MA7-01857

MA7-01857

Tribunal found claimant's conviction and jury finding established serious reasons to conclude he kissed and touched a 14–16 year old for sexual purposes equivalent to Canadian sexual interference (s.151), but on balance the offence in the specific circumstances did not meet the threshold of a 'serious non-political crime' under Article 1F(b) given comparative sentencing practice and absence of evidence explaining New Zealand sentence; therefore exclusion was denied. Separately, the claimant failed to establish a credible fear of persecution and his refugee protection claim under ss.96 and 97(1) was rejected.

Citation
MA7-01857
Parties
Claimant: XXXXXXXXXXXXXX; Intervener: Department of Public Safety and Emergency Preparedness (Minister)
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
21 September 2011
Procedural Posture
Refugee Protection Claim With Minister's Intervention Under IRPA S98 (exclusion) / De Novo Hearing Following Federal Court Order; Decision on Exclusion and Protection Claim
Outcome
Minister's request to exclude claimant under IRPA s98 (Article 1F(b)) denied; claimant not excluded. Claimant's refugee protection claim under IRPA ss.96 and 97(1) rejected for lack of credible fear of persecution.
Legal Topics
Exclusion Under Article 1 F(b), Serious Non Political Crime, Criminal Equivalency, Burden of Proof for Exclusion, Credibility Assessment, Refugee Protection Eligibility
Source Language
English
Immigration Law Refugee Law Criminal Law International Law Exclusion Under Article 1 F(b) Serious Non Political Crime Criminal Equivalency Burden of Proof for Exclusion +2 more

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Parties

XXXXXXXXXXXXXX

Claimant

Department of Public Safety and Emergency Preparedness (Minister)

Intervener

Procedural Posture

Refugee Protection Claim With Minister's Intervention Under IRPA S98 (exclusion) / De Novo Hearing Following Federal Court Order; Decision on Exclusion and Protection Claim

Legal Issues

  1. 1 Whether claimant is excluded from refugee protection under IRPA s98 as person described in Article 1F(b) for committing a serious non-political crime outside Canada
  2. 2 Whether the New Zealand conviction is equivalent to a Canadian sexual offence (sexual interference or sexual assault)
  3. 3 Whether the crime committed meets the threshold of a 'serious non-political crime'

Ratio Decidendi

Tribunal found claimant's conviction and jury finding established serious reasons to conclude he kissed and touched a 14–16 year old for sexual purposes equivalent to Canadian sexual interference (s.151), but on balance the offence in the specific circumstances did not meet the threshold of a 'serious non-political crime' under Article 1F(b) given comparative sentencing practice and absence of evidence explaining New Zealand sentence; therefore exclusion was denied. Separately, the claimant failed to establish a credible fear of persecution and his refugee protection claim under ss.96 and 97(1) was rejected.

Court Disposition

Minister's request to exclude claimant under IRPA s98 (Article 1F(b)) denied; claimant not excluded. Claimant's refugee protection claim under IRPA ss.96 and 97(1) rejected for lack of credible fear of persecution.

Orders

  • Exclusion application under IRPA s98 denied; claimant remains potentially eligible for protection subject to merits of claim
  • Refugee protection claim under IRPA ss.96 and 97(1) rejected; removal implications follow per applicable law