VA8-03143

VA8-03143

The associated claimant's US conviction, while constituting a serious category of offence prima facie, was a single, non-violent, isolated incident with a lenient sentence, genuine remorse, and full compliance with probation; these mitigating circumstances rebut the presumption of seriousness for Article 1F(b) exclusion. Consequently the associated claimant is not excluded under section 98 of the Act. On the merits, the principal claimant faces persecution by the FARC on account of an imputed political opinion and state protection and internal flight alternatives are inadequate; the associated and minor claimants, as immediate family, likewise face persecution. All three claimants are...

Citation
VA8-03143
Parties
Principal Claimant: XXXXX XXXXX; Associated Claimant: XXXXX XXXXX; Minor Claimant: XXXXX XXXXX
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
28 January 2011
Procedural Posture
Refugee Protection Claim Under the Immigration and Refugee Protection Act / Decision (oral 28 January 2011; Written Reasons 14 February 2011)
Outcome
Claims accepted; all three claimants found to be Convention refugees; associated claimant not excluded under Article 1F(b)
Legal Topics
Convention Refugee, Article 1 F(b) Exclusion, Serious Non Political Crime, Drug Trafficking, State Protection, Internal Flight Alternative, Mitigating and Aggravating Factors
Source Language
English
Refugee Law Immigration Law International Law Criminal Law Convention Refugee Article 1 F(b) Exclusion Serious Non Political Crime Drug Trafficking +3 more

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Parties

XXXXX XXXXX

Principal Claimant

XXXXX XXXXX

Associated Claimant

XXXXX XXXXX

Minor Claimant

Procedural Posture

Refugee Protection Claim Under the Immigration and Refugee Protection Act / Decision (oral 28 January 2011; Written Reasons 14 February 2011)

Legal Issues

  1. 1 Whether the associated claimant should be excluded under Article 1F(b) for committing a serious non-political crime outside the country of refuge prior to admission
  2. 2 Whether the associated claimant's US drug conviction is a 'serious' crime for Article 1F(b) purposes in light of Chan and Jayasekara
  3. 3 Whether the claimants qualify as Convention refugees based on imputed political opinion and membership of a particular social group

Ratio Decidendi

The associated claimant's US conviction, while constituting a serious category of offence prima facie, was a single, non-violent, isolated incident with a lenient sentence, genuine remorse, and full compliance with probation; these mitigating circumstances rebut the presumption of seriousness for Article 1F(b) exclusion. Consequently the associated claimant is not excluded under section 98 of the Act. On the merits, the principal claimant faces persecution by the FARC on account of an imputed political opinion and state protection and internal flight alternatives are inadequate; the associated and minor claimants, as immediate family, likewise face persecution. All three claimants are...

Court Disposition

Claims accepted; all three claimants found to be Convention refugees; associated claimant not excluded under Article 1F(b)