2016 FC 1385, 2016 FC 1385

[2017] 4 F.C.R. 3 IMM-919-15 2016 FC 1385 A. B., C. D. and E. F. ( Applicants ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: A. B. v. Canada (Citizenship and Immigration) Federal Court, Strickland J.—Toronto, October 19; Ottawa, December 16, 2016. Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board of Canada, Refugee Protection Division decision determining that applicants excluded from refugee protection pursuant to United Nations Convention Relating to the Status of Refugees, Art. 1F(

b) since principal applicant committing serious non-political crime of child abduction; alternatively, that applicant generally not credible, failing to establish subjective fear or rebut presumption of state protection, therefore applicant, two minor children not Convention refugees nor persons in need of protection pursuant to Immigration and Refugee Protection Act, ss. 96 or 97 respectively — Applicant, Roma from Hungary — Working as journalist, human rights activist, Member of European Parliament while living in Hungary — Feared for safety because of knowledge of Hungarian government’s involvement in Romani killings — Applicant, family coming to Canada — Applicant’s eldest daughter subject of contested custody in Hungary — Eldest daughter returning to Hungary pursuant to Ontario Court of Justice (OCJ) order, withdrawing refugee claim — Refugee Protection Division concluding, inter alia, that serious reasons for considering that applicant committing abduction in contravention of custody order or abduction under Criminal Code, s. 282 or s. 283 respectively — Refugee Protection Division’s finding that applicant committing serious non-political crime pursuant to Convention, Art. 1(F)(

b) unreasonable because failing to apply Supreme Court of Canada’s decision in Febles v. Canada (Minister of Citizenship and Immigration), to consider sentencing range — Finding also unreasonable because Refugee Protection Division’s application of factors in Jayasekara v.

Canada (Minister of Citizenship and Immigration) unreasonable — Regarding Jayasekara factors, Refugee Protection Division only briefly addressing mode of prosecution; acknowledging that both Criminal Code, ss. 282 , 283 hybrid offences — In present matter however, wide range of potential sentences for crime of child abduction existing — Refugee Protection Division erring in circumscribing assessment of seriousness of crime — Even where presumption of seriousness may attach to crime internationally, presumption rebuttable based on identified factors — In analysis of merits of applicant’s refugee claim, Refugee Protection Division not ignoring objective evidence, finding that other credible evidence establishing that applicant, family thereof provided with adequate state protection before departure from Hungary —No breach of duty of procedural fairness owed to applicant herein — While Refugee Protection Division’s reasons including much emphasis on applicant’s conduct in connection with abduction of child, not sole basis of its findings; read in whole, could not be concluded that reasonable person would think more likely than not that Refugee Protection Division not deciding matter fairly either based on findings concerning circumstances surrounding abduction or otherwise — Refugee Protection Division’s reasons thus not meeting high threshold demonstrating that reasons giving rise to reasonable apprehension of bias — Application dismissed.

This was an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada determining that the applicants were excluded from refugee protection pursuant to

Article 1F(

b) of the United Nations Convention Relating to the Status of Refugees since the principal applicant had committed the serious non-political crime of child abduction. It also decided alternatively that the applicant was generally not credible and had failed to establish subjective fear or to rebut the presumption of state protection and, on that basis, the applicant and her two minor children were not Convention refugees nor persons in need of protection pursuant to

section 96 or 97 respectively of the Immigration and Refugee Protection Act . The applicant is a Roma woman from Hungary who claimed that in Hungary she worked in particular as a journalist reporting about human rights violations involving the Roma. She also served as a Member of the European Parliament (MEP) for several years where she was involved in Hungarian educational reforms and issues relating to Roma children. Within her work as a MEP, she began to focus on the Hungarian state’s involvement and complicity in violence against Romani people including serial killings.

She claimed that, during her tenure as a MEP, she and her family were the subject of daily insults and threats and that she later obtained police protection as requested. She eventually withdrew from public advocacy given her fears involving the Hungarian Secret Service. The applicant believed that it was no longer safe for her and her family to remain in Hungary since she would be arrested because of her knowledge of the government’s involvement in the Romani killings. She came to Canada with her husband and their three children.

The applicant’s eldest daughter from a previous marriage was the subject of contested custody proceedings in Hungary. A Hungarian court judgment terminated the applicant’s joint custody rights of that daughter and ordered the child’s return to the custody of her father with visitation rights to the applicant. The eldest child was later returned to her father in Hungary pursuant to an Ontario Court of Justice (OCJ) order and that daughter’s claim for protection in Canada was withdrawn. The respondent believed that there had been a contravention of

Article 1F(

b) of the Convention and that the applicant was excluded from refugee protection in Canada since she had committed the serious non- political crime of child abduction before coming to Canada. In its decision, the Refugee Protection Division concluded, inter alia , that there were serious reasons for considering that the applicant had committed a serious non-political crime outside the country of refuge before her admission to that country as a refugee, specifically

section 282 of the Criminal Code (abduction in contravention of a custody order) and, alternatively,

section 283 (abduction). The issues were whether the Refugee Protection Division erred in finding that the applicant was excluded pursuant to

Article 1F(

b) of the Convention; whether it erred in its treatment of the evidence; and whether it breached its duty of procedural fairness or displayed a reasonable apprehension of bias. Held , the application should be dismissed.

The Refugee Protection Division’s finding that the applicant committed a serious non-political crime pursuant to

Article 1F(

b) of the Convention was unreasonable, first because it failed to properly apply the Supreme Court of Canada’s decision in Febles v. Canada (Minister of Citizenship and Immigration) and to consider the sentencing range and, second, because of its unreasonable application of the Jayasekara v. Canada (Minister of Citizenship and Immigration) factors. In this case, the Refugee Protection Division specifically requested that applicant’s counsel provide it with post-hearing submissions on the applicability of Febles , which was done.

However, regardless of its request for and receipt of these submissions, the Refugee Protection Division did not conduct a Febles analysis or explain why it declined to do so. Although it is not clear from its reasons, it appears that the Refugee Protection Division was of the view that it need not address the Supreme Court of Canada’s direction concerning the role of a sentencing range when determining the seriousness of a crime for the purposes of exclusion pursuant to

Article 1F(

b) since these were merely suggestions in obiter . Instead it appeared to have determined that the applicable standard for determining if there were serious reasons for considering that the applicant had committed a serious non-political crime outside Canada, before her admission to Canada as a refugee, was the existence of the Convention on the Civil Aspects of International Child Abduction (Hague Convention) and the evidence that confirmed that the applicant had removed and wrongfully retained the child who was subsequently returned to her father by way of the Hague Convention order of the OCJ.

This was not determinative. The Refugee Protection Division thus erred in failing to apply Febles and to consider whether the ten-year rule (i.e. a crime will generally be considered as serious where a maximum sentence of ten or more years could have been imposed had the crime been committed in Canada) had been rebutted in the case before it and this was a reviewable error. With respect to the Jayasekara factors, the Refugee Protection Division briefly addressed the mode of prosecution and acknowledged that both sections 282 and 283 of the Criminal Code are hybrid offences.

But this was the total extent of its analysis of the mode of prosecution factor. In this matter, there was a wide range of potential sentences for the crime of child abduction from six months to ten years, which was not considered by the Refugee Protection Division. It was not open to the Refugee Protection Division, when considering the seriousness of the offence, to fail to consider an applicable provision of the Criminal Code that described the lower end of the sentencing range applicable to the

section 282 and 283 offences that it was considering, whether or not the applicant specifically referred to that

section of the Criminal Code . While the Refugee Protection Division did not err in its finding that the laying of charges or the entering of a conviction are not prerequisites to exclusion pursuant to

Article 1F(b), it did err in its

interpretation of paragraph 37 of Jayasekara (gravity of a crime) and, based on that error, in circumscribing its assessment of the seriousness of the crime. Paragraph 37 of Jayasekara does not support the proposition that the existence of an international convention such as the Hague Convention is the sole factor or “standard” against which seriousness must be assessed. Rather, even where a presumption of seriousness may attach to a crime internationally, the presumption is rebuttable based on the identified factors.

Regarding the Refugee Protection Division’s treatment of the evidence in its analysis of the merits of the applicant’s refugee claim, the Refugee Protection Division did not ignore objective evidence such as an Amnesty International letter addressed to the applicant’s counsel nor did it dismiss it. Rather it found that other credible evidence established that the applicant and her family had been provided with adequate state protection prior to their departure from Hungary. This finding was supported by the evidence as described in the Refugee Protection Division’s reasons.

Also, the Refugee Protection Division’s failure to mention some documentary evidence was not fatal to the decision as it was assumed that it weighed and considered all of the evidence unless it was shown to the contrary. Viewing the Refugee Protection Division’s state protection analysis as a whole, including its recognition of the applicant’s profile, the applicant failed to rebut the presumption of state protection with clear and convincing evidence.

As to breaching the duty of fairness, the Refugee Protection Division considered material contained in the claims of the applicant’s sister and mother, which were before another member of the Refugee Protection Division, at the applicant’s request. Considering all of the evidence including its negative findings concerning the applicant’s credibility, it assigned little weight to this material as it was unable to determine that these family members were credible. In these circumstances, there was no breach of the duty of procedural fairness owed to the applicant.

With respect to a reasonable apprehension of bias, the applicant submitted that the Refugee Protection Division’s decision showed that the applicant’s advocacy for the Roma and her decision to bring her eldest daughter to Canada offended the Refugee Protection Division and made it impossible for it to make an objective and impartial determination. Based on a review of the evidence, there was no merit to the applicant’s assertion and there was nothing that led to that impression. Nor did the evidence support any suggestion of bias in regard to this issue or otherwise.

Although the Refugee Protection Division’s reasons included much emphasis on the applicant’s conduct in connection with the abduction of her child, which the Refugee Protection Division found to undermine the applicant’s credibility, this was not the sole basis of its findings and, read in whole, it could not be concluded that a reasonable person would think that it was more likely than not that the Refugee Protection Division did not decide fairly either based on its findings concerning the circumstances surrounding the abduction or otherwise.

The Refugee Protection Division’s reasons therefore did not meet the very high threshold or were cogent evidence demonstrating that its reasons gave rise to a reasonable apprehension of bias. STATUTES AND REGULATIONS CITED Criminal Code , R.S.C., 1985, c. C-46, ss. 57 (b)(i), 282 , 283 , 285 , 403 , 787 . Federal Courts Act , R.S.C., 1985, c. F-7 . Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 36(1) , (3) , 74 (d), 96 , 97 , 170 (e). Refugee Protection Division Rules , SOR/2012-256 , rr. 21, 29, 36.

TREATIES AND OTHER INSTRUMENTS CITED Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , 20 December 1988, [1990] Can. T.S. No. 42. Convention on Psychotropic Substances , 21 February 1971, [1988] Can. T.S. No. 35. Convention on the Civil Aspects of International Child Abduction , The Hague, October 25, 1980, [1983] Can. T.S. No. 35.

Protocol amending the Single Convention on Narcotics Drugs, 1961, March 25, 1972, [1976] Can. T.S. No. 48. Single Convention on Narcotic Drugs, 1961, 30 March 1961, [1964] Can. T.S. No. 30. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(b). CASES CITED APPLIED: Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Jayasekara v. Canada (Minister of Citizenship andImmigration), 2008 FCA 404, [2009] 4 F.C.R. 164; Jung v. Canada (Citizenship and Immigration), 2015 FC 464, 479 F.T.R. 1; Tabaguav.

Canada (Citizenship and Immigration), 2015 FC 709, 482 F.T.R. 143; Hersy v. Canada (Citizenship and Immigration), 2016 FC 190,39 Imm. L.R. (4th) 32; R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, (1997), 161 N.S.R. (2d) 241; Zhu v. Canada(Citizenship and Immigration), 2013 FC 1139, 442 F.T.R. 237; Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168, [2014]4 F.C.R. 290. CONSIDERED: G.B. v. V.M., 2012 ONCJ 745 ; Kovacs v. Canada (Minister of Citizenship and Immigration), 2005 FC 1473, [2006] 2 F.C.R.455; R. v. Thrones, 2009 ONCJ 469 ; Chan v.

Canada (Minister of Citizenship and Immigration), (FCA),[2000] 4 F.C. 390, (2000), 190 D.L.R. (4th) 128 (C.A.); Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3S.C.R. 909; Sitnikova v. Canada (Citizenship and Immigration), 2016 FC 464, 45 Imm. L.R. (4th) 298; Canada (Minister of Citizenshipand Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.). REFERRED TO: Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125, 253 D.L.R. (4th) 606; Moreno v. Canada (Minister ofEmployment and Immigration), (FCA), [1994] 1 F.C. 298, (1993), 253 D.L.R. (4th) 606 (C.A.); Dunsmuir v.

NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Villalobos v. Canada (Citizenship and Immigration), 2015 FC 60, 473 F.T.R. 268; Robertsv. Canada (Citizenship and Immigration), 2011 FC 632, 390 F.T.R. 241; Liang v. Canada (Citizenship and Immigration), 2013 FC 765;Walcott v. Canada (Citizenship and Immigration), 2010 FC 505; Gvozdenovic v. Canada (Citizenship and Immigration), 2013 FC 851;Alhayek v. Canada (Citizenship and Immigration), 2012 FC 1126, 418 F.T.R. 144; Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12, [2009] 1 S.C.R. 339; Yin v. Canada (Citizenship and Immigration), 2010 FC 544; Jadallah v.

Canada (Citizenship andImmigration), 2016 FC 1240; Gurusamy v. Canada (Citizenship and Immigration), 2011 FC 990; Malouf v. Canada (Minister ofCitizenship and Immigration), (FC), [1995] 1 F.C. 537, (1984), 86 F.T.R. 124 (T.D.); Pushpanathan v. Canada(Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, amendedreasons, (SCC), [1998] 1 S.C.R. 1222, (1998), 11 Admin. L.R. (3d) 130; Reyes Rivas v. Canada (Citizenship andImmigration), 2007 FC 317; R. v. Mendez (1997), 32 O.R. (3d) 67 (C.A.), ; R. v. Dawson, (SCC),[1996] 3 S.C.R. 783, (1996), 141 D.L.R. (4th) 251; Zrig v.

Canada (Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761;Botezatu v. Canada (Citizenship and Immigration), 2011 FC 917, 2 Imm. L.R. (4th) 34; Aguebor v. Canada (Minister of Employmentand Immigration), [1993] F.C.J. No. 732 (QL), (1993), 160 N.R. 315 (C.A.); Abbas v. Canada (Citizenship and Immigration), 2016 FC911; Vargas v. Canada (Citizenship and Immigration), 2014 FC 484; Cepeda-Gutierrez v. Canada (Minister of Citizenship andImmigration), , 157 F.T.R. 35 (F.C.T.D.); Voloshyn v. Canada (Citizenship and Immigration), 2016 FC 480; HerreraAndrade v.

Canada (Citizenship and Immigration), 2012 FC 1490; Huang v. Canada (Minister of Employment and Immigration) (1993),66 F.T.R. 178 (F.C.T.D.); Velinova v. Canada (Citizenship and Immigration), 2008 FC 268, 324 F.T.R. 180; Hassan v. Canada(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Canada (Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689, (1993), 103 D.L.R. (4th) 1; Flores Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA94, [2008] 4 F.C.R. 636; Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413; John v.

Canada(Citizenship and Immigration), 2016 FC 915, 46 Imm. L.R. (4th) 65; Canada (Citizenship and Immigration) v. Ali, 2016 FC 709;Mantilla Cortes v. Canada (Citizenship and Immigration), 2008 FC 254; Lawal v. Canada (Citizenship and Immigration), 2010 FC 558;Cao v. Canada (Citizenship and Immigration), 2015 FC 315; Jin v. Canada (Citizenship and Immigration), 2012 FC 595; Fatima v.Canada (Minister of Citizenship and Immigration), 2005 FC 94; Xi v. Canada (Citizenship and Immigration), 2007 FC 174; YukonFrancophone School Board, Education Area #23 v.

Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282; Varela v. Canada(Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129; Canada (Minister of Citizenship and Immigration) v.Zazai, 2004 FCA 89, 247 F.T.R. 320. AUTHORS CITED Report of the Standing Senate Committee on Human Rights. Alert: Challenges and International Mechanisms to Address Cross-BorderChild Abduction, July 2015. APPLICATION for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board of Canadafinding that the applicants were excluded from refugee protection pursuant to

Article 1F(

b) of the United Nations Convention Relating tothe Status of Refugees and alternatively finding that they were not Convention refugees or persons in need of protection pursuant tosection 96 or 97 respectively of the Immigration and Refugee Protection Act. Application dismissed. APPEARANCES Andrew J. Brouwer for applicants. Jocelyn Espejo-Clarke for respondent. SOLICITORS OF RECORD

Refugee Law Office , Toronto, for applicants. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [ 1 ] Strickland J. : This is an application for judicial review of the February 2, 2015 decision of Mr. John Kivlichan, a member (Member) of the Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD). The Member found that the applicants were excluded from refugee protection pursuant to

Article 1F(

b) of the United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6 (Convention) as the principal applicant (hereinafter referred to as the applicant) had committed the serious non-political crime of child abduction. Alternatively, that the applicant was generally not credible, had failed to establish subjective fear or to rebut the presumption of state protection and, on that basis, the applicant and her two minor children, for whom she had been appointed as the designated representative, were not Convention refugees nor persons in need of protection pursuant to

section 96 or

section 97 , respectively, of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ). Confidentiality Order [ 2 ] A confidentiality order was issued in this matter by Prothonotary Milczynski on March 12, 2015. At the hearing before me, the parties agreed that the documents that had been sealed and filed as confidential in the Court record would remain as such.

It was also agreed that the hearing would proceed in open Court which was attended only by persons known to the parties, however, that the names of the applicants or names of others who might be associated with or serve to identify the applicants would not be used during oral argument. Because the proceeding was recorded, I will order that, should any third party seek a copy of the recorded proceeding, the Court Registry will ensure that any identifying names that may have inadvertently been stated during the course of the hearing will be deleted from the copy of the recording provided to the third party.

In my view, no further steps are required. And, had the manner in which the applicants interpreted the confidentiality order, specifically, had the extent of the sealing of the documents challenged, I would have entertained that motion. Background [ 3 ] The applicant is a 39-year-old Roma woman from Hungary. In her lengthy Personal Information Form (PIF) she claims that in Hungary, she worked as a journalist reporting about human rights violations involving the Roma, later as a researcher for the European Roma Rights Centre, and then for the Hungarian Ministry of Education.

She served as a Member of the European Parliament (MEP) from 2004 to 2009 where the focus of her parliamentary work was educational reform in Hungary and, in particular, the desegregation of schools for Roma children. [ 4 ] The applicant claims that following the establishment in 2007 of an anti-Roma extremist group, the Hungarian Guard, she began to change her focus in the European Parliament to investigate the response of the Hungarian state to, and complicity in violence against Romani people, including serial killings. She was able to provide evidence and file reports with the authorities for 39 cases.

After a double murder on February 23, 2009, the applicant held a press conference demanding an independent investigation. She alleges that during her tenure as a MEP she and her family were the subject of daily insults and threats and that in February 2009, she requested and obtained police protection for herself and her family until the end of her MEP term. [ 5 ] The applicant claims that between February and August 2009, she met with ambassadors from other countries and requested assistance in investigating the Romani murders.

The United States Federal Bureau of Investigation ultimately assisted the Hungarian investigators which resulted in the apprehension of six persons in August 2009. The applicant alleges that during this time, she was questioned several times by the National Investigation Office as to whether she was organizing the Romani people for a potential anti- Hungary attack. [ 6 ] The applicant alleges that on August 29, 2009, she learned that the Hungarian secret service (Secret Service) was involved in the Roma serial murders.

As a result, she asked former liberal political colleagues in the Hungarian Parliament for help and, on September 22, 2009, a Fact Finding Working Group (Working Group) was created within the Hungarian Parliament to look into the murders. The applicant alleges that the Working Group shared some evidence with her but, in November 2009, the Hungarian Parliament ordered that information about any Secret Service involvement be held as confidential for 80 years.

She claims that she was told that this was done in the interest of avoiding a Gypsy-Hungarian civil war. [ 7 ] In October 2010, the applicant travelled to New York and Washington to accept an award from Human Rights First for her human rights advocacy. Upon her return to Hungary, she decided to withdraw from public advocacy because she feared her surveillance by the Secret Service could endanger other activists or Roma victims.

She also suffered an emotional crisis. [ 8 ] On August 11, 2011, the applicant learned that Jozsef Gulyas, a member of the Working Group, had been questioned by the Military Public Prosecutor and alleged to have committed the crime of unauthorized secret information collection. Upon learning this, the applicant formed the belief that it was no longer safe for her and her family to remain in Hungary as she would be arrested because of her knowledge of the government’s involvement in the Romani killings. [ 9 ] The applicant bought tickets to fly to Canada on August 25, 2011.

However, she did not leave at that time because her husband suffered a stroke on August 22, 2011. She claims that in February 2011, she was contacted by a Dublin based foundation, Front Line Defenders for Human Rights, and advised that she ranked number 100 on a list of 130 of the world’s most endangered human rights activists. The foundation invited her to attend a five-day conference in Dublin which she did.

While there, she informed the organizers of her fear of staying in Hungary and they agreed to pay the airfare for her and her family to travel to Canada. [ 10 ] The applicant came to Canada with her husband and three children on November 26, 2011. At the time of her departure, the applicant’s eldest child, a daughter from a previous marriage, was the subject of contested custody proceedings in Hungary.

On December 14, 2011, the Budapest 20th, 21st and 23rd District Court issued a judgment terminating the applicant’s joint custody rights and ordering the child’s return to the custody of her father with visitation rights to the applicant.

[11] Subsequently, on November 30, 2012, the child’s father obtained an order from the Ontario Court of Justice (OCJ) [G.B. v. V.M.,2012 ONCJ 745 ] under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, [1983]Can. T.S. No. 35] (Hague Convention) directing that the child be returned to Hungary. The child was returned to her father and her claimfor protection in Canada was withdrawn. [12] The basis of the applicant’s claim for protection was that she witnessed and experienced many forms of discrimination growingup in Hungary as a Romani child.

Further, that throughout her career, she encountered discrimination and persecution because of herethnicity and advocacy for the Roma people. In this regard, she was threatened during her term as a MEP and was later subjected to twophysical attacks. The first in August 2009, when an unknown woman insulted the applicant for 30 minutes while the applicant was in hervehicle. The woman kicked the car door and tried unsuccessfully to open it. The applicant claims that she called the police but they didnot respond.

The second in the spring of 2010, when the applicant was insulted by a woman in a supermarket who also attempted to slapher. She did not report this incident to the police. [13] The applicant claims that she fears, if she and her family were to return to Hungary, they would be harmed by Neo-Nazis, theSecret Service and the police. She claims that the Secret Service has been monitoring her communications and activities for a number ofyears and are likely now aware of her knowledge of their and the Hungarian government’s involvement in the Roma serial killings.

Sheclaims that she and her family are no longer safe anywhere in Hungary and fears that she personally would be detained or even killed ifshe were to return. [14] The Minister initially took the position that he would not intervene as he had no concern with the Hague Convention applicationas the child had been returned to her father in Hungary, and, with respect to a defamation and libel charge against the applicant, as themaximum term of imprisonment was only five years, these were not serious crimes under the Criminal Code, R.S.C., 1985, c. C-46(Criminal Code).

However, the Minister subsequently sought to intervene pursuant to paragraph 170(

e) of the IRPA and rule 29 of theRefugee Protection Division Rules, SOR/2012-256 (RPD Rules) in reference to the issue of credibility and, pursuant to rule 36, to use anundisclosed document, being a Reuters news

article dated June 16, 2013 describing an interview of the applicant concerning her claimfor protection. Subsequently, the Minister gave notice that, pursuant to paragraph 170(

e) of the IRPA, he intended to participate at thehearing on the basis of his belief that there had been a contravention of

Article 1F(

b) of the Convention, namely that the applicant wasexcluded from refugee protection in Canada as she had committed the serious non-political crime of child abduction before coming toCanada. [15] As set out in detail in the decision, various matters were addressed by the Member, including an application by the applicantobjecting to the Minister’s intervention, which application was denied. The applicant and the Minister also made several post-hearingsubmissions and the applicant, as well as the Member, made post-hearing disclosures.

The submissions included responses to requestsmade by the Member concerning the Supreme Court of Canada’s decision in Febles v. Canada (Citizenship and Immigration), 2014 SCC68, [2014] 3 S.C.R. 431 (Febles) as it related to the issue of exclusion before the Member, and the relevance of

section 283 of theCriminal Code. As discussed below, the post-hearing disclosure included various documents pertaining to the claim for protection of analleged former employee of the applicant (former employee) and his family, and, members of the applicant’s immediate family whoarrived in Canada in November 2014 and sought refugee protection. The Member issued his decision on February 2, 2015. Decision Under Review [16] The decision is 112 pages in length and is comprised of 531 paragraphs.

Accordingly, what follows is a brief description of theMember’s reasons. [17] Paragraphs 65 to 257 of the decision concern the Member’s exclusion analysis. The Member noted the applicable legislativeprovisions, jurisprudence speaking to the applicable standard of proof (Lai v. Canada (Minister of Citizenship and Immigration), 2005FCA 125, 253 D.L.R. (4th) 606) and that the applicability of the exclusion clause is not dependent upon whether the claimant has beencharged or convicted of the criminal acts in question (Moreno v. Canada (Minister of Employment and Immigration), (FCA), [1994] 1 F.C. 298 (C.A.)).

The Member also referenced the Supreme Court of Canada’s decision in Febles. The Member statedthat he must first determine “whether there are serious reasons for considering the first part of

Article 1F(

b) of

section 98 of the Act” (atparagraph 76). In that regard, he would review the evidence concerning the abduction of the child and the Hague Conventionapplication. The latter on the basis that it was relevant to the exclusion, although the OCJ decision was not binding upon him (Kovacs v.Canada (Minister of Citizenship and Immigration), 2005 FC 1473, [2006] 2 F.C.R. 455 (Kovacs), at paragraphs 9 and 10). [18] In this regard, the Member provided his description, in great detail, of the facts and findings of the 22-page decision of the OCJand quoted extensively from it.

Of note is that in 2005, a Hungarian court had made an order granting joint legal custody of the child, theadopted daughter of the applicant and her ex-husband, which contained a provision allowing either parent to remove the child fromHungary for periods of up to two weeks without the prior consent of the other parent. [19] The Member noted that in the OCJ proceeding, the child’s father gave evidence that the applicant had told him that she wished towork abroad and to take their daughter with her.

Concerned that the child’s education had previously been detrimentally impacted by theapplicant’s frequent moves, he took the child to the Hungarian government guardianship office where she was interviewed and gave astatement objecting to being removed from Hungary and stating that she wished to remain with her father. The Member noted that theOCJ decision revealed that on September 26, 2011, the applicant made a complaint to the Hungarian police alleging sexuallyinappropriate behaviour towards the child by her father, stemming a police investigation.

In October 2011, the Hungarian courtappointed a lawyer for the child and a psychologist to conduct a family assessment involving the child, the parties, and their currentpartners, and adjourned the case to December 14, 2011. However, on November 26, 2011, the applicant removed the child fromHungary, telling her that they were going on a vacation.

On December 14, 2011, when the Hungarian court learned of the removal priorto the assessment being completed, it issued a final order dissolving the prior joint custody and placed the child in the custody of herfather. [20] The Member stated that the OCJ agreed, given the provision in the original custody order allowing removal from the country forup to two weeks by either parent, that it appeared the child had not been “wrongfully removed” from Hungary but that “there can be no

doubt that she was wrongfully retained” (at paragraph 102). The Member noted the OCJ assessment of the risk of harm to the child if she returned to Hungary, including the applicant’s admission that the child would be safe if she lived with her father and that the risk of harm due to her Roma ethnicity was remote and could be safely managed by her father. Further, that the OCJ had noted that the applicant did not pursue the allegation of sexually inappropriate behaviour at the hearing before it, conceding that the behaviour alleged could not be established on the balance of probabilities.

