IRPA s.98Article 1F(b)JayasekaraFederal Court2026 FC 603
An exclusion finding ends a refugee claim without the merits ever being heard. It is also frequently made on a thinner record than the law requires.
The Short Answer
What is Article 1F(b) exclusion?
Section 98 of the Immigration and Refugee Protection Act says that a person described in Article 1F of the Refugee Convention is neither a Convention refugee nor a person in need of protection. Article 1F(b) captures anyone about whom there are serious reasons for considering that they committed a serious non-political crime outside the country of refuge before being admitted. The effect is severe: the claim is excluded regardless of the risk the person faces on return. The onus of establishing it rests on the Minister.
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THE STANDARD
What "Serious Reasons for Considering" Means
This is a distinct standard and it sits between two familiar ones. It is higher than mere suspicion or conjecture, and lower than the civil balance of probabilities: Ezokola v Canada, 2013 SCC 40 at paragraphs 101 and 102, and Lai Cheong Sing v Canada, 2005 FCA 125 at paragraphs 23 and 25.
The onus is on the Minister: Lai Cheong Sing at paragraph 23, citing Xie v Canada, 2004 FCA 250 at paragraph 23. Where the Minister has not intervened, a tribunal raising exclusion on its own motion is doing so without the party who carries that burden.
A charge or a conviction from abroad is evidence, but it is not the end of the analysis. Where a claimant says the charges were fabricated and has been found credible, the existence of a warrant may not be enough on its own. That is the holding in Qazi v Canada, 2005 FC 1204 at paragraphs 18 and 19: the decision maker has to go further and decide whether to accept the allegation of fabrication.
SERIOUSNESS
The Jayasekara Factors
Whether a crime is serious is assessed against the factors in Jayasekara v Canada, 2008 FCA 404 at paragraphs 38 to 44:
The nature of the act.
The actual harm inflicted.
The elements of the offence.
The mode of prosecution.
The penalty prescribed.
The facts, and the mitigating and aggravating circumstances underlying the conviction.
Where the equivalent Canadian offence carries a maximum of ten years or more, the crime will generally be treated as serious. That is not a rigid presumption. The Supreme Court was explicit in Febles v Canada, 2014 SCC 68 at paragraph 62 that it must not be applied in a mechanistic, decontextualised or unjust manner, and that offences falling at the less serious end of a wide sentencing range should not be presumptively excluded.
Febles adopted the UNHCR list of crimes presumed serious: homicide, rape, child molesting, wounding, arson, drug trafficking and armed robbery. A financial offence at the lower end of its range is a different proposition, and the actual sentence imposed abroad is relevant to where it sits.
POLITICAL OR NOT
The Crime, Not the Prosecution
This distinction defeats a great many arguments and it is worth being clear about. Whether a crime is political turns on the motive of the offender at the time of the offence, not on the motive of those who prosecuted it: Lai Cheong Sing at paragraphs 62 and 63, citing Gil v Canada, [1995] 1 FC 508.
A crime is political where it was committed with the object of overthrowing, subverting or changing a government, or inducing it to change its policy, and there is a close and direct link between the act and that purpose. A financial offence does not become political because the state had political reasons for pursuing it.
That does not make evidence of a politically motivated prosecution irrelevant. It goes somewhere else, and somewhere more useful: to whether the crime was committed at all. If the prosecution was corrupt and the charge fabricated, then there are no serious reasons for considering the person did it, and the exclusion falls away at the first step rather than the second.
WHERE THEY GO WRONG
How Exclusion Findings Are Successfully Challenged
In our experience these are the recurring flaws:
Treating a foreign charge as sufficient in itself. Particularly where the claimant alleges fabrication and has been found credible.
No assessment of the issuing authority. Reliance on a conviction assumes the body that produced it respects the rule of law. That has to be assessed, not assumed.
Ignoring the claimant's own evidence. An exclusion analysis that recites the charge and stops has not engaged with the record.
Analysing seriousness before deciding commission. The Jayasekara factors go to whether a crime is serious, not to whether it happened.
Country evidence from the wrong period. Conditions at the time of the events matter, not conditions years later.
We acted in Mîra v Canada (Citizenship and Immigration), 2026 FC 603, where the Federal Court set aside an exclusion finding on judicial review. Several of the points above were live in that case.
General information
This page is general information about Ontario and Canadian law published by Lexaltico LLP. It is not legal advice, it does not account for the facts of any particular situation, and reading it does not create a solicitor-client relationship. Rules change, and whether any option is available to you depends on your own circumstances.
What does exclusion under Article 1F(b) actually do?
It removes access to refugee protection entirely. The person is neither a Convention refugee under section 96 nor a person in need of protection under section 97, whatever risk they face on return.
Who has to prove it?
The Minister. That is settled by Lai Cheong Sing at paragraph 23, citing Xie. The standard is serious reasons for considering, which is more than suspicion and less than a balance of probabilities.
I was convicted abroad in my absence. Does that decide it?
No. A conviction is evidence, not a conclusion. Where you say the charge was fabricated and you are found credible, Qazi holds that the existence of a warrant alone may not be enough and the decision maker must go further.
The prosecution against me was political. Does that make the crime political?
Not by itself. Lai Cheong Sing draws the distinction: what matters is the motive of the offender, not the motive of the prosecutor. But evidence of a politically driven prosecution is highly relevant to whether the crime happened at all.
Is a ten-year maximum sentence automatically serious?
It generally indicates seriousness but it is not rigid. Febles at paragraph 62 says the presumption must not be applied mechanistically, and that offences at the lower end of a broad sentencing range should not be presumptively excluded.
Can an exclusion finding be appealed?
A Refugee Appeal Division decision is challenged by applying to the Federal Court for leave and judicial review. The deadline is short, so the decision should be reviewed as soon as it arrives.
The Minister withdrew from my case. Can exclusion still be raised?
Yes. A tribunal may raise exclusion on its own motion after giving notice. That happened in the case we argued in 2026 FC 603, where the Minister had withdrawn its intervention and did not return.
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