Docket: IMM-4142-13
Citation:
2015 FC 139
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February, 3, 2015
PRESENT: The Honourable Mr. Justice Locke
|
BETWEEN:
|
|
BLERIM SKORO
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72 (1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision of the Refugee Protection Division (RPD) of
the Immigration and Refugee Board, dated May 16, 2013, rejecting the
applicant’s claim for refugee protection under section 98 of the IRPA on the
basis that the applicant had committed serious non-political crimes within the
meaning of paragraph 1F(b) of the 1951 United Nations Convention
Relating to the Status of Refugees (the Convention).
II.
Facts
[2]
The applicant claims that during the early 1990s
he left Kosovo after having deserted the army before subsequently traveling to
the United States.
[3]
In the mid-1990s, the applicant apparently
joined up with other criminals in the international trafficking of heroin and
cocaine. During this period, the applicant made five or six trips carrying at
least 14 kg of heroin and cocaine and laundered approximately 670,000 U.S.
dollars from the sale of narcotics.
[4]
In May 2000, the applicant was charged in the United
States with importing heroin and money laundering and in June of that year he
was sentenced to a term of 84 months in prison for his crimes. The applicant
obtained a lighter sentence for having provided authorities with information on
other drug traffickers and for testifying against them.
[5]
The applicant alleges that a number of U.S.
agencies, including the CIA, contacted him while he was in prison in order to
have him infiltrate Islamic terrorist groups and that in exchange for his cooperation
the U.S. authorities had promised him that he would be released before the end
of his sentence and that he would later be allowed to remain in the United
States. Thus, he contends that he collaborated with U.S. authorities by
infiltrating Islamic terrorist cells. The applicant was released before the end
of his sentence in accordance with his agreement with the U.S. authorities, but
was nonetheless deported to Kosovo.
[6]
The applicant claims that in March 2010,
jihadists from Kosovo tried to kill him as they had discovered that he had been
a spy for the CIA and he purportedly received a bullet wound. In order to
escape this threat, the applicant left Kosovo in October 2010 and arrived in
Canada on November 2, 2010.
III.
Issue
[7]
One issue arises:
1.
Did the RPD err in finding that the applicant
was subject to paragraph 1F(b) of the Convention?
[8]
The sole argument raised by the applicant is in
relation to the interpretation of Article 1F(b) and now runs counter to
the findings of the Supreme Court of Canada in Febles v Canada (Citizenship
and Immigration), 2014 SCC 68 (Febles). This decision of the Supreme
Court of Canada was issued in between the filing of the applicant’s memorandum
and the hearing of this matter before this Court.
IV.
Decision
[9]
The RPD noted that according to the Minister’s
advice, an exclusion under paragraph 1F(b) must be considered by virtue
of the fact that the applicant was found guilty in the United States of “Conspiracy to import one kilogram of heroin – Title 21”
under sections 963, 960 (a)(1) and 960 (b)(1)(a) of the U.S. Criminal Code and that such a crime is punishable
by a minimum sentence of 10 years in prison.
[10]
The RPD pointed out that during the hearing the
applicant made no attempt to minimize the crimes he had committed.
[11]
According to the RPD, in considering the facts
and principles in Jayasekara v Canada (Citizenship and Immigration),
2008 FCA 404 (Jayasekara), in particular the criteria established at
paragraph 44 of that decision with respect to the seriousness of the crime
committed, there are serious grounds to believe that the applicant committed a
serious non-political crime within the meaning of Article 1F(b) of the
Convention. Paragraph 44 of Jayasekara states 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”, but that “[t]here 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.”
[12]
In addition, despite the words of Justice La
Forest in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 (Ward),
which initially appear to limit the application of Article 1F(b) to fugitives
from justice, the RPD was of the view that in accordance with Jayasekara,
the application of paragraph 1F(b) of the Convention applies not only to
fugitives, but also to those who have served their sentence. The RPD therefore
concluded that the exclusion set out in section 98 of the IRPA and in paragraph
1F(b) of the Convention could be applied to the applicant even though he
had served his sentence and had cooperated with U.S. authorities.
[13]
In support of its analysis, the RPD specifically
considered the fact that the crimes committed by the applicant in the United
States would be punishable by a minimum sentence of 10 years’ imprisonment had
they been committed in Canada. The RPD also considered the evidence that the
applicant had served his sentence and cooperated with U.S. authorities, evidence
filed by the applicant on the situation in Kosovo, and the applicant’s
allegations that his life would be at risk unless he obtained Canada’s
protection.
[14]
Relying on Feimi v Canada (Citizenship and
Immigration), 2012 FCA 325 (Feimi) and Hernandez Febles v Canada
(Citizenship and Immigration), 2012 FCA 324 (Hernandez Febles), the RPD
was of the view that the level of danger currently posed by the applicant and
his rehabilitation were not factors worthy of consideration and therefore
concluded that it must restrict its analysis to determining whether there were
serious reasons to believe that the applicant had committed a serious
non-political crime. As noted above, the RPD found this to be the case.
[15]
Lastly, on the basis of paragraph 27 of Feimi,
the RPD noted that in spite of its decision, the applicant could eventually
have an opportunity to convince the respondent, in a pre-removal risk
assessment, that he would face a number of risks if he were to be denied
protection from Canada and the respondent could then weigh the risks he would
potentially face if he were to be deported from Canada with any danger the
applicant might pose to the public.
V.
Relevant provisions
[16]
The standard of review applicable to determining
whether the RPD erred in its interpretation of Article 1F(b) of the Convention
is that of correctness (Feimi, at para 14; Hernandez Febles, at
para 25; Febles).
VI.
Analysis
[17]
At the outset, the applicant points out in his
memorandum that he had already served his sentence in the United States prior
to arriving in Canada, that he has not committed any crimes since, and that he
is not a fugitive. Relying on the position of Justice La Forest in Ward,
the applicant argues in his memorandum that the application of paragraph 1F(b)
of the Convention is limited to fugitives from justice and that he was
therefore not subject to that paragraph. Furthermore, the applicant submits
that the RPD breached the rule of stare decisis by following the Federal
Court of Appeal’s interpretation of Article 1F(b) of the Convention in Jayasekara
rather than the following passage in Ward:
Hathaway would appear to confine paragraph
(b) to accused persons who are fugitives from prosecution. The
interpretation of this amendment was not argued before us. I note,
however, that Professor Hathaway’s interpretation seems to be consistent with
the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and
extradition law.
[18]
However, as the parties noted at the hearing of
this case, the Supreme Court of Canada recently rejected the interpretation of
Article 1F(b) of the Convention initially suggested in Ward.
Indeed, in Febles, at para 60, Chief Justice McLachlin, writing for the
majority, settled the debate revived by the applicant with regard to the interpretation
of Article 1F(b) of the Convention:
Article 1F(b) excludes anyone who has
ever committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee. Its application is
not limited to fugitives, and neither is the seriousness of the crime to be
balanced against factors extraneous to the crime such as present or future
danger to the host society or post-crime rehabilitation or expiation.
[19]
Furthermore, in Febles Chief Justice
McLachlin noted at paras 46-49 the obiter remarks of Justices La Forest and
Bastarache in Ward and Pushpanathan v Canada (Citizenship and
Immigration), [1998] 1 SRC 982, respectively, as to the interpretation of Article
1F(b) of the Convention. In light of Febles, I have no difficulty
dismissing the sole argument raised by the applicant in support of his
application for judicial review.
VII.
Conclusions
[20]
The application for judicial review is dismissed.
Email this Content