THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2011 FC 738

Federal Court Cour fédérale Date: 20110621 Docket: IMM-4878-10 Citation: 2011 FC 738 Ottawa , Ontario, June 21, 2011 PRESENT: The Honourable Mr. Justice Phelan BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and PAOLA ANDREA PULIDO DIAZ aka Paola Andrea Pulido-Diaz Respondent REASONS FOR JUDGMENT AND JUDGMENT I. INTRODUCTION [ 1 ] The Minister of Citizenship and Immigration (Minister) seeks judicial review of a decision that Ms. Diaz (the Respondent) was a Convention refugee and was not “excluded” from admission to Canada despite her lengthy record of criminal convictions in the United States. II.

BACKGROUND [ 2 ] The Respondent, a citizen of Colombia , claims a fear of persecution by FARC. She says that she was raped by 15 FARC members because her mother refused to give FARC money. [ 3 ] Ms. Diaz fled to the U.S. While there, she says that her mother and grandmother continued to be threatened by FARC. When they finally fled to the U.S. as well, Ms. Diaz was in jail on one of her numerous convictions.

[ 4 ] Ms. Diaz was deported from the U.S. to Colombia in 2002 but quickly returned to the U.S. illegally. She remained there until 2007, when she was once again deported to Colombia . [ 5 ] This time Ms. Diaz left Colombia for Canada in 2008, again under a false passport. [ 6 ] In the course of Ms. Diaz’s time in the U.S. she was convicted seven times.

The details of which are: Date Arrested by Charge Conviction Sentence 1 Oct 12, 1996 NYPD petit larceny; criminal possession of stolen property petit larceny 6 months confinement 2 Nov 19, 1998 Bayonville (NJ) PD theft dismissed - 3 Jan 26, 2001 NYPD robbery; criminal possession of a weapon in the 4 th degree pleaded guilty to attempted robbery in the 3 rd degree 6 months 4 days confinement 4 Feb 12, 2001 NYPD robbery; attempted grand larceny attempted grand larceny 6 months confinement 5 Sept 3, 2004 Doraville (GA) PD criminal conspiracy; forgery unknown - 6 Oct 9, 2004 Gwinnet Cty (GA) PD theft by shoplifting theft by shoplifting 3 years probation 7 Feb 19, 2007 Dekalb City (GA) PD financial transaction card theft no disposition yet reached - [ 7 ] The Immigration and Refugee Board (Board) found that there was a reasonable chance that Ms.

Diaz (and her mother and grandmother) would be persecuted by FARC upon return to Colombia . The Board found that there was neither state protection nor a reasonable IFA. [ 8 ] The Board then went on to determine whether Ms. Diaz was excluded by operation of s. 98 and

Article 1F(

b) for having committed serious non-political crime(s). 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 ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. Immigration and Refugee Protection Act , S.C. 2001, c. 27 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; United Nations Convention Relating to the Status of Refugees,

Article 1 [ 9 ] The Board explained away the seriousness of some convictions by reference to mitigating factors, such as that Ms. Diaz had been a minor or had been raped. The Board explained away other offences on the grounds that they did not meet the “threshold penalty” of 10 years – a reference to s. 36(1) (

b) of the Act. III. ANALYSIS [ 10 ] The

interpretation of s. 98 and

Article 1F(

b) of the Refugee Convention is a pure issue of law to which the correctness standard applies ( Pineda v Canada (Minister of Citizenship and Immigration) , 2010 FC 454 ). The same standard applies to “adequacy of reasons”. The application of the facts to these provisions is a matter of mixed law and fact for which reasonableness is the standard of review ( Jayasekara v Canada (Minister of Citizenship and Immigration) , 2008 FCA 404 ). [ 11 ] There are a number of problems with the Board’s decision. The most fundamental is that the Board failed to apply the principles set out in Jayasekara , above, which is the leading authority on exclusions under

Article 1F(b). [ 12 ] In this regard the Board failed to apply the facts in the crime to Canadian criminal law. It did not ask what would be the result if those facts were heard by a Canadian court. Instead the Board looked for equivalent criminal provisions to those of the U.S. offences. That involved the Board probing into the legal elements of each U.S. provision rather than focusing on what Canadian criminal provision(

s) would apply to the facts of each U.S. case. [ 13 ] The Board erred in respect of the “10 year threshold” by considering the length of sentence actually imposed in the U.S. rather than the length of sentences that could be imposed in Canada . The Board misapplied or misunderstood Hill v Canada (Minister of Employment and Immigration) , [1987] FCJ No. 47 , as supporting this threshold analysis. In Hill , above, the Federal Court of Appeal did not deal with

Article 1F(b). [ 14 ] The Board further erred in its consideration of contextual matters. Jayasekara , above, specifically rejects inclusion of personal circumstances in the serious crime analysis. Factors such as age, economic condition or tragedy (such as rape) may have been relevant to sentencing in the U.S. but they do not address the seriousness of the offence itself.

Taking these factors into account in balancing the seriousness of the offence distorts the picture of the offences themselves ( Jayasekara , above). [ 15 ] While it is unnecessary to make a finding on the issue of well-founded fear – there being other grounds for quashing the decision – the Court has serious reservations with this finding. The finding is unduly brief and does not touch on credibility even in the face of discrepancies between the POE Notes and the Respondent’s two PIFs. [ 16 ] Lastly, the reasons in this case are not adequate.

It is not only difficult but impossible to divine the logic applied in respect of

Article 1F(b). It is unclear whether the conclusion on “seriousness” was based on the length of sentence imposed, the lack of equivalent Canadian law or the overriding impact of hardship suffered by Ms. Diaz. IV. CONCLUSION [ 17 ] For these reasons, this judicial review is granted, the decision is quashed and the matter remitted back for a new consideration before a different panel. [ 18 ] The Applicant had proposed a question for certification to which the Respondent did not object. Given these reasons, the

proposed question is academic and I see no other question for certification. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is granted, the decision is quashed and the matter is to be remitted back for a new consideration before a different panel. “Michael L. Phelan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4878-10 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION and PAOLA ANDREA PULIDO DIAZ aka Paola Andrea Pulido-Diaz PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: March 29, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Phelan J. DATED: June 21, 2011

APPEARANCES : Mr. Gordon Lee FOR THE APPLICANT Mr. D. Clifford Luyt FOR THE RESPONDENT SOLICITORS OF RECORD : MR. MYLES J. KIRVAN Deputy Attorney General of Canada Toronto, Ontario FOR THE APPLICANT MR. D. CLIFFORD LUYT Barrister & Solicitor Toronto , Ontario FOR THE RESPONDENT