Nava Flores et al. v. Canada (Minister of Citizenship and Immigration), (2010) 378 F.T.R. 95 (FC)

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: October 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 378 F.T.R. 95 (FC);2010 FC 1147

Nava Flores v. Can. (M.C.I.) (2010), 378 F.T.R. 95 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. NO.024

Rodolfo Nava Flores and Penny Lynn Hare (applicants) v. The Minister of Citizenship and Immigration Canada (respondent)

(IMM-1185-10; 2010 FC 1147)

Indexed As: Nava Flores et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Bédard, J.

November 16, 2010.

Summary:

The applicants applied for judicial review, pursuant to s. 72(1) of the Immigration and Refugee Protection Act (IRPA) of a decision of the Refugee Protection Division of the Immigration and Refugee Board. The Board found that the applicants were neither Convention refugees nor persons in need of protection for the purposes of ss. 96 and 97 of the IRPA. It further determined that the male applicant was excluded from protection by virtue of article 1F(b) of the Convention relating to the Status of Refugees for having been convicted of a "serious non-political crime" abroad.

The Federal Court dismissed the application.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The male applicant was a citizen of Mexico and the female applicant was a citizen of the United States - They applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board - The Board found that the applicants were neither Convention refugees nor persons in need of protection for the purposes of ss. 96 and 97 of the Immigration and Refugee Protection Act - It further determined that the male applicant was excluded from protection by virtue of article 1F(b) of the Convention relating to the Status of Refugees for having been convicted of a "serious non-political crime" abroad - The applicants asserted that the Board erred in its appreciation of the evidence and in its assessment of the applicants' credibility - The Federal Court dismissed the application - The contradictions between the applicants' testimony and the available evidence (Personal Information Form, police reports and others) led the court to conclude that the Board's general findings of non-credibility met the test of reasonableness - As such, the court's intervention was not warranted - See paragraphs 29 to 35.

Aliens - Topic 1744.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons committing acts constituting an offence in Canada - The male applicant was a citizen of Mexico and the female applicant was a citizen of the United States - The Refugee Protection Division of the Immigration and Refugee Board found that the male applicant was excluded from protection by virtue of article 1F(b) of the Convention relating to the Status of Refugees for having been convicted of a "serious non-political crime" abroad - While living in the United States, the applicant had been convicted of assault and sentenced to 12 months' imprisonment - While on probation the applicant was convicted of possession of a firearm by an illegal alien and sentenced to 24 months' imprisonment and 24 months of supervised release - He was then deported to Mexico where the female applicant joined him - The applicants applied for judicial review, asserting that the Board erred by applying the criteria set forth in Jayasekara v. Canada (Minister of Citizenship and Immigration) (FCA 2008) to find that the male applicant was excluded from refugee protection despite the fact that he had completed his sentence for the crime in question - The applicants argued that if an individual who had committed a "serious non-political crime" abroad had completed the terms of his or her sentence, then he or she should be exempted from the application of art. 1F(b) of the Convention - The Federal Court dismissed the application - The court was bound, under the doctrine of stare decisis, by the decision in Jayasekara - Sentence completion was no longer determinative of the application of art. 1F(b) - See paragraphs 42 to 54.

Aliens - Topic 1744.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons committing acts constituting an offence in Canada - The male applicant was a citizen of Mexico and the female applicant was a citizen of the United States - The Refugee Protection Division of the Immigration and Refugee Board found that the male applicant was excluded from protection by virtue of article 1F(b) of the Convention relating to the Status of Refugees for having been convicted of a "serious non-political crime" abroad - While living in the United States, the applicant had been convicted of assault and sentenced to 12 months' imprisonment - While on probation the applicant was convicted of possession of a firearm by an illegal alien and sentenced to 24 months' imprisonment and 24 months of supervised release - He was then deported to Mexico where the female applicant joined him - The applicants applied for judicial review, asserting that the Board erred in its analysis of the seriousness of the crime by misapplying the factors set forth in Jayasekara v. Canada (Minister of Citizenship and Immigration) (FCA 2008) - The applicants argued that that the Board erred in assessing seriousness by: a) considering the severity of the sentence imposed in the US, b) failing to consider the fact that the male applicant had completed his sentence (or at least the part of it that he was permitted to complete), and c) speculating on what the male applicant might have done with the weapon had he been allowed to keep it - The Federal Court dismissed the application - The Board did not make any errors that would render its determination unreasonable - The Board considered the sentence imposed along with other factors, key among which was the maximum sentence set out for the "equivalent" offence under the Criminal Code - The completion of the sentence was not a determinative factor - Finally, in light of the evidence, it was not unreasonable for the Board to conclude that the male applicant had not discounted the possibility of eventually using the gun, and even that there was a strong possibility that he might use the gun - See paragraphs 55 to 66.

Aliens - Topic 4085.1

Practice - Hearings - Representation by non-lawyer - The male applicant was a citizen of Mexico and the female applicant was a citizen of the United States - They applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board - The Board found that the applicants were neither Convention refugees nor persons in need of protection for the purposes of ss. 96 and 97 of the Immigration and Refugee Protection Act - It further determined that the male applicant was excluded from protection by virtue of article 1F(b) of the Convention relating to the Status of Refugees for having been convicted of a "serious non-political crime" abroad - The applicants asserted that their former representative was negligent in such a way as to constitute a breach of natural justice - The applicants submitted that the Board faulted them for filing a partial translation of a police report and for not having provided comments once a complete translated version had been obtained by the Board - The applicants alleged that their former representative, alone, decided which parts of the report would be translated - They further submitted that their former representative did not inform them that a complete translation had been carried out by the Board - Given this, they claimed that they were denied the opportunity to respond to the contradictions that were revealed by the complete translation - They argued that all of this amounted to non-feasance on the part of their former representative and, thus, constituted a breach of natural justice - The Federal Court dismissed the application - The applicants could not so easily absolve themselves of responsibility - They were aware that the Board wanted a copy of the police report - It was their responsibility to ensure that an adequate translation was provided - They had the opportunity to address the contradictions between their testimony and the police report and they chose not to - See paragraphs 36 to 41.

Cases Noticed:

Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 324 F.T.R. 62; 2008 FC 238, affd. [2009] 4 F.C.R. 164; 384 N.R. 293; 2008 FCA 404, appld. [para. 14].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315; 42 A.C.W.S.(3d) 886 (F.C.A.), refd to. [para. 25].

Yin v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 516; 2010 FC 544, refd to. [para. 25].

Shaiq v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 89; 2009 FC 149, refd to. [para. 26].

Song v. Canada (Minister of Citizenship and Immigration) (2008), 337 F.T.R. 72; 76 Imm. L.R.(3d) 81; 2008 FC 1321, refd to. [para. 26].

Siad v. Canada (Secretary of State), [1997] 1 F.C. 608; 206 N.R. 127 (F.C.A.), refd to. [para. 26].

Noha v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 265; 2009 FC 683, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.), refd to. [para. 31].

Garcia v. Canada (Minister of Citizenship and Immigration) (2008), 170 A.C.W.S.(3d) 159; 2008 FC 206, refd to. [para. 31].

Medawatte et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2005] F.T.R. Uned. B01; 52 Imm. L.R.(3d) 109; 2005 FC 1374, refd to. [para. 38].

Nunez et al. v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 147; 97 A.C.W.S.(3d) 303 (T.D.), refd to. [para. 38].

Shakiban v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 762; 2009 FC 1177, refd to. [para. 39].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 103 D.L.R.(4th) 1, refd to. [para. 44].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 44].

Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390; 260 N.R. 376; 190 D.L.R.(4th) 128 (F.C.A.), refd to. [para. 44].

Chawah v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 191; 79 Imm. L.R.(3d) 262; 2009 FC 324, refd to. [para. 54].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 70].

Boni v. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 326; 2006 FCA 68, refd to. [para. 70].

Dubrézil v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 52; 149 A.C.W.S.(3d) 133; 2006 FC 142, refd to. [para. 76].

Counsel:

Peter Shams and Jared Will, for the applicants;

Daniel Latulippe, for the respondent.

Solicitors of Record:

Peter Shams, Montreal, Quebec, for the applicants;

Miles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on October 14, 2010, at Montreal, Quebec, by Bédard, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on November 16, 2010.