VB9-08863

VB9-08863

The RAD allowed the appeal because the RPD materially erred by conflating dropped allegations and CBSA statements about heroin/cocaine with the Appellant's actual Colorado conviction for a Schedule IV/Class 5 felony (barbiturates), and on the Jayasekara factors the actual conviction, its mode of prosecution and prescribed penalty did not establish 'serious reasons for considering' the Appellant committed a serious non‑political crime under Article 1F(b); therefore exclusion was not established and the RPD decision was set aside and remitted for redetermination by a different member.

Citation
VB9-08863
Parties
Appellant: XXXX XXXX XXXX; Counsel for Appellant: Andrea De Rocquigny; Respondent / Counsel for the Minister: Minister of Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
4 January 2021
Procedural Posture
Refugee Appeal Under IRPA / Decision on Appeal — RAD Allowed Appeal and Remitted to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside and matter remitted to the RPD for redetermination by a different member
Legal Topics
Exclusion Under Article 1 F(b), Serious Criminality, New Evidence Admissibility, Standard of Proof, Remand for Redetermination
Source Language
English
Immigration Law Refugee Law Criminal Law Exclusion Under Article 1 F(b) Serious Criminality New Evidence Admissibility Standard of Proof Remand for Redetermination

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Parties

XXXX XXXX XXXX

Appellant

Andrea De Rocquigny

Counsel for Appellant

Minister of Immigration

Respondent / Counsel for the Minister

Procedural Posture

Refugee Appeal Under IRPA / Decision on Appeal — RAD Allowed Appeal and Remitted to RPD for Redetermination

Legal Issues

  1. 1 Whether the Appellant is excluded from refugee protection under Article 1F(b) as having committed a serious non‑political crime outside the country of refuge prior to admission
  2. 2 Whether the RPD erred by treating the Appellant as having trafficked heroin and cocaine contrary to the actual conviction for a Schedule IV/Colorado Class 5 felony
  3. 3 Whether the proffered new evidence should be admitted and whether it raises credibility issues requiring an oral hearing

Ratio Decidendi

The RAD allowed the appeal because the RPD materially erred by conflating dropped allegations and CBSA statements about heroin/cocaine with the Appellant's actual Colorado conviction for a Schedule IV/Class 5 felony (barbiturates), and on the Jayasekara factors the actual conviction, its mode of prosecution and prescribed penalty did not establish 'serious reasons for considering' the Appellant committed a serious non‑political crime under Article 1F(b); therefore exclusion was not established and the RPD decision was set aside and remitted for redetermination by a different member.

Court Disposition

Appeal allowed; RPD decision set aside and matter remitted to the RPD for redetermination by a different member

Orders

  • Accept Documents 1 and 2 as new evidence and enter them as Exhibits 1 and 2
  • Decline to accept Document 3 as new evidence