TB4-12679

TB4-12679

On reasonable grounds the claimant took the minor out of the United States without the father's consent in a premeditated manner, constituting an act equivalent to abduction under s.283(1) Criminal Code which could attract up to ten years' imprisonment; the act was non-political, mitigating necessity was not established on the evidence (claimant lacked credibility and did not seek US protection), and therefore the claimant is excluded from refugee protection under Article 1F(b)/section 98 IRPA; the minor claimant does not meet the definition of a Convention refugee nor is he a person in need of protection under ss.96/97(1) IRPA due to lack of nexus and absence of personalized risk.

Citation
TB4-12679
Parties
Claimant: XXXX XXXX XXXX XXXX; Minor Claimant: XXXX XXXX XXXX XXXX; Respondent/minister: Minister of Public Safety and Emergency Preparedness
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
30 March 2015
Procedural Posture
Refugee Protection Claim With Exclusion Issue Under Article 1 F(b) / Decision Following Hearing on Refugee Claims and Exclusion
Outcome
Claimant excluded from refugee protection pursuant to section 98 of IRPA; minor claimant not a Convention refugee nor a person in need of protection under sections 96 and 97(1) of IRPA; claims rejected.
Legal Topics
Exclusion (article 1 F(b)), Credibility Assessment, Child Refugee Claimants, Equivalency to Canadian Criminal Law, Necessity Defence (s.285 Criminal Code), Nexus to Convention Grounds, Abduction/parental Child Removal
Source Language
English
Immigration Law Refugee Law Criminal Law International Law Exclusion (article 1 F(b)) Credibility Assessment Child Refugee Claimants Equivalency to Canadian Criminal Law +3 more

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Parties

XXXX XXXX XXXX XXXX

Claimant

XXXX XXXX XXXX XXXX

Minor Claimant

Minister of Public Safety and Emergency Preparedness

Respondent/minister

Procedural Posture

Refugee Protection Claim With Exclusion Issue Under Article 1 F(b) / Decision Following Hearing on Refugee Claims and Exclusion

Legal Issues

  1. 1 Whether the claimant committed a serious non-political crime outside the country of refuge prior to admission (Article 1F(b))
  2. 2 Whether the crime is equivalent to a Canadian offence and serious in nature
  3. 3 Whether the necessity defence or other mitigating circumstances apply

Ratio Decidendi

On reasonable grounds the claimant took the minor out of the United States without the father's consent in a premeditated manner, constituting an act equivalent to abduction under s.283(1) Criminal Code which could attract up to ten years' imprisonment; the act was non-political, mitigating necessity was not established on the evidence (claimant lacked credibility and did not seek US protection), and therefore the claimant is excluded from refugee protection under Article 1F(b)/section 98 IRPA; the minor claimant does not meet the definition of a Convention refugee nor is he a person in need of protection under ss.96/97(1) IRPA due to lack of nexus and absence of personalized risk.

Court Disposition

Claimant excluded from refugee protection pursuant to section 98 of IRPA; minor claimant not a Convention refugee nor a person in need of protection under sections 96 and 97(1) of IRPA; claims rejected.

Orders

  • Claimant excluded from refugee protection pursuant to section 98 of IRPA.
  • Minor claimant is not a Convention refugee or a person in need of protection pursuant to sections 96 and 97(1) of IRPA.