Luis Alberto Hernandez Febles was admitted to the United States as a refugee from Cuba. While living in the United States, he was convicted and served time in prison for two assaults with a deadly weapon – in the first case, he struck a roommate on the head with a hammer, and in the second case, he threatened to kill a roommate’s girlfriend at knife point. The US revoked his refugee status and issued a removal warrant, which is still outstanding.
After his refugee status in the US was revoked, Mr. Febles fled to Canada, entering illegally. He then claimed refugee protection in Canada. Refugee protection claims in Canada are adjudicated by the Refugee Protection Division of the Immigration Refugee Board.
The question was whether Article 1F(b), the “serious criminality exclusion” article of the Convention Relating to the Status of Refugees (“Refugee Convention”) incorporated in Canada by section 98 of the Immigration and Refugee Protection Act (“Act”) barred Mr. Febles from refugee protection because of the crimes he had committed in the past.
Different interpretations of the article of the Refugee Convention were in play. The Minister of Citizenship and Immigration (“Minister”) argued that the serious criminality exclusion was triggered whenever the refugee claimant had committed a serious non-political crime before coming to Canada. It is not confined to fugitives from justice. The Minister also took the position that post-crime events like rehabilitation or expiation, were not relevant. The only question was whether the claimant committed a serious non-political crime before seeking refugee protection in Canada.
Mr. Febles and the United Nations High Commissioner for Refugees (“High Commissioner”) argued for a narrower interpretation of the Article. Mr. Febles argued that the exclusion in the Article was confined to fugitives from justice. Mr. Febles, having served his sentences, was not a fugitive from justice. The High Commissioner argued that the question was whether the refugee claimant was “deserving” of refugee protection at the time of the application, which requires consideration not only of the seriousness of the offence itself, but of how long ago the offence was committed, the conduct of the claimant since the commission of the offence, whether the claimant has expressed regret or renounced criminal activities and whether the claimant posed a threat to the security of Canada at the present time.
Simply put, the Minister argued that serious criminality under the Article was simply a matter of looking at the seriousness of the crime and when it was committed, while Mr. Febles and the High Commissioner argued that the article requires consideration of other matters, including whether the claimant was currently dangerous.
In a 5 to 2 decision, the Supreme Court of Canada agreed with the decisions below and dismissed the application for judicial review. The majority decision was written by Chief Justice McLachlin. See Febles v. Canada (Citizenship and Immigration) 2014 SCC 68.
The Court held that interpreting an international treaty was governed by the Vienna Convention on the Law of Treaties (“Vienna Convention”). Pursuant to article 31(1) of the Vienna Convention, interpretation of a treaty should be approached by considering: (1) the ordinary meaning of its terms; (2) the context; and (3) the object and purpose of the treaty. In addition, article 32 of the Vienna Convention provided that recourse to interpretation may be had to supplementary means, including the preparatory work of the treaty and the circumstances of the conclusion, but only if the application for article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
The Court held that the ordinary meaning of the terms “has committed a serious crime” refers only to the crime at the time it was committed and not to anything subsequent to the commission of the crime. The Court concluded that there is nothing in the text of the provision suggesting that the Article only applies to fugitives, or that factors such as a current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime.
The Court held that the context around the Article supported this interpretation. The article in the Refugee Convention is not confined to fugitives. The reason article 33(2) applies only to particularly serious crimes and has the additional requirement that “danger to the community” be demonstrated, is because it authorizes removal of a person whose need for protection has been recognized.
In addition, the object and purposes of the Refugee Convention do not support the argument that the Article is confined to fugitives. The Refugee Convention has twin purposes: it aims to strike a balance between helping victims of oppression by allowing them to start new lives in other countries while also protecting the interest of receiving countries. These countries did not renounce their interests simply by negotiating specific provisions to aid victims of oppression. Exclusion clauses should not be enlarged in a manner inconsistent with the Refugee Convention’s broad humanitarian aims but overly narrow interpretations should not be adopted which ignore the contracting states need to control who enters their territories.
Ultimately the purpose of an exclusion clause is to exclude. Article 1F(b) is not directed solely at fugitives or at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimants who have committed serious, non-political crimes, the article expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.
The Court found that there were a number of rationales for excluding people who have committed serious crimes – it may prevent people fleeing from justice, it may prevent dangerous and particularly undeserving people from entering the host country, it may help preserve the integrity and legitimacy and ultimate viability of the refugee protection system, it may deter states from exporting criminals as refugees, it may allow states to reduce danger to their society from serious criminality cases given the difficult task and potential for error when attempting to determine the ongoing dangerousness of criminals from abroad on whom they may often have limited, reliable information. Whatever rationale may or may not exist for Article 1F(b), its purpose is clear in excluding persons from protection who previously committed serious crimes abroad.