From Theory to Practice

Case Study on 1F(b)

The following are facts relating to a possible 1F(b) exclusion case. Please develop arguments for or against a finding that the claimant should be excluded from refugee protection.

In your analysis, recall the overarching principles found at paragraph 60-62 of Febles. Furthermore, in Jayasekara the Federal Court of Appeal stated that an assessment of 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.

After you analyze the case, try to develop your argument using the CREAC framework. Begin with your conclusion, which answers the issue "Whether the claimant should be excluded from refugee protection." Then cite the relevant legislation and any case law or policy that helps to interpret the legislation in a way that aligns with your argument. Apply the law to the facts as you find them below to show how the law mandates a particular outcome.

You do not have to write out a CREAC argument; point-form notes are fine, but be prepared to discuss your ideas.

CASE STUDY

The facts are as follows:

• Juan is a 44-year-old man who came to Canada fleeing persecution based on his political opinion.
• Juan is a prominent member of a political party that is in opposition to the current ruling regime in his country.
• Other members of his party has received threats and physical attacks from thugs hired by the members of the ruling regime.
• When Juan was 22, he was residing in the U.S.
• In the U.S., Juan was convicted of motor vehicle theft.
• He says that at the time, he was addicted to drugs. He stole a car and sold it to feed his drug addiction.
• The car was worth $5000.
• While attempting to steal the car, he was seen by the owner. Juan brandished a small knife and threatened the owner before driving away with the car. No one was physically injured in the theft of the car.
• Juan plead guilty and served a seven-year sentence in the U.S. After serving his sentence, he was deported to his country.
• In prison, he completed several drug rehabilitation programs.
• Juan explained that he had joined a "bad crew" of friends in his youth, which introduced him to drugs. He deeply regrets his actions. He says that kind of life is behind him.
• Juan has no other convictions or any other criminal involvement in his life.
• In Canada, a conviction for motor vehicle theft involving violence or threats has a maximum sentence of 14 years.

Paragraph 60-62 of Febles:

[60] 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.

C. How Should a Crime's Seriousness Be Assessed?

[61] The appellant concedes that his crimes were "serious" when they were committed, obviating the need to discuss what constitutes a "serious ... crime" under Article 1F(b). However, a few comments on the question may be helpful.

[62] The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded. Article 1F(b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

D. The Domestic Statutory Context and the Canadian Charter of Rights and Freedoms

LEGISLATION ON IF(b)

Refugee protection claims in Canada are governed by the Immigration and Refugee Protection Act ("IRPA"). Section 98 of the IRPA excludes from refugee protection in Canada all persons referred to in Article 1F(b) of the United Nations Convention Relating to the Status of Refugees ("Refugee Convention"). Article 1F(b) of the Refugee Convention excludes from refugee protection all persons who have committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee. Refugee protection claims in Canada are adjudicated by the Refugee Protection Division of the Immigration and Refugee Board ("Board"). In deciding Febles' refugee protection claim, the Board concluded that Febles was among the persons referred to by Article 1F(b) of the Refugee Convention, and therefore ineligible for refugee protection in Canada pursuant to s. 98 of the IRPA. Both the Federal Court and the Federal Court of Appeal dismissed Febles' application for judicial review.

Section 98 of the IRPA excludes from refugee protection in Canada all persons "referred to in section E or F of Article 1 of the Refugee Convention". Article 1F(b) of the Refugee Convention refers to "any person with respect to whom there are serious reasons for considering that ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee".