In a not-often cited decision from 2011, the Federal Court of Canada upheld a decision of the Immigration and Refugee Board of Canada denying a foreign national refugee protection in Canada for serious criminality based on money laundering charges even though the foreign national was never convicted of money laundering.
The facts of the case are that Espinel Naranjo, a foreign national from Venezuela, was arrested in 1998 entering the United States with US$1.2 million cash hidden inside stereo speakers that he failed to declare on a currency transaction report at the Miami Airport. An additional US$2 million cash was found hidden at his house in Florida. He was charged with money laundering, lying to officials, structuring, and a failure to file a currency transaction report and entered into an agreement to plead guilty to six counts of structuring (namely, to avoid filing a currency transaction report). He was sentenced to 15 months in a US prison. He served 13 months and was ordered to leave the US when he was released due to his criminality and was eventually deported from the US.
After he was deported from the US, Naranjo attempted to enter the US illegally through Mexico and was returned to Venezuela by US authorities. He managed to enter Canada and from there he made a second illegal entry into the US in 2005 and was removed from the US again. In 2006, for a third time, Naranjo entered the US illegally and was arrested and convicted of being unlawfully in the US. He was deported again in 2007. During that time, and despite his criminality, Naranjo was able to enter Canada on many occasions.
In 2010, while in Canada, Naranjo applied for refugee status pursuant to the Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 1951, C.T.S. 1969/6; 189 U.N.T.S. 150, alleging that his life would be at risk if he was returned to Venezuela.
A Convention refugee is a foreign national who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion and is outside the country of their nationality, and is unable, or by reason of that fear is unwilling, to avail himself/herself of the protection of that country. A person who has availed themselves of the Court system of their own country, for whatever reason, is automatically not entitled to be a Convention refugee because it negates the claim of an alleged fear of persecution if they attorned to their own Courts for a legal remedy.
A person is not eligible to claim refugee status in Canada if, among other things, they are inadmissible to Canada on security grounds, criminal activity or human rights violations. In the case of serious criminality, a refugee claim is ineligible if the person has a conviction outside Canada for an offence that in Canada carries a term of imprisonment of at least ten years.
The Immigration and Refugee Board of Canada denied Naranjo’s application for refugee protection on the basis that he was not entitled to refugee protection pursuant to Article 1F(b) of the Convention. Article 1F(b) of the Convention denies refugee protection for non-political serious crimes and excludes such persons from Canada whether they have been rehabilitated or not, or are fugitives or not. (Febles v. Canada 2014 SCC 68).
Naranjo was denied refugee protection because the Board found that his conduct in lying to US authorities and the charge of money laundering (neither of which he was sentenced for) in another country constituted sufficient grounds for serious criminality for Canadian immigration purposes and regarding the money laundering offence, carried a ten year term of imprisonment in Canada had that offence been committed in Canada.
Naranjo appealed the Board’s decision to the Federal Court of Canada on the ground, inter alia, that the fact that he was not convicted of lying to US authorities or of money laundering but was merely charged with structuring (which ironically is a money laundering offence), meant that he was not ineligible under Article 1F(b) of the Convention. He argued that the crimes in the US for which he was prosecuted and convicted did not carry a ten year term of incarceration in Canada and therefore the Board erred in determining he was inadmissible as a money launderer.
The Federal Court of Canada upheld the Immigration and Refugee Board’s decision that Naranjo was ineligible for refugee protection in Canada for serious criminality related to his activities as a money launderer, even though Naranjo was never charged as such. The Court held that the Board is entitled to consider and rely on charges that are laid against a person even where the charges do not result in a conviction . The Federal Court of Appeal held that an Article 1F(b) finding of ineligibility is possible even where an applicant has not been convicted and further even when charges have been dismissed.
The Federal Court held that the Board was entitled to consider that a large sum of money was in the possession of Naranjo and that he had been charged with money laundering to conclude that there were serious reasons for considering that Naranjo had committed the offence of money laundering, rendering him inadmissible.
It goes without saying that a foreign national in Canada seeking refugee protection who is charged with a money laundering offence in Canada, even if the charges are pled down to lesser offenses, or dismissed, is also not entitled to refugee protection on the basis of this decision and on the basis of the Convention. Whether Naranjo’s life was in danger in Venezuela if he was returned was irrelevant for the purposes of refugee status because he was not entitled to rely on the refugee Convention for protection, given his conduct.
Subsequent to the decision, Naranjo was ordered removed from Canada but he disappeared and was the subject of a Canada-wide arrest warrant.