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					                                Refugee Law Summary – Winter 2004
***This summary focuses on what was covered in class and what was ultimately examinable.
Some of the details of the cases are therefore not included. This summary closely follows the 3-
volume casebook of materials prepared by the professor.***

WEEK 1 – CONTEXT and HISTORY .......................................................................................... 4
 Definition of Refugee ....................................................................................................................... 4
 Canada’s Refugee Policy ................................................................................................................... 4
WEEK 2- DEFINING REFUGEEHOOD ...................................................................................... 5
 1951 CONVENTION ....................................................................................................................... 6
DEFINITION OF REFUGEEHOOD UNDER CANADIAN LAW .............................................. 7
 5 Sub-Categories of Protected Person in Canada – s.97 IRPA ................................................................... 7
WEEK 3 - SOME KEY REFUGEE LAW DECISIONS ............................................................... 8
 WARD .......................................................................................................................................... 8
 RE O.(R.T.) .................................................................................................................................. 10
 CHAN ......................................................................................................................................... 10
WEEK 4: WELL-FOUNDED FEAR ........................................................................................... 11
 A – Subjective Fear vs. Objective Basis ............................................................................................. 11
 B - Prospective Risk Requirement (Fear) ............................................................................................ 13
 Burden / Standard of Proof of “Well-Foundedness” .............................................................................. 13
WEEK 5- PERSECUTION........................................................................................................... 14
 A) HUMAN RIGHTS FRAMEWORK .............................................................................................. 14
 Rajudeen – 1983 – FCA – 249 .......................................................................................................... 14
 James Hathaway ............................................................................................................................ 14
 Chan – Australian – 256 .................................................................................................................. 15
 Civil and Political Rights ................................................................................................................. 15
 Economic and Social Rights ............................................................................................................. 15
 B) INDIVIDUALIZED RISK and GENERALIZED HARM .................................................................. 16
 C) CUMULATIVE IMPACT ........................................................................................................... 17
 D) ECONOMIC SANCTIONS ......................................................................................................... 17
 E) LAWS of GENERAL APPLICATION .......................................................................................... 17
 Laws Related to dress codes ............................................................................................................. 18
 Military Service ............................................................................................................................. 18
 Illegal Exit of Country .................................................................................................................... 19
 Presumptions Re: Democracies ......................................................................................................... 19
 F) INDIRECT OBJECT of COMPLAINED CONDUCT ....................................................................... 19
WEEK 6 - CONVENTION GROUNDS ...................................................................................... 19
 RACE .......................................................................................................................................... 19
 RELIGION ................................................................................................................................... 20
 NATIONALITY ............................................................................................................................ 20
 POLITICAL OPINION ................................................................................................................... 21
 PARTICULAR SOCIAL GROUP ..................................................................................................... 23
 Gender ......................................................................................................................................... 23
 SEXUAL ORIENTATION .............................................................................................................. 24
 FAMILY ...................................................................................................................................... 25
 MISCELLANEOUS ....................................................................................................................... 25
   Poverty / Economic Class ................................................................................................................ 25
WEEK 7 - INTERNAL FLIGHT ALTERNATIVE; NON-STATE ACTORS ........................... 26
  State / Non-State Distinction ............................................................................................................ 28
NON-STATE ACTORS (535) ...................................................................................................... 29
  Article 3 of the CAT ....................................................................................................................... 30
  Test for IFA .................................................................................................................................. 30
WEEK 8 – CHANGES IN CIRCUMSTANCES, NATIONALITY ISSUES, CESSATION AND
EXCLUSION ................................................................................................................................ 30
  Refugees “sur place” ...................................................................................................................... 30
  Test and Evidentiary Burden ............................................................................................................ 31
RE-AVAILMENT – s.108 IRPA .................................................................................................. 32
CHANGES in COUNTRY CONDITIONS .................................................................................. 33
  Cessation Exceptions – s. 108(4) IRPA .............................................................................................. 34
  TEST for Exception*** .................................................................................................................. 34
  DETERMINING COUNTRY OF REFERENCE ................................................................................. 34
Article 1E, F Exclusions (s.98 IRPA) ........................................................................................... 35
  STATELESSNESS ........................................................................................................................ 35
WEEK 9–INDIVIDUALS UNDESERVING OF PROTECTION............................................... 36
  Two Types of Exclusion .................................................................................................................. 36
  1951 Convention, Article 1(f) ........................................................................................................... 36
  1951 Convention, Articles 32, and 33 ................................................................................................ 36
  Exclusions under S.98, 105(3) IRPA .................................................................................................. 37
  Inadmissibility – S.34-37 IRPA ........................................................................................................ 37
  Protected Person – S.115 IRPA ......................................................................................................... 37
  Evidentiary Issues .......................................................................................................................... 38
  Crimes Against Peace, Humanity, and War Crimes – Article 1(F)(a) ........................................................ 38
  Cases ........................................................................................................................................... 39
  Complicity in 1(f)(a) Acts ................................................................................................................ 40
  Defences under International Law ..................................................................................................... 40
  Special Cases ................................................................................................................................ 41
  Serious Non-Political Crime Committed Outside Country - 1(f)(b) .......................................................... 41
  Expiation of Crime ......................................................................................................................... 42
  Contrary to Purposes of UN - 1(f)(c) .................................................................................................. 42
  Non-Refoulement – Article 33(2) Exceptions ...................................................................................... 42
  Other International Instruments......................................................................................................... 43
WEEK 10 – GENERAL ISSUES REGARDING REFUGEE STATUS DETERMINATION ... 43
  Principles in UNHCR Guidelines ...................................................................................................... 43
  Justice UK .................................................................................................................................... 44
  Mental Illness – excerpt – p.159 – UNHCR Handbook .......................................................................... 45
  Cases of survival or fleeing torture - 160 ............................................................................................ 45
  Gender and the Refugee Determination Process ................................................................................... 45
  Unaccompanied Children ................................................................................................................ 45
  Cross-Cultural Communication and Credibility .................................................................................... 46
  Evidence ...................................................................................................................................... 46
  Assessing Credibility in Proceedings*** ............................................................................................ 46
WEEK 11- CANADIAN REF. DETERMINATION SYSTEM .................................................. 47



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   Overseas Selection ......................................................................................................................... 47
   1. Special Programs ........................................................................................................................ 47
   2. Humanitarian Designated Classes – R.146 ....................................................................................... 48
   R.139 Conditions – ........................................................................................................................ 48
   3. Convention Refugees Abroad Seeking Resettlement *** .................................................................... 49
   INLAND DETERMINATIONS ....................................................................................................... 49
   Membership of the RPD .................................................................................................................. 49
   Qualification of Members ................................................................................................................ 49
   Proceedings of RPD ....................................................................................................................... 49
   Evidence ...................................................................................................................................... 49
   Hearings ...................................................................................................................................... 49
   Expedited Hearings ........................................................................................................................ 50
   Determination Process Itself ............................................................................................................. 50
   Criteria for Ineligibility - IRPA s.101 ................................................................................................. 50
   Safe Third Country......................................................................................................................... 50
   Eligibility Process .......................................................................................................................... 51
   RPD Determines convention refugee status or Persons In Similar Situation ............................................... 51
   Admissibility Requirement - S.21(2) IRPA ......................................................................................... 52
PRRA (Pre-Removal Risk Assessment) – s.112-114 IRPA, R.160,174 ...................................... 52
  PRRA Requirements ...................................................................................................................... 53
  PRRA Procedures .......................................................................................................................... 53
  PRRA Officer ............................................................................................................................... 53
WEEK 12: Selected Procedural Questions ................................................................................... 54
  Natural Justice ............................................................................................................................... 54
  Right to Legal Counsel – S.167 IRPA ................................................................................................ 54
  Right to be afforded reasonable opportunity to secure counsel ................................................................ 55
  BIAS ........................................................................................................................................... 55
REMEDIES / Judicial Review – S.72 IRPA, s.18 FCAct ............................................................ 56
  Judicial Review – s.72 IRPA ............................................................................................................ 56
  Time Bars: .................................................................................................................................... 57
  Grounds for JR .............................................................................................................................. 57
  Deference to Tribunal ..................................................................................................................... 57
  Standard of Deference..................................................................................................................... 58
WEEK 13 - DETENTION v. FREEDOM of MOVEMENT ....................................................... 58
  Grounds for Arrest and Detention – Regs 244-250 – (383) ..................................................................... 58
  Detention Review .......................................................................................................................... 59
  UNHCR Concluding Observations – 451 ............................................................................................ 59
  Detention at POE - s.55 (3)(a) of IRPA .............................................................................................. 59
  Arbitrary Detention - s.7, art.9 of ICCPR – (386) ................................................................................. 59
  Judicial Review of Detention............................................................................................................ 60
  IRB Guidelines .............................................................................................................................. 60
INTERDICTION .......................................................................................................................... 61
  Non-refoulement............................................................................................................................ 61
  Conflict between non-refoulement and Interdiction ............................................................................... 61
  Authorization of Interdiction – s.15(3) - (460) ..................................................................................... 61




                                                                                                                                                   3
WEEK 1 – CONTEXT and HISTORY
        Central claim or assumption is that history or context is central to understanding refugee law
        Causes of forced displacement
              o Wars (pre-emptive strikes)
        Refugees not only kind of displaced people – only fraction of those who have been displaced are assigned
         refugee status
        Economic forces shape refugee law
              o Natural disasters
              o Human rights violations
        Why should we care – “we live in a global neighbourhood” share common problems, oceans, seas,
         prosperity here is linked prosperity there
        Huge disparities between North and South exist (geopolitical) exist
        Attitudes toward refugees
        Refugee law problematizes vision of global neighbourhood
        No linear history of progress with refugees – instead, ebb and flow
        Economic factors – during periods when states have security vulnerability, refugees are less welcome
        Less willingness to take refugees
        Social vulnerability, increased security
        Memo from British PM leaked to
              o British public less willing to take refugees
        Humane deterrence
        Periods when states resile from international obligations to accept refugees linked to economic, social and
         political factors


Definition of Refugee
     1951 Convention – contingent definition
     current definition is much broader than 1951 Convention
     definition shape by social, political and economic currents
     people used to move virtually freely from all over the world (from war, natural disasters)
     from 1920 – in terms of history of international law – restricted definition gained currency –
     after 1920, it became more restrictive in Europe – after WWI
     retreated as gov’ts responded to internal politics
     narrow or broad definitions has always been the product of social, economic, political context
     Cartagena Declaration – contained broader refugee definition than 1951 Convention
     Those displaced merely by war are not covered by 1951 Convention
     Persons of concern to UNHCR
     IRPA includes Convention refugees and other protected persons (confers similar status) - 2001
     For UNHCR, populations of people of concern
     1951 Convention
     OAU Convention
     Cartagena Declaration
     IDPs


Canada’s Refugee Policy
    P.25 - IRPA – S.3(2)(a)(h) – Objectives of the ACT (IRPA)
    Objectives: (a) Save lives, (b) fulfill international obligations, (c) fair consideration to claimants, (d) offer
      of safe haven for those with well-founded fear of persecution, (e) establish fair and efficient refugee
      determination procedures, (f) family reunification, (g) protect health and safety of Canadian and maintain
      Canadian security, (h) deny access to those who are security risks of criminals




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       attempt to give effect to Canada’s international obligations, but allows states to constitute internal
        mechanisms
       resettlement
       grant as fundamental
       (d) - taken from 1951 Convention as well as from Convention Against Torture


Social Climate within which Refugee Law Exists Today
    in the wake of 9-11, the media seemed to draw a linkage between attacks and refugees
    weapons of mass persuasion – CNN
    that is reality
    how does this affect policy?
    security concerns have always been present
    because of this incident in North America and Europe –
    certain unduly restricted practice – stopping PRs who do not have PR card
    sometimes closure of borders
    increased use of detention simpliciter
    watering down of due process
    newness is the oldest trick in the book
    part of international climate – 26.6 million refugees – persons of concern
    statistical tables – p.27 onwards – first list of states – still over 50 states that do not participate in
        international refugee law regime (ex: India)
    a relatively small number of refugees come to North America – and even smaller number come to Canada –
        1 million of 20 million refugees are North American, however in 2001, there were 44 thousand claims in
        Canada, in 2002, 33 thousand claims, December 2003 – 33 thousand
    significant number of claims – not the deluge that might be indicated from Fraser institute reports
    no flood gates – pales in comparison


Articles – Dangers of Overly Restrictive Policy
      refused to take in Jews fleeing from Nazi Germany – turned them back to death
      one powerful illustration is the bombing in Afghanistan – troubling irony – Taliban too awful to live
         under, but refused to be given refuge
      two-faced approach



WEEK 2- DEFINING REFUGEEHOOD
Who is a Refugee?
   Rooted in International Law as well as Canadian domestic statute
   1951 Convention defines refugeehood and asks states to turn institute processes for adjudicating whether
       people fit that definition
   approaches to defining refugee varied
   legal definition not as stable, but rather quite contingent
   1951 Convention was the first global general definition that applied virtually throughout the world in a
       binding treaty
   what is your definition of a refugee –
           o flight
           o persecution
           o breakdown in “citizen” - state protection relationship
                      could be stateless – place of former habitual residence (do not have to be stateless to be a
                          refugee)
                      can make a refugee claim against any country…but other barriers
   political contexts affect whether or not a person gets accepted as a refugee claim or not



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1951 CONVENTION
    refugees referred to as a Convention refugee – meeting this particular definition – doesn’t mean that if not a
      Convention refugee, not a refugee
    mandate refugees – those form whom UNHCR has taken responsibility – many do not meet Convention
      definition – IDP – internally displaced persons – have not yet crossed frontier –
    may also be a protected person under new IRPA, but prior to that would not have been
    if end up not being Convention refugee, not offered international protection, but only domestic protection
      as a protected person
    p.59 – Definition in 51 Convention
    put brackets around “As a result of events occurring before 1 January 1951” – protocol adds on to major
      existing convention
    67 Protocol eliminated this – it expanded reach of that definition to persons affected after 1951
    expanded geographical reach by eliminating its restriction to events in Europe
    What event – WWII – and slightly before –those events were those in mind
    1960s was the age of decolonisation – new majority used power to extend 51 Convention around the world
    67 Protocol came before 1969 African Convention
    “well-founded fear of persecution” – well-foundedness an attempt to introduce objective element to it
    persecution must be done to you for certain kinds of reasons – persecutions by bombings alone that wasn’t
      based on who you were or your difference, than it would not fit under the 1951 Convention
    race, religion, nationality, membership of a particular social group, political opinion
    even if so far met these conditions, that’s not sufficient unless you are outside your country of nationality
      or outside your country of former habitual residence
    if not, you are a Internally Displaced Person –
    AND in addition, is unable or unwilling to avail himself of the protection of that country or because of
      what has happened
    Fear must be prospective / forward looking – must show that at that point, that you still face something
      now – no matter what has happened in the past – it’s prospective
    One exception to changing country conditions – (will come to this later)

Application Examples
    EX: Former Zaire – flees war – claims refugee status and speaks to border guards through fence fleeing
       because of political opinion – is he or she refugee? – under Convention, this is not covered – however may
       be covered under African Convention or by Canadian domestic statute – person of concern within mandate
       of UNHCR – definition here is an Internally Displaced Person (IDP)
           o 51 Convention does not accommodate IDPs
           o Canadian definition would cover this definition

        EX 2: Country called Mars – flees Mars and claims refugee status at Pearson claiming extreme hunger and
        starvation caused by a drought has caused him to flee Mars –
             o well-founded fear of famine, not persecution, therefore not 51 Convention – applicable to
                 everyone – chances of success are low – Hathaway has given us a model to ground persecution
             o 51 Convention probably does not apply

       EX: Young Iraqi child who fled the mother of all bombs – MOBS – supposing they were being dropped
        and fled to Jordan – I’m fleeing MOBS – I do not want to be shocked and awed – would this person be a
        refugee
            o On basis of nationality?
            o Mere fact that you are escaping a war or generalized violence is insufficient on its own – must
                 show a nexus to a Convention ground – when states fear floodgates, they tend to retract – that’s
                 why IDPs were excluded and there are some restriction

       EX: woman who flees domestic violence in Iceland and claims refugee protection in Britain –
            o Well-founded fear of persecution based on a particular social group – gender persecution – gender
               is subsumed under PSG
            o Must leave the country



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             o    This fear is of such a nature that it demands that I leave my country
             o    If the government can protect you, there is no well-founded fear of persecution of there is state
                  protection – however, well-foundedness is not an on or off switch – continuum of state protection
                  – judgement call framed by whether this country is democratic or stable
             o    In general, Easier when state not democratic

OAU Convention (Article 1)(sub 2)
   Adds to 51 Convention –
   Definition of the term refugee
   Term refugee SHALL ALSO APPLY to every person who owing to external aggression or cross-border
      attacks, occupation, or events seriously disturbing public order either in part or whole of origin is
      compelled to leave in order to
   If went from Iraq to Africa –
   Explicit mention of occupation
   Difference between African convention and 1951 convention

OAS Cartagena Declaration on Refugees (Organization of American States)
    Necessary to consider enlarging concept
    Cross-reference African Convention – like precedence
    Inter-American on Human Rights
    Recommend that in addition to containing elements of 1951 Convention and 67 Protocol that it should
      include persons who have fled because safety of freedom have been threatened by foreign aggression,
      massive violation of human rights

Therefore, Not inflexible definition

Declaration of States Parties to the 1951 Convention

EU Position
    UE position is that civil war or generalized violence is not on its own sufficient to grant status


DEFINITION OF REFUGEEHOOD UNDER CANADIAN LAW
        1978 – Immigration Act, 2001 – IRPA – came into force June 28, 2002
        complimentary regimes that impose obligations on Canada – see diagram on p. 67
        create a new category of refugees that extends well beyond Convention to embrace those who are basically
         in the same position
        s.95-98 of IRPA – p.82 of course book – defines who is a protected person to signify Convention refugees
         and those in similar situations
        umbrella concept of refugee protection that extends beyond definition of Convention refugee
        s.95(1) – conferred protection
        (b) – when board determines person in need of protection or Convention refugee
        (c) – if minister allows application for protection (exception for security threats or serious criminals)
        (2) – style of protected person – claim has not subsequently been rejected

