OTTAWA, Ontario, May 1st, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
SANTIAGO RAFAEL GARCIA RODRIGUEZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review made pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 of a decision of the Refugee Protection Division of the Immigration and Refugee Board dated July 20, 2006 wherein the applicant was found not to be a Convention refugee or a person in need of protection. Leave was granted by the Chief Justice on February 9, 2007.
Background
a) Facts
[2] The applicant is a citizen of the Dominican Republic and first left his country in 1986 when he moved to the United States. Nine years later, in 1995, the applicant was charged with trafficking in a controlled substance in the state of New York, a charge to which he plead guilty and was sentenced to 54 months in prison. However, after serving 26 months, he opted to complete his sentence in the Dominican Republic, and was therefore removed from the United States.
[3] Having returned to the Dominican Republic, it does not appear that the applicant continued to serve any jail time or that he was paroled by the local authorities. Rather, he worked as a small businessman, operating a restaurant and involved in some property transfers.
[4] In November 1998, while driving his car, the applicant came upon a female friend and offered her a lift as they were heading in the same direction. In so doing, however, he sparked rage of her jealous husband with whom she had recently separated. The applicant was shot at, as was his friend, whose injuries proved to be fatal. The shooter eventually took his own life.
[5] However, the shooter’s family members, particularly his children who were involved in local gangs continued to harass and threaten the life of the applicant. The applicant sought out the assistance of the police but to no avail, and so in 2001, he wrapped up his business, sold his restaurant and moved to Santiago in an effort to find safety. However, not sure of his safety, on January 1, 2005 the applicant travelled to Canada. He submitted a refugee application on September 12, 2005.
b) Decision of the Board
[6] The Board rejected the applicant’s refugee application on the grounds that he is inadmissible to Canada pursuant to section 98 of the IRPA as a person referred to in section 1(F)(b) of the United Nations Convention Relating to the Status of Refugees. This conclusion was based on the Board’s finding that the applicant had not served the entirely of his sentence by being deported to the Dominican Republic.
[7] The Board also noted a number of inconsistencies in the applicant’s review of his arrest in the United States that led the Board to question his credibility. First, despite stating that he was an unwilling participant, the applicant conceded that he was aware at the time of his arrest in the United States of the presence of either cocaine or heroin in his vehicle. Second, although he stated that he plead guilty to receive a reduced sentence, he received the same sentence as his co-accused. Finally, he never sought a pardon, indicating first that he did not inform himself of this option and later that he did not believe a pardon would be available after the events of September 11th, 2001.
Issue
[8] There is only one issue to address in this application that can be phrased as follows: did the Board err in determining that the applicant committed a serious non-political crime before he entered Canada, for which he has not completed his sentence, which would make him inadmissible pursuant to section 98 of IRPA?
Standard of Review
[9] The question of whether Article 1F should apply in a particular case has previously been characterized as a question of mixed law and fact and attracts the standard of review of reasonableness, see: Médina v. Canada (Minister of Citizenship and Immigration), 2006 FC 62.
Submissions and Analysis
[10] Did the Board err in determining that the applicant committed a serious non-political crime before he entered Canada, for which he has not completed his sentence, which would make him inadmissible pursuant to section 98 of IRPA?
Applicant’s submissions
[11] The applicant submits that he has served his sentence in the United States and that pursuant to the Federal Court of Appeal’s decision in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390, an applicant who has served his sentence should not be declared inadmissible under Article 1(F)(b) of the Convention.
[12] In Chan, the Federal Court of Appeal found that the Minister’s authority to issue a danger opinion under the former Immigration Act, R.S.C. 1985, C. I-2 required that Article 1(F)(b) benefit from a broad interpretation in order not to abrogate the Minister’s authority. The applicant submits that the same broad interpretation must continue to apply to Article 1(F)(b) in order to remain consistent with similar provisions in the IRPA that permit ministerial exclusions under grounds of serious criminality.
Respondent’s submissions
[13] The respondent notes that the evidence, including the applicant’s own admissions, indicate that he never completed his sentence and was deported to the Dominican Republic at his own request. Therefore, on this basis alone, the applicant is inadmissible.
[14] In any event, the respondent submits that Chan is no longer an applicable authority given the Federal Court of Appeal’s decision in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178. In that decision, the Court stated that crimes falling under Article 1(F)(b) are not limited to extraditable offences, as first suggested by Chan.
