Febles v. Minister of Citizenship and Immigration (Immigration law — Convention refugees — Exclusion based on commission of serious crime prior to admission to country of refuge).

On appeal from the judgment of the Federal Court of Appeal, 2012 FCA 324, affirming a decision of Scott J., 2011 FC 1103.

Febles was admitted to the United States as a refugee from Cuba. While living in the United States, he was convicted and served time in prison for two assaults with a deadly weapon — in the first case he struck a roommate on the head with a hammer, and in the second, he threatened to kill a roommate’s girlfriend at knifepoint. The U.S. revoked his refugee status and issued a removal warrant. Febles subsequently fled to Canada and sought Canadian refugee protection.

Refugee protection claims in Canada are governed by the Immigration and Refugee Protection Act (“IRPA ”). Section 98of the IRPA excludes from refugee protection in Canada all persons referred to in Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”). Article 1F(b) of the Refugee Convention excludes from refugee protection all persons who have committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee. Refugee protection claims in Canada are adjudicated by the Refugee Protection Division of the Immigration and Refugee Board (“Board”). In deciding Febles’ refugee protection claim, the Board concluded that Febles was among the persons referred to by Article 1F(b) of the Refugee Convention, and therefore ineligible for refugee protection in Canada pursuant to s. 98 of the IRPA . Both the Federal Court and the Federal Court of Appeal dismissed Febles’ application for judicial review.

Held  (5:2):  The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Rothstein, Moldaver and Wagner JJ.:

Section 98 of the IRPA excludes from refugee protection in Canada all persons “referred to in section E or F of Article 1 of the Refugee Convention”. Article 1F(b) of the RefugeeConvention refers to “any person with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. The primary issue in this case is how to interpret the meaning of Article 1F(b) of the Refugee Convention.

Interpretation of an international treaty is governed by the Vienna Convention on the Law of Treaties (“Vienna Convention”). Pursuant to Article 31(1) of the Vienna Convention, interpretation of a treaty should be approached by considering: (1) the “ordinary meaning” of its terms; (2) the context; and (3) the object and purpose of the treaty. Article 32 of the Vienna Convention further specifies that, aside from confirming an interpretation resulting from the application of Article 31, recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, only if application of Article 31 leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.

The ordinary meaning of Article 1F (b)’s terms “has committed a serious . . . crime” refers only to the crime at the time it was committed and not to anything subsequent to the commission of the crime. There is nothing in the text of the provision suggesting that Article 1F (b) only applies to fugitives, or that factors such as current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime.

The context around Article 1F (b) supports this interpretation. The immediate context of Article 1F (b) is Article 1F as a whole. There is nothing in the wording of Articles 1F (a) and 1F (c) to support the view that the exclusion from refugee protection under Article 1F (b) is confined to fugitives. Nor does Article 33(2) of the Refugee Convention support the view that Article 1F (b) is confined to fugitives. The reason Article 33(2) applies only to particularly serious crimes, and has the additional requirement that “danger to the community” be demonstrated, is because it authorizes removal of a person whose need for protection has been recognized.

Likewise, the object and purposes of the Refugee Conventiondo not support the contention that Article 1F (b) is confined to fugitives. The Refugee Convention has twin purposes: it aims to strike a balance between helping victims of oppression by allowing them to start new lives in other countries, while also protecting the interests of receiving countries, which they did not renounce simply by negotiating specific provisions to aid victims of oppression. The Refugee Convention is not itself an abstract principle, but an agreement among sovereign states in certain specified terms, negotiated by them in consideration of the entirety of their interests. Accordingly, exclusion clauses should not be enlarged in a manner inconsistent with the Refugee Convention’s broad humanitarian aims, but neither should overly narrow interpretations be adopted which ignore the contracting states’ need to control who enters their territory. Ultimately, the purpose of an exclusion clause is to exclude, and broad purposes do not invite interpretations of exclusion clauses unsupported by the text. 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.

Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice; it may prevent dangerous and particularly undeserving people from entering the host country. It may help preserve the integrity and legitimacy and ultimate viability of the refugee protection system. It may deter states from exporting criminals as refugees. It may allow states to reduce danger to their society from serious criminality cases as a class, given the difficult task and potential for error when attempting to determine the ongoing dangerousness of criminals from abroad on whom they may often have limited reliable information. Whatever rationales forArticle 1F (b) may or may not exist, its purpose is clear in excluding persons from protection who previously committed serious crimes abroad.

With respect to the Travaux préparatoires, the Vienna Convention conditions for their use in interpretation are not present in this case. The meaning of Article 1F (b) is clear, and admits of no ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be considered. Further, even if they were considered, the Travaux préparatoires do not support the contention that Article 1F (b) is confined to fugitives.

A review of the jurisprudence demonstrates the difficulty of confining Article 1F (b) to a narrow category of people, like fugitives from justice, and confirms that it applies, as its words suggest, to 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. The dominant tide of the jurisprudence also supports the conclusion that the seriousness of the crime is not to be balanced against factors extraneous to commission of the crime such as current dangerousness or post-crime rehabilitation or expiation.

