REFUGEE right of asylum by alicejenny

VIEWS: 5 PAGES: 45

									                                   REFUGEE SUMMARY



  I. BROAD PRINCIPLES                                                     2

 II. STAY OUT (Interdiction, Trafficking, Safe Third Country)             7

 III. MECHANICS (Inland v. Overseas, Country of Reference, Credibility)   9

 IV. CONVENTION REFUGEES V. PERSONS N NEED OF PROTECTION                  13

  V. CONVENTION REFUGEES – ELEMENTS OF THE DEFINITION                     15

         a. Well-Founded Fear (includes IFA)                              15

         b. What is Persecution (includes Nexus)                          17

 VI. PERSONS IN NEED OF PROTECTION – ELEMENTS OF THE DEFINITION           21

VII. ROLE OF THE STATE (Persecution v. Prosecution, State Protection)     23

VIII. CESSATION AND EXCLUSION                                             27

 IX. VULNERABLE CLAIMANTS                                                 32

  X. PROCEDURAL FAIRNESS (PRRA, JR)                                       35

 XI. ARREST & DETENTION                                                   43
                                                                                                        2




                                   I. I.    BROAD PRINCIPLES
                                           BROAD PRINCIPLES



Primary principles
    Everyone entitled to full haring only once. Repeat claims dealt with n other ways.
    Refugee protection reserved for those who do not have protection from their home state or a
      third country
    Certain categories of ppl do not deserve protection


Act of last resort
    Claim to refugee status should be a last resort after al other possibilities have been exhausted
            o Could have IFA, be subject to exclusion or cessation clauses, safe third country,
                nationality of a second country that could protect ~ not a Convention refugee
    Article 1E of Refugee Convention: “This Convention shall not apply to a person who is
        recognized by the competent authorities of the country in which he has taken up residence as
        having the rights and obligations which are attached to the possession of the nationality of that
        country”
    “International refugee law was formulated to serve as a backup to the protection one expects fro
        the state of which an individual is a national. It was meant t come into play only in situations
        when that protection is unavailable, and then only in certain situations. The international
        community intended that persecuted persons be required to approach their home for protection
        before the responsibility of other states becomes engaged” LaForest in Ward

Rights of Individuals

   1. Right of Non-Refoulement
         a. See below: X: PROCEDURAL FAIRNESS (under info on PRRA)

   2. Right to Legal Assistance
         a. Right to have counsel in hearing before Refugee Protection Division

   3. Social & Economic Rights
         a. Sources:
                  i. Many enumerated in Refugee Convention – must parallel most favourable
                     treatment afforded to foreign nationals & not less than treatment accorded to
                     aliens generally~ Arts.17-19 Ref. Con.
                 ii. Convention on Rights of Child – right of all children to at least primary school
                iii. Similar rights in EU Charter, etc
                iv. Provincial leg may require all children in the province to attend school
         b. Work & Study
                  i. No automatic right to work or post-secondary education
                                                                                                      3

                  ii. Can apply for work permits if pending decision or under unenforceable order
                      (s.206 of Regs) or has been deemed a protected person (s.207(c))
                          1. allowed to apply from inland per s.199(f) Regs
                          2. becomes invalid after it expires or when the removal order becomes
                              enforceable
                          3. Right to be able to work not actualized until after you have a medical and
                              submitting an app for a work permit (no fees) and once you have your
                              permit then you go to HRSDC an get a SIN
                                       Open ended (usually minimum of two years) and it is not
                                         conditional (unless there is a medical issue)
                                       No HRSDC labour market opinion needed for claimants,
                                         protected persons or person subject to unenforceable removal
                                         orders – s.203(1) Regs
                 iii. Can apply for study permit if under unenforceable removal order (s.215(1)(d) or
                      once they have been deemed to be a protected person (s.215(1)(g) per s.207
                      Regs).
                 iv. Right for children to attend primary/secondary school – s.30(2) IRPA
                       Clearly entrenched in European doc in Article 10 – uses best interest of the
                          child from the children‟s convention
                       In Canada, its far more ambiguous since education is provincial and has
                          meant inconsistent policies and access
                       Accessing university requires a letter of acceptance from the university,
                          proof that you can pay, etc

   4. Financial Assistance
         a. Article 23 Refugee Convention – refugees entitled to same treatment wrt public relief
             and assistance as is accorded citizens.
         b. Can apply for OW/ODSP after being resident in province for 3 months
         c. Generally need legal immigration status, residency and a SIN

   5. Medical Coverage
        a. Interim Federal Health Program

   6. Documentation - Right to refugee documents, which allows them to apply for everything else
      o Same in EU – very important b/c many ppl maybe arriving without any docs and is vital to
         have any other rights recognized
      o IRPA provides lack of documents as grounds for detention. If it was hard to get docs from
         your home country when you are abroad, but it becomes essentially impossible if you are
         trying to do it from within detention.

