Date:
20130118
Docket:
IMM-5056-12
Citation:
2013 FC 45
Ottawa, Ontario,
January 18, 2013
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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JI HO CHO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
& IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the May 2, 2012 decision of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board excluding him
from refugee protection on the basis of his commission of serious non-political
crimes.
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Background
[3]
The
Applicant is a citizen of the Republic of Korea, who entered Canada on November 16, 2006 as a visitor, and stayed without further status until he submitted his
application for refugee protection on September 28, 2010.
[4]
The
Applicant was mixed up with neighbourhood gangs in Korea in his teenage years,
and became a full-fledged member of the Eagles Group gang when he was 23 years
old. While a member of this gang, the Applicant testified to having committed
several crimes, including violent offences causing bodily harm, charging
criminal interest rates, extortion, and bribery of officers, many of which were
committed on behalf of a criminal organization, namely the Eagles. The
Applicant was serving a prison sentence in Korea until shortly before his
arrival in Canada. He had become one of the more senior members in the gang at
the time of his departure.
[5]
The
Board determined that these crimes were of a serious nature, carrying with them
a maximum penalty in Canada of at least ten years, and that there were serious
reasons for believing that the Applicant carried them out. These facts are not
in dispute between the parties.
II. Issues
[6]
The
Applicant raises two issues in this application:
A. Whether the RPD erred in failing to
consider that the Applicant had served sentences for some of the crimes he
committed; and
B. Whether
the RPD erred in failing to consider evidence of both inclusion and exclusion
before making its exclusion determination.
III. Standard of Review
[7]
The
issue of exclusion from refugee protection raises mixed questions of fact and
law and is reviewable on the standard of reasonableness (Jayasekara v Canada
(Minister of Citizenship and Immigration), 2008 FC 238, [2008] FCJ No 299
at para 10). The interpretation of Article 1F(b) of the UN Convention,
however, is to be reviewed on the standard of correctness (Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, [2012] FCJ No 1609 at
paras 24-25).
IV. Analysis
[8]
The
Applicant’s arguments have two strands: First, the RPD erred in excluding the
Applicant from refugee protection because he is a person who has left organized
crime behind, and who served sentences for crimes for which he was convicted. As
such, he no longer fits within the framework set out by Jayasekara v Canada
(Minister of Citizenship and Immigration), 2008 FCA 404, [2008] FCJ No 1740
(Jayasekara, FCA). Second, the RPD ought to have held a full hearing on
aspects of both inclusion and exclusion.
[9]
I
am unable to accept either of the Applicant’s arguments. The Federal Court of
Appeal was clear in Jayasekara, above, that the factors to be considered
in determining the seriousness of a crime for the purposes of Article 1F(b) are
the elements of the crime, the mode of prosecution, the penalty prescribed, the
facts and the mitigating and aggravating circumstances underlying the
conviction (see Jayasekara, FCA at para 44). The Court was equally
clear that there is no balancing with “factors extraneous to the facts and
circumstances underlying the conviction, such as, for example, the risk of
persecution in the state of origin” (Jayasekara, FCA, above, at para 44;
Febles, above, at paras 29-30).
[10]
I
am satisfied that the RPD properly applied the Jayasekara factors in its
assessment of the Applicant’s exclusion from refugee protection. The risk of
persecution in Korea -- or, stated in the Applicant’s terms, the inclusion
factors -- as well as rehabilitation and the serving of a sentence are
extraneous factors that are not to be included in the evaluation of the
seriousness of a crime for the purposes of Article 1F (b) of the Convention (Febles,
above, at paras 34-35; Chawah v Canada (Minister of Citizenship and
Immigration), 2009 FC 324, [2009] FCJ No 385 at paras 5-6). Indeed, the
Court has been clear that “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 States
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”
(Zrig v Canada (Minister of Citizenship and Immigration), 2003 FCA
178, [2003] FCJ No 565 at para 129; Radi v Canada (Minister of Citizenship
and Immigration), 2012 FC 16, [2012] FCJ No 9 at para 18). As such, the
application must be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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