Shamlou v. Canada ( Minister of Citizenship and Immigration )
IMM-4967-94
Teitelbaum J.
15/11/95
23 pp.
Application for judicial review of negative decision of Immigration and Refugee Board refusing applicant's claim for Convention refugee status-Applicant, citizen of Iran, left Iran in 1970 to pursue studies in radiation technology in U.S.A.-Lived in U.S.A. States from 1970 to 1976-Left for El Salvador in March 1976 as condition of parole imposed by judge of Florida Court after pleading guilty to charge of attempted sexual battery-Moved to Mexico with second wife-Lived in Mexico on student visa from 1976 to 1979-Moved from U.S.A. to Canada in February 1992-Claimed refugee status in Canada one year later-Whether Board erred in application of schedule to Act in excluding applicant from Convention refugee status-Board finding applicant not Convention refugee by virtue of 1951 Convention, Art. 1E, F(b)-That crime of serious nature not denied-Person should be excluded from Convention based upon Art. 1E only where has obtained all of most fundamental basic rights associated with nationality of country-Boards should apply Art. 1E with great caution-"Basic rights" enjoyed by applicant including (1) right to return to country of residence; (2) right to work freely without restrictions; (3) right to study; and (4) full access to social services in country of residence-Conclusion applicant enjoyed substantially same rights as Mexican nationals reasonably open to Board on facts before it-Whether Board erred in application of Art. 1F(b) in failing to balance gravity of crime applicant convicted of in U.S.A. with severity of persecution to which applicant may be subjected if returned to Iran-One branch of jurisprudence holding no "balancing" of potential persecution against crime need take place, other holding balancing should take place-"No balancing" case adopted by Federal Court of Appeal in Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508-In Malouf v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1506 (QL) (F.C.A.), Hugessen J.A. repeating no balancing required where applicant committed serious non-political crime-Board not committing error in law in not weighing persecution applicant may be subject to against gravity of crime-Issue of "balancing" decided by Hugessen J.A. in Gil and Malouf cases-Application denied-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1E, F(b).