And that, upon the OCJ’s own review of the evidence, including the report of a clinical investigator assisting the Office of the Children’s Lawyer (OCL) who interviewed the child, it agreed with that conclusion. [ 21 ] The Member found that there were serious concerns raised with respect to the overall credibility of the applicant arising from the OCJ decision. For example, that the applicant had threatened her daughter that she might have to return to Hungary because, as reported by the clinical investigator, she did not “say the right thing” (at paragraphs 135 and 173).

The Member found that this suggested that the applicant has a propensity to focus her efforts on saying the right thing as opposed to telling the truth. Further, because the OCJ was of the view that the applicant had attempted to mislead her own child in order to gain advantage in the custody situation, this was conduct that spoke poorly to the applicant’s credibility and led the Member to draw an adverse inference. The Member also found that the applicant had made a false allegation about her ex-husband in the 2011 custody litigation and to the Hungarian police.

This led the Member to find that she was willing to misrepresent or to indeed lie in judicial proceedings and to police authorities in order to win her case or otherwise gain advantage and that she allowed her conduct to be governed by the principle that the end justifies the means.

The Member went on to make many other negative credibility findings in concluding that the applicant was not a credible witness. [ 22 ] Before the Member, the applicant had submitted that no crime had been committed outside Canada as the applicant was permitted, by the custody order then in place, to remove her daughter from Hungary for two weeks without the prior consent of her ex- husband. Thus, any crime of abduction occurred only two weeks after the applicant arrived in Canada, and not in Hungary. In the result,

Article 1F(

b) had no application. However, the Member found that the applicant had conceded that she removed her daughter from Hungary not intending to return within two weeks as required by the custody order, but rather with the intent of relocating to Canada without the knowledge or consent of the child’s father. The Member found that the “guilty act” of the applicant was the removal of the child from Hungary with the intent to deprive the child’s father of her custody and the intent to contravene the custody order and not to return to Hungary.

The Member stated that it was undisputed that the applicant had a “guilty mind” or mens rea . [ 23 ] The Member concluded there were serious reasons for considering that the applicant had committed a serious non-political crime outside the country of refuge prior to her admission to that country as a refugee, specifically,

section 282 of the Criminal Code — Abduction in contravention of a custody order. Alternatively,

section 283—Abduction, applied in which event the Attorney General’s consent for that charge was not relevant to the Member’s determination. He stated that in order for him to find that the

Article 1F(

b) exclusionary provisions applied, he need only determine that both the guilty mind and the guilty act were present. Based on his prior factual findings, the Member also found that there was no available defence of imminent harm pursuant to

section 285 of the Criminal Code . He then quoted paragraph 62 of Febles and applied the factors listed in Jayasekara v. Canada (Minister of Citizenship and Immigration) , 2008 FCA 404 , [2009] 4 F.C.R. 164 ( Jayasekara ) (which application is discussed further in the analysis below). [ 24 ] As to whether the crime met the criteria of a serious non-political crime as envisioned by

Article 1F(b), the Member stated that the OCJ had found the applicant to have contravened an important international convention regarding child abduction. Therefore, the offence was sufficiently serious, applying the comments from Febles and the factors from Jayasekara .

He concluded that on the totality of the evidence, he was satisfied that the Minister had established that there are serious reasons for considering that the applicant has committed a serious non-political crime before coming to Canada. [ 25 ] In paragraphs 258 to 528 of his decision, the Member conducted an analysis of the merits of the refugee claim. The Member made further adverse credibility findings and found the applicant’s claim to lack credibility. He also found that the evidence did not support that she and her children had been marginalized or discriminated against on the basis of ethnicity.

To the contrary, the evidence was that the applicant had achieved success in Hungary. She had obtained a university degree, owned properties in Budapest, had been employed from 1991 to 2009 and was then selected to hold a political post. Her sister had stated in an interview that, because of the social origin of her family, she had never been discriminated against. Further, the OCJ had found, amongst other things, that the applicant’s daughter had not been attacked or persecuted and had attended desegregated schools.

The Member found that this all suggested a limited risk for the applicant and her children and provided little persuasive evidence of discriminatory treatment of the children. [ 26 ] The Member did not accept the applicant’s unsubstantiated allegation that there was a government conspiracy or that the Secret Service or other agent of the Hungarian government was directly responsible for the Roma killings in 2008 and 2009. He gave greater weight to documentary evidence that contained a contrary opinion and concluded that police incompetence does not necessarily equate to police complicity or apathy.

The Member also found that the applicant’s inability to give any persuasive testimony about the existence of any state secrets, or her knowledge or possession of them, impugned her credibility and undermined the well-foundedness of her alleged fear of persecution from the Hungarian state and its agents.

Further, if she were to return to Hungary, she could openly make her allegations of government involvement in the killings or assaults on Roma without fear of reprisal, although there was no credible evidence to support her allegations. [ 27 ] The Member also drew an adverse inference from the applicant’s continued participation in media interviews regarding her refugee claim and her knowledge of state secrets while her claim, and those of her immediate family, had yet to be determined.

Further, the Member found that the applicant had, in her original PIF, sought to deceive the Immigration and Refugee Board of Canada with respect to the status of her daughter’s custody and that her conduct in that regard impugned her credibility. Similarly, her PIF failed to mention her allegation, made before the Member, of being stopped daily by the police. The Member found that the applicant had failed to give a reasonable explanation for the omission and drew a negative credibility inference.

Based on the cumulative credibility findings the Member found that the applicant had failed to provide sufficient credible evidence regarding her motivation for leaving Hungary and he did not believe that she feared the Secret Service nor that she came to Canada because of a genuine subjective fear of persecution. [ 28 ] With respect to subjective fear, the Member noted that the applicant delayed her departure from Hungary and found that her reason for doing so was not reasonable. Further, the applicant had not sought protection when she went to the United States in October 2010.

In addition, the applicant travelled to Ireland in September 2011 and, although she could not claim asylum there, the Member

found that her voluntary return to Hungary was inconsistent with her alleged fear of persecution. He drew negative inferences regarding her subjective fear and credibility. [ 29 ] The Member also found that the applicant had failed to rebut the presumption of state protection. The Member acknowledged that the objective evidence was mixed regarding Hungary’s efforts to provide protection to Roma against discrimination and that there had been local failures in that regard.

He also stated that he had weighed the comments of a refugee coordinator with Amnesty International and an affidavit of a former Hungarian Minister of Education concerning risks to Roma rights activists. However, the Member found that the subjective evidence did not support that the applicant had personally experienced serious problems of discrimination. Further, while the applicant expressed distrust of the police, she had been provided with police protection when she requested it during her tenure as a MEP which indicated that the police were willing and able to offer protection.

Given her general lack of credibility, the Member did not accept that the police protection would not be provided, if requested, after her MEP term concluded.

