure
from the United
States
before the completion of his probation must be regarded as involuntary. I am
going to narrow the questions somewhat to confine them to the circumstances of
this case. I will therefore certify the following questions:
1.
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?
2.
If
the answer to question one is affirmative, if a person is forced to leave the
country where the crime was committed prior to the completion of his sentence does
this have the effect of deeming the sentence to have been served?
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review of the decision of the Immigration Refugee
Board (Refugee Protection Division) of March 22, 2007 be dismissed;
2.
The
following questions be certified:
1. 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?
2. If the answer
to question one is affirmative, if a person is forced to leave the country
where the crime was committed prior to the completion of his sentence does this
have the effect of deeming the sentence to have been served?
“B.L. Strayer”
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