1F(b) - Exclusion from Refugee Protection

By: Rekha McNutt

The Supreme Court of Canada (SCC) recently released a decision on the interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees ("Refugee Convention"). The case is Febles v. Canada (Citizenship and Immigration), 2014 SCC 68.

Facts:

This case involved a refugee claimant from Cuba. He had previously been granted refugee status in the United States. While living in the US, the Applicant was convicted and served time in jail for two assaults with a deadly weapon. The US therefore revoked his refugee status and issued a removal warrant.

The Applicant then came to Canada, and made a refugee claim.

Issue:

The only issue in this case was whether Article 1F(b) of the Refugee Convention (adopted into our immigration law under s.98 of the Immigration and Refugee Protection Act - "IRPA") barred the Applicant from refugee protection because of his past crimes.

Decision:

Article 1F(b) of the Refugee Convention reads:

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;

In the past, courts had at times interpreted this section to be limited in application to those who were fugitives from justice, and not those who had served their sentence. The Applicant in this case attempted to argue that, because he had in fact completed his sentence (and therefore not a fugitive), he should not be excluded from protection under Article 1F(b).

The SCC disagreed. Relevant portions of the Court's decision, as written by McLaughlin C.J. are reproduced here (highlighting mine):

[14]                          Despite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers.  While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection.  If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.

[15]                      ... lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed.  Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection. 

... 

[22]                          I agree.  I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives.  There is nothing in the wording of these provisions or in the jurisprudence to support this contention...

... 

[35]                          I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b).  I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime.  This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries.  Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application.  Rather, in excluding all claimants who have committed serious non‑political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.

... 

(6)         Conclusion on the Scope of Article 1F(b)

[60]                          Article 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.  Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation.

The SCC then went on to discuss how to assess the seriousness of a crime. Historically, Canada has considered a crime "serious" if the same crime in Canada is possibly (not actually) punishable by a period of imprisonment of at least 10 years. On this issue, the Court stated:

[62]                          The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious.  I agree.  However, this generalization should not be understood as a rigid presumption that is impossible to rebut.  Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded.  Article 1F(b) is designed to exclude only those whose crimes are serious.  The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p. 179).  These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case.  While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

Justices Abella and Cromwell dissented, with reasons.