The Member stated that, viewed fairly, the objective evidence indicated that Hungary has taken serious measures to address and improve state protection for minorities suffering from discrimination, which included Roma, that it continued to battle right wing extremism and, while the results may not be perfect, there have been concrete signs of many operational successes. [ 30 ] The Member acknowledged two psychiatric reports submitted by the applicant but afforded them little or no weight. [ 31 ] The Member also referenced the claim by the alleged former employee and his family in which the RPD had rejected an effort to submit a letter from the applicant identifying herself as the current director of the “Fund of Movement for Desegregation” in Hungary and stating that the claimant in that application had been her employee.

The Member sought and received written testimony from the applicant in response to questions that were raised by documentation in the alleged former employee’s claim, including why she had not mentioned him in her PIF nor an alleged targeted attack on him and his family by neo-Nazis because of his association with the applicant and her work. The Member rejected the applicant’s explanation for the omission as spurious and lacking merit and drew a negative credibility inference.

Further, he found that she knowingly provided corroborating evidence in support of the alleged former employee’s fraudulent refugee claim and that she was a willing accomplice in that regard.

This further supported his view that the applicant generally lacked credibility. [ 32 ] The Member also addressed post-hearing disclosure submitted by the applicant concerning the refugee claim made by her mother, her sister and her sister’s children but gave little weight to any of the assertions made by the applicant’s sister or other members of her family in their refugee claims. [ 33 ] The Member stated that, even taking the applicant’s profile into account, he made a general finding of a lack of credibility given the “cumulative, important and remarkable, litany of negative credibility findings and inferences” as noted in his reasons (at paragraph 528).

Relevant Legislation Immigration and Refugee Protection Act , S.C. 2001, c. 27 Convention refugee 96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. … Exclusion — Refugee Convention 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.

United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6

Article 1 … 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; Criminal Code , R.S.C., 1985, c. C-46 Abduction in contravention of custody order 282

(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. Where no belief in validity of custody order

(2) Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under

section 283, the accused may be convicted of an offence under

section 283. Abduction 283

(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. Consent required

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose. Defence 284 No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.

Defence 285 No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm. No defence 286 In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. … General penalty 787

(1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. Convention on the Civil Aspects of International Child Abduction , The Hague, October 25, 1980, [1983] Can. T.S. No. 35 The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions -

CHAPTER I – SCOPE OF THE CONVENTION

Article 1 The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

Article 3 The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. …

Article 7 Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures -

a) to discover the whereabouts of a child who has been wrongfully removed or retained;

b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;

d) to exchange, where desirable, information relating to the social background of the child;

e) to provide information of a general character as to the law of their State in connection with the application of the Convention;

f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;

g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.

CHAPTER III – RETURN OF CHILDREN

Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. Issues [ 34 ] In my view, the issues arising in this matter can be stated as follows:

i. Did the Member err in finding that the applicant was excluded pursuant to

Article 1F(

b) of the Convention? ii. Did the Member err in his treatment of the evidence? iii. Did the Member exceed his jurisdiction or breach his duty of procedural fairness? Standard of Review [35] The applicant submits that decisions of the RPD are generally reviewable on the reasonableness standard but that the standardrises to correctness on errors of law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir)). The applicant submitsthat all of the errors of the Member fall below the reasonableness threshold.

The Member’s exceeding of his jurisdiction and breach ofprocedural fairness are matters which are reviewable for correctness. The respondent agrees that all of the issues are reviewable on astandard of reasonableness with the exception of questions of procedural fairness which are reviewed on a correctness standard. [36] The determination of exclusion from the Convention pursuant to

Article 1F(

b) has previously been found by this Court to be aquestion of mixed fact and law reviewable on the reasonableness standard (Jayasekara, at paragraph 14; Villalobos v. Canada(Citizenship and Immigration), 2015 FC 60, 473 F.T.R. 268, at paragraph 13; Roberts v. Canada (Citizenship and Immigration), 2011FC 632, 390 F.T.R. 241, at paragraph 27). [37] The RPD’s assessment of the evidence is also reviewable on the reasonableness standard and is a matter to which deference isowed (Liang v. Canada (Citizenship and Immigration), 2013 FC 765, at paragraph 43; Walcott v.

Canada (Citizenship and Immigration),2010 FC 505, at paragraph 18; Gvozdenovic v. Canada (Citizenship and Immigration), 2013 FC 851, at paragraph 15; Alhayek v. Canada(Citizenship and Immigration), 2012 FC 1126, 418 F.T.R. 144, at paragraph 49). [38] Reasonableness is concerned with the existence of justification, transparency and intelligibility, and whether the decision fallswithin a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, at paragraph 47;Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 59). [39] Jurisprudence has established that for issues of procedural fairness, including whether the RPD exceeded its jurisdiction andwhether there is a reasonable apprehension of bias, correctness is the appropriate standard of review (Yin v. Canada (Citizenship andImmigration), 2010 FC 544, at paragraphs 19–21; Jadallah v. Canada (Citizenship and Immigration), 2016 FC 1240, at paragraph 24;Gurusamy v.

Canada (Citizenship and Immigration), 2011 FC 990, at paragraph 21). [40] When applying the correctness standard of review, a reviewing court will not show deference to the decision maker’s reasoningprocess but will rather undertake its own analysis of the question (Dunsmuir, at paragraph 50). Issue 1: Did the Member err in finding that the applicant was excluded pursuant to

Article 1F(

b) of the Convention? Applicant’s Position [41] The applicant submits that to be excluded pursuant to

Article 1F(b), the burden was on the Minister to establish both that therewere “serious reasons for considering” that the applicant committed a “serious non-political crime”, and, that the crime occurred outsideof Canada prior to the applicant’s entry. As neither of these factors were established, the Member erred in his conclusion. [42] In determining whether the crime was “serious”, the Member was required to follow the guidance provided by the SupremeCourt of Canada in Febles.

Specifically, although a crime will generally be considered as serious where a maximum sentence of ten ormore years could have been imposed had the crime been committed in Canada (“ten-year rule”) [at paragraph 62], this is a generalizationthat should not be understood as a rigid presumption that is impossible to rebut. [43] Further, in applying Febles, this Court has held that a wide sentencing range and the fact that the crime for which a claimant wasconvicted would fall on the lower end of the range is a critical factor that must be taken into account when determining if a crime shouldbe considered a “serious non-political crime” (Jung v.

Canada (Citizenship and Immigration), 2015 FC 464, 479 F.T.R. 1 (Jung), atparagraph 48). The Member was also required to consider that the penalty that would actually be imposed for an offence is likely to bemuch lower than the prescribed maximum (Tabagua v. Canada (Citizenship and Immigration), 2015 FC 709, 482 F.T.R. 143 (Tabagua),at paragraphs 16–20 and 22). [44] In this matter, at issue are

section 282 and

section 283 of the Criminal Code, both of which stipulate a ten-year maximumsentence. The applicant submits that the courts rarely impose the maximum sentence in cases of parental abduction (R. v. Thrones, 2009ONCJ 469 (Thrones), at paragraph 32) and that the Member failed to engage in the required potential sentencing analysis whichled to the erroneous conclusion that the crime committed by the applicant was a serious non-political crime.

