- Exclusion under Article 1F(b) ends a refugee claim without the risk you face on return ever being weighed.
- A conviction from another country is evidence, not a conclusion. The Minister carries the onus.
- Where you say the charges were fabricated and you are believed, the existence of a warrant may not be enough on its own.
- A decision maker must assess whether the authority that laid the charge respects the rule of law, not just whether the country does.
- Deadlines for challenging a refusal in the Federal Court are short. Bring the decision in the week it arrives.
What exclusion means
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) covers anyone about whom there are serious reasons for considering that they committed a serious non-political crime outside Canada before arriving.
The consequence is severe and worth being blunt about. If exclusion applies, the claim ends there. The danger you say you face on return is not weighed against it. That is why these findings are worth challenging when they are made on a thin record.
The standard is its own thing. Serious reasons for considering is more than suspicion and less than the balance of probabilities used in ordinary civil cases. And the onus of establishing it sits with the Minister, not with you.
A conviction abroad is evidence, not an answer
Most exclusion cases involve a charge or conviction from another country. A decision maker is entitled to rely on that in the right circumstances, on the reasoning that in a system where the rule of law prevails, there were probably proper grounds for laying the charge.
That reasoning comes with conditions attached, and the conditions are where most of these cases are decided. Before applying it, the decision maker has to be satisfied that the authority that issued the charge respects the rule of law, and is not dealing with a place known for filing false charges to harass or intimidate. They also have to look properly at the evidence you have put forward, and if you deny involvement, they have to deal with your credibility.
Where you say the charges were manufactured, and a tribunal has found you credible, the courts have said the mere existence of a warrant may not be enough. The decision maker has to go further and decide whether to accept what you are saying.
Why a conviction from a democratic country is harder
This is the version of the problem that most people arrive with, and it is genuinely difficult. If the conviction comes from a European Union member state, or anywhere with independent courts and a functioning appeal system, the assumption that the charge was properly laid is at its strongest.
The distinction that matters is between a country and an institution. A state can have a sound judiciary and, at the same time, a prosecuting body with documented integrity problems. Evidence about the second is not answered by observations about the first. The assessment required is of the authority that charged you.
Timing matters as well. Country reports describing improvements several years after your case do not tell anyone what conditions were like when the charge was laid.
The argument that does not work
Almost everyone in this position wants to argue that the prosecution was political. As a route to defeating exclusion, that argument fails as framed.
What makes a crime political is the motive of the person who committed it, not the motive of those who prosecuted it. A financial offence does not become political because the state had political reasons for pursuing it.
The same evidence is valuable pointed somewhere else. If the prosecution was corrupt and the charge invented, then the crime was not committed, and there are no serious reasons for considering that it was. That defeats exclusion at the first step rather than the second, and it is where these cases are actually won.
New evidence on an appeal
An appeal to the Refugee Appeal Division normally runs on the record from the hearing below. There are three exceptions: evidence that arose after your claim was rejected, evidence that was not reasonably available, and evidence you could not reasonably have been expected to present.
Meeting one of those is necessary but not sufficient. The evidence also has to be credible, relevant, and material enough that it might affect the outcome.
Relevance is where these applications are most often lost, and often unnecessarily. Reporting about a prosecuting authority will rarely mention you by name. Its relevance lies in the pattern it shows. If you are filing that kind of material, deal with each document separately, say which of the three categories it falls into, and spell out the connection to your own file rather than assuming it is obvious.
If a decision has already gone against you
A Refugee Appeal Division decision is challenged by applying to the Federal Court for leave and judicial review. That is not a fresh hearing. The Court is asking whether the decision was reasonable, which means whether it was internally coherent and justified against the facts and the law.
A decision can be unreasonable where the decision maker misunderstood or ignored evidence, or failed to engage with a central argument. In practice, an exclusion analysis that recites the foreign charge and stops is vulnerable.
If the Court agrees, it does not decide your claim. It sets the decision aside and sends the appeal back to a different panel to be heard again. That is the remedy, and it is worth understanding before you start.
The filing deadline is short and it does not extend. If you have a refusal, the time to speak to a lawyer is the week you receive it.
Common questions
Does a conviction abroad automatically exclude me?
No. It is evidence a decision maker may rely on in the right circumstances, but only after assessing your own evidence and satisfying itself that the authority that laid the charge respects the rule of law.
I was convicted while I was not in the country. Does that matter?
It can. The circumstances of the trial, including whether you were present or represented, form part of the context that has to be assessed.
The prosecution against me was politically motivated. Is that enough?
Not on its own, and not framed that way. What makes a crime political is the motive of the offender, not of the prosecutor. But evidence of a corrupt prosecution goes directly to whether the crime happened at all, which is the stronger argument.
Who has to prove exclusion?
The Minister. The standard is serious reasons for considering, which sits above suspicion and below the balance of probabilities.
Can exclusion be raised even if the Minister does not participate?
Yes. A tribunal can raise it on its own motion after giving notice, and that does happen.
If I win in the Federal Court, do I get protection?
Not directly. The Court sets the decision aside and sends the appeal back to a differently constituted panel. The exclusion finding no longer stands and the appeal is heard again.
How long do I have to challenge a refusal?
Short, and the clock does not stop. Treat any refusal letter as urgent and get it in front of a lawyer the same week.
Contacting us does not create a solicitor-client relationship. Please do not send confidential information until we have confirmed we can act for you. We aim to reply within 2 business days. Sending this form does not meet any court deadline or limitation period.
If you or a child are in immediate danger, call 911. This form is not an emergency service and is read during business hours. Assaulted Women’s Helpline 1-866-863-0511, Talk4Healing 1-855-554-4325, both open around the clock.