In terms of what constitutes a “serious crime” under Article 1F(b), 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. However, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

In the present case, Febles is covered under Article 1F (b) as a result of his commission of serious non-political crimes outside Canada prior to admission to Canada as a refugee. As a result, the Board was correct to conclude that he is ineligible for refugee protection in Canada pursuant to s. 98 of the IRPA . If his removal to Cuba would place him at risk of death, torture or cruel and unusual treatment or punishment, his recourse is to apply for a stay of removal under ss. 97 ,112 , 113 (d)(i) and 114(1) (b) of the IRPA . If he wishes to challenge the revocation by U.S. authorities of the refugee status he was previously granted in the United States, he must do so in the justice system of the United States. The Canadian justice system is not to be invoked to determine the correctness or the constitutionality of decisions made by U.S. officials pursuant to U.S. laws.

Per Abella and Cromwell JJ. (dissenting):

The claim for refugee status in this case depends on a determination of when the commission of a serious non‑political crime outside the country of refuge will disqualify an individual from the protective scope of the RefugeeConvention.

The consequences of exclusion are significant. If an individual becomes ineligible for the status of a “refugee” on the basis of one of the exclusionary grounds in Article 1F , the humanitarian protections provided in the RefugeeConvention are denied altogether, including the protection from refoulement under Article 33. An excluded individual is consequently at risk of being returned to face persecution in his or her country of origin, barring the availability of any residual protection under domestic or international human rights law. In light of the human rights purposes of theRefugee Convention, and the dramatic consequences of exclusion from the status of a refugee, Article 1F requires a particularly cautious interpretation.

There is little doubt that the primary purpose of Article 1F (b) was to exclude those individuals who would abuse the status of a refugee by avoiding accountability through prosecution or punishment for a serious crime outside the country of refuge. There is considerable debate, however, as to the extent to which Article 1F (b) was also intended to fulfill the additional purpose of excluding individuals who, as a result of having committed and been prosecuted for serious non‑political crimes in the past, are considered undeserving of refugee protection under the Refugee Convention. The human rights approach to interpretation mandated by the Vienna Convention suggests that except in the case of very serious crimes, an individual is not automatically disqualified from the humanitarian protection of the Refugee Convention and should be entitled to have any expiation or rehabilitation taken into account.

To be fully understood, the text of Article 1F (b) must be situated in its surrounding context and considered in light of its drafting history. Given the widely divergent interpretations of Article 1F (b) adopted by courts in other jurisdictions and the uncertainty created by the territorial limits described inArticle 1F (b), recourse to the interpretive assistance of the preparatory work is helpful.

The travaux préparatoires provide some insight into why the signatories to the Convention adopted the text which is currently found in Article 1F (b). They illustrate that the discussions were only about refugee claimants who had committed a crime outside the country of refuge but had not been convicted or served a sentence for that crime. The origins of these discussions was to expand the scope of those who were entitled to refugee status. In this context, there was broad agreement among the representatives that only fugitives from serious non‑political crimes be excluded from entitlement. The issue was never about those who had committed serious crimes and had already served their sentences outside the receiving country. The language adopted with the intent of expanding protection should not be used to narrow the category of those entitled to protection.

Courts in other jurisdictions, it is widely accepted that the original purpose of Article 1F (b) was to deny refugee status to fugitives, namely, those individuals who had avoided prosecution for serious non‑political crimes committed abroad. This was based on the premise that enabling those individuals to obtain refugee status would compromise the integrity of the international system of refugee protection. All jurisdictions also appear to agree that there are other circumstances in which Article 1F (b) excludes individuals from the Refugee Convention, but there seems to be little agreement as to when those circumstances arise.

But recent international jurisprudence shows that it remains far from clear that the signatories to the Refugee Conventionintended to exclude all individuals who were believed to have committed serious non‑political crimes, without regard for whether they had been rehabilitated. This leaves it open to this Court to reach its own conclusion as to how to interpret the scope of 1F(b).

The requisite good faith interpretive approach mandates not divorcing the text of Article 1F (b) from its human rights purpose. This is particularly so given the clear concern reflected by the travaux préparatoires that the basis for exclusion under Article 1F (b) should be restrictively written so that it would not be “too easy” for states to deny the humanitarian protections guaranteed by the RefugeeConvention. Moreover, there is little or no authority for the proposition that everyone who has committed a serious crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances. Such a relentlessly exclusionary — and literal — approach would contradict both the “good faith” approach to interpretation required by the Vienna Convention, as well as the Refugee Convention’s human rights purpose.

Depending on the seriousness of the crime, if an individual is believed to have committed a serious non‑political crime, the purpose of Article 1F (b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee, would be excluded. This approach accords with the intention of the signatories to the Refugee Convention to protect the integrity and viability of the international system of protection for refugees by limiting the obligations of the contracting parties towards individuals who have committed very serious crimes.

The claimant in this case expressed remorse immediately after the commission of the offence and turned himself in to the police. He pleaded guilty and served his sentence for his criminal conduct. He also admitted that he was suffering from problems with alcohol at the time of the offence. While it is clear that the criminal conduct was serious, what has yet to be determined is whether the crime is so serious that the claimant’s personal circumstances since serving his sentence in 1984 ought to be disregarded in considering whether he is entitled to refugee status. As a result, the appeal should be allowed and the matter returned to the Immigration and Refugee Board for redetermination.

Reasons for judgment by the Chief Justice, dissenting reasons by Abella J. Neutral citation:  2014 SCC 68.  No. 35215.