Further, that it wasunreasonable for the Member to rely on his own subjective view of what amounts to a serious crime in the face of evidence that the crimewould attract a term of imprisonment which was between six months to two years (Hersy v. Canada (Citizenship and Immigration), 2016FC 190, 39 Imm. L.R. (4th) 32 (Hersy), at paragraph 68). [45] The applicant also submits that the Member failed to conduct an objective and impartial analysis of the factors laid out inJayasekara to assess the seriousness of the crime. [46] Additionally, that

Article 1F(

b) is limited to crimes committed prior to entry to Canada (Malouf v. Canada (Minister ofCitizenship and Immigration), (FC), [1995] 1 F.C. 537 (T.D.); Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, at paragraphs 73 and 74). In this case, the evidence establishes that,pursuant to the custody order, the applicant was permitted to take the child out of Hungary for up to two weeks without the consent ofthe child’s father. As such, any criminal act of the applicant occurred in Canada and is therefore beyond the scope of

Article 1F(

b) whichrequires that the act be committed outside the country of refuge (Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317).

[47] The applicant makes various other submissions as set out in her written representations.

Respondent’s Position [48] The respondent submits that the Member’s exclusion analysis was reasonable as the evidence established that the applicantwrongfully retained the child and committed child abduction. [49] The respondent’s written submissions describe Canada’s entry into the Hague Convention 36 years ago and a July 25, 2015report of the Senate Standing Committee on Human Rights, Alert: Challenges and International Mechanisms to Address Cross-BorderChild Abduction (Senate Report) as being representative of Canada’s views with respect to international child abduction.

The SenateReport was not before the Member. [50] The respondent submits that the policy objectives of

Article 1F(

b) include national interest. In that regard, the respondent notesthat access to refugee protection is not absolute. Exclusion clauses were included in the 1951 Refugee Convention because states hadexpressed concerns over an influx of common criminals,

Article 1F(

b) was enacted in that regard. The respondent submits that a similarpolicy objective was identified in Febles when the Supreme Court of Canada stated that exclusion clauses are not to be interpreted sonarrowly as to ignore a contracting state’s need to control who enters its territory. Similarly, in Jayasekara, the Federal Court of Appealstated that the perspective of the receiving state cannot be ignored in determining the seriousness of the crime.

International treaties thatCanada is a party to are also relevant considerations of its national interest and this Court has found no error in a decision of the RPD totreat the Hague Convention as a demonstration of the international community’s view of international child abduction as a serious matter(Kovacs, at paragraph 27). The respondent also submits that Canada’s national interest is to deter child abduction. [51] The respondent submits that child abduction is a serious matter (R. v.

Mendez (1997), 32 O.R. (3d) 67, (C.A.),at paragraph 28) and misconduct of the most serious order given its consequences for both the child and the parent from whom he or sheis taken (R. v. Dawson, (SCC), [1996] 3 S.C.R. 783, at paragraph 84). [52] The respondent submits that sentencing is not an appropriate reference. In this regard and as recognized in Jayasekara, lenientsentences may actually be imposed with respect to serious crimes. However, the sentence does not diminish the seriousness of the crime(Jayasekara, at paragraph 41).

The respondent submits that Febles did not consider the crime of international child abduction and nor doany of the post Febles cases. Further, that relying on sentencing in a wide range of highly fact-specific and distinguishable casesdangerously over simplifies the consequences of what Canadian courts have repeatedly recognized as a very serious crime. [53] Despite that submission, the respondent appears to agree that the ten-year rule is relevant for the purposes of determiningexclusion.

However, the fact that an individual could receive a sentence at the lower end of the spectrum is not prima facie a rebuttal ofthe ten-year rule presumption. Further, relying on Canadian sentencing where the applicant has not been charged or convicted is askingthe RPD to act as a sentencing criminal judge. In the absence of an actual penalty having been prescribed, the Member consideredinternational standards, citing paragraph 37 of Jayasekara. [54] The respondent submits that the crime occurred outside of Canada. With respect to the elements of the crime, the Memberconsidered both

section 282 and

section 283 of the Criminal Code and noted that the applicant admitted in her oral testimony, and theOCJ decision confirmed that she removed the child from Hungary with the intention of wrongfully retaining her in Canada. The Memberfound that at the time the applicant was leaving Hungary, she had the requisite intent to commit the crime of child abduction and misleadthe child in order to deprive her of the custody of her father. [55] The respondent also submits that the onus was on the applicant to rebut the seriousness of the child abduction but she providedminimal submissions on these factors.

Based on the evidence before the Member, his review of the Jayasekara factors was reasonable. [56] As well, the applicant did not address

section 787 of the Criminal Code but merely submitted that if the choice of the mode ofprosecution was a relevant consideration, then the absence of a charge weighed against a finding that the alleged crime is serious. In anyevent, pursuant to subsection 36(3) of the IRPA, for purposes of the administration of the IRPA, the hybrid offence is deemed indictableeven if the Crown elects to proceed summarily. Analysis [57] For the reasons below, I have concluded that the Member’s finding that the applicant committed a serious non-political crimepursuant to

Article 1F(

b) is unreasonable. There are two reasons for this. First, the Member failed to properly apply Febles and toconsider the sentencing range. Second, his application of the Jayasekara factors was unreasonable. Febles and sentencing range [58] In Febles, the Supreme Court of Canada considered the question of whether

Article 1F(

b) barred the applicant therein fromrefugee protection because of the crimes he had committed before he came to Canada. There the applicant had been convicted in theUnited States and served time in prison for two assaults with a deadly weapon. [59] In its analysis, the Supreme Court of Canada addressed the object and purpose of the Refugee Convention, which includes theinternational community’s profound concern for refugees and commitment to assure refugees the widest possible exercise offundamental rights and freedoms, but rejected a narrow

interpretation of its exclusion clauses on the basis that: The problem with this approach is that it risks upsetting the balance between humane treatment of victims of oppression and the otherinterests of signatory countries, which they did not renounce simply by together making certain provisions to aid victims of oppression.The Refugee Convention is not itself an abstract principle, but an agreement among sovereign states in certain specified terms, negotiatedby them in consideration of the entirety of their interests. In R. (European Roma Rights Centre) v.

Immigration Officer at Prague Airport,[2004] UKHL 55, [2005] 2 A.C. 1, the U.K. House of Lords stated that the Refugee Convention “represent[s] a compromise betweencompeting interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish

of sovereign states to maintain control over those seeking entry to their territory on the other” (para. 15). I agree with this statement of the Refugee Convention’s twin purposes. While exclusion clauses should not be enlarged in a mannerinconsistent with the Refugee Convention’s broad humanitarian aims, neither should overly narrow

interpretations be adopted whichignore the contracting states’ need to control who enters their territory. Nor do a treaty’s broad purposes alter the fact that the purpose ofan exclusion clause is to exclude. In short, broad purposes do not invite

interpretations of exclusion clauses unsupported by the text. [Febles, at paragraphs 29 and 30] [60] As to

Article 1F(b): .… I conclude that

Article 1F(

b) serves one main purpose — to exclude persons who have committed a serious crime. This exclusion iscentral to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in othercountries and protecting the interests of receiving countries.

