2019 FC, 2019 FC 1353

Date: 20191029 Docket: IMM-5279-18 Citation: 2019 FC 1353 Ottawa, Ontario, October 29, 2019 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: ISAACK SHIEK MAGOYAApplicantand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Isaack Shiek Magoya (the "“Applicant”") seeks judicial review of a decision of the Immigration and Refugee Board, RefugeeAppeal Division (the "“RAD”"), confirming the decision of the Refugee Protection Division (the "“RPD”") that he is excluded fromrefugee protection by operation of

Article 1 F (

b) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951,[1969] Can TS no 6 ( the "“Convention”"). [2]

Article 1 F (

b) is a

schedule to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”") and is incorporated byreference. That

Article provides as follows: "F The provisions of this Convention shallnot apply to any person with respect to whomthere are serious reasons for considering that:" "F"" Les dispositions de cette Convention neseront pas applicables aux personnes dont onaura des raisons sérieuses de penser: " "(

b) he has committed a serious non-politicalcrime outside the country of refuge prior tohis admission to that country as a refugee; " "b)"" Qu’elles ont commis un crime grave dedroit commun en dehors du pays d’accueilavant d’y être admises comme réfugiés; " [3] The Applicant is a citizen of Somalia. He entered Canada from the United States of America in July 2017 and sought refugeeprotection, pursuant to the provisions of the Act. [4] The Applicant, while residing in the United States, was the subject of several criminal charges, including charges of battery anddomestic assault. The RPD considered the Applicant to be excluded from refugee protection in Canada on the basis of

Article 1 F (

b) ofthe Convention. [5] Upon appeal to the RAD, the Applicant requested an oral hearing. He did not seek to admit new evidence and his request for an oralhearing was denied. [6] In its decision, the RAD said that the Applicant had failed to submit "“full and detailed”" submissions about alleged errors by theRPD. At paragraph 8 of its decision, the RAD said the following: The appellant has failed to do so. The appellant has instead provided some very general and seemingly ‘cut and paste’submissions without applying them to specific analysis or findings of the RPD.

It is not the role of the RAD to speculate asto the RPD’s errors and/or to undertake a microscopic search for errors. Further, the role of the RAD is not to provide theappellant a “second chance” to present a claim. [Emphasis in original.] [7] The RAD otherwise confirmed the decision of the RPD, after describing elements of the Applicant’s criminal history. [8] The Applicant now argues that the RAD erred in its decision by failing to conduct its own assessment of the seriousness of hisoffences, as discussed in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 , [2009] 4 F.C.R.164.

He also submits that the RAD erred by shifting the burden from the Minister of Citizenship and Immigration (the "“Respondent”"),to show why the exclusion should apply, to him, to show why it should not apply. [9] The Respondent argues that the arguments raised by the Applicant in this application were not presented to the RAD and cannot nowbe raised before the Court upon the application for judicial review. [10] Further, the Respondent argues that the RAD did conduct its own analysis and reasonably found that the exclusion finding wasreasonable. [11] The first matter to be considered is the standard of review. [12] For any issue of procedural fairness, the standard of correctness will apply; see the decision in Canada (Citizenship andImmigration) v.

Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339.

[13] The substantive decision of the RAD is reviewable on the standard of reasonableness; see the decision in Feimi v. Canada (Ministerof Citizenship and Immigration), 2012 FCA 325 at paragraph 16. [14] According to the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, the standard ofreasonableness requires that a decision be justifiable, transparent and intelligible, falling within a range of possible, acceptable outcomesthat are defensible on the law and the facts. [15] The RAD criticized the Applicant for not having set out specific details as to how the RPD had erred.

In my opinion, thesufficiency of the Applicant’s Notice of Appeal is not the dispositive issue in this application for judicial review. [16] The copy of the Notice of Appeal contained in the Certified Tribunal Record (the "“CTR”") does not refer to specific grounds ofappeal. However, the Memorandum filed on his behalf before the RAD set out the Applicant’s argument that the RPD had failed toconsider the

Article 1 F (

b) exclusion "“in the proper manner that jurisprudence has laid out.”" [17] This is a clear and unambiguous allegation of error by the RPD. [18] The RAD’s reference to the decisions in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 , [2014] 3 S.C.R.431 and Jayaserkara, supra imply that the RAD understood the basis of the Applicant’s appeal, that is error by the RPD in the manner itreached its decision on the basis of

Article 1 F (

b) of the Convention. [19] The decisions in Febles, supra and Jayaserkara, supra teach that before reaching a conclusion on the basis of

Article 1 F (b), thedecision maker is to assess the seriousness of a crime. I refer to paragraph 44 of the decision in Jayaserkara, supra, where the Court saidthe following: 44 I believe there is a consensus among the courts that the

interpretation of the exclusion clause in

Article 1F(

b) of theConvention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode ofprosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction:see S. v. Refugee Status Appeals Authority; S. & Ors v. Secretary of State for the Home Department, [2006] EWCA Civ1157; Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007), August 29, 2007, at pages 945 and 946-947.

In other words,whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, thatpresumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous tothe facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: seeXie v. Canada (Minister of Citizenship and Immigration), 2004 FCA 250 , [2005] 1 F.C.R. 304 (F.C.A.), atparagraph 38; Immigration and Naturalization Service v. Aguirre-Aguirre, at page 427; T. v.

Secretary of State for the HomeDepartment, (MB CA), [1995] 1 W.L.R. 545 (C.A.), at pages 554-555; Dhayakpa v. Minister ofImmigration and Ethnic Affairs, at paragraph 24. [20] The RAD did not deal with the tests set out in Jayaserkara, supra.

In my opinion, this failure makes its decision unreasonable,within the meaning of the test in Dunsmuir, supra. [21] In the result, the application for judicial review is allowed, the decision of the RAD is set aside and the matter is remitted to adifferently constituted panel of the RAD for re-determination. [22] It is not necessary to address the other argument raised by the Applicant. [23] There is no question for certification arising.

JUDGMENT in IMM-5279-18 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of Refugee Appeal Division is setaside and the matter is remitted to a differently constituted panel of the Refugee Appeal Division for redetermination. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5279-18 STYLE OF CAUSE: ISAACK SHIEK MAGOYA v. THE MINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: june 19, 2019 JUDGMENT AND REASONS: HENEGHAN J. DATED: OCTOBER 29, 2019 APPEARANCES : Odaro Omonuwa For The applicant Alexander Menticoglou For The respondent SOLICITORS OF RECORD : Omonuwa Law Office Barrister and Solicitor Winnipeg, Manitoba For The applicant Attorney General of Canada Winnipeg, Manitoba For The respondent