Criminality and Refugee Claims

by Les Morley|February 25, 2013| Criminality, Immigration, Refugees,

FEW WILL DENY that it is generally best to avoid criminal trouble.  Engaging in criminality risks not only a loss of liberty, but also the possibility that in future doors of opportunity will be closed, possibly for good.  A criminal breach of trust, for instance, may effectively put an end to the pursuit of some careers.  If convicted of domestic violence, one may lose custody of or even access to one’s children.    If one is convicted of impaired driving, there will be a driver’s license suspension, with a possible loss of employment, if the job requires a license.

Most of us can agree that we are responsible for our wilful actions, and that some adverse consequences of criminal behaviour are usually appropriate.  However, we may differ respecting how long the consequences should be borne, and the extent to which they should compromise an offender’s future.  These are more difficult questions.  What if the offender, for instance, was convicted of violent crimes: should he be forever denied protection from persecution because of these convictions?  That is the issue that was raised in the case of Mr.Luis Alberto Hernandez Febles.

Mr. Hernandez Febles left his native Cuba in 1980, and settled in the United States.  There he was twice convicted of the crime of assault with a deadly weapon.  Alcohol abuse was a key factor in his offending.  After 1993, however, he committed no further offences and steadfastly maintained sobriety.  His remorsefulness was acknowledged.  Still, because he had been convicted of the assaults he eventually lost his immigration status in the United States, and was required to leave.  He came to Canada.

Here he applied for refugee status based on the persecution he had experienced in Cuba, which had been accepted as fact in the United States.  He disclosed that he was convicted of crimes in the United States.  He was found to be ineligible to make a refugee claim in Canada because of his crimes.  Here is the question that Canadian justice had to answer: in determining whether or not Mr. Hernandez Febles should be given refugee protection, should it have been considered that 15 offence-free years had passed, whether or not he was currently a danger to the public, or whether he had been rehabilitated?

Mr. Justice Evans of the Federal Court of Appeal found that such considerations were irrelevant.  The tests for ineligibility and exclusion are simply not the same”, he wrote, and “The scheme of [the Immigration and Refugee Protection Act] suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly.”  The Court specifically rejected the notion that remorsefulness may be considered in determining whether exclusion from refugee protection is justified, even though there is provision for the possibility that this could happen in the handbook of the United Nations High Commission for Refugees.

The consequences of criminal convictions may be devastating in their scope and, it seems, can last a very, very long time.  Indeed, they may last forever.  Sometimes turning over a new leaf is simply not enough.

To read this case, the citation for which is Luis Alberto Hernandez Febles v. Canada (Minister of Citizenship and Immigration) 2012 FCA 324, click here


Leave a Reply

Your email address will not be published.

For more information

For more information, please contact my office at (613) 542-2192, connect with me on LinkedIn and follow me on Twitter (@lesmorley) and on Facebook!