Article 1F(

b) is not directed solely at fugitives and neither is it directedsolely at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimantswho have committed serious non-political crimes,

Article 1F(

b) expresses the contracting states’ agreement that such persons bydefinition would be undeserving of refugee protection by reason of their serious criminality. [Febles, at paragraph 35] [61] The Supreme Court of Canada concluded that although excluding people who have committed serious crimes may support anumber of subsidiary rationales, “its purpose is clear in excluding persons from protection who previously committed serious crimesabroad” (at paragraph 36). [62] As to how a crime’s seriousness is to be assessed, the Supreme Court of Canada stated: 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. The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), (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 thecrime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not beunderstood 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 wouldfall at the less serious end of the range in Canada should not be presumptively excluded.

Article 1F(

b) is designed to exclude only thosewhose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission ofany of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gilland McAdams, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion fromrefugee protection. However, as indicated, the presumption may be rebutted in a particular case.

While consideration of whether amaximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, andcrimes 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. [Emphasis added.] [Febles, at paragraphs 61 and 62] [63] As noted by the applicant, in Tabagua this Court applied Febles and held that the RPD’s failure to discuss the sentence that theapplicant would have likely received was a reviewable error.

There the applicant had been convicted of shoplifting in the United Statesprior to seeking refugee protection in Canada. The RPD found that there were serious reasons to consider that the applicant’s actions, hadthey been committed in Canada, would carry a maximum penalty of at least ten years’ imprisonment. In this regard, it focussed not onthe shoplifting but rather on the applicant’s use of a forged passport and fraudulent identity when she was arrested and convicted ofshoplifting. The RPD found that such actions would correspond to the offences set out in subparagraph 57(b)(

i) and subsections 403(1)and (2) of the Criminal Code—namely forgery of or uttering a forged passport and identity fraud. The RPD found that these crimes areindictable offences and that, depending on the offence in question, carry a maximum sentence of 10 to 14 years’ imprisonment.Accordingly, that the first branch of the Jayasekara inquiry was satisfied. [64] In reviewing the RPD’s decision, Justice Gleason [in Tabagua, at paragraph 14] stated that prior to Febles, as noted by Justice deMontigny at paragraph 32 of Jung, “… the presumption that a crime is ‘serious’ under

Article 1F(

b) if, were it committed in Canada, itwould be punishable by a maximum of at least 10 years’ imprisonment, was consistently applied by the Courts …”. However, that theSupreme Court of Canada had “significantly nuanced this proposition in Febles”, referring to paragraph 62 of that decision. [65] Justice Gleason noted that in Jung, Justice de Montigny had set aside a decision of the RPD which, like the decision before her,was premised in large part on the fact that the maximum punishment for the crimes in question was a sentence of more than ten years’imprisonment.

Justice de Montigny wrote: At the end of the day, however, the most egregious error of the Board member was her failure to take into account what the SupremeCourt considered a critical factor in Febles, namely the wide Canadian sentencing range and the fact that the crime for which theApplicant was convicted would fall at the less serious end of the range.

This consideration was quite relevant in the case at bar: theCanadian sentence for fraud over $5,000 has a large sentencing range (0 to 14 years), and the Applicant’s crime - fraud of $50,000 with a10 month sentence - prima facie falls at the low end of this range. The wide sentencing range and the Applicant’s low actual sentence(not only was the actual sentence only two years but it was suspended and the only jail time was 165 days pre-trial custody) were clearlya most relevant factor in determining whether the crime was serious.

On that basis alone, the decision of the Board ought to be quashed and the matter returned for reconsideration by a different panel of theBoard.

[ Jung , at paragraphs 48 and 49] [ 66 ] Justice Gleason concluded that the RPD’s reasoning in the case before her evinced the same problems. There, in assessing seriousness, the RPD looked only to the maximum potential sentences and erroneously stated that both crimes were indictable offences when, in fact, the offence of identity theft, created by

section 403 of the Criminal Code , is a hybrid offence, in respect of which the Crown may elect to proceed either by way of indictment or by way of

summary conviction. [ 67 ] In that regard Justice Gleason stated: As for the use of a forged passport, the maximum sentence prescribed by

section 57 of the Criminal Code is 14 years’ imprisonment (in respect of a forgery committed in respect of a Canadian passport). However, as my colleague, Justice Mosley, noted in Almrei v Canada (Minister of Citizenship and Immigration) , 2014 FC 1002 , 247 ACWS (3d) 650 (at para 48 ), “[t]he actual penalty that would be imposed for such an offence is, of course, likely to be much less, particularly for an offender without any prior criminal history in this country.” The same might also be said of the offence of identity theft, even if prosecuted by way of indictment.

Here, the RPD failed to discuss what penalty the applicant might have received, had she been charged in Canada, and failed to note that the only evidence of the actual use by the applicant of the forged passport (as opposed to the use of the fraudulent Khachirova identity) was the fact that the applicant used the forged passport to gain access to the U.S. However, she claims she was required to do so to escape her persecutor.

If believed, this would constitute a mitigating factor that the Board did not assess and that would also possibly have mitigated a sentence had the crime been committed in Canada and had the applicant been charged with it. As the RPD failed to undertake the type of analysis that the Supreme Court mandated is required in Febles and failed to assess the seriousness of the applicant’s conduct in light of the range of sentences available, the Board’s decision must be set aside and the matter remitted for reconsideration as occurred in Jung .

Contrary to what the respondent argues, the need for the type of analysis mandated by Febles is not lessened by the fact that the applicant was not charged and therefore was not sentenced. If anything, these facts would tend to show that the applicant’s actions fall at the less serious end of the spectrum and therefore that a sentence well below the maximum would likely have been imposed had the applicant committed the offences and been charged in Canada. The foregoing points should have been considered by the Board and its failure to do so renders its decision unreasonable.

As in Jung , for much the same reasons, the Board’s decision in this case must be set aside. [ Tabagua , at paragraphs 19–22] [ 68 ] In this case, the Member specifically requested that counsel provide him with post-hearing submissions on the applicability of Febles . In her written response, the applicant submitted that Febles was highly relevant to the determination to be made by the Member.

She noted the Court’s clear direction that the presumption of seriousness for offences with ten-year maximum sentences should not be applied in a “mechanistic, decontextualized or unjust manner” and the Court’s warning that “a claimant whose crime would fall at least at the less serious end” of a sentencing range with a ten year maximum in Canada “should not be presumptively excluded” (at paragraph 62). In her response, the applicant also submitted that consideration of the sentence that would likely be imposed for a specific offence was not a matter of pure speculation as had been submitted by the Minister.

She summarized 16 cases which dealt with sentencing for parental child abduction, including cases with far more egregious fact patterns, which she submitted established that any sentence actually applied would have been at the very lowest end of the spectrum. She also quoted from Thrones , at paragraph 32 : …. appellate courts, while deploring crimes involving abduction of children, do not impose anything even close to the maximum penalties prescribed in the Code .

In parental abduction cases, for example, where the maximum penalty by indictment is ten years, sentence rarely come anywhere close. [Emphasis in original; footnote omitted.] [ 69 ] Regardless of his request for and receipt of these submissions, the Member did not conduct a Febles analysis or explain why he declined to do so. In paragraphs 72 to 74 of his reasons, the Member describes the Supreme Court of Canada’s decision. He then quotes a portion of paragraph 26 of that decision, which reads, in whole, as follows: That t

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