5 Sub-Categories of Protected Person in Canada – s.97 IRPA
     A) Person who meets the definition of a Convention refugee who is abroad and granted a visa to come to
       Canada for protection
     B) Person who meets the definition of a Convention refugee who is in Canada
     C) Person abroad who does not strictly meet Convention refugee definition but is a person abroad in
       similar circumstances as determined by visa officer abroad
           o ex: Internally Displaced Person - IDP
     D) person who is inland and who does not strictly meet Convention definition but instead meets IRPA’s
       definition of a person in need of protection



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              o  definition of a person in need of protection –
                       i) includes a person whose removal to country x would subject them to substantial risk
                          of torture – established by SCC in Suresh – based on Convention Against Torture
                          Article 3
                       ii) person whose removal from Canada would subject them to a risk to their life or to
                          cruel or unusual treatment or punishment
                                ex: death penalty – Canada would not remove unless they receive assurances
                                    that the penalty will not be imposed
                       iii) anyone that belongs to a class of persons that is designated as persons in need of
                          protection by the IRP regs.
                       iv) risks or inadequacy of health care system is excluded – option to use immigration
                          law and apply for PR on H&C grounds – policy – unmanageable drain on system – too
                          many people with inadequate health care – policy decision to exclude
        E) Minister Designates as Refugees - residual power to protect certain persons – broad discretion –
        Convention Refugees still at the heart of the system

Who will never get Refugee Protection in Canada?
     1) Security grounds – war crimes and crimes against humanity
              o Excluded….
              o Referred to in s. e or f is neither a Convention refugee or a person in need of protection
              o If there are serious grounds for considering that you’re committed crime against humanity or
                   peace then you will not be granted refugee protection no matter that you might otherwise qualify
              o You’re considered a priori
         2) Already Have Citizenship-like status - 1E of 51 Convention – those who already have citizenship-
         like status
              o Somali who fled who had held a green card from the U.S. (citizenship like) – held it then lost it –
                   but if she had it, she would not qualify
              o Policy stated in Singh – already have somewhere else to seek protection – to afford surrogate
                   protection – if already have it, then don’t need it

Universal Declaration on Human Rights
     Provides in favour of rights to seek and enjoy asylum
     Provides right to leave or exit countries in which they live – some countries require exit visa –
     Non-binding - persuasive

International Covenant on Civil and Political Rights
     Non-refoulement
     ICCPR provision is narrower than general refugee law
     Covenant signifies – ritual body



WEEK 3 - SOME KEY REFUGEE LAW DECISIONS

        Ward – SCC – sent back to CRDD for re-hearing – Re O. (R.T.)
        Chan – SCC –

WARD
        1) Particular Social Group
        2) Dual Nationality
        3) Political Opinion
        4) Whether persecution by non-state actor is sufficient to constitute persecution (fear because INLA – non-
         state actor)
        5) State complicity –



                                                                                                                   8
        o Well-founded fear of persecution = state’s complicity or inability to protect
        o Unable or unwilling to protect
   Refugee Policy rationale – surrogate protection in absence of protection
   FACTS: resident of Northern Ireland – member of INLA – allowed hostages to escape because of
    conscience – non-state imposed death penalty – police leaking information to members of the INLA –
    which led to his harassment –
   Procedural History: lost at CRDD – won at FCA?? – appeal to SCC
   1) State Complicity
        o persecution need not emanate from a state actor – or even in part
        o conduct deemed to be persecution can come exclusively from a non-state actor – in this case, the
             INLA
        o in analyzing well-foundedness of a fear of persecution, the key factor is the absence of state
             protection – cannot be reasonably expected to be available
        o policy rationale of refugee law – person lacks state protection of some fundamental human right –
             doesn’t matter if abuser is state or non-state
        o if the state (no matter reasonableness of the fear) is likely to provide you protection from that
             perspective threat, then fear is not well-founded
        o the less democratic, the less likely to provide protection
        o use of expert opinions sometimes used in refugee claims to show that the reality of state protection
             (or lack thereof)
        o X – claimant, Y – non-state actor, Z - persecution
        o [X + Y + Z + Convention Ground] – state protection = valid claim
        o availability of state protection – how is this determined? – country reports, deploy own
             information gathering – listen to RPOs submissions – consider evidence introduced on both side –
             (most times no intervention by minister) –
        o claimant need not always have sought state protection and it was not forthcoming – must look into
             entire circumstances of the case
                   not a necessary requirement
        o rebuttable presumption that a state is able to protect (much harder if state has a democratic
             reputation) – perception is very important
   2) Membership in a Particular Social Group
        o 1) groups defined by innate, unchangeable characteristic
                   EX: Gender, Sexual Orientation (minorities),
        o 2) groups whose members voluntarily associate for reasons so fundamental to their human dignity
             that they should not be forced to forsake the association
                   EX: Phalon Gong – religious group that claimed oppression
                   Columbian truck drivers
        o 3) groups associated by a former voluntary status, unalterable due to its historical permanence
                   EX: former member of Sadam regime
                   former citizens of USSR living in the Ukraine (ex: Russians)
                   elderly former landowners
        o open approach –
        o narrow approach –
        o middle of the road – SCC – described above – agreed by Hathaway
        o theoretical grounding for how to proceed – basic tenants of anti-discrimination law – protection
             from discrimination was one of the rationale for early refugee law – trying to determine what’s in
             and what’s out
        o grounded in anti-discrimination law
        o reviewed decisions and distilled three limits above that should circumscribe PSG
        o if group cannot fit within these three heads, then it should be excluded
        o INLA was not held to be a PSG in WARD. Why?
                   Doesn’t fit innate characteristic
                   Not a former voluntary status
                   Group not fundamental to human dignity




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                         Should be focussed on definition of INLA – what is it about – national liberation from
                          Protestant rule – is this fundamental characteristic – through violence?? – violent group
                          will not succeed
       Political Opinion –
            o Ward succeeded on this group
            o Need not be expressed orally – could be implied by action or omission to execute
       Dual (or Multiple) Nationality – basic policy rationale for refugee law is that the state is not able to
        provide protection, and it fulfills surrogate protection –
            o Can claim be successful against one state and not the other?
            o SCC: claim must be made against every country you’re returnable to – even – if state protection is
                 available to you already elsewhere, you will not be able to get protection here – even if that
                 person may not have lived in the other country to which he/she holds citizenship.

RE O.(R.T.)
    Sent back to find out if Ward had a claim against Britain
    Since Britain was seen as able to protect, he already had a surrogate and therefore would not be granted
       protection in Canada
    Ward was still suspected to still be a member of INLA and was carrying on activities here – way of
       planting him here to organize North American fundraising?

CHAN
        Facts: Chinese citizen sought refugee status on basis of one child-policy
        Majority=dismissed
        Minority would have allowed appeal and sent back for re-hearing
        Issues:
        1) sufficiency and credibility of the evidence
        2) Is forced sterilization persecution
        3) PSG – whether forced sterilization because of a violation of China’s one child policy if this applies
        4) Political Opinion
        Evidence and Credibility
              o (1) Evidence
              o Majority:
                         vocal and inconsistent – more specifically felt that Chan did not introduce evidence that
                             forced sterilization is actually carried on against men in his particular area of China –
                             need more nuanced evidence
                         Board had all evidence enforced only on women and therefore no threat to Mr. Chan
              o Minority:
                         agreement with Mr. Chan – had introduced some credible evidence to support his claim
                             and that a lot of the problems with his testimony had to do with translation and
                             interpretation
                         In any case, in the even of ambiguity, the benefit of the doubt ought to be afforded to the
                             claimant and not to the state (minority)
                         UNHCR – Handbook on determination of refugeehood – principles and procedures –
                             claimants must be given the benefit of the doubt – credible evidence that you meet the
                             definition
                         Use experts to anticipate difficulties
              o (2) Is forced sterilization persecution?
              o Majority:
                         forced sterilization is not persecution if it is only enforced by psychological and
                             economic measures, as opposed to physical coercion
              o Minority:
                         Of course forced sterilization of any kind is persecution – goes against fundamental
                             human rights especially if the right to freely decide the number and timing of children –
                             fundamental to a person’s dignity – no one ought to be forced to forsake the enjoyment




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                            of that right – number and timing of right is so serious that one should be forced to
                            forsake
                        Minority argument centres on forced, coerciveness of sterilization is what’s so serious –
                            no so much sterilization itself
                        Can force be economical or psychological?
                        When should the state force us to do something? When does fact that we are ‘forced’
                            rise to the level of persecution
              o   (3) Forced Sterilization fit into PSG?
              o   Majority:
                        assumed that they would be a PSG (but did not decide)
                        Cheung – SCC – women who have more than one child and who have a well-founded
                            fear of forced sterilization belong to a particular social group
              o   Minority:
                        This category should be considered to have associated voluntarily with…fundamental
                            with human dignity (PSG category)
                        LaForest – warned that 3 tests in PSG are not to be inflexibly applied – that these are
                            just guidelines – doesn’t mean that anything that doesn’t fit strictly, should not be
                            included
              o   (4) Political Opinion
                        he opposed one-Child policy which is an expression of political opinion


WEEK 4: WELL-FOUNDED FEAR
       Ward: fear is well-founded when there is a lack of state protection
       If a state is able to protect claimant, there is no objectively well-founded fear
       Burden of showing that state is unable to protect is on the claimant: Chan (Canadian Chan)

A – Subjective Fear vs. Objective Basis
     Subjective refers to claimant’s internal sense of fear
     Objective basis refers to external environment
     Difference between perceived environment and external judgement
     Competing judgements
     Objective – judgement that is not entirely dependent on claimant’s mindset, but an appreciation of
       an external environment
     At the heart of the decision, there must be an objective basis to ground the claim
     In the past, many Canadian courts and early UNHCR held the view that proof of the claimant’s subjective
       fear was at the heart of the decision (but, even then, they did not discount the objective basis)
     Chan – Australian – court made reference to predecessor to UNHCR applied this thinking (misguided view
       used to be majority view) – it used to be harder to verify people’s claims in the past – not much else to go
       on – (this misguided view may have been produced by context)
     Focus on assessment of claimant’s subjective experience rather than focus on nature of conditions that led
       to his flight
     Used to be that if you were not trembling and shaking, you may not succeed even though faced with
       horrible conditions
     De facto shift toward objective basis was at the heart of the protection decision (Hathaway calls it the
       objective trump no matter what the subjective fear was)
     Assessment of the conditions that you claim affected you became the heart
     Once a case has a strong objective foundation, the consideration for the subjective fear is almost
       completely unnecessary????
     If the claim made is controvertible by other contrary evidence, that evidence overrides even the most
       fervently stated fear --- is this true
     Claim must be interrogated for credibility
     Not at risk merely because claimant says so
     Must fit within objective picture of the situation (dominant view is objective view)


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       Objectivity is inherently political – dominance objective can also be correct
       Checking claimant’s story against objective evidence
       EX: How much do we know about Zimbabwe?

Maldonado Verga
    Claimant had neurotic anxiety which resulted from perception of a patters of surveillance and taunting due
      to her opposition to the government of Chile – Board believed her – but found that her fear of Pinochet
      were exaggerated - must be careful about objectivity

Bakhshish Singh
    Fled job after 22 years because he was tipped off about arrest and detention for his sick..- Board held no
      objective basis for subjective fear – his reaction was hasty – (wait until he was persecuted???)
    Board conscious that must have more evidence…might be false case

Problems with Measurement of Objective basis
    Relies far too much on an informal typology of country – ex: Axis of Evil – Rogue states
    On what basis are these categories assigned?
    Image of where someone should flee depends on what the White House says and how countries are
       categorized
    If fled Nigeria, will almost always fail
    Happens to be a good guy country right now (very problematic)

Amhadishad
   Board held for fear to be objectively established that claimant must establish consistently, plausibly and
      credibly caused an almost irrepressible feeling of psychological or physical threat
   Consistent, plausible –
          o What about post-traumatic stress disorder – difficult to recall information much less articulate it in
               a way that is required
   Irrepressible feeling…

Duran
    Left country after years of alleged fear
    Board held that since he did not have an irrepressible fear because he did not have a subjective fear of
      persecution; otherwise he would have left immediately
    Why wait for 4 months – would have left right away?
    Claimants internal mindset – led to a problem – focus not on objective situation, but how the claimant
      responded to that risk mentally – complicated way

Ferrada
     Failure to claim in intermediary country at the very first opportunity was evidence of a lack of irrepressible
       fear – the claim failed
     Limited by Hue

Hue
       Court correctly noted that Farrada only applies if the claimants protection needs remain unabated
        throughout the journey

Delay
       International Law offers a right for person to claim in a country of their choice
       Ex: Berundy and Rwanda
       However, council must attempt to explain long delay –
       Even though delay in and of itself is not always fatal
       James Hathaway – about International law are right to choose where to flee



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       Delay – must be explained

B - Prospective Risk Requirement (Fear)
     In the future, not in the past
     Travaux preparatoire – to show that the risk must be prospective
     Present – continuing – no matter how horrible yesterday, if they have improved today, the claim will not
        succeed
     International refugee organization – constitution – (defunct and replaced by UNHCR) – defined
        refugeehood in terms of persons who faced risk prospectively
     Status quo used to be that retrospective risk would also be used
     However, now prospective risk – post WWII – some exceptional cases could be allowed retrospectively
     Today, risk must be prospective – at the present and continuing in the future
     If there’s a good chance that you’re going to face risk tomorrow,
     Hathaway – present fear that’s forward-looking
     Fear was introduced to underlie prospective aspect

Burden / Standard of Proof of “Well-Foundedness”
    Burden – lies on person that alleges fear of persecution
    Question of standard of proof
    Absence of state protection – reasonable chance that the risk will be suffered

ADJEI – 211
    Settles for reasonable chance, but also touts serious possibility
    Could not would – not more than 50% on a balance of probabilities – probability is a wrong way of
       thinking about standard of proof
    NOT more likely than not
    Cannot be a mere minimum possibility either
    Cannot either be as high as a balance of probabilities
    Somewhere in the middle lies a reasonable chance
    Two reasonable people can disagree on reasonable chance or not
    Court explicitly considered and rejected some of the language that appears in Sivakumaran

SEIFU
    ‘Good grounds’ for fearing persecution

SIVAKUMARAN
    Reasonable degree of likelihood is not right
    Better language – reasonable chance, serious possibility
    Try to avoid paradigm of thinking of likelihood and probability

CARDOZA-Fonseca v. INS (USSC)
    Less than 50% chance of events taking place
    Powerful example - 1 in 10 adults – probability paradigm does not work here
    is there a reasonable chance
    if one in 10 people…in a population of 10 million 100,000 people would die

CHAN (Australian) – 1989
   more likely than not paradigm is rejected
   “real chance” –
   re-affirms Cardoza




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OKAFOR’s Thesis
   fear must be founded in facts that exist substantially outside the claimant’s mind and that also indicate a
     risk of such a nature that (in the normal course of events), escape from that risk and surrogate protection
     by another country is a reasonable path to follow –
   that is due to lack of state protection –
   normal course of events – objective – if escaping not normal course of events – emphasizes reasonableness
     –
   objective choice in the circumstances

“objective” – external conditions out there against which someone could assess a claim – in quotes because


WEEK 5- PERSECUTION
       Term of art
       As opposed to pure personal inconvenience or harassment or mere discrimination
       Key distinction between persecution
       Conduct must be considered serious

7 major segments on definition of persecution

A) HUMAN RIGHTS FRAMEWORK
     Analyze persecution through human rights optic (James Hathaway)
     National standard
     International human rights standards affect and limit attempt to decipher human rights

Rajudeen – 1983 – FCA – 249
    Exemplifies that traditional focus on existence of repetition or persistence or ….efflision of time before it
       can be persecution
    Bad thing must have occurred repeatedly or over time – systematically
    Need to show sustained risk OR systemic risk
    P.254 – Living Webster Encyclopedic Dictionary – repeated acts
    Shorter Oxford English Dictionary – persistent injury
    Test: “persecuted over a lengthy period of time” – “lengthy period of systemic infliction of threats and of
       personal injury”
    Fallacy of inversion – just because bad acts happened over a long period of time, doesn’t mean persecution
       is limited to acts that occur over a long period of time
    Ex: cannot wait for someone to execute you! – one single act is enough to make you anticipate risk in the
       future
    Systemic risk – could be linked to lack of state protection

Kanfiah
    Several days of torture and detention not held to be persecution because it was only one isolated incident
    Courts relied on Rajudeen

James Hathaway
    Intentions of the drafters re: persecution
    Read travaux preparatoire – records of negotiations
    Definition of persecution: sustained or systemic violation of basic human rights demonstrative of a
      failure of state protection
    Systemic – linked to absence of state protection – doesn’t matter if it only happened once
    Drafters never intended to protect against all forms of even serious harm –
    serious harm or risk that did not symptomize a breakdown in state protection were not to be included – ex:
      beatings in a school yard



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       all actions or conduct that deny human dignity in a key way are persecutory if they symptomize the absence
        of state protection
       But Hathaway says better way to delimit persecution is to think about it through human rights context

Chan – Australian – 256
    Liberal view of the term persecution
    According to Hathaway, the drafters intended to include a broad variety of measures violative of human
       dignity, Including civil and political rights as well as social and economic rights deprivation
    No objection on the floor from those present in negotiations – some European states allowed economic
       based claims

James Hathaway – cont’d
    There is a hierarchy of human rights
    Civil and political rights are at the top of the hierarchy
    However, even among this, there is a distinction between non-derogable and derogable civil and political
       rights

Civil and Political Rights
     Possibility of a serious violation of a non-derogable right (such as freedom from torture or freedom from
        slavery), will always be persecution in Hathaway’s view
     Support for this on p.261 – Human Rights Committee General Comment No. 29: States of Emergency
        (article 4) CPR/C/21/Rev. 1/Add. 1131
     There are a list of norms – a serious violation of any of these are always a violation
     Any possibility of a serious violation of a derogable right (second on hierarchy) – such as freedom of
        movement, which can be curtailed in public emergencies – will be persecution except in cases of lawful and
        non-discriminatory derogations in situations of lawfully declared public emergencies

Thirunavukkarasu – 1994 – (260)
     In state of emergency in Sri Lanka did not justify use of torture

Suresh – 2002
     May be exceptional cases in which Canada may deport to torture

Kandiah – FCT

Guttierez

Chopra
    Applicant beaten twice by police, regularly harassed and likely to continue in future
    Board did not recognize this as persecution

Therefore, courts have not always followed human rights framework

Economic and Social Rights
    Real risk of a serious violation of a basic economic or social right is persecution
    This does not meant that everyone who is poor qualifies –
    A) the ICESCR – obligation imposed is that states must devote as much resources as they possibly can to
      realizing the economic and social rights of their people – serious neglect of this duty in the face of
      adequate resources will be persecution – enough food but its people are dying -
           o Fear of floodgates
    Narrow window opened by Hathaway argument
    B) In ICESCR – requires non discrimination in implementation of fundamental or core social and cultural
      rights – resources cannot be allocated on discriminatory basis – if serious enough discrimination, this will
      be persecution



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             o   Not every breach will qualify, Only serious breaches
             o   Purely financial grievances are not sufficient – no human right to be rich – while it might be
                 discrimination, it is not necessarily persecution

Munizaga
    Squeezed life out of business man who was a supporter of a political group (Aliente against Pinochet)
    Pinochet squeezed him out of business
    Denial of patronage and contracts
    Purely financial grievance
    No denial of right o earn a living
    Was not a systemic or sustained denial of a right o earn a living

Encina
        Chile – blocked by Pinochet regime from being able to work on the basis that he was a socialist
        Held to be a refugee – on grounds of serious and sustained breach of his economic and civil right to work
        Could not work at all
        Seriousness of the breach is key


B) INDIVIDUALIZED RISK and GENERALIZED HARM

Chan – Australian
    Repeats conventional wisdom for need of selectiveness in acts or conduct that is claimed to be persecutory
       – unless singled out
    Proceeds on model of individualized risk –
    Comparative approach – if compared to all – the same, no grounds for refugee
    Prevents floodgates
    Focus not on nature of the harm
    No differential = no refugee

Ex Parte Adan - 267
    Repeats differential paradigm

Saliban
     Armenian Christian from Lebanon claimed that Armenian Christians were singled out for ill-treatment and
        even death
     Board – denied on basis he was a victim just like all others – no differential between his experience and
        those of every other person in Lebanon
     Had not been personally persecuted
     Need not have been personally persecuted
     Not the only kind of situation in which refugee status is accepted
     If claimant faces a risk that is faced in the abstract by member or members of his group, then that suffices
        even though it is generalized
     Claimant does not have to wait till he gets to his time
     Notion of risk – serious risk of it happening to you in the future
     Sufficient if the group or category is singled out – individual need not always be singled out
     1) victims of war are not necessarily convention refugees, however if they show that that war is being
        visited on them on some Convention ground this may not prevent acceptance of claim
     mere generalized violence was not enough
     however, it’s not inherently defective either (as court did in Europe in early 90s)


IRB Guidelines on Civilian and…war
    Non-comparative approach must be used



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         Board should avoid assessing differential risk between claimant and rest of society, instead assessment of
          risk should be conducted with respect to any other claimant
         Does this person (or group to which that person belongs) face the risk?
         Serious possibility that claimant would face risk

C) CUMULATIVE IMPACT
     Tiny acts that on their own, don’t amount to persecution, but together combine to amount to persecution
      (Retnem)

D) ECONOMIC SANCTIONS
     When is it mere harassment or discrimination that doesn’t rise to the level of persecution?
     Two competing cases: Lin …and He

Lin
         Male Chinese citizen – one child-policy – opposed policy vocally – violated policy – as punishment his
          shrimp pool was confiscated because he failed to pay the fine for violating the child policy
         Held: confiscation of the shrimp pool was not persecution, was mere discrimination
         Reasoning: did not implicate his livelihood or his ability to survive
         Seriousness did not rise to the level of persecution –
         Terrible conduct but not serious enough

He
         Young school teacher woman was a part of pro-democracy movement in China was permanently deprived
          of the capacity of her profession and converted into a farm hand because of her political views
         Held: to be persecution – dignity was tied to this profession –
         Distinction between He and Link: in Lin, had enough money to buy another shrimp pool – more sympathy
          toward certain – tend to devalue manual labour – always tend to devalue teachers –
         Permanence of moving to countryside and not allowing her to teach anymore more serious than Lin who
          had ability to replace shrimp pool

Notes:
     Huge judgement call to decide whether or not it rises to the level of persecution
     Courts themselves have also found that this is a huge judgement call

Omar – 278
   “It is difficult that the dividing line between persecution and discrimination or harassment is difficult to
       establish, the more so since, in the refugee law context, it has been found that discrimination may very well
       be seen as amounting to persecution

E) LAWS of GENERAL APPLICATION
     ordinarily legitimate prosecutions for the infraction of laws of general application is not persecutory
      because there would not be any kind of convention ground – ordinarily assume states make good law
     but a fear of prosecution and “persecution” are not mutually exclusive – prosecution can sometimes be
      persecution if gov’t uses power of prosecution to “get” its opponents
           o ex: minister goes to jail for receiving a wrist watch from a company
           o ex: if a government intends to criminalize the exercise of fundamental human right (right to smoke
                marijuana?) – may change over time
           o ex: if claimant has been charged with an absolute political offence
           o ex: claimants charged with relative political offences – murder committed for political reasons – if
                you escape, then you will get political asylum – these relative political offences have not always
                been welcomed – some courts have accepted and some have not
     prosecution for violation has to be legitimate and fair – good procedurally
     prosecution can not be discriminatory - …persecution o




                                                                                                                   17
Laws Related to dress codes
    ban of nudity – persecution because being forced to be dressed? – violates human rights in a key way –
      religion demands you go nude everywhere –
    dress code – so-called Islamic head dress
    is punishment for violating laws of general application (imposing a dress code) – Islamic dress code –
      punishment for violating it persecution – Iran
    is it persecution to punish somebody –
    1) Is mere punishment enough?
    2) How harsh does the punishment have to be? (disproportionate)

Fathi-Rad - 300
    McGillis J. – cannot even be a law of general application – just because it generally applies to women, it is
       inherently gendered
    Therefore rule of general application does not apply
    Even rule that is applicable to all citizens, it could still be persecutory if the treatment of individuals
       under that law is so contrary to fundamental to human rights standards or so draconian so as to be
       disproportionate (ex: punished by death sentence – 10 lashes)
    Complied imperfectly – wore stockings improperly, but some locks of hair were visible –
    She was detained on 9 occasions – grossly disproportionate to offence, therefore grounded persecution
    USCA opposite decision to this


Yadegar-Sargis- USCA – 2002
    Armenian Christian in Iran refused to wear head dress because she said it implicated her Christian beliefs
    Refused refugee status because of lack of evidence that it actually so implicated her Christian beliefs
    She testified that forcing her to wear dress codes was like forcing her to change religions –
    Implication – merely forcing a woman to comply with discriminatory dress code is not enough to claim
      that she was persecuted – mere harassment that does not rise to the level of persecution

M.A.O. (re) – IRB – 1996
    Bothered by wearing head dress – locks showed through
    1 occasion warned not to expose locks – also testified – found rules to be offensive although she had not
        said so while she was back in Iran
    little happened to her for her non-compliance
    failed to consider that this was not of general application – gendered!

V.M.H. – 2002 – CRDD
    devout Turkish Muslim protested against ban of woman to wear hidjab
    punishment for wearing it was arrests detention, lack of access to government buildings, limited job
       opportunities
    held that ban on head scarf which, when violated, led to serious and harsh punishment, was
       discrimination that rose to the level of persecution – ban alone was mere discrimination
    decision was that the punishment inflicted was so serious it rose to the level of persecution
    punished in harsh way

Military Service
      person is not being persecuted merely because she is being prosecuted or punished for evading the draft
      however, disproportionately severe punishment for dodging the military is persecution ex: death
         penalty
      selective discriminatory drafting to serve in the army can suffice as persecution – ex: if selectively
         drafted because you’re poor, that could be persecutory
      if service in military forces you to do something that is contrary to deeply held beliefs or conviction,
         then = persecution




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Zolfagharkhani
     forced to use poison gas in Iran-Iraq war
     successful claim

Sepet
Israelian
     If forced to fight in a war that is roundly condemned by international community, then could get
         refugee status
     punish young men who did not want to kill young Afghans
     mere dislike of military service is not enough
     military service intrinsically means killing people – must be roundly condemned by international
         community

Illegal Exit of Country
      illegal exit from the whole country, courts have held that fear of being punished for illegally leaving
         country, cannot ground persecution
      implicate basic human right – to leave country when you want –
      but does not rise to level of persecution
      but if punishment is excessively harsh, might be able to argue this


Presumptions Re: Democracies

Satiacum
     presumption that criminal proceeding in democratic country will be fair


F) INDIRECT OBJECT of COMPLAINED CONDUCT
     must show that as a result, you or your group at risk of being persecuted
     indirect persecution is not good – must show link between what happened to your son and what happened
        to you
     must show a nexus

Pour-Shariati
    fled Iran – documents that implicated him –
    mother claimed that on this basis she is a refugee
    board held that they were only after her son, not after her
    must show pattern
    don’t base claim entirely on someone else’s claim – must provide a nexus between fear and claimant


WEEK 6 - CONVENTION GROUNDS

Basis of Feared Persecution

RACE
        People are raced – it’s in the eye of the persecutor
        Certain factors used to “race” a person
        Key point: how you are perceived
        Critical race theory –
        To be interpreted liberally – umbrella description for a variety of phenomenon – colour, ethnic group
        Excerpt from UNHCR
        Hathaway – race = identifiable ethnicity



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       P.368 – ICERD, article 1 – “Racial discrimination” shall mean any distinction, exclusion, restriction
        or preference based on race, colour, descent, or national or ethnic origin which has the purpose or
        effect of nullifying or impairing the recognition…
             o Ex: Ethnic Jewish Germans

    Tshibola – race was equated with ethnicity – within meaning of 1951 Definition

    Baballah – 370 – “the term ethnicity describes a category which falls somewhere between and within the
    protected grounds of race and nationality”
             o Children of mixed marriage can use race as convention ground – colours in Africa, black in USA,
                 mixed

       If raced as mixed, they can ground their refugee claim in race
       Race is not a scientific category, or even the race the person thinks of himself as belonging to, but rather…
       Race is the source of the persecution ascribes to that person.
             o EX: Even if you think you look white, but have a little black blood, if people categorize you as
                  black, can claim on the basis of race – it’s how people perceive you

RELIGION
    Interference not just with a theistic, but also non-theistic system –
    interference with that person’s ability to practice his/her own belief system which does not infringe
      on the fundamental rights of others.
    However, does every belief system qualify? –
    What if someone preaches hatred? Could this be a religion within meaning of 1951 Convention
    If infringe on the fundamental rights of others, then not acceptable religious basis
    Must use human rights framework – but sometimes human rights framework shelters hatred through
      freedom of speech
    Look at what persecutor thought?
    Religion on which a claim can be based is the religion that can be ascribed to you – even though in fact
      you’re not –

    Carvalho Penha – didn’t matter that he had not been baptized in the faith, but people persecuted him because
    they perceived him to be a Jehovah’s Witness
     The risk that is grounded in religion belief – after overlaps with political opinion – doesn’t matter which
        one is grounded

       Wrong to assume that the form of persecution to target religion must in and of itself be purely religious
           o EX: can be allowed to practice Roman Catholic religion, however, the state may say that when
                you worship, must be somewhere serving the state – not saying don’t practice religion, but making
                it impossible to express your religion in other ways
           o EX: Muslim cannot fly to Mecca – must walk

Ahmed – 371 – HL
    Prevented Islamic sect in Pakistan from calling themselves Muslims and practicing Islam and from
      converting people as if they were converting them to Islam, was held not to be persecutory –
    Key point:
    Court came to conclusion that evidence did not raise to level of law being so draconian as to ground claim
      on basis of religion
    Test: whether offending statute itself may be so draconian that it would be impossible to practise the
      religion at all.
    Okafor – wrong decision – see highlights p.371

NATIONALITY
    Can overlap with race and ethnicity
    Two meanings of nationality



                                                                                                                   20
       Used as a Convention ground, nationality equates more with ethnicity and race
       Used as one of the 5 Convention grounds does not simply refer to citizenship
       Why would a state persecute merely because of citizenship?
       4 dimensions: - Nationality as a convention ground includes stateless persons
       1) who may be nationals of another country but lack citizenship in the country of their habitual residence
                 o Ex: Palestinians in occupied territories
                           o Could also refer to cultural nationality
                 o Ex: Italians in Canada
       UN Handbook – not to confuse nationality in the sense of Convention grounds and the last part “outside
        country of your nationality”. In the second sense, it means citizenship – outside the country of your
        citizenship
       Hanukashvili – 373 – While nationality does not mean the same thing as citizenship, when the word
        nationality is used as one of the five grounds it means the same thing as citizenship for the purposes of s. 96
        of IRPA
       Lorne Waldman – p.373 – equated country of nationality with country of citizenship in Ward


POLITICAL OPINION
    Hathaway – Convention ground embraces not only those with identifiable political affiliation or role, but
       also includes others in the community who are at risk from political forces in those communities
    Need not have been expressed orally – it could be implicit in your conduct – ex: WARD – alleged let the
       captives go on the basis they were innocent
    To ground claim in political opinion, need not have expressed that political opinion in your own country
       (prior to fleeing that country and coming to Canada) – certainly would help, but need not have expressed it
                 o Looking at prospective risk
                 o Expressing it may mean you’re dead
    May be enabled to rethink by contact with different society – however courts are extremely sceptical about
       this type of claim –
    Hathaway – insufficient for a decision-maker to justify refusal of a claim that is grounded in political
       opinion merely by saying that the claimant could have escaped persecution by not saying anything
       about her belief while inside – unacceptable *** use this as an analogy for submissions for
       SELENICA***
    Relativity of meaning – test whether someone can ground claim in political opinion is not whether the
       decision-maker sees the act alleged as political, but rather the relevant oppressive government or regime
       saw the claimants as political – not perception of Board, but rather the perception of the oppressor

Inzunza- FCA-375
     376 – anti-government theatre performance – street theatre
     court: crucial test in this regard should not be whether the Board considers that the applicant engaged in
        political activities, but whether the ruling government of the country from which he claims to be a
        refugee considers his conduct to have been styled as political activity

Astudillo –
    sports club
    however, membership in sports club was perceived by Pinochet a political and was grounded in that
        perception –

Hilo – FCA
     Syria – 14-year old boy was a member of a Syrian Charitable group
     Later, came to be perceived as anti-government –
     Held: Board could ground claim in political opinion
     Perceived political nature is of Syrian Charitable group grounded political claim




                                                                                                                    21
Elias-Zacarias – US Supreme Court
     Majority: reversed the US Court of Appeal which upheld that the refusal of a man from Guatemala to be
        conscripted into a militant guerrilla group was an expression of his political opinion against that group
        and that the attempt by that group to conscript him into army was persecution on that basis of political
        opinion
     In that case, the evidence did not show the expression of political opinion on the claimant’s part, but
        merely disclosed that he feared government retaliation against his family –
     Minority – Stevens J. – political opinion can be expressed both negatively and affirmatively – EX: if
        sometimes stay home on election night might be an election process – could in a certain context be an
        expression of political opinion
     EX: affirmatively choosing not to join a faction in a civil war can be political opinion in certain
        circumstances – refused to fight on side of rebels – issue was that the guerrillas refused to join because he
        did not support them enough –
     Okafor: agrees with minority

Pedro-Mateo
    Guatemala – came to same conclusion
    The court did not completely rule out possibility that refusal to join could be an expression of political
       opinion – just a very difficult standard

        There is no need in order to ground claim in political opinion to show a nexus to state action –
         political opinion does not necessarily exclude opinion expressed against something done by a non-state
         actor
        However, must satisfy all of the other elements
        The political opinion or action need not be expressed against an event action policy that was “sanctioned”
         condoned or supported by the state of government – state complicity does not need to be present – if no
         nexus to state, must show well-foundedness and show that the fear of persecution because there is
         absence of state protection

KLINKO – 2000 – FCA – (378)
    Klinko and family fled the Ukraine alleging retaliation for Mr. Klinko having filed a corruption petition
      who were involved
    Board and FCT wrongly dismissed this claim on the basis that since the government of the Ukraine was
      engaged in the fight against corruption and had mmm thousands of officials as a result, the gov’t of Ukraine
      did not sanction or condone the corruption
    Even if not engage – perceived by oppressors as political action
    Board below relied too heavily on decision in
    FCA: “where the corrupt elements so permeate the government as to be part of its very fabric, a
      denunciation of the existing corruption is an expression of political opinion.”
    An opinion could be political for the purposes of s.96 whether it accorded or not with the official
      government position

FEMENIA – 1995 - FCT – (388) (no longer good law)
    Court: held that political opinion expressed against conduct not engaged in by the gov’t (by sanction,
     supporting, or condoning conduct) was not “political opinion” within the meaning of 1951 Convention
     of the definition of refugeehood.
    No nexus to state action, therefore political opinion ground fails (wrong decision)
    No longer good law – misunderstood test for political opinion -
    Klinko – trashed Femenia – and referred back to WARD

Notes:
     Ward – defined political opinion as any opinion on a matter in which the state or governments
       machinery or policies may be “engaged” (support, condone, sanction is only one part)
     Test in Ward much broader – condoning – did not authorize restrictions imposed by Femenia



                                                                                                                    22
       KLINKO – para 29 – 386 – A political opinion does not cease to be political because the government
        agrees with it.


PARTICULAR SOCIAL GROUP
    See WARD and CHAN
    Umbrella
    Only a working rule, not to be inflexibly regarded – 3 part test in WARD which was grounded in

ACOSTA – 408
   “Persecution on account of membership in a PSG means persecution that is directed toward an individual
     who is a member of a group of persons all of whom share a common, immutable characteristic.” –
     applied in WARD
   In Acosta, rule of statutory interpretation – “tenets of anti-discrimination”
   Rjusdem Generis – of the same kind
   Persons of similar background
   PSG appears with same kind – race, nationality, political opinion…
   Subcategories ought to be of the same kind
   Groups of identifiable shared characteristics
   Gender, sexual minorities, family
   Intentions of framers to leave it open?
   Look to tenets of anti-discrimination law

WARD
   Acosta offered test in Ward – if fit into any of the three tests, fit into 3 categories
       o 1) Groups defined by innate or immutable characteristic
       o 2) Former voluntary status now unalterable due to its past nature
       o 3) Reasons so fundamental to their human dignity that they ought not be forced to forsake it

       LaForest – in Chan – not to be inflexibly applied – construe test liberally


Specific Sub-categories in PSG
    Gender, sexual orientation, family


Gender
    Oscar Roboto Cruz – gender means gender – does not mean women – was applied to a male
    Being singled out by reason of gender
    Cruz was a member of a PSG that was a target of military guerrilla alike – young men between certain
       ages – targeted on basis of identifiable social group
    Innate characteristic – relatively unchangeable
    Fits under first prong of the test in Ward

Narvaez, Cheung, Mayers, Cazak, Ranjbar, Shah, Re R. (P.V.), Kasinga

Navaez
    Women subject to domestic violence in Ecuador belong to a PSG

Cheung
    Women in China forced sterilization held to be PSG




                                                                                                             23
Mayers
    Trinidadian women subject to domestic abuse held to be PSG

Cazak – 2002
    Women who faced domestic violence in Hungary were considered a PSG

Ranjbar
    Iranian women fear of persecution because of father’s alcohol induced beatings – held women in this
       situation were not in a PSG

Shah
       Pakistani women were a PSG
       2nd class – Pakistani women who are suspected of adultery are also PSG

Re B. (P.V.)
    female circumcision is persecution
    minor (young women) female in fear of circumcision are PSG

Notes: Important --
     in trying to specify these subcategories of gender, persecutory conduct alone cannot define PSG alone –
         PSG must exist independently of the persecution – cannot say people who are beaten make them a PSG,
         but rather they are being beaten because they belong to a PSG
     ex: Left-handed men – not ordinarily a PSG – persecutory conduct – if people begin to construct them as a
         group – must be substantial component – leads to be able to see –


IRB Gender Guidelines
    many kinds of claim by women – not just because she’s a woman
    PSG cannot be defined solely by common victimization of group
    social marker –
    the size of the population covered by a PSG is not an issue –
    can’t say persecuted on the basis of being persecuted – circular

Litvinov – 435
     “ew citizens of Israel who are women who recently arrived from Soviet Union and who are not yet well
        integrated despite the generous support offered by the Israeli government who are lured into prostitution
        and threatened & exploited…”
     example of how not to craft a PSG
     did belong to a PSG though


SEXUAL ORIENTATION
    seen as an innate or immutable characteristic – or at the very least, seen something so fundamental to
     human dignity they should not have to forsake
    436 – Refugee Appeal No. –
    Bangldesh – Autralian court

Tobosom Al foriso
    Homosexuals in Cuba held to be PSG – held to be immutable

Attorney General Order Designating B.I,A. Case (454)
     Designating Tobosom as precedent to be followed by Boards below




                                                                                                                    24
FAMILY
    once family is a PSG to which you belong – claim can be grounded in this
    targeted because of family –

Redondo Sarrazola – (461) – 1999 FCA - Australian
    para. 36 – a family can constitute a PSG within the meaning of 1A(2) of the Refugees Convention.
    A family is cognisable as a group in society such that its members share something which unites them
      and sets them apart from the general community

Requena Cruz
    young Peruvian object of police brutality –
    family member of claimant was a dissident who escaped from Peru – member of PSG family subcategory


Acheampong
    Ghana – son of a coup organizer – son was at risk on basis that he was the family of coup organizer

Al Busaidy
     Ugandan Muslim who was targeted because of his father’s perceived anti-government activities
     Must be direct persecution, not indirect (which is not authorized)
     The notion of a family is culturally relative (Hathaway) and may extend beyond nuclear (blood)
       relationships
     Family depends on context – if cousin is a soldier – no distinction between first cousins and me – know that
       we were like brothers – depends on perception of family

Velasquez
     Based on activities of the claimants’ aunt’s husband – successful claim
     Claimant was targeted because of claimant’s aunt’s husband


MISCELLANEOUS

Mortera - 463
    Former or present capitalists / landlords are not members of any PSG
    Do not form part of the second arm of the test in WARD –
    In Philippines – former voluntary status – persecuted
    Court: No evidence targeted because of past as opposed to present – as landlords
    Floodgates argument – regulatory decision

Ouanes – 465
    Algerian midwife –
    No human right to a particular kind of job – not integral to identity – did not satisfy 3-arm test in WARD
    Do not have obvious links and common interests
    Membership of a group of employees does not constitute membership in a PSG
    Common employment scarcely impacts
    Linked to Ward test – and broad
    Anti-discrimination law is the broad organizing principle

Poverty / Economic Class
    May sometimes constitute PSG within the meaning of the 51 Convention
    Group of people linked with poverty – may be a situation that is unchangeable –
    Ex: serfs – unchangeable




                                                                                                                  25
        Hathaway: Can change economic class – but ought not be forced to change it– should be able to be a
         PSG

Manasse
    Member of poor peasant land-owner class in rural Haiti claimed that the members of that class were a
      PSG – in the context of a very poor Agrarian society – source of access to basic human needs – therefore, a
      PSG
    Fell under the 3rd prong of WARD



WEEK 7 - INTERNAL FLIGHT ALTERNATIVE; NON-STATE ACTORS

Missed first 15 minutes

Karnail v. Singh
    Whether relocation is safely accessible
    In danger on the way to safe area – cross the battle line
    Person must have
    Why distinction between state and non-state actors
    When non-state actors, more of a presumption that IFA does not apply (UNHCR Guidelines on
        International Protection)

Relevancy of IFA
     Whether claimant would be exposed to risk of persecution in relocation area
     Would they face same persecution? Different? Any at all?
     Assumption that you continue to express you political views, or homosexuality, for example – allowed to
        continue to express
     Whether it is reasonable to expect relocation in the first place – unduly harsh to relocate
            o EX: age, sex, ethnicity, family, education, safety, general respect to human rights
Sri Lanka
     Ethnic conflict –
     Government – tamils
     50-60s – gov’t enacted a number of discriminatory measures against tamils
     Boudism
     In response to those measures, tamils protested non-violently
     76-78 – liberation tigers were formed – protests became more violent
     a lot of violence between government (tigers) and tamils
     87-90 – tried to restore the peace –
     more recent occurrence – ceasefire –
     significant improvement
     however, torture killing – LTTE, gov’t

Rasaratnam - 492
    Tamil tigers
    IFA – determined that it was an integral part of determination
    Convention Refugee definition of refugee requires that a refugee comes from a country not from a
       particular region
    Test on how to assess IFA – TEST 1: Board must be satisfied on b of p that there is no serious possibility
       of being persecuted in the alternative location within the same country
    onus on claimant to prove otherwise
    Obligation on Board to warn that it will be raised as an issue at the hearing – must be able to raise
    Disclosure package will disclose all important issues addressed at the hearing
    At the beginning of the hearing –
    Principles:


                                                                                                              26
Notes:
        Although the claimant was arrested…
        Appeal was allowed
        Onus of proof on claimant, but Board has obligation to warn that it will be raised at the hearing
        Not merely attractiveness or convenience
              o Ex: change in weather not sufficient
        Take
        OR TEST 2: Unduly harsh to expect someone to move to IFA area
        If yes, considered unable to avail himself of state protection
        Court decided that although Columbo was a safe area by LTTE –
        Suspected of being a member of LTTE – could be subject to arbitrary arrest and detention
        Testimony, PIF, and human rights reports all used to determine this issue – Amnesty, Human Rights Watch

British case – A.E. Secretary of State for the Home Department
     When would IFA be a matter of humanitarian concern?
     Sri Lankan tamils
     Adjudicator – people wouldn’t be persecuted if removed to Columbo –
     She was so traumatized because of rape, it would be unduly harsh to send her back
     Could be humanitarian reasons to allow them to stay, but they were not refugees
     Unduly harsh test as a part of humanitarian concern – involves comparison of circumstances in safe haven
        and where asylum is sought – important distinction
     If do not adhere to strict test, that will result in such claims as we’re better off..

Ranganathan – FCA – 2000
    Sri Lankan Tamil woman
    No compassionate grounds for her to stay – but not a convention refugee
    FCA: IFA in Colombo?
    Issues: claimant – board erred for the purposes of deciding reasonableness – policy that Tamils couldn’t
      stay in Colombo for more than 3 days
    Held: for the purposes of unreasonableness – didn’t consider the presence of relatives – in terms of 3D
      policy, not actually raised at the hearing
    Didn’t raise the 3 day issue
    Board must warn about IFA – significant responsibility –
    Must emphasize why IFA does not apply
    Language – how to decide whether that circumstance is compelling
    Test: circumstances for the relocation to be unreasonable – must jeopardize person’s life or safety –
    Must be considered, but language by itself is not enough to meet the threshold
    Important to maintain the difference between unduly harsh as a matter of humanitarian concerns and as
      a matter of the refugee claim
    Although it is not expressly mentioned in Convention, IFA is important in determination – not
      determinative, but onus is on the claimant –
    Corresponding obligation of Board to warn –
    Even if the issue is not raised, still consider IFA just to be on the safe side
    Cumulative circumstances –

UNHCR Guidelines
    Burden on the state to establish there is an IFA
    But domestic law in Canada, switches the onus and places it on the claimant

Establishing Internal Safe Haven:
    guards state – without exploring internal flight alternative
    safe haven to diminish
    safe haven in Kosovo, Iraq
    establishing safe haven – trying to create internal flight alternative – eliminate obligation to protect
        because replace it with humanitarian assistance


                                                                                                                27
        international refugee protection is undermined –
        safe havens used to stop flood gates
        prevented from leaving – prison
        onus on the wrong side
        rather not have to flee country – would already have been exercised –
        onus should be on host government

IFA Policy Critique
     territorial concern
     in trying to provide a balance of UNHCR, sometimes part of the problem
     definition: for you to fear persecution in the state, that fear must be for persecution throughout the
        state – assuming that a rebel movement takes over this portion and establishes a state called Utopia – rebels
        take over effectively
     refugee protection is international protection – always grudgingly provided – only do this if don’t have any
        alternative – limiting the number of people who come to this
     undertone of refugee law –
     about limiting the number of people who can make a claim
     regulatory basis of refugee law
     grudging surrogate protection – if can find it somewhere else – if had a green card, will not be considered a
        refugee because there’s somewhere else that can protect you
     won’t as a matter of policy confer refugee status on you if you have committed certain offences –
     key difference between refugee convention and African convention make regulatory thing
     in whole or in part
     don’t care if internal flight alternative
     new Canadian act expands the definition of refugee

State / Non-State Distinction
     does not make a lot of sense
     key thing is not whether state or non-state actor (although there is a presumption that the state would be
        able to reach you wherever you are), but rather what about municipal police? Or the fact
     the key is context – is this purposed IFA reasonably available in the circumstances of the case
     would this person continue to suffer the things they fled from –

Requirement in Ragamathan – CA
    reasonableness has to entail threat to life or safety may be too high a test – don’t always need to show
       threat to life – conscientious objection to military service
    thrust of the FCA – important to keep in mind – must think in terms of persecution – will this person be
       similarly treated or persecuted in IFA
    not broader question of whether this person should be allowed to stay, but rather if this person is a
       Convention refugee – could be a protected person

Unpredictability of the Condition
    look to UNHCR guidelines – prospective assessment – not simply at this moment
    must be an assessment over time – reasonable assessment

Down the Rabbit Hole - Beofrelic
    1) Iraq forced UNHCR and international forces to begin to look for IFAs within IFAs –
    ex: Kurdish region in Northern Iraq – two years later, less and less troops – more and more fragmentation
      even within IFA –
    PKK person supposedly in safe haven, must find further IFA within IFA – whole IFA is hardly safe over
      time – established on dominant logic they should stay as possible to their home – as close as possible to
      war zone –
    Counter-intuitive to stay as close to war zone as possible
    Neighbouring countries will not always be safe



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NON-STATE ACTORS (535)
        Armed group not instrument of the state, therefore excluded as a refugee
        States are xenophobic
        Many of the abuses caused by rebels – states looking for a way to not accept these refugees –
        UNHCR Publication, 2000 – The state of the World’s Refugees
        Convention refugee – WARD – well-founded fear of persecution from non-state actor is included in
         refugee definition as long as there is no state protection
        Protection of the state is effectively unavailable – must keep this in mind when considering refugeehood in
         this context – once this is answered, doesn’t matter if non-state actor
        Lack of state protection makes it well-founded fear of persecution
        If non-state agent, however, state protection is effectively unavailable
        No requirement of state complicity
        State can be on your side – can be failed or collapsed state
        WARD – Irish Liberation Army

ZALZALI
     Claimant approached by Hezbolah militia in Lebanon
     Forced to obtain protection from Amah
     Lebanese gov’t controlled no portion of Lebanon
     As many gov’t as there were militias
     Lebanese army not in charge of anything
     If returned to Lebanon, reasonable chance he would be viewed as a traitor by one of the two and executed
       as a result
     Held: claimant cannot be blamed for Lebanese inability to protect – no requirement that the state be
       complicit in the perpetration of the persecution
Notes:
     Not enough to show claimant had an objectively identifiable fear of persecution at the hands of a non-state
       agent
     Claimant must also show that state protection is effectively unavailable
     Non-state actor persecution + unavailability of state protection = well foundedness

VILLAFRANCA – FCA
     Overturned and sent back for rehearing at Board
     Board had only considered first arm without considering the second (availability of state protection)
     CA also imposed a typology of states and held that if a state is generally weak, it is easier for the claimant
         to show that the state is unable to protect
     If it is a generally effective state, it will be much harder to show that the state is unable to protect because
         “no gov’t can guarantee the protection of all citizens at all times.”
Notes / Critique:
     BUT the issue is not whether they can protect everyone at all times, but rather, if they’re unable to protect,
         then let another state protect – can’t just send people back to be harmed because their home state generally
         protects –
     Evidentiary issue – much more difficult for you to persuade the decision-maker that the state is unable to
         protect – there is a continuum – must measure unavailability of state protection on an imaginary
         continuum
     Since it’s evidentiary, a claimant must rebut the presumption that the state protects – by introducing
         evidence to show a state’s inability to protect – must try to rebut presumption – more of an obstacle
     Evidence: similarly situated individuals who had been let down by state apparatus
     Must not wait for thing to fear to happen to you – look instead to similarly situated persons – or you can
         say, look what has happened to me already




                                                                                                                   29
Mendiville – 1994
    state of Peru may not have been able to afford claimant the special protection that he needed, but that they
       nevertheless afforded him with the same protections that were given to ordinary Peruvians (argument
       about distribution of the protection)
    However, not about fairness in distribution of protection, but rather about quality of the protection
    CA – sent case back for reconsideration by the court – even if the state was capable of protecting ordinary
       Peruvians, this claimant may lack state protection given his peculiar circumstances –

Papers / Commentaries - 535-536 –
    in too many countries particularly Western Europe, the refugee law related to non-state actors particularly
       in situations of civil war had been grossly misinterpreted over the years in large measure to stem the tide of
       refugee claims in Europe
    did not want to give refugee protection, it comes with certain international rights – non-refoulement
    H&C is much more subject to internal control –
    Distinction between a Convention refugee and someone who has been given H&C, is that H&C is subject
       to more domestic policy – can withdraw H&C, but not refugee protection without breaching international
       law
    Tactical manoeuvre –
    Go through Elena article – 536 – go through detailed material including case law

Article 3 of the CAT
     Article 3 can be distinguished from European Convention on human rights
     Particular in which Convention Against Torture defines torture as limited to the actions of state agents
        or in which the state is complicit
     ARTICLE 3 of CAT – provides additional protections over and above the refugee convention – However,
        article 3 restricts its ambit to only those forms of torture perpetrated by gov’t or in which gov’t are
        complicit
     If alleging torture by non-state actors, don’t go under article 3, because article excludes it from the kinds of
        person’s who have suffered torture
     In most cases, anybody who can come under article 3 can usually come under Convention refugee –
     If de facto state actor (not de jures), may come under article 3 – must have state complicit – definition
        of a state comes under international law –
     Simply because a rebel group seizes land, doesn’t mean they are de facto gov’t

Test for IFA
    Relevancy
    Reasonable alternative
    No good chance that you’re going to face the same kinds of risks you would face in the place from which
        you were fleeing
    If there is an IFA, no well-founded fear



WEEK 8 – CHANGES IN CIRCUMSTANCES, NATIONALITY ISSUES,
CESSATION AND EXCLUSION
Refugees “sur place”
    Refugees in place already
    Refugee outside the country of nationality or former habitual residence
    What if already outside that country when the circumstances arose, what does the law have to say
    Persons who are already abroad when well-founded fear arose

Examples
    Students studying abroad, someone working abroad, visiting abroad



                                                                                                                   30
       More difficult: never participated in politics but arrives in Canada as a student, I became radicalized once I
        came to Osgoode, now I see something wrong with the regime, but I didn’t before – if I go home, I will be
        executed
       Is there a well-founded fear? – if this person was to return to their country – do those circumstances
        actually exist?
       Some claims appear stronger than others –
       Ex: X leaves country A to study country B – coup happens in the meantime – there is a massive killing of
        persons that looks like X – makes claim in country B
       Ex: X leaves country A to attend a human rights conference in country B - Incidences of abuse against
        ethnic group – a week after she left, things boil over – 100 members of her group are shot in the street – can
        claim in country A – doesn’t mean that she should have stayed – even if fled pre-emptively, should be OK
        – at this moment, is there now a well-founded fear of persecution

Chaudri
    Concrete evidence required
    accepted


Fernandes
    Ethiopia – Marxist gov’t – not seen to support…- either killed or imprisoned – of course had a well-
      founded fear of persecution – even though had not arisen while in Ethiopia –

Kifletsion

Srikanthan
     In both cases, things intensified after they left their country

       X leaves country A for a demonstration against World Bank in country B – speaks against country A
        knowing that her country’s ambassador was in the audience – the next day, friend in security service calls
        her that he saw her name on the hit list of dissidence for targeted killings – did activities abroad come to
        country A’s notice (likely?) given rise to a well-founded fear of persecution – what is their interest in you?
        – why would they put you on the hit list

Urur
       Demonstration in Ottawa in front of embassy of home country – held that in this case, the claim would
        succeed
       However,

Morales
    a Chilean journalist engaged in activities against its government after his arrival here was refused status
       (although he got H&C later)
    Largely because of doubts of credibility – never spoke out until came to Canada
    Supposing that this person had a keen sense of survival –
    Unless particularly courageous or fool-hardy, should not be given refugee status?
    Morales – apparent loophole – who
            o Policy rationale – those people are not real refugees –

Test and Evidentiary Burden
    Test: Is there at that point a well-founded fear of persecution on Convention Grounds? – If there is,
       they should succeed.
    Evidentiary burdens tend to be much harder
    Know that you will have to satisfy higher burden




                                                                                                                    31
ZEWEDU – 596
    Judicial review of negative decision of Ethiopian refugee claim based on political opinion
    Lower decision of the Board held that participation and membership in the organization were not genuine,
     that she had in fact done what she did for the purposes of bolstering her claim and that she had in some way
     contrived to have herself photographed while at the demonstration
    Place far too much emphasis on subjective fear rather than objective conditions that might satisfy the risk
    “There must always be an intimate interplay between the subjective and objective elements of the fear of
     persecution which is central to the definition.”
    Only joined AAPO when she came here –
    Will this person if they go home, be abused
    Fear put there to underlie perspective nature –
    Decision was grounded in the nature of judicial review and that there was no reviewable error –
    Federal Court is not re-trying matter in JR – only reviewable – realm of discretion left to tribunal
    The fact that claimant joined AAPO in Canada – weighed heavily on Board’s decision – it decided that
     the claim was a bogus refugee claim


Reasons Why Suspicion Is Misguided
    1) person wasn’t courageous enough to oppose a brutal dictator – and face almost certain death
    2) notion or suspicion that politicized in Canada because it’s safe to do so…the reality is that even though
      here and joined organization considered subversive, family could be in danger merely because here in
      Canada opposing the government – not entirely without risk because doing things abroad
    3) Not what motivates you that matters, it’s how the government perceives you –
          o ex: chief in Haiti – how does the regime perceive you – what are the risks is what matters

Skipped Herrera and Tung in class

RE-AVAILMENT – s.108 IRPA
       of protection of country of nationality –
       article 1C – if re-avail yourself of the protection of the country whom you said couldn’t protect you,
        then that defeats your claim

IRPA – s.108
    What might constitute re-availment –
            o Return to country
            o Regaining nationality – return to embassy of country and ask to re-issue passport of the country
            o Acquired new nationality
            o Re-availed themselves of protection

Passport cases
     Hathaway: by applying to embassy of country you fled, that re-availment argument is utterly formalistic
         reading of protection – a passport didn’t protect Arar –
     Persons seldom have a well-founded fear of embassy in Canada – not diplomats in Ottawa – just
         because regimes are after you, doesn’t mean foreign service is
     Requests for passports – a matter of necessity or convenience
     Always important to examine reasons for the request as urged by court

Munizaga
    Better chance of having claim accepted
    Reach Sweden from Canada
    Limitation to the re-availment rule and Canadian Act is that even if the person was asking for protection,
      the request of that person must have been met by the ground of protection –
    Request for passport must have actually been granted – to be considered re-availment –




                                                                                                                 32
CHANGES in COUNTRY CONDITIONS
       Sometimes there is a sea change in country condition – country left a year ago has changed
       Is person still a refugee
       Does she face a risk now
       Change – how much? Is Change significant enough in the circumstances? Is it so significant that she no
        longer faces the risk?
       Is the host state a surrogate protector
       Is protection available? If so, intended host state is allowed to divest itself of responsibility and
        protection of the claimant
       How to know extent to which things have changed –
       Lasting change does not come overnight – no longer face overnight
       Peace agreement? Cease fire? Doesn’t mean that they would not fire in the next two days or break the cease
        fires.

       In cases related to political dissidence, before cessation can apply on the ground of significant change in
        country conditions, the following must have occurred
       1) a change in government of political of substantial nature
             o ex: South Africa – substantial political change
             o ex: USSR fell apart
             o ex: Al Salvadore
             o ex: Chile – Pinochet
             o However, hardly ever instant change
             o Ex: racial attitudes
       2) change must not merely be formal
             o (peace agreement) – good intentions alone are insufficient – see what’s being done on the ground
                  –
       3) condition of durability – change will last –
             o EX: Gongalez – warns that democratic change does not happen overnight – and just because there
                  was an election, there does not mean democratic change

CUADRA
   American-backed guerrillas who for many years fought to de-stabilize and overthrow gov’t of Nicaragua
   10 or 15 years problem –
   on side of war
   with US help, they won – contra leader
   Cuadra arrested by military for engaging in protests – he fled the country – question was whether
     Nicaraugua still a place where he still faced a risk of persecution – did country conditions change after the
     election? Even though the old guys still controlled army
   Board: change of circumstances – cessation applied –
   Appeal: did not fear persecution from presidency, but rather the Army which was still controlled by the
     people he feared, therefore cessation did not apply
   There has to be a more sophisticated analysis of political situation on the ground
   Must assess conditions contextually

Cessation
     Cessation simply does not apply after accepted as refugee
     To see whether now as we speak (not when you came) things have changed to the extent that you no longer
        face that risk
     Ex: 6 months ago, brother took power – depends what side brother is on – if a friendly regime came to
        power, likely not granted refugee status

Yusuf
    Changes in Somalia
    Change in conditions
    Relative to rest of Somalia, there was relative peace


                                                                                                                33
       Changed circumstances in Northern Somalia were such that the appellant had no well founded fear of
        persecution and state protection was not available


Cessation Exceptions – s. 108(4) IRPA

Compelling Circumstances Exceptions
    Risk assessed prospectively – even when there is no longer a prospective risk – even when that is the case
       (that there has been a change), no longer at risk –
    Allowed to hold that nevertheless granted refugee protection – one of the few cases in which refugee status
       is granted even when claimant is no longer at risk but has faced persecution of extraordinary proportion
       in the past
    Has to be even more atrocious
    Limited because exception to general requirement that you continue to be at risk
    Free movement of persons is increasingly tightened
    Extraordinarily atrocious behaviour

Obstoj
    Exceptional circumstances applied in case in which
    Gone beyond the terms of the Convention
    Those who have suffered such appalling persecution that their experience alone is a compelling reason
       not to return them, even though they may no longer have any reason to fear further persecution.
    Applies to a tiny minority of claimants
    Must ask – has there been particularly atrocious past persecution to the extent to which this exception can
       be applied

TEST for Exception***
Developed in Arguello-Garcia, and used in Velasquez (see also Shahid)
    1) Act must have been extraordinarily atrocious
    2) must be conjunctive
    3) must fear return, refuse return and ask for protection here
    4) Claimant must continue to suffer psychological affects after

Velasquez
     raped and assaulted in Al Salvador and husband subsequently died – claimant suffered untold hardship
     held: to be within exception even though changes in circumstances had occurred

Non-requirement:
    no requirement that the persecution be perspective, only in the past

DETERMINING COUNTRY OF REFERENCE
    Ward: have to be able to make claim against all countries of nationality – against each and every one
     of the countries of citizenship and/or nationality (see TIT – p.610)

       EX: X makes out a claim against country A, but is entitled to citizenship of country C (unknown to her) –
        response – you are a citizen of that country if all have to do is file an application – must also file a claim
        against that other country
       Policy: country of refuge – surrogate protection – if another country could protect, then should go that
        avenue

       What if person does not know of this other country to which she is a citizen
       EX: stateless – but entitled to apply for citizenship of that country – investigation found out that you are not
        really stateless, that you really could be a citizen
       Russian law – entitled to citizenship, even though she never lived there and had never lived there – Lived in
        Latvia all her life


                                                                                                                     34
Grygorian
     Underlying rationale of refugee law as a remedy of last resort
     Citizen of Azerbaijan, born in Russia, married to Azerbaijan, Jewish ethnicity, moved to Moscow, was
        refused PR, returned to Ukraine but subsequently left for Canada
     Held: denied because claimant was entitled to Russian nationality, having been born there, and was also
        entitled to Israeli nationality on the Law of Return
     Use Israeli and Russian citizenship – even though Russians had once refused PR in Russia, was entitled to
        citizenship
     Israeli law of return – entitled to?
     “who wants citizenship”
     any Jew anywhere outside Israeli could have refugee status?
     Onus lies on the claimant who alleges that nationality is in fact illusory
     If refused PR, why would they give him citizenship
     Illusory citizenship

Skipped Chavarria in class

Katkova
    Matter of Jews and right of return in Israel –
    Did not want to immigrate to Israel
    Had never lived in Israel and no connection
    Israeli law of return provides for the return
    Held: since no desire to gain Israeli citizenship, she was not covered by law of return
    All Jews do not have the connection with Israel to make them nationals
    Did not exhibit the degree of attachment to the State such as to make it the centre of her interests.
      Claimant has never set foot on Israeli soil.
    If fleeing and at serious risk…
    Logically, doesn’t fit


Article 1E, F Exclusions (s.98 IRPA)
       Article 1E, F of Refugee Convention
       1E - Not of persons who have second citizenship, but of persons who have citizenship like status
        elsewhere (like PR status)
       EX: if fled Nigeria, had PR in US and claimed in US – PR in US is citizenship-like
       Already have such a place – space should be left for those who have no alternative
       If fleeing ethnic conflict and that other country where PR is dominated by military dictatorship, what do
        you do? – must show that you have a well-founded fear against that country as well. – likely to face another
        risk covered under convention
       Internal coherent within assumptions

Mahdi
        Somali woman who once had a Green Card
        But she had left the US many years before and went back home to Somalia –
        When war broke out in Somalia, she fled back to Canada – gov’t brought it up – excluded by 1E
        Held: she didn’t have citizenship-like status because her Green Card had expired

Shamlou
    Because of citizenship-like status in Mexico, excluded from making refugee claim in Canada

STATELESSNESS
    Historically, the drafters of the convention decided at the time of the 1951 Convention decided to leave the
      issue of statelessness for another treaty –
    Not dealt with under 51 Convention


                                                                                                                 35
       This does not mean that a stateless person cannot claim refugee status
       A stateless person can therefore be a refugee if they satisfy the definition
       Cannot claim refugee status simply because he/she is stateless
       Covered in IRPA by including those who claim against country of “former habitual residence”
       Does this person have a well-founded fear of persecution –
       Against what country would a stateless person make a claim – country of former habitual residence – de
        facto
       No requirement that the person be returnable to that country – cannot be deported to that country –
       Hathaway slightly misguided here – Waldman first to detect this problem with Hathaway’s argument

Maarouf
    Former habitual residence applies to stateless refugee claimants and


WEEK 9–INDIVIDUALS UNDESERVING OF PROTECTION
Framework of Exclusion


Two Types of Exclusion
1) Exclusion from being a refugee
     Excluded ad initio from refugee protection
     Context of cessation [Article 1(C)] and other exclusion clauses [Article 1(d)] (Those assisted by another
         UN agency), and Article 1(E) (Those abandoning a country of habitual residence).

2) Exclusion post facto from one of the benefits of a refugee (non-refoulement)
     Article 32 and 33
     Prior to expulsion, receive benefit of refugee protection


1951 Convention, Article 1(f)
    The Provisions of this Convention shall not apply to any person w/r/t/ whom there are serious reasons for
       considering that:
           o (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined
                in the international instruments drawn up to make provision in respect of such crimes;
           o (b) has committed a serious non-political crime outside the country of refugee prior to his
                admission to that country as a refugee;
           o (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

1951 Convention, Articles 32, and 33
    32(1) The Contracting States shall not expel a refugee lawfully in their territory on grounds of national
       security or public order.
    33(1) No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the
       frontiers of territories where his life or freedom would be threatened on account of his race, religion,
       nationality, membership in a PSG, or political opinion
    33(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are
       reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having
       been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community
       of that country.


                                          th
General Assembly Res. 8(1) of its 30 Plenary Meeting on 12 Feb., 1946
    The General Assembly recognizing that the problem of refugees and displaced persons of all categories is
       one of immediate urgency…


                                                                                                                  36
        (a) decides to refer this problem to the Economic and Social Council
        (d) considers that no action taken as a result of this resolution shall be of such a character as to
         interfere in any way with the surrender and punishment of war criminals, quislings and traitors, in
         conformity with present or future international arrangements or agreements


Note on the Exclusion Clauses Standing Committee of the ExComm (1997)
– moral equity
    The idea of an individual not deserving protection as a refugee is related to the intrinsic links between ideas
        of humanity, equity, and the concept of refuge. The primary purposes of these exclusion clauses are to
        deprive the perpetrators of heinous acts and serious common crimes, of such protection, and to
        safeguard the receiving country from criminals who present a danger to that country’s security.
            o Lack of political support of refugee protection includes war criminals – people who caused
                refugee flows in the first place

Exclusions under S.98, 105(3) IRPA
    S.98 – A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention
       refugee or a person in need of protection

        S.105(3) – If the person is ordered surrendered by the Minister of Justice under the Extradition Act and
         the offence for which the person was committed by the judge under section 29 of the Act is punishable
         under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender
         is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article
         1 of the Refugee Convention.

Inadmissibility – S.34-37 IRPA
     SS.34-47 –A permanent resident or a foreign national is inadmissible on grounds of
           o Security (s.34)
           o Human rights violations (s.35)
           o Serious criminality (s.36)
           o Organized criminality (s.37)
     Reasonable grounds to believe that they have occurred, are occurring or may occur (s.33)

Protected Person – S.115 IRPA
    115(1) – A protected person or a person who is recognized as a Convention refugee by another country to
       which the person may be returned shall not be removed from Canada to a country where they would be at
       risk of persecution for reasons of race, religion, nationality, membership in PSG, or political opinion or risk
       of torture or cruel and unusual treatment or punishment.
    115(2) – Subsection (1) does not apply in the case of a person
            o (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of
                 the Minister, a danger to the public in Canada; or
            o (b) who is inadmissible on grounds of security, violating human or international rights or
                 organized criminality if, in the opinion of the Minister, the person should not be allowed to remain
                 in Canada on the basis of the nature and severity of acts committed or of danger to the security of
                 Canada.

Notes / Critique:
    Equation between being inadmissible and being excluded to make a refugee claim
    What makes it not analogous with 1(f) exclusion – focuses not only past but also on the future
    Analogy not good because of temporal focus
    Can finding in one division of the board be automatically imported into the decision of another board – if
        found
    1(f) incorporated into s.98




                                                                                                                   37
       s.115(2) IRPA – can be returned under certain circumstances (Suresh) – Canadian law departs from
        International Law
       Convention Against Torture –
       Raises issues of s.7 of the Charter –

Other Statutes
    Crimes Against Humanity and War Crimes Act ss. 4-7
    Rome Statute of the ICC, esp. Articles 5-9
    Convention Against Torture, Article 3
    Criminal Code of Canada (serious non-political offences),
    Extradition Act

Evidentiary Issues

Standard of Proof
     “Serious reasons for considering” under Article 1(F)(a),(b)and (c)
             o Restrictive interpretation (UNHCR Handbook)
             o Clear and Credible evidence (UNHCR Guidelines)
             o Less than a criminal standard of proof beyond a reasonable doubt (Ramirez)
             o No conviction or charge required – or determinative (Grahl-Madsen)
             o Less than a civil standard of balance of probabilities (Ramirez)
             o More than mere suspicion or conjecture (Sivakumar)
Burden of Proof
             o Burden of proof on the party asserting exclusion
             o Must identify specific excludable acts (Sivakumar)
                       Although not necessarily specific “attributable” crimes? (Zrig)
             o Must not assume organizations are monolithic (Cardens)
Evidentiary Issues v. Substantive Requirements
     Are prior knowledge, the holding of a leadership position and/or failure to desert substantive elements of an
        excludable act or do they merely allow an evidentiary inference of a mental element of an excludable act?
Balancing of Excludable act v. Risk of Persecution
     No balancing in Canadian jurisprudence (Gonzalez, Malouf).
Notes:
     Ex: Mere membership can result in exclusion
     Historical Background – Ramirez – what form exclusion provisions should take – mandatory not
        discretionary – uniform standard – US was arguing for discretionary threshold – Nazi scientists – acquiring
        Nazi criminals to further… - compromise – “serious reasons for considering” under Article 1(f)(a), (b), and
        (c)
     Restrictive interpretation – to maximize benefit
     1F(a) - Upon entry into Canada
     Refugee Conventions - Article 33 – occurs only after someone is found to be a refugee – on the way out –
        stops exit except in cases where fall within exception

Crimes Against Peace, Humanity, and War Crimes – Article 1(F)(a)

Three Different categories
    1) Crimes Against Peace
    2) War Crimes
    3) Crimes Against Humanity

Crimes Against Peace
    Planning, preparation, initiation or waging of a war of aggression or a war in violation of international law
           o political sensitivity of Crime Against Peace
    Look to London Charter; Rome Statute has not defined crime against peace
    must be committed by high position of authority as a state-like entity, or state actor,



                                                                                                                38
        individual or small group usually does not fit into this

War Crimes
    Rome Statutes defines war crimes
    1949 Geneva Conventions and other instruments of international humanitarian law
            o War crimes are generally only grave breaches of Geneva Conventions
    Must be defined in “international instruments drawn up to make provision in respect of such crimes”
       (although international instruments define vreach of “customs of war” as crime)
                      Ex: unlawful imprisonment
    Ultimately must rely upon provisions in London Charter sometimes, over Rome statute
    Dsitinguish between international and civil wars
    Onlyh in times of war
    ICTY – 2001 – Delic et. Al. 2001 – mass rape was punishable

Crimes Against Humanity
    Genocide, murder, rape, torture as part of a systemic attack directed at civilian population
           o Ex: Rwanda
    Has element of “barbarous cruelty” (Equizabal)
    In times of war and peace


As Defined in International Instruments
    Some early controversy over what instruments / crimes are referenced
           o Only European WWII war criminals?
           o Article 10 in the London Charter of the International Military Tribunal allows for absolute
                liability?
    WWII No longer jurisprudential issue – but still pervades
    Is mere membership in barbaric organization enough to exclude under 1(f)(a), 1(f)(c)
    Past WWII refugees – German Jewish individual went to refugee camps – a couple years in, he assisted
       Germans in organizing and controlling as chef de bloc – accused and excluded of being a refugee –
       troubling factual circumstance
    Early case of refusal of Holocaust survivor who served as “chef de bloc” at Birkenau
    Likely would have died if he was not chef de bloc – case from France – on the line – Szafman (1954) JCCR
       14


Cases

Naredo
        Excluded - mentioned in Moreno –
        Voluntary member of Chilean police
        Acted as guards and witnesses to torture
        Dod not actually torture prisoners himself

Moreno –
    Not Excluded
    Conscripted into armed forces
    Stood guard but had “no power to intervene”
    No prior knowledge of torture
    Deserted at first available opportunity

Ramirez
    Excluded
    foundational case for exclusion
    voluntary member of the armed forces



                                                                                                           39
       knew of goal to capture and torture prisoners
       did not actually torture prisoners himself
       potential punishment of “very hard training exercises and then…jail for five to ten years.”

Sivakumar
     Excluded
     Senior volunteer position in LTTE
     Objected to some excludable acts
     Director of intelligence arm of LTTE
     Did not desert LTTE despite several opportunities
     Sri Lankan, Indian – belonged to Tamil resistance –
           o Tamil resistance very state-like – LTTE,
           o Ex of state-like - FARC in Columbia

Gonzalez
    Not Excluded
    Conscripted into military service
    While (defensively) engaging an armed opponent caused “collateral” death of civilians
    Killing in war is not automatically the “murder of civilians”

Guttierez
    Excluded
    Conscripted and later a volunteer in the police
    Allegedly had no power to intervene
    Did not request discharge
    did not in the end quit because of opposition to torture

Complicity in 1(f)(a) Acts
    Prior knowledge – guy that guarded torture room – (Moreno)
    Direct assistance (Moreno)
    Existence of shared and common purpose and knowledge (Ramirez)
    Personal and knowing participation (Harb)
    Can consider status of claimant (although is this perhaps merely an evidentiary issue?)(Ramirez)
           o integral to actual substance of excludable act – by definition criminal against peace is a …the
               more senior, the closer linked to decision-making process –
           o Liability for being a leader
           o Inference
    “Claimant must be aware of the conditions which render his or her actions more blameworthy” (Finta)
           o Finta - not a refugee case, but rather criminal case – mental element or awareness that’s required –
           o Moral turpitude
    Mere membership insufficient unless organization has “limited, brutal purpose” (Zrig)
           o Organizations aren’t monoliths – leadership is evidentiary issue
           o MAO-07137 –
           o Types of organizations it’s limited to –
           o MQM of Pakistan, Uganda, Bathe party – Iraq
           o “limited, brutal purpose” – part that you joined –
           o should be treated more as an evidentiary issue as opposed to substantive issue – treats it as part of
               broader whole – danger of missing subjectivity

Defences under International Law
    Superior Orders
          o survives to protect someone who doesn’t know that what they are doing is wrong
          o legally obliged to follow order (UNHCR)
          o Not aware of unlawfulness of order (UNHCR)
          o Order must not be manifestly unlawful (Finta)



                                                                                                               40
       Duress / Necessity
             o Neredo took issue with this when dealing with torture
             o Necessary and reasonable avoidance of imminent death or bodily harm to self or another
                 (UNHCR)
             o Imminent, real, inevitable threat to life (Finta)
             o cannot rely upon common law duress
       Self-Defence
             o Must be reasonable and proportionate to threat (UNHCR)

Cambodia, late 1970s – situation of children

Special Cases

Children
     Children are increasingly involved in crimes against humanity
     can or should children be excluded
     ex: 13 year old commits crime against humanity, but now wants to make refugee claim –
     presumption – doli in capax – incapacity for evil among children -

Families of those excluded
    claiming as a family member – children and wife will still be able to get protection – may also have
        independent claim –

       Are the tests for complicity relevant to other acts of exclusion?
       See Zrig (Decary)
       Issue of whether test for complicity is transferable – inadmissibility – different 1(a) relies upon
        international law, 1(b) – criminal law


Serious Non-Political Crime Committed Outside Country - 1(f)(b)
     serious non political crime outside country of refuge
     cannot include shoplifting
     crime accepted as serious internationally
     perjury is automatically indictable
     extradition treaty between Canada and US, versus Canada and China
     other cases say must ID specific crime (other than Zrig)

Serious Crime
     Does not cover “minor” crimes
     Internaitona, rather than municipal, standards are relevant
     Guidance can be had from extradition treaties – although this is not sdecisive (Zrig)
            o Extradition Act, s.3
     No specific crime or act need to identified (Zrig)
     Potential sentence of more than 10 years (Chan, Xie)

Non-Political Crime
    Guidance can be had form extradition treaties although this is not decisive (Zrig)
    “Incidence test” (Gil)
            o Political disturbance
            o Offence committed in furtherance of the political disturbance
            o Injuring commercial interests of political opponenets is not rationally connected to overthrow of
                 regime (Gil)
    “Proportionality tes” (Gil)
            o Weigh the crime against the repression of the regime
    Compare to normal test of “law of general application”



                                                                                                              41
       Quote: ‘If the regime is a liberal democracy…hideousness of regime must factor in
       Completely different analysis

Outside the country of refuge
    Geographic limit
    Crimes in country of refuge can be dealt with via municipal proceedings and expulsion under Articles 32
       and/or 33

Prior to his admission
     Temporal limit
     Crimes in country of refuge can be dealt with via municipal proceedings and expulsion under articles 32
        and/or 33

Expiation of Crime
    Lapse of time, pccurence of punishment, pardon, etc. may be considered (UNHCR)
    Crime must be “justicable” in jusrisdiction where it was committed
            o Serving a sentence prevents act qualifying as excludable (Chan)
            o Only acts for which convicted and serve sentence can be expiated (Delisle)
    Ending of excludable act
    Serious non-political crime committed long ago, and where sentence served, then the act is no longer
        excludable (different Chan)
    Conviction is unnecessary to fall under any of the grounds
    What about acts which are no longer justicable due to limitation periods?
    Extent of amnesties
    Limitation period even for murder in some states in the US

Special Issues
    Child abduction – consequent to domestic abuse
    Certainly serious offence but case law going both ways on this


Contrary to Purposes of UN - 1(f)(c)
    Contrary to the purpose and principles of the UN
    Look to the Charter
    Look at context of refugee protection and linkage to protection of human dignity and rights
    Look at linkage with causing “persecution” (eg/ 1(F)(a))
    Distinguish Article 1(F) from Article 33
    No exhaustive list
            o Look to international agreements and international judgements
            o Look for serious, sustained violations of fundamental human rights
    However, Cory (in dissent) suggests no necessary linkage with human rights

Non-Refoulement – Article 33(2) Exceptions
    can refoule a refugee where reasonable grounds to..
    2 possibilities
    broad wording that prevents not only against country against which they are claiming, but also to prevent
      sending back to anywhere where they would be in refugee-like danger
    purpose to protect – exceptions should be interpreted restrictively
    Derogable nature of s.33 does not mean that all similar guarantees (e.g. CAT) are also derogable (Suresh)
    Applies to all countries where a refugee would be in danger
    Exception should be applied with the greatest caution; must take into account all of the circumstances,
      mitigating factors, possibility of rehab, and reintegration (UNHCR Excomm Cttee. On International
      Protection -1977) –
    Higher threshold than exclusion



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             o Requires a future threat
             o “Particularly serious” is higher than serious simpliciter
        Applying to a conviction for a particularly serious crime committed in the country of refuge, or elsewhere,
         subsequent to admission as a refugee
             o So as not to conflict with 1(f)(b)
             o Due process issues (Suresh, UNHCR)
             o Related to security certificates

Pushpanatham
     Facts: - drug trafficker – 10 million dollars worth of heroin – between US and Canada –
     Why proceed under 1(f)(c) – why not done under 1(f)(b) – because he did it after he got here – 1(f)(b)
       must occur before you got here – no choice to use 1(f)(b) – in desperation, turn to 1(f)(c)
     Anti-drug trafficking business – any trafficking in any substance…
     Push – UN does stuff with anti-trafficking – intentions of the drafters – more concerned with human rights
       than drug trafficking –
     If worries about danger to community, have article 33-
     Dissent: weak
     1(f)(c) - must see individual in gross violation of human rights – state or state-like to rise to that level of
       concern

Charter of Rights and Freedoms, S.7
    “To deport a refugee to face a substantial risk of torture would generally violate s.7” (Suresh)
    Is it engaged?
    Refugee protection –
    Try to make someone leave
    Section 7 applies to acts that result in foreign torture (Burns, Suresh)


Other International Instruments
     Absolute ban on refoulement to torture of Article 3 of the CAT
           o Risk of Torture can be proven by determination of inclusion in refugee definition (Ahmed v.
                Australia)
           o However, negative determination not bar to proof of risk of torture (Kisoki v. Sweden)
           o Expulsion to risk of torture prohibited where “substantial grounds shown that person will face a
                real risk of torture” (Ahmed v. Australia)
           o Must be at personal risk of torture (Kisoki v. Sweden)
Notes
     1(f)(a), 1(f)(b), 1(f)(c) and article 33 – treat separately
     presume high standard of due process – be weary of evidentiary issues
     don’t confuse evidentiary issues (presumptions inferred from facts) with facts that automatically make
        someone liable
     decided basically on facts as opposed to assumption of law – to get 33(2) involved state must say
     must be in place under 115 IRPA – crime + additional certificate – as permitted by 33 of the
        Convention – operationalize 33(2)


WEEK 10 – GENERAL ISSUES REGARDING REFUGEE STATUS
DETERMINATION
Principles in UNHCR Guidelines
     Amnesty International
     1) must be sensitive to particularities of refugees
            o ex: language difficulties – necessity for interpretation to be made available




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              o   ex: evidence – when looked at Chan, LaForest in minority emphasized the benefit of the doubt
                  must be afforded to refugees
        2) Border officials ought to be properly and clearly instructed or trained as to how to deal with
         refugees
             o transferred to Canada Border Services Agency – modelled after Homeland Security – first contact
                  at the border
             o must understand the concept of non-refoulement (related to first point)
        3) Every state should have a clearly identified authority or institution that deals with refugees
             o minister used to perform the task of the current IRB – used to be ministerial function
        4) Claimants themselves must be guided as to the procedure involved in order to get claims assessed
             o in absence of legal aid, what to do?
             o Immigration consultants argue the issue is competence, not law degree
        5) During the status determination as well as during subsequent appeals, the claimant should be
         allowed to remain in the country
             o UK papers do not correspond with this – not about determination, but rather about deterrence
             o Exception in UNHCR for clearly abusive claims – if made a claim twice before, for example, and
                  was rejected both times
        6) Claimants should be allowed to contact the UNHCR
             o Amnesty adds, NGOs as well
        7) Claimant must receive prompt information in writing as to the decision taken
        8) Must be avenue for appeals or judicial review
             o in Canada, no appeal, only JR
             o no appeal because RAD has been suspended by the government contrary to promises made after
                  institution of IRPA
        9) Government ought to co-operate with UNHCR by allowing it to participate in refugee status
         determination proceedings
        10) A generally credible witness who has introduced basic evidence in support of the claim or
         explained the absence of any necessary evidence ought to be given the benefit of the doubt as to the
         parts of her story that she has not been able to substantiate.
             o This is because generally refugees won’t have the time to gather the necessary evidence to prove
                  everything – relates to sensitivity reflected in the system – minority in Chan, UNHCR handbook
        11) Cumulative experience of persecution is to be taken into account, not just the last straw
        12) Refugees also ought to have legal counsel – which does not only refer to lawyers
             o qualification of immigration consultant – now regulations that have been issued to systematize the
                  practice of immigration consultants
        13) Manifestly unfounded claims may be treated according to general principles in an exceptional
         way –
             o ex people who have claimed before – not even referred to IRB – Immigration officer decides case
                  – tiny percentage of claimants – potential for miscarriage of justice – ought to be construed in a
                  very strict fashion

Justice UK
      effective and fair process – noted 3 elements that constitute fair refugee determination process
      1) process must apply broad criteria in a consistent and fair manner – IRPA has applied a broad
         definition of who a refugee is – now includes protected person, IDP’s
              o inconsistent application of even 1951 Convention across countries –ex: several European
                  countries used to say that if you were persecuted by a non-state actor, you were not a refugee
      2) Refugee Board must have access to objective and up-to-date documentation
              o at the time of this report, UK had only one research assistant – clearly insufficient, Australia had
                  35 research staff
              o Canada’s IRB has huge research branch – key thing is correct information – contextualized
                  information
      3) Access to Legal Advice and Information

Sensitivities in the Process
     gender, children


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Mental Illness – excerpt – p.159 – UNHCR Handbook
    Examiner confronted with an applicant having mental or emotional disturbances that impede a normal
        examination of his case – A mentally disturbed person may however be a refugee, and while his claim
        cannot therefore be disregarded, it will call for different techniques of examination
    Put more emphasis on the objective criteria – nature of country conditions and nature where this person
        has fled –
             o ex: suppose person is fleeing South Africa – how do you decide – will placing more emphasis on
                 objective circumstances help? –

Cases of survival or fleeing torture - 160
    one result of extreme torture is the occurrence of post-traumatic-stress disorder
    process must be sensitive to this in terms of fact-finding
    may affect memory, and / or willingness to communicate with someone else the details of that
       encounter
    the fact that some clients might have gone through this, must have good access to expert advice – seeking
       it – knowing and recognizing when this is something this advice or expert information should be sought
    helps to understand why they don’t tell you things
    affects younger children and older adults – in middle band, humans are more flexible
    tends to be more common in populations who have experienced violence
    women who have been subject to domestic abuse may also be prone to PTSD
    why a witness does not want to talk about certain things –


Gender and the Refugee Determination Process
    IRB – Gender Guidelines – formalized guidelines
    Highlights – assessing a woman’s credibility, the decision-maker must consider her gender specific
      position in the context of ..-decision-making itself must be sensitive to gendered nature to experience of
      female claimants
          o Ex: a woman who has been raped may face austrasization in community if she reports it to the
               police
    Problems of Evidence May Arise
          o May be reluctant to disclose information of rape – bringing shame to the family –
    Currents of Battered Woman’s Syndrome
          o May lead to reluctance to testify
          o May require Testimony by videotape or affidavit

Unaccompanied Children
    Cannot treat them the same way you would treat an adult
    The younger the child, the more challenging the situation
    Guidelines – see materials
    Refugee children have different needs than adults
    Every child must have a designated representative
    If unaccompanied, the tribunal will assign a suitable adult (not lawyer or counsel) – must have someone
      who speaks for them
    Preferably speaks language of child
    Analogous to litigation guardian
    Someone who can properly stand for them
    Not all refugee children are unaccompanied
    General organizing principle is the best interest of the child – Baker
    Too broad? –
    Children most don’t present evidence in the same way as adults – not with the same degree of precision,
      especially in intimidating atmosphere of courtroom
    RPD must first assess whether child is even able to testify
    Environment of the hearing should be friendly and not intimidating to child
    Questions addressed to children must be asked in a sensitive manner


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Cross-Cultural Communication and Credibility
    Believability or credibility of a claimant is often the focus of the refugee determination process
    By definition, refugees are usually from a different culture
           o For example, in the US, many El Salvatore, and Guatemala, had trouble recalling dates in Western
               calendar or do not know dates of birth – yet these are often used as a test of credibility
           o Ex: Found due to actual differences in the calendar – think in the Mayan calendar, not Western
               calendar
           o Ex: Nigeria – 4 day week –
    General differences in which cultures approach the passage of time – more liberal approach –
    Also the issue of mistrust of authority – just not willing to tell all to strangers – information is on a need-
       to-know basis – lying in this context – lie to survive
    Secretive
    Powerless speech – some cultures believe in modesty – not forceful – other African comment that
       Nigerians are rude, assertive – affects readings of credibility where people are used to being assertive –
       withdraw is seen as you’re hiding something – cultural sensitivity to note

Evidence
    RPD – is not bound by any legal or technical rules of evidence
    Hearsay is admissible in this context (not ordinarily so in the court system)
    Flexible to decide case on merits, not on procedural rules
    RPD can rely on any evidence that is adduced in the hearing – not conjecture or speculation –
    Evidence relied on must be credible and trustworthy – not suspicion –
    Credibility of oral testimony (its probative value) must be assessed based on what we already know about
       country conditions of claimant
    Problematic: often, the knowledge of the country conditions is too general – too shallow and
       unsophisticated –
    If RPD identifies a credibility issue, it must ensure that the claimant has an opportunity to address
       the proceedings – must have opportunity to respond –
    A finding of non-credibility must be based in the evidence, not in the speculation or suspicion, adduced in
       the hearing – must be grounded and justifiable

Attakora – 224
     Ghanaian – escaped from prison – through a hole in a platform that was used as a lavatory
     Board held he was not credible because his body frame could not pass through the hole – however, there
       was no evidence as to the dimensions of the hole – no evidence as to dimensions of the man’s shoulders
     Instead of adducing evidence as to dimensions, the Board speculated
     See below for Federal Court allowance of judicial review

Assessing Credibility in Proceedings***
    Witness’s desire to be truthful
    Motives
    General integrity
    General intelligence
    Relationship or friendship to other parties
    Opportunity for exact observation
    Capacity to observe accurately
    Demeanour while testifying
    Ability to resist the influence, frequently unconscious, to modify recollection
    Firmness of memory

Notes:
     Even if lack credibility w/r/t/ to one or two elements of the story, the decision –maker must decide whether
       or not these are germane to elements of refugee determination
     Enough to ground refugee determination



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       Must not have to check further – inconsistency or negative finding of credibility must have been
        material

Attakora
     Board accepted evidence he was at risk for reasons of his political opinion, therefore, his lack of
       credibility regarding how he escaped, was immaterial – if accepted major elements – not sufficient to deny
       refugee status just because you don’t believe claimant on one or two things

Armson
    Spoke out against gov’t to students
    Evidence that arrested and beaten is likewise uncontradicted
    Details of how he escaped from jail, how he came to Canada – does not take away finding that Board’s
      subjective and Objective elements are present
    Sufficient evidence to ground claim
    If RPD sees fit to reject claim on lack of credibility, it must state grounds for disbelieving – Y is
      incredible because….cannot just boldly disbelieve

Maldonado - 233
    “When an applicant swears to the truth of certain allegations, this creates a presumption that those
      allegations are true unless there be reason to doubt their truthfulness”



WEEK 11- CANADIAN REF. DETERMINATION SYSTEM
       Overseas Selection and Inland Determination

Overseas Selection
    Canada does select some refugees (or persons in similar circumstances) who are, at the point of being
      selected, abroad
    Grounded in refugeehood
    Selected on basis of being refugees plus additional criteria which have very little to do with
      refugeehood
    Then can apply for permanent residence
    Permanent residence selection happens on basis of overseas refugee selection criteria
    Selected to arrive here already as permanent residence mostly on refugee criteria
    Not everyone would qualify
    s.12, 13 of IRPA and s.146 of REGS allow for the admission to Canada for the purpose of Permanent
      Residence, not just for Convention refugees, but also those in similar circumstances
    s.12(3) – Selection of Permanent Residents - A Foreign national, inside or outside, may be selected as a
      person who under this Act is a Convention refugee or as a person in similar circumstances, taking into
      account Canada’s humanitarian tradition with respect to the displaced and the persecuted.
    s.13 – Group Right to Sponsor - PR or Canadian citizen, or a corporation (or NGOs) may sponsor a
      person who is a Convention refugee or person in similar circumstances
           o but a group of Canadian citizens can also do the same – minimum of 5 persons

Three Broad Types of Overseas Selection
    1) Convention Refugee Abroad (permanent ongoing process)
    2) Humanitarian designated classes (permanent ongoing process)
    3) Special Programs – mixed up in politics (dependant on current affairs, wars)

1. Special Programs
     cover more than strict definition of Convention refugee
     sometimes bring in people affected by natural disasters like Earthquakes and the like



                                                                                                              47
       more permanent less political, refugee women at risk program – refugee women in particularly
        vulnerable situation
       disability program
       authority to admit under this category flows from the broad discretion of the Minister – broad protection
        powers H&C power under s.25 of IRPA

2. Humanitarian Designated Classes – R.146
     s.146 REGS – for the purposes of s.12(3) - person in similar circumstances to those of a Convention
       refugee is a member of one of the following humanitarian-protected persons abroad classes: (a) member of
       asylum class, (b) source country class
     a person who is in a refugee-like position may be sponsored by groups of 5 adult Canadian citizens of
       permanent residents and / or a corporation or a non-incorporated organization
     R.138 – UNHCR or other such designated body may also refer such persons to the Canadian authorities –
       accepted here as a Convention Refugee abroad..

Source Country Class – R.148
    A foreign national is a member if determined by officer to be in need of re-settlement because a) they are
        residing in their country of nationality or habitual residence and that country is a source country
        within the meaning of subsection 2 at that time their permanent resident visa application is made as well as
        at the time a visa is issued…
    B) being seriously and personally affected by civil war or armed conflict or have been detained or
        imprisoned with or without charges or under penal control…legitimate exercise of freedom of
        expression, freedom rights
    someone who would otherwise meet the definition of Convention refugee would also meet source
        country class as long as still within the country (met everything else other than not in Canada) – like
        Internally Displaced Persons
    s.148(2) - Country must also be a source country (conjunctive requirement) – one designated by minister in
        Schedule 2 of the Regulations – Columbia, (half of trade union activists killed there), Al Salvador (still
        armed struggle groups), Guatemala (same reason), Congo, Seria Leone, Sudan

Country of Asylum Class – R.147
    Foreign national is a member of the country of asylum class if they have been determined by an officer to
       be in need of resettlement because, A) outside all of countries of nationality and habitual residence, and
       B) have been continued to be seriously and personally affected by civil war, armed conflict or massive
       violation of human rights in each of those countries
    Must be some reason why not protected – fled Rwanda and went to Congo –
    Outside countries already but still require some protection –
    Were most of these people to arrive in Canada, they would meet the expanded definition of refugee
       (s.95 test)

R.139 Conditions –
    If they meet one of the above, must go one step further under humanitarian test – must comply with
       R.139…(attach this to notes)
    See requirements – append this to summary
    Also applies to Convention refugees abroad
    F) one of the following must be the case
            o I) sponsor’s sponsorship application has been approved
            o II) in the case of a member of a source country class, financial assistance in the form of funds
               from a gov’t assistance program is available in Canada (loan programs to assist with re-
               location) OR
            o III) sufficient financial resources to provide must be available (have own money)
    If referred by UNHCR, in some cases, the Minister can waive this requirement – this is about access to
       means, not just a means test – either have own money, get held from gov’t or get group of 5 or NGO to
       help




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3. Convention Refugees Abroad Seeking Resettlement ***
     One on one interview with visa officer
     R.144 – read all regs
     Convention refugees abroad class is prescribed as a class of persons who may be issued a permanent
       resident visa on the basis of the requirements of this Division.
     145 – A foreign national is a Convention refugee abroad and a member of the Convention refugees abroad
       class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.
     Definition is more narrow – applies to refugees who meet the definition of the 51 Convention, but are
       abroad, not inland – seeking resettlement in Canada
     Intended to cover persons who meet the definition – still in need of protection because there is no…
     Meet test even in Congo
     To qualify, must meet definition of Convention refugee, be abroad and meet R.139 Conditions – see
       above


INLAND DETERMINATIONS
    CIC and now CSBA play an important role in refugee determination process, the RPD plays a major role
    Refugee Protection Division
         o Unit within IRB
         o Role:
         o a) to determine Convention Refugee claims and of persons in similar circumstances
         o b) To determine cessation, exclusion and vacation application made by the Minister (ex: war
             crime – inadmissibility)
         o decides certain Charter issues related to Refugee Claims
         o sole and exclusive jurisdiction to determine refugee claims

Membership of the RPD
   both full and part time members –
   appointed by governor in council
   supervised by deputy chair of the RPD – also chair of IRB
   Terms of members not to exceed 7 years but can be re-appointed

Qualification of Members
    Patronage
    Deputy chair (in charge of RPD) and majority of deputy chairs, plus at least 10% of the Members must be
        lawyers 5 years or more at the bar
    Changes expected to be made: interview panel, ask questions

Proceedings of RPD
    Proceedings of RPD are not designed to be (not supposed to be) adversarial as such
    However, because it’s not supposed to be adversarial, the structure is different

Evidence
     Not bound by strict rules of evidence – it must be credible

Hearings
     Must be held except in cases where the claim is expedited – can only expedite when expediting to
       acceptance
     RPD assisted by RPO whose job is to ensure that the Member hearing the matter has all the legal
       and factual information necessary
     If RPO is lawyer and member’s best qualification is that he…
     Now before one person – one-person panels except if the Chair of the IRB decides to designate it a 3-
       person panel
     Used to be 2 members, prior to 2001


                                                                                                                49
        1 member premised on fact that there was going to be and Refugee Appeal Division – however, minister
         suspended RAD – (Judicial review – not an appeal or re-hearing on the merits)
        reps of UNHCR may attend a hearing as observers

Expedited Hearings
    if RPO sees case is so strong on paper, that there’s no need to hold a hearing, there’s a process by which
       recommend to member refugee status without necessity of hearing
    for persons with manifestly well-founded claims
    reps of UNHCR may attend a hearing as observers


Determination Process Itself
    1) Claim made at border/ port of entry
    2) claim considered by CIC officer to determine IF eligible – if so, referred to RPD
           o housed in CIC first, then transferred to RPD
           o if declared ineligible, a removal order is issued against the claimant – also notified that she may
              apply for PRRA -
           o may of course apply for judicial review of ineligibility
           o if successful at judicial review, either eligible or sent back to RPD for redetermination
           o burden of showing eligibility lies with claimant –
           o officer must decide within 3 days of claim being made whether or not it’s eligible and refer matter
              RPD
           o if 3 days pass without a decision, the claim is deemed to have been referred unless later there’s a
              valid ineligible decision

Criteria for Ineligibility - IRPA s.101
     a) refugee protection has already been conferred on the claimant
     b) if a claim for refugee protection by the claimant has been rejected by the Board
     c) prior claim determined ineligible/abandoned/withdrew – can’t make another claim
     d) claimant recognized as Convention refugee by a country other than Canada – and can be returned to the
        country
     e) claimant came directly or indirectly to Canada from a country other than nationality or former habitual
        residence – designated safe third country
     f) claimant has been determined to be inadmissible on grounds of security and stated grounds


Safe Third Country
    see e above – claimant came here if came here from safe third country, would be deemed ineligible
    Canada has entered into agreement with US
    3 draft regs are not in force yet –
    1) Draft designate the U.S. as safe third country within meaning of S. 101(e)
    Anyone who arrives to Canada from U.S. would be ineligible to make a refugee claim in Canada
    Problematic – experience of Arabs in U.S.
    Rational: already in a place that can give you protection
    Challenged by recent evidence especially when recently thousands of Pakistanis fled the U.S.
    2) In general, if coming from the U.S. cannot claim here however, there is an exception of ineligibility of
       people coming form U.S.
           o a) Unaccompanied minors in the US or Canada
           o b) Claimants with a family member who is a citizen, PR or protected person in Canada
           o c) claimants with an adult family member who is a refugee claimant that has been found
               eligible (rationale: family re-unification)
           o d) holders of visas to Canada or person who don’t need Visas to enter Canada but who need a
               Visa to enter the U.S., can have claim referred to RPD – can be ruled eligible even though
               otherwise would not be found to eligible to make refugee claim



                                                                                                                  50
             o   e) claimants facing death penalty in the U.S. or any other country would be eligible to claim
                 here, even though would otherwise be found ineligible because of coming from the U.S.
                       must have evidence of this – conviction leading to a death penalty
             o   f) claimants who are nationals or citizens from any country to which Canada will not return
                 or remove people
             o   these exceptions have been criticized as not being open-ended fail safe category
             o   draft regs specify that the third safe country rules only apply at land borders – ports of
                 entry**** - does not apply at airports, does not apply if already here in Canada somehow
             o    strong incentive for people to avoid the ports of entry – to use smuggler – once here, rules
                 don’t apply to you
             o   on the other hand, maybe great confidence in interdiction measures
             o   persons found ineligible because of third country rule are also prevented from applying for
                 PRRA – s. 112(2)(b) of IRPA
             o   if caught by third country safe rule, can’t apply for PRRA – this is no risk – safe place already
             o   however, supposing there’s a chain removal – US removes you to somewhere where you will not
                 be safe
             o   U.S. can render you to torture


Eligibility Process
     Suspended if a report on a person’s possible inadmissibility has been referred to the admissibility
         hearing in Immigration Division
     Suspend consideration until end of admissibility hearing
     Suspend eligibility proceedings so that inadmissibility hearing can proceed
         Not everyone
     also suspended if officer considers it necessary to await courts decision regarding serious charge
         against claimant
             o wait until see if acquitted, for example – affects inadmissibility under s.101f


RPD Determines convention refugee status or Persons In Similar Situation
    convention ref or protected person
    1-person panel hears such cases
    process and hearing must be fair and impartial
    Singh
          o s.7 has applied to ref det. proceedings – nothing can be more important to security of a person than
              a person who is a risk of death –
          o Act and proceedings are subject to the Charter – everyone physically present in Canada and is
              amenable to Canadian law is entitled to benefit from the provisions of the Charter
    Before Singh
          o Old system – process was procedurally unfair
          o Refugee determination proceedings affect or apply to very fundamentally important security of the
              person (sigh)
          o Minister decided claim without a hearing on advice of committee
          o No comment aloud to claimant
          o Claimant could not respond to it
          o Made decision on claim and transcripts of interview under oath
          o Wilson, J. in Sigh did not satisfy s.7 – must have opportunity to hear case – requires oral hearing –
          o SCC – since security of claimant may be negatively affected, the decision to send back must
              confirm with principles of fundamental justice
    After Sigh
          o Can be granted without oral hearing
          o If RPD determines claimant is refugee or person in similar circumstances, that person may
              apply for near automatic PR status




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             o   Just by that person’s status as a refugee, has a right to stay – non-refoulement right – cessation
                 could apply to you if country conditions change
             o   PR is more secure relatively speaking


Admissibility Requirement - S.21(2) IRPA
    Subjected to admissibility test – if evidence comes forward that a crime has been committed, will not get
      PR, but will remain in Limbo
    However, must make application for PR within 180 days after Board’s decision of positive refugee
    However, certain persons may never become PR – barred from eligibility for PR residence on basis of
      refugeehood –
           o A) persons who another country has in the meantime already granted refugee status (rationale:
               don’t fill space we have)
           o B) person who hold another country’s citizenship or nationality (third country)
           o C) person who already hold PR status
           o D) persons who are already Canadian PR
                     Granted on basis of spousal sponsorship – person comes as a claimant, marries a
                         Canadian – in case, that person can’t apply again
           o E) Persons whose refugee status has been determined to have seized or vacated – changing
               country conditions – wouldn’t be allowed to have automatic s.21 right to apply for PR

Globe & Mail - Jeff Simpson’s article – Suckers for a Sob Story
    Case studies Costa Rica
    US State Department – gave Costa Rica an excellent score
    To based analysis on US state Department Record, crazy
    Goes on, Costa Ricans enjoyed a free press, fair trials, no restrictions, no impediments in religion,
    Tie this to number of people from Costa Rica - 116 –
    Know that Canada is a soft touch – about 20 people per year
    Who are these people, why were they accepted?
    Costa Rican man was accorded appeal – doesn’t know difference appeal
    254, 4th para – almost two decades, Canada has been unable to establish a fair an efficient – doesn’t cite any
       studies
    from one or two cases, generalizes about an entire system

Catherine Dauvergne – Human Rights are for the Tricky Cases, too
    claims like Simpson’s show a rhetoric – didn’t set out to give any facts
    worse, it conflicts refugee protection with immigration issues
    116 were accepted – 3000 or something were not accepted

Tom Clark – to CCR list serve
    banner of pride around the world

PRRA (Pre-Removal Risk Assessment) – s.112-114 IRPA, R.160,174

       new process introduced by IRPA which replaces the PRDOC
       1) with some exceptions, any person in Canada other than a person who has already been accepted as
        a protected person or refugee, may apply to Minister (Canada Border Services Agency) for protection if
        subject to a removal order that is in force
             o if not, cannot apply for PRRA at that stage, or named in a s.7(7) certificate
             o s.77 certificate – security certificate – threat to security – can’t apply for PRRA – don’t care if
                 you’re at risk – not just that you’ve committed office, but that there’s an opinion against you –
                 some grounds – conviction not required
       2) as implied in first point, certain classes of persons may not apply for PRRA relief
             o a) persons who are already subject to full-blown extradition proceedings



                                                                                                                      52
             o     b) if claim deemed ineligible because claimant came from safe third country (U.S.), cannot do a
                   PRRA
       3) If left country since removal order came into force against that person, but 6 months or more have
        not elapsed since refugee claim failed – must wait for more than 6 months
       4) if remained in Canada since made a previous application for PRRA which was rejected but the
        prescribed period has not elapsed
       5) in most cases, the effect of a positive PRRA decision is that the person becomes a protected person
        – s..114 IRPA
             o however in respect of certain classes of persons, (proscribed in s.112(3) of the Act), the result of a
                   positive PRRA decision is not refugee status – it is merely that the removal order that was
                   issued against that person becomes stayed (perhaps until risk happens)
             o security threats, those inadmissible on security, war crimes, violations of human rights as well as
                   certain specified serious criminals 112(3)
             o persons whose claims for refugee status were rejected because of crimes against humanity are
                   rejected
             o (summary – don’t get refugee status…- stay removal order to the extent that they continue to
                   face the risk – when risk is removed, they are deported

PRRA Requirements
    file update – new evidence in most cases
    add additional evidence –
    if nothing to add, don’t get PRRA
    not a repetition – is there new evidence – family has been put in jail – regime got more vicious, for example
      – if already went through system, all that is needed is new evidence of risk that was not previously
      available
    s.113(a) IRPA, R.161(2)
    two cases

O.N. Canada (2003)
    see p. 296 – entitled to rely only on new evidence that arose after the rejection of the Applicant’s refugee
       claim or evidence that was not reasonably available or that the Applicant could not reasonably have been
       expected in the circumstances to have presented at the time her refugee claim was considered.

