Vasquez v. Canada (Minister of Citizenship and Immigration), (2014) 461 F.T.R. 105 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 461 F.T.R. 105 (FC);2014 FC 782

Vasquez v. Can. (M.C.I.) (2014), 461 F.T.R. 105 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. AU.021

Paul Edgardo Galindo Vasquez (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8243-13; 2014 FC 782; 2014 CF 782)

Indexed As: Vasquez v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

August 7, 2014.

Summary:

The Refugee Protection Division of the Immigration and Refugee Board found that the applicant was excluded from refugee protection under art. 1F(b) of the United Nations Convention Relating to the Status of Refugees. The applicant applied for judicial review.

The Federal Court allowed the application. The court quashed the decision and returned the matter for reconsideration by a differently constituted Board.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that the applicant was excluded from refugee protection under art. 1F(b) of the United Nations Convention Relating to the Status of Refugees as there were serious reasons for considering that he had committed a serious non-political crime before his entry to Canada - In December 2006, the applicant had been charged in the State of Florida with two counts of burglary of a dwelling and grand theft third degree ($300-$5,000) - He was deported from the U.S. in March 2007 without having stood trial on those charges - The applicant applied for judicial review of the RPD's decision - The Federal Court allowed the application - The court's principal concern was the RPD's failure, in its "serious reasons for considering" analysis, to provide an evidentiary basis for its crucial finding that, in breaking into the house, the applicant's intent was to steal "anything of value that he might encounter therein and that he did steal various items of a value of approximately $5,000 USD" - It was not enough to say that the applicant was charged with the offences, and the police report provided no evidence of intent that would allow a finding of burglary - See paragraphs 67 to 80.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that the applicant was excluded from refugee protection under art. 1F(b) of the United Nations Convention Relating to the Status of Refugees as there were serious reasons for considering that he had committed a serious non-political crime before his entry to Canada - The applicant applied for judicial review - The applicant argued that the RPD had to be correct in its identification of the elements of the foreign offence and whether they applied to the applicant - The Federal Court stated that "A standard of correctness implies that I am to make a definitive finding on the proper interpretation of foreign law, but the Court faces the same constraints as the tribunal in that its ability to interpret the foreign law at issue (here the criminal law of the State of Florida) is affected by the quality of the evidence before it. Under these circumstances, it would be disingenuous for the Court to imply that it was offering a 'correct' interpretation. The Court must look at the evidence and determine whether the Board reasonably interpreted the foreign law and reasonably applied it to the facts of the case. Furthermore, in the context of criminal inadmissibility, where the foreign law must first be proven and then compared to an equivalent Canadian offence, findings on the content of foreign law have been reviewed on a standard of reasonableness ... it would be incongruous to apply a different standard either to the interpretation or the application of foreign law in the present context" - See paragraphs 22 to 26.

Cases Noticed:

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210; 107 D.L.R.(4th) 424 (F.C.A.), refd to. [para. 7].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 7].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 7].

Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 293; 2008 FCA 404, refd to. [para. 14].

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. 21].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 21].

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 22].

Feimi v. Canada (Minister of Citizenship and Immigration) (2012), 442 N.R. 374; 2012 FCA 325, refd to. [para. 22].

Canada (Minister of Citizenship and Immigration) v. Sharma (1995), 101 F.T.R. 54 (T.D.), refd to. [para. 22].

Kisimba v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 174; 2008 FC 252, refd to. [para. 22].

Canada (Minister of Citizenship and Immigration) v. Choubak (2006), 291 F.T.R. 129; 2006 FC 521, refd to. [para. 22].

Kent Trade and Finance Inc. et al. v. JPMorgan Chase Bank et al. (2008), 388 N.R. 39; 2008 FCA 399, leave to appeal dismissed (2009), 398 N.R. 394 (S.C.C.), refd to. [para. 22].

JPMorgan Chase Bank v. Ship Lanner - see Kent Trade and Finance Inc. et al. v. JPMorgan Chase Bank et al.

General Motors Acceptance Corp. of Canada Ltd. v. Town and Country Chrysler Ltd. et al. (2007), 232 O.A.C. 168; 2007 ONCA 904, refd to. [para. 22].

Sayer v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 159; 2011 FC 144, refd to. [para. 24].

Lu v. Canada (Minister of Citizenship and Immigration) (2011), 404 F.T.R. 1; 2011 FC 1476, refd to. [para. 25].

Patel v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 138; 2013 FC 804, refd to. [para. 25].

Ulybin v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 298; 2013 FC 629, refd to. [para. 25].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 27].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2003), 314 N.R. 347; 2003 FCA 482, refd to. [para. 31].

Thambiturai v. Canada (Solicitor General) (2006), 294 F.T.R. 268; 2006 FC 750, refd to. [para. 31].

Zeng v. Canada (Minister of Citizenship and Immigration) (2008), 333 F.T.R. 84; 2008 FC 956, refd to. [para. 36].

Ivanov v. Canada (Minister of Citizenship and Immigration) (2004), 261 F.T.R. 211; 2004 FC 1210, refd to. [para. 36].

Osman v. Minister of Employment and Immigration (1993), 46 A.C.W.S.(3d) 101 (F.C.T.D.), refd to. [para. 37].

Aguilar Valdes et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 581; 2011 FC 959, refd to. [para. 42].

R. v. Sappier (M.) (2005), 294 N.B.R.(2d) 278; 765 A.P.R. 278; 2005 NBPC 37, refd to. [para. 48].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 49].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 49].

Caraan v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 430 F.T.R. 215; 2013 FC 360, refd to. [para. 49].

Abu Ganem v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 103; 2011 FC 1147, refd to. [para. 50].

Mundi v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 733; 2004 FC 1260, refd to. [para. 51].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 51].

Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.), refd to. [para. 51].

Murillo v. Canada (Minister of Citizenship and Immigration) (2008), 333 F.T.R. 149; 2008 FC 966, refd to. [para. 52].

Xie v. Canada (Minister of Citizenship and Immigration) (2004), 325 N.R. 255; 2004 FCA 250, refd to. [para. 52].

Legault v. Canada (Secretary of State) (1997), 219 N.R. 376; 42 Imm. L.R.(2d) 192 (F.C.A.), refd to. [para. 53].

Betancour v. Canada (Minister of Citizenship and Immigration) (2009), 348 F.T.R. 121; 2009 FC 767, refd to. [para. 53].

Saha v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 521 (F.C.), refd to. [para. 54].

Razzagh v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 447 (F.C.), refd to. [para. 54].

Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390; 260 N.R. 376 (F.C.A.), refd to. [para. 55].

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, refd to. [para. 65].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2013), 447 N.R. 254; 2013 SCC 40, refd to. [para. 65].

Febles v. Canada (Minister of Citizenship and Immigration) (2014), 464 N.R. 7; 2014 SCC 68, refd to. [para. 66].

Statutes Noticed:

United Nations Convention Relating to the Status of Refugees, art. 1F(b) [para. 29].

Counsel:

Maria Sokolova, for the applicant;

Edward Burnet, for the respondent.

Solicitors of Record:

Maria Sokolova, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard on July 14, 2014, at Vancouver, British Columbia, before Russell, J., of the Federal Court, who delivered the following decision on August 7, 2014.