[15] Finally, the applicant’s comparison to provisions of serious criminality in this case to a danger opinion under the old Immigration Act is not applicable. The applicant was convicted of a crime that can entail a sentence of life imprisonment. A foreign national is inadmissible for serious criminality which can only be escaped where the Minister is convinced that they are rehabilitated, which, given the possibility of a sentence of life imprisonment, is impossible in the circumstances
Analysis
[16] Persons who have committed serious non-political crimes cannot qualify as refuges or persons in need of protection pursuant to section 98 of the IRPA:
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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 et F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
The relevant passage of section F reads as follows:
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F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
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F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raison sérieuses de penser : |
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[…] |
[…] |
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(b) he has committed a serious non-political crime outside the country of refuge prior to his admissions to that country as a refugee. |
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés. |
[17] In Chan, the Federal Court of Appeal held that a person who has served his sentence cannot be excluded under Article 1F(b), albeit under the provisions of the previous Immigration Act, see Chan at paragraph 15.
[18] The Minister argued that Chan is no longer authoritative given the Federal Court of Appeal’s decision in Zrig. However, in Husin v. Canada (Minister of Citizenship and Immigration), 2006 FC 1451, the Court specifically rejected the same argument advanced by the Minister. And it is probably for this reason that, at the conclusion of his representation, the Minister has decided to abandon this argument and to recognize that Chan is still authoritative.
[19] It is also to be noted that the nature and severity of the criminal offence committed by the applicant in the United States is not contested. Therefore, the only question is whether the applicant has served his sentence for this offence. On this issue, Chan continues to be applicable authority.
[20] In Chan the applicant was only deported after he completed his sentence. The problem that has subsequently arisen is where the actions of either the applicant or immigration officials have made the completion of the sentence impossible, as in this case. The decisions of Médina and Husin provide two different examples.
[21] In Médina, the Court held that the failure to serve the balance of a prison term and any probationary period due to deportation meant that the sentence had not been served. In that case, the applicant was deported after his “expressed agreement to return to Mexico”. When he returned to Mexico, he was not detained and, as a result, there remained a four year probationary period that he did not serve. The evidence demonstrated that in the event the applicant returned to the United States, he would be automatically detained.
[22] However, in Husin, the Court was obviously concerned about this approach when stating :
“¶29 The issue which remains unclear is whether a deportation order has the effect of completing the sentence or truncates the sentence in such a way that it can never be completed. If part of the aim of Article 1(F)(b) is to permit people who have completed their sentence from ever being admissible, then that aim would be frustrated by allowing a deportation order to make fulfillment of a sentence impossible.”
[23] In Husin, however, the applicant did not voluntarily agree to his deportation and, instead, was pursued by the Immigration and Naturalization Service despite his release from prison by the California state authorities. Therefore, where in Médina the applicant did not complete his sentence because he made the conscious choice not to remain in the United States, in Husin, the applicant was prevented from completing his sentence by United States officials themselves, despite his good faith attempts to do so.
[24] The present case resembles more the situation in Médina as the applicant voluntarily agreed to deportation before the completion of his sentence. In the case at bar, like in Médina, the applicant could have completed his sentence in the United States, however, he made the conscious choice not to do so.
Conclusion
[25] The applicant voluntarily chose to complete his sentence in the Dominican Republic and it appears that once back in this country he never completed the balance of his sentence and the associated probationary period. Consequently, this failure makes him inadmissible under Article 1(F)(b) and section 98 of the IRPA. Therefore, the application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated July 20, 2006 will be dismissed.
Questions raised for certification
[26] Counsel for the applicant has raised two questions of general importance for certification in this case. They are:
1) - Does serving a sentence for a serious non-political crime prior to coming to Canada allows one to avoid the application of Article 1(F) of the Convention?
2) -With respect to Article 1(F), when and in what circumstances is a sentence deemed to be served?
[27] The Court declines to certify both questions for the following reasons:
- The first question has been decisively addressed by the decision in Chan.
- As to the second question, the Court is not satisfied that there is some need for clarification.
[28] When as in the present instance a person has opted to complete his sentence in his country and is extradited for this purpose, it is obvious that his sentence is deemed to be served when it has been served following his extradition in his country. The answer to question two therefore does not need clarification.
JUDGMENT
The application for judicial review is dismissed and no question will be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4220-06
STYLE OF CAUSE: SANTIEGO RAFAEL GARCIA RODRIGUEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 26, 2007
REASONS FOR JUDGMENT: The Honourable Maurice E. Lagacé, Deputy Judge
APPEARANCES:
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Ms. Christina Marinelli
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Mr. Michel Pépin
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SOLICITORS OF RECORD:
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Ms. Christina Marinelli Montreal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada
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