MA9-02094

MA9-02094

Tribunal accepted claimant's sworn testimony and corroborating evidence that only the 1985 trafficking conviction was established; the minimal quantity involved (0.75 g) constituted a significant mitigating circumstance that rebutted the presumption of seriousness despite the theoretical maximum penalty, and the claimant credibly explained guilty pleas to other charges as resulting from poor counsel and police misconduct, so Article 1F(b)/s.98 IRPA exclusion did not apply; separately, claimant proved membership in particular social groups (family of political dissident; returned marielito) and a well-founded fear of persecution on return to Cuba and was therefore declared a Convention...

Citation
MA9-02094
Parties
Claimant: XXXX XXXX XXXX XXXX XXXX XXXX; Respondent / Minister: Minister of Public Safety and Emergency Preparedness (intervenor); Decision Maker: Me Michelle Langelier
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
20 November 2012
Procedural Posture
Refugee Protection Exclusion and Inclusion Under IRPA and the Convention / Decision on Exclusion (s.98 Irpa) and Determination of Convention Refugee Status (s.96/97 Irpa)
Outcome
Exclusion under Article 1F(b)/s.98 IRPA rejected; claimant found to be a Convention Refugee under s.96 IRPA
Legal Topics
Exclusion Under Article 1 F(b) of the Refugee Convention, Serious Non Political Crime, Credibility Assessment, Membership of a Particular Social Group, Marielito Returnees, Burden of Proof ('serious Reasons for Considering')
Source Language
English
Immigration Law Refugee Law Criminal Law International Law Exclusion Under Article 1 F(b) of the Refugee Convention Serious Non Political Crime Credibility Assessment Membership of a Particular Social Group +2 more

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Parties

XXXX XXXX XXXX XXXX XXXX XXXX

Claimant

Minister of Public Safety and Emergency Preparedness (intervenor)

Respondent / Minister

Me Michelle Langelier

Decision Maker

Procedural Posture

Refugee Protection Exclusion and Inclusion Under IRPA and the Convention / Decision on Exclusion (s.98 Irpa) and Determination of Convention Refugee Status (s.96/97 Irpa)

Legal Issues

  1. 1 Whether claimant is excluded from protection under Article 1F(b) of the Refugee Convention as implemented by s.98 IRPA because he committed a serious non-political crime outside Canada prior to arrival
  2. 2 Whether the claimant committed the offences alleged by the Minister and whether documentary evidence rebuts his sworn testimony
  3. 3 Whether the 1985 cocaine trafficking commission amounts to a 'serious' non-political crime for exclusion purposes

Ratio Decidendi

Tribunal accepted claimant's sworn testimony and corroborating evidence that only the 1985 trafficking conviction was established; the minimal quantity involved (0.75 g) constituted a significant mitigating circumstance that rebutted the presumption of seriousness despite the theoretical maximum penalty, and the claimant credibly explained guilty pleas to other charges as resulting from poor counsel and police misconduct, so Article 1F(b)/s.98 IRPA exclusion did not apply; separately, claimant proved membership in particular social groups (family of political dissident; returned marielito) and a well-founded fear of persecution on return to Cuba and was therefore declared a Convention...

Court Disposition

Exclusion under Article 1F(b)/s.98 IRPA rejected; claimant found to be a Convention Refugee under s.96 IRPA

Orders

  • Minister's application for exclusion under s.98 IRPA dismissed
  • Claimant declared a Convention Refugee and granted refugee protection