Minimum Standards
There are fundamental principles set out in the Convention, the UNHCR Guideline and domestic
guielines
     One is the principle of non-refoulment
                                                                                                    4

        o Whatever procedure you have in place you can not prematurely identify and judge
            whether a claim is bona fide or bogus. Better to let in a bogus claim than to turn away a
            genuine one
   Ths feeds into the second principle: Everyone has a right to have their claims heard
        o Screening shoud not take place at the bordes or by police officers or others who‟s job it
            is to keep people out
        o Every one must be referred to a specialized body responsible for evaluating clams
        o Irrelevant if tey are coming on real of false documents
   In Canada, it means all refugee claimants are screened for elegibility AFTE they have been
    admitted and AFTER their riht to make a claim has been preserved
        o Refer for medicals
        o Fingerprinting to ascertain identity
        o Trying to find ppl who would be excluded by Article 1F
   Third principle: The body must be specialized and arms length from the gov‟t
        o Focused soley on deciding issues of asylum.
        o Very narrow scope of whether someone meets the defintion or not. No consideration
            about what happened before they get there or what may happen after.
        o No conflicting mandate
                  Case – CBSA used to assess PRRAs but is it fair that they be deciding status
                    when their main goal is to enforce and remove ppl. After this case, it split and
                    its now a separate branch of CIC
                  Questions asked at the port of entry are very similar to the questions you will be
                    asked in the refugee determination process, and all of your answers are recorded.
                    These notes become part of the refugee determination process. To wat extent
                    does this taint the process?
   Fourth principle: Board members must have expertise in int‟l law and int‟l human rights law.
        o Need to have real judicial independence
   Fifth principle: Decision makers should have access to a service / doc office to collect info to
    help them make decisions.
        o In Canada, can make information requests
                  However, could be used by the Board to seek out info to defeat the claims
        o Purpose of doc center must be to provide general information but not be working as a
            secret intelligence branch to defeat claims
   Sixth principle: Asylum seekers should have access to counsel & an interpreter at every step
    along the way.
        o Howdo we ensure counsel is competent and diligent?
   Seventh principle: Asylum claims should be examined with a personal appearance of every
    seeker.
        o So much of the decision is dependent upon credibility
        o Hence a problem with PRRA
   Eighth – written reasons, especially if it is negative.
        o Have the right to know why the claim is being denied so that there is an effective ability
            to appeal
        o Written right into the IRPA
        o No legal right to reasons for positive decisions b/c no need to appeal, although you can
            ask
                                                                                                     5

        o In Canada, there is no right to appeal – you can only access JR with leave of the court,
           and its only a right to review the previous decision instead of a new hearing
                If you are appealing, your removal will be suspended (thus in accordance with
                   the first principle of non-refoulment)
    th
    9 : Exceptional treatment – there may be circumstances in which the generally established
    procedures aren‟t appropriate.

   Right of Non-Refoulement
       o Generally seen as principle of international law binding on all states, independent of
           specific assent or not.
               Some argue it applies equally to everyone, even those beyond the scope of the
                   Convention definition of refugee (Goodwin-Gill)
               Others disagree, esp in the face of mass migration due to humanitarian reasons.
                   States may choose to not accept pp, or may plainly not have the resources to take
                   them in
               Interdiction measures also complicate things – if turn people away to continue to
                   suffer. Is there really a difference?
       o Sources:
               Refugee Convention – Article 33 – a Convention refugee, a protected person
                   who is a Convention refugee and refugee claimants cannot be refouled unless
                   they are a threat to national security or pose a danger to the public.
               Convention Against Torture – Article 3
                        Committee Against Torture states we need to comply, even when person
                           is a serious criminal or security risk.
                        “We conclude that the better view is that international law rejects
                          deportation to torture, even where national security interests are at
                          stake. This is the norm which best informs the content of the
                          principles of fundamental justice under s. 7 of the Charter” (Suresh)
                  s.7 of Charter – no statutory protection for Convention refugees who have not
                   had that status recognized. Under Convention, don‟t need to be recognized to be
                   a refugee, but will need to use Carter for non-refoulement.
                        “…the fundamental justice balance under s.7 of the Charter generally
                           precludes deportation to torture when applied on a case-by-case basis”
                           (Suresh)
                        “…where Canada‟s participation is a necessary precondition for the
                           deprivation [of life, liberty of security of the person] and where the
                           deprivation is an entirely foreseeable consequence of Canada‟s
                           participation, the government does not avoid the guarantee of
                           fundamental justice merely b/c the deprivation in question would be
                           effected by someone else‟s hand” (Suresh)
                  IRPA – s.115(1)