Cortez (2003) – 306, para.4
    tribunal: in the absence of new evidence of persecution, there was still insufficient evidence to conclude
        that they would be subjected to risk if returned to El Salvador
    need more info

PRRA Procedures
    usually constituted by a paper hearing
    however an oral hearing is possible in exceptional cases when question of credibility are at issue and are
      important
    weighing risk – authority in Suresh – risk of torture can be weighed against public need for protection
    risk does not outbalance risk posed to Canadian public
    15 days for filing application
    can file written submissions in another 15 days – not obligated to look at evidence filed after second 15
      days

PRRA Officer
    Authority to make determination under s. 25 IRPA – Minister’s power under s.25 can be substituted
      with PRRA officer
    However in Zolotareva – can validly substitute -
    Act – Humanitarian and Compassionate grounds




                                                                                                                    53
WEEK 12: Selected Procedural Questions
Natural Justice
    Right to be heard – oral hearing (Singh) – calls into play serious security of the person interests –
        consequences of return are so serious that natural justice entails an oral hearing
    Also entitled to know that case

Velauthar v. Canada – FCA – 1992
     Board asked counsel on both sides to address the Board on a particular issue w/r/t/ whether a nexus existed
       –
     Instead of asking claimant or other side to answer the case, the Board went ahead and said claimant wasn’t
       credibility without giving the claimant the opportunity to respond
     Held: rules of natural justice were breached and the matter was sent back for hearing

Noormohamed – FCA - 1992
    Counsel asked for certain documents which were relied upon by RPO
    But document was only given one hour before the hearing and was 82 pages long
    Held: natural justice breached by Board and RPO since the Board went on to rely on the documents without
      giving them an opportunity to know the material to be used against the claimant

Notes:
     Because of complexity of proceedings, the right to be heard entails the right to counsel

Right to Legal Counsel – S.167 IRPA
    S. 167 IRPA – claimant entitled to representation at the hearing
    (1) – claimant or minister may at their own expense be represented by lawyer or other counsel
            o need not be a qualified lawyer, but may be a consultant
            o issue is the quality of the consultants
    S.91 – regulate qualification to appear before IRB of lawyers and non-lawyers who act as counsel and
        appear before the Board
            o Canadian Society of Immigration Consultants (NP org.) is self-regulating and independent –
                interim Board has been constituted
            o By April 2004, the IRP regulations will be amended in order to regulate consultants including
                specifying qualifications

Law Society of B.C. v. Mangat (2001) – SCC – p.323
    Provisions effectively allow immigration consultants are lawful – trump legal profession Act of BC that
      state that only persons admitted to the bar can practice law

Hunynh v. Canada – FCT - 1993
    Courts will not set aside ref. det. proceedings merely because the claimant was represented by an
      immigration consultant or inexperienced counsel
    See. P. 332 – entirety of story not told because of inexperience
    Counsel did not go over PIF before the hearing
    Counsel did not submit all info available about Vietnam
    Counsel did not have familiarity will refugee process
    Failed to advise client of possibility of judicial review
    However, court found not sufficient evidence that counsel was at fault – but even if it were, the Board
      would not have come to a different conclusion
    Courts very slow to set aside for reasons that counsel was not good
    Policy: Too many incompetent counsel – too many mistakes made
    Test: you get what you pay for




                                                                                                               54
Sheikh – FCA - 1990
    Counsel fell asleep 3 times and had to be awakened in a couteous manner by the panel
    Twice during cross of his client
    FCA refused to set aside proceedings on the basis that there was no evidence introduced in this case
       showing the linkage between the acts of falling asleep and prejudice to the claimant


Right to be Informed of Right
    However, does not include right to be informed of right to apply to legal aid

Right to be afforded reasonable opportunity to secure counsel
    Give time to get one – adjourn the matter

Marcellus
    Board went on to hear the matter without adjourning and without giving the claimant a reasonable
       opportunity to secure a lawyer
    CA set aside the proceedings

Legal Aid
    Refugee Proceedings are supposed to be non-adversarial
    Intimidating to claimants who often don’t speak English or French
    Lawyer becomes an important ally in the face of these difficulties
    Legal Aid essential to refugee proceedings

When does right to counsel begin?
   Once claim begins? Once arrive in Pearson? Once stopped in Hethero? Once face customs officer? Upon
      presentation of passport?
   Supposing wait 10 hours for inspection, right to lawyer? S.10 of the Charter?
   When routine question that any person would expect ends, then right to counsel begins – see
      Dehghani
   Why not at first contact – efficiency – almost impractical to have lawyers there at that point

Dragosin – 2003
    When does routine counsel end
    Dragosin arrived in Halifax port, was immediately detained as stowaway – removal order was made against
       him without affording claimant of right to counsel and in spite of the fact that he was detained for a few
       days (and he kept asking for a lawyer) – and none was provided until the exclusion hearing itself
    Violation of right to counsel – because it arose from the moment of detention – right to counsel began
       then –

BIAS
       Impartiality of the decision-maker AND independence
       Impartiality connotes bias –
       Bias need not be actual
       Enough to have perception of bias
       Independence – not just a state of mind in exercise of judicial duties, but also refers to the structural
        relationship between you and parties to the case or other branches of the government

Ahmuda – FCA – 2001
    Took temp. leave of absence – appeals officer at CIC – appear at IRB to argue for minister
    Began to sit as a panel member of RPD of IRB
    In that capacity, decided Ahmuda case
    Judicial review – challenged the case on the basis on breach of natural justice



                                                                                                               55
       Structural bias because of her job as a CIC officer (used to be on other side)
       P.368 – para. 57 – structural relationship between her and CIC -
       Tendency to agree with minister says is great! –


Test for Bias
     Objective test, not subjective


Tetruashvilli –
     Whether biased against case from Israel
     Member – t
     Test was whether he himself knows that he will be biased – he concluded himself that he would not be
       biased and that he would be objective
     Court: test is would a reasonable person looking for the outside see you as biased
     Held: decision of tribunal set aside


Bias may be evident from Nature of Questioning
    Cross- examination of witness
    Revealed in nature of questioning

Yusuf – FCA - 1991
    Underscore how not to conduct questioning in refugee hearing
    See. 362 –
    “these sexist, unwarranted and highly irrelevant observations by a member of the Refugee Division are
       capable of giving the impression that their originator was biased.

REMEDIES / Judicial Review – S.72 IRPA, s.18 FCAct
       application for leave for judicial review of an RPD decision –
       s.72 of IRPA – s.18 of Federal Court Act
       judicial review – not an appeal from an RPD decision
       supposed to be RAD, but the RAD has not been set up – Minister suspended implementation of RAD
       no appeal to the Federal Court of Canada, but rather judicial review

Judicial Review – s.72 IRPA
     process for deciding whether tribunal followed certain procedural principles
     not a re-hearing
     federal court can come to a different conclusion than the tribunal, but can still refuse to set it aside
     before a refused ref. claimant can exercise right, the claimant must seek and obtain leave of the Federal
         Court
     RPD, leave of FCT, if granted, judicial review
     Leave is like a sieve
     Test:
     No automatic right even to judicial review – must first obtain permission
     Leave Required for judicial review of every proceeding under IRPA (any decision under act, must get
         leave)
     There is no appeal to FCA from a decision not to grant leave
     In general, if JR is refused, no appeal lies to the FCA unless the FCT court certifies a serious
         question of general importance to the FCA
     Policy: to reduce or restrict access of refugee claimants to appeals




                                                                                                             56
Serious Question of General Importance
     2 components: serious AND general
     ex: Suresh – whether to deport even a person who may have committed crimes against humanity back to
       torture
     certification happens at the time when FCT renders decision (or even before)

Time Bars:
    limitation periods for applying for leave
    15 days from the day of receipt of decision restricted only to inland applicants –
    60 days for applicants abroad – once application is granted, judicial review is deemed to commence from
      that day –
    entitled to apply for extension of time on grounds

Leong
     one day late – counsel late in coming back from trip away
     should have regard to Federal Court Immigration Rules of 1993


Leave to Commence JR
    to succeed in application, must show that there is a serious issue to be tried (in judicial review)
    must be raised in the documents filed
    clearly the issue is not if the applicant is likely to succeed the JR, but rather do you raise a serious issue that
       demands JR

Difference between Appeal and JR

Grounds for JR
    FCT may review a decision or order of any tribunal if it is satisfied that
    1) RPD acted without jurisdiction, or beyond jurisdiction, or refused to exercise jurisdiction –
      (procedural)
    2) RPD failed to observe natural justice –
          o ex: denial of the right to counsel,
    3) RPD erred in law, mistake in law –
          o ex: when officer applies its own internal guidelines in a way that misconstrues the Act –
    4) RPD bases decision on mistake (erroneous finding) of fact that it made in a capricious or perverse
      manner or without regard to the material before it
          o ex: if it reaches a conclusion of fact not supported by evidence –
          o ex: Yusef – perverse conclusions of fact – little lady – no reasonable person would have looked at
              this person have seen this as lacking credibility
    5) failed to act or acted in fraud or relied on false testimony or perjury–
          o ex: Montreal fraud / bribe cases
    6) if Board member acted in any other way that was contrary to the law

Deference to Tribunal
    degrees of error of fact
    to what level does the error need to rise for it to be reviewed
    high level of deference to tribunal on questions of fact –
    court feels that the Board below is in a better position to assess credibility and find facts
    if the courts looks at the record of proceedings and reveals that it was capricious, will intervene – higher
       level of deference
    with matters of law, no deference – it’s correctness
    with matter of facts, high level of deference – but it varies from tribunal to tribunal
            o patently unreasonable
            o reasonable simpliciter



                                                                                                                     57
        crucial question: legislative intent – what did the legislators intend in terms of relationship between court
         and tribunal
             o thickest impenetrable shield – explicitly ousted by statute – privative clause
             o complete scrutiny – full appeal
             o and everything in between

Standard of Deference
    several factors none of which is dispositive on its own
    1) Privative clauses – ousted
    2) Relative expertise – which body has more expertise in that matter – technical expertise – tends toward
   deference of lower tribunal is highly specialized technical body
    3) Purpose of provision and Act in issue – if lower administrative tribunal is not so much the delimitation
   of rights as the balancing of competing interests, then the court will tend to - IRB allocates rights – clearly about
   international human rights
    4) Questions of law – standard is correctness
    5) Questions of fact - standard of patent unreasonableness or reasonable simpliciter - no one else
   would have come to that conclusion, unless they were an unreasonable person – very high standard
                   reasonable simpliciter – slightly lower than patent unreasonableness



WEEK 13 - DETENTION v. FREEDOM of MOVEMENT

        While detention of non-citizens is permissible in certain cases (under international law [art. 9 ICCPR, art.
         31 1951 Convention] and Canadian law), it can only be done within a very narrow range of circumstances
        Detention is an exceptional measure that ought to be normally avoided (well acknowledged in international
         and Canadian law)

Canadian law
    IRB Guidelines on Detention
    Khan v. Canada – detention of pregnant woman who had violated condition, held to be legal in Canadian
      courts
    Detention not to be used unless it’s a last resort, not as a deterrent


Grounds for Arrest and Detention – Regs 244-250 – (383)
    CIC – can arrest or detain person who is a
          o flight risk
          o a danger to the public
          o or who lacks proper ID – Regs 244
    Regulations then provide guidelines to be considered by the Immigration Division or CIC in deciding
      whether or not to detain in each of these cases
    None of these factors are definitive – they are to be weighed together – presumption is that you ought
      not be detained
    More likely to be detained for ID reasons post-911

Data on detention
    600 in immigration detention in Canada each week
    82 % were male
    45% are current refugee claimants
    10% refused refugee claimants
    week in Nov. – 36 minors in detention
    week in July – 4 minors in detention
    345 of 683 in Canada were held in provincial jail



                                                                                                                         58
       in Ontario, over half were held in provincial jails
       key difference – why not to mix up – not hardened criminals – stigmatization,


Detention Review
    must refer to Immigration division of IRB for a review appropriateness of detention within 48 hours of
       detention
    after first 48 hour, the next review IRB occurs in 7 days –
    next review occurs in 30 days, then every 30 days
    review relates to legality (is ID still an issue?) – appropriateness and reasonableness of length of
       detention, and nature of detention are a factors
    HRC – ICCPR – interprets art.9 – some controversy regarding this


A. v. Australia
      Cambodian guy held for 4 years
      Australia responded indignantly – not anybody’s business

Ways to Use Detention as Deterrent
    Perceived massive flocks of asylum-seekers
    UNHCR railed against practise of detention as deterrence
    Conclusion 44 note on detention –
    States detain not simply for punitive measures, but also for administrative convenience – p.451 – UK

UNHCR Concluding Observations – 451
    Committee considers unacceptable any detention of asylum-seekers in prisons


UNHCR - Detention of Refugees and Asylum-Seekers – 387
    See (a) and (b)
    In view of the hardship which it involves, detention should normally be avoided

Sahin
    Detained for 14 months and much of it was administrative convenience
    Original reason for detention was lack of ID
    Held that 14 months was more than enough time to establish ID, release him under certain conditions –
      reporting obligations, electronic collar, for example
    14 months was unreasonable, according to the court
    Charter applies to proceedings when release is considered – mere fact of being detained engages s.7 –
      must be due process and all s.7 rules apply -

Detention at POE - s.55 (3)(a) of IRPA
    seems to authorize detention at ports of entry of foreign nationals (including ref. claimants), “where it is
       necessary to complete an examination that is ajoined or for the purpose of an admissibility hearing”
    seems to authorize detention for administrative convenience

Notes:
     courts would probably not authorize 14 of detention despite s.55
     the word “necessary” should be used be counsel to seek a limitation

Arbitrary Detention - s.7, art.9 of ICCPR – (386)
    detention must not be arbitrary




                                                                                                               59
        however, the provision that detention not be arbitrary is not a provision that is against the law – goes
         beyond that
        also applies to detentions sanctioned by the law – prima facie required to detain on ID, but length and
         conditions of detention should not be inappropriate
        art. 9 and 10 of ICCPR – see. 386
        (1) everyone has the right to liberty and the security of the person, no one should be subject to
         arbitrary detention – no one should be deprived of liberty except on such grounds and in accordance
         with such procedures as a re-established by law
        (2) shall be informed of reasons for arrest and informed of charges against him
        (3) brought promptly before a judge
        (4) entitled to take proceedings before a court - decide on lawfully of arrest – about review – must be
         judicial review of legality and appropriateness of that detention
        (5) compensation
        (10) treatment while being detained – with humanity and respect for dignity
        accused persons should not be mixes with convicts
        juveniles not to be mixed with adult population

A. v. Australia
     Human rights committee interpreted art. 9 of ICCPR
     Also interpreted in C. v. Australia
     Cambodia – arrived by boat – policy of stopping people – didn’t speak English – access to meaningful
        representation
     Ended up being detained for 4 years
     Issue: Australia’s bridge to art. 9 – ICCPR – Australia was a party –
     Committee held that there was a clear breach of art. 9
     Committee recalls notion of arbitrariness must not be equated with against the law, but to include elements
        of inappropriateness and injustice of detention – if it is not necessary in all the circumstance of the case –
        element of proportionality becomes relevant – for whatever reason, 4 years is an inordinate amount of
        time
     Detention of refugee claimant is not justified merely because she entered the country illegally – this
        may justify an initial detention to determine ID, but not to criminalize migration

C. v. Australia - 2002
       Case of the Iranian – detained – mental health deteriorated – declared a Convention refugee – committed
         a crime put in prison – began in normal mental health – long detention led to mental health deterioration –
         first psychiatric report was released only after along time – by that time, too late – health had already
         deteriorated – committed mental illness crimes – issued a deportation order as a non-citizen who had
         committed a crime – (if live for 10 years in Australia, cannot be deported – he wasn’t there long enough)
         –
       breach of obligations under art. 9 - Too long and unreasonable under the circumstances –

Judicial Review of Detention
    any person arrested or detained, can apply for judicial review detention
    even at 48 hour stage
    absence of opportunity for judicial review is breach of art. 9(4) of ICCPR
    Australia, doesn’t have the scheme for judicial review of
    Committee – judicial review is a basic human right under art. 9(4)
    Australia replied rejecting recommendation and refusing to pay compensation
    Must get leave first - All must show is that you have a triable issue

IRB Guidelines
    Emphasizes the use of alternatives to detention – security deposits, release to a 3rd person, electronic
       collars
    Adopts previous thing mentioned



                                                                                                                    60
       Broad discretion of members is not a free hand – must be based on the law and the Charter, but not
        necessarily international law
       Courts can use international law to interpret s.7 of the Charter – but no formal bindingness
       Art.9 has not directly been enacted directly in domestic law



INTERDICTION
       Stopping asylum-seekers from arriving here and doing it as far away from Canadian border as possible – at
        border, too many NGOs will cause problems – keep in invisible
       Those who make it here – resourceful to get here – to get past interdiction
       Stop you from getting here – questioning by Canadian customs officials

Non-refoulement
    Asylum-seekers cannot be returned to the place where they claim that they are at risk in the first
       place
    Once become refugees, cannot be returned to place in
    Interdiction measures are applied across the board – not only for security measures

Conflict between non-refoulement and Interdiction
    Just before –
    Territorial borders – 12 nautical miles of sea is where Canadian territory begins
    Stop them on the high seas – which is not within territory – clearly once they come within territory, must
        process,
    Patrol the 12 mile limit and make sure no boat comes through – stopping them at the border – clearly
        contravenes non-refoulement
    Does interdicting people at Heathrow contradict principle of non-refoulement?


Authorization of Interdiction – s.15(3) - (460)
    S.15(3) – authority to inspect
    Does Canadian law have extra-territorial application
    In practise, they get the cooperation of country – mutual agreement

Visa Requirements – as a tool of Interdiction
     Another form of interdiction
     Fake documents are expensive
     Even if get fake documents, no guarantee of it not being detected – certain documents are better than others
     Reality, once visa requirements are imposed, very difficult the get here

Auditor General Report – CIC Chp.5 – (492)
    5.26 – visa effective means of control of access
    final decision on admissibility
    decline of refugee claims by imposing Hungarian visa requirements and Zimbabwe

Sanctions Imposed on Airlines – from report
    airlines must screen documents when travel abroad

Luthansa
    trial – imposing of sanction for not examining passengers
    on appeal, Luthansa succeeded – liability for presenting someone to customs line
    immigration officials had boarded the plane
    many airlines have their own security before you board the plane




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Austria case – re: fake passports
     airline could not be expected to know which documents are valid and which documents are fake
     therefore, section of criminal code of Austria was invalid

Sale v. Haitian – U.S. Supreme Court
     Interdiction on High Seas
     U.S. statute that prevents refoulement and 1951 Convention did not apply to U.S. Coast Guard on high
        seas, but only on U.S. territorial waters
     Rationale for interdiction on high seas
     Provides legal authority to prevent potential refugee claimants from reaching their country in the first
        place when travelling on the high seas

Recent Australian Decision
    10 nautical mile radius is now considered not part of Australia for the purposes of immigration

Closing of Borders During American Attack on Afghanistan
    Pakistan, China and surrounding countries borders closed
    mass population prevented from leaving and getting away form bombing

UNHCR – Conclusions and Criticism
    Conclusion No. 6 – 1977
    as late as June 2000 – Executive committee – issued a conclusion on interception making the point that is
     violated the principle of non-refoulement
    some have criticized UNHCR for pre-maturely repatriating refugees – ex: Rwandans – because UNHCR
     budget is running out
    if don’t have money to take care of refugees, or send them back to former homes where they can at least
     take care of themselves – leave them to starve?? – forced to act contrary to international law due to lack
     of resources – UNHCR budget is voluntary

EXAM
1 fact pattern – 50% -1 other question (choice between 2 and 3) – 2 will be essay question, 3 will be series of short answer




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