   Loss of Right of Non-Refoulement
       o Even if found to be a protected person, the principle of non-refoulement does not apply
           if: ~s.115(2) IRPA
                                                                                          6

       a) inadmissible on grounds of serious criminality and who constitutes, in the
          opinion of the Minister, a danger to the public in Canada; or
      b) 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.
o Applicant must establish on substantial grounds they face torture, death or cruel and
  unusual treatment. More than suspicion but less than highly probable. Must be personal
  risk (Almrei)
o Balance between danger posed to Canada‟s national security and the risk faced by the
  person if they are deported to their country of origin.
      a) Must be extraordinary circumstances (Suresh)
                                                                                                     7



                                      II.     STAY OUT

Theory / policy
    Man measures collapse idea of refugee and illegal into one. As long as they are „over there‟,
      they are refugees, but as soon as they try to come then they are „illegals‟(Audrey Macklin)

Interdiction
     Measures designed to prevent non citizens from entering state territory.
     Examples: carrier sanctions, collection of passenger information, imposing visa requirements,
       intercepting incoming vessels, etc
           o Officer may board and inspect any transportation bringing persons to Canada, examine
               everyone, seize any documents and hold the carrier until inspections are complete ~
               s.15(3)
           o Direct backs at land borders with US. Canadian IOs schedule interview with claimant
               and then direct them back to the US to await processing. Only at US land POEs, and not
               for unaccompanied minors. Brought in after US changed policies post-9/11, leading to a
               surge of claimants.
           o Visa requirements reflect socio-political and dramatically reduce numbers. Must present
               valid passport, which is a problem for ppl fleeing state persecution
     Usually coordinated by CBSA and involves work both at our own POEs and at departure points
       around the world.
           o UK posted British immigration officers at airports in Prague for pre-clearance. Had
               right to refuse boarding.
     Interception techniques rarely have ways of distinguishing refugees from non-refugees.
       Everyone returned en masse.
     US Supreme Court has interpreted s.33 of Convention (non-refoulement) to only apply once
       person is within a state‟s territory (incl. territorial waters). Does not create any obligations
       towards people in extra-territorial waters (Sale v. Haitian Crts. Council).

Anti-Smuggling / Trafficking of Persons
         o 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
             Women and Children
                  Protocol to UN Convention on Organized Crime (protocol: subsidiary treaty that
                    adds or amends an existing treaty in some way. A piggie back treaty).
                  Approx. 2 million people are trafficked every year
                  Trafficking must be distinguished from Human Smuggling
                        o Element of smuggling involved, but there is the additional element of
                           exploitation

                 IRPA s.117-120: Human Smuggling & Trafficking
                     o S.117 was the section the refugee worker was charged under
                     o Makes it an offence to merely organize the coming to Canada of one or more
                        persons who do not have passports/visa and who require those documents
                     o Less than 10 persons smuggled – 10 yrs in prison for 1st offence and/or
                        $500,000 fine.
                                                                                                         8

                       o Second offence – 14 years in jail and/or $1 million fine

                  Airlines, buses, etc can be fined administrative fees for bringing undocumented
                   people here ~ s.148 IRPA
                  2006 – new measures to help the victims - Temporary Resident Permits issued for up
                   to 4 months, No processing fee charge, eligible for IFH

Safe Third Country
    Basic: the first safe country a claimant reaches takes responsibility for that person. Agreement
      decides who adjudicates the claim.
    Established throughout Europe (came into force 1997) and the Canada/US agreement came into
      force in 2004
    Intended to promote sharing of responsibilities for refugee protection, prevent „asylum
      shopping‟
    For Canada, Safe Third Country (STC) agreements in our favour. We are geographically
      isolated and not a transportation hub – almost everyone goes through somewhere else 1st
    Canada/US: only applies at land borders
    4 exceptions in Article 4(2) of the Agreement:
          o unaccompanied minors
                  US does not use principle of BIC, so routinely detain children
          o claimants who have family members (accepted refugees or lawful status beyond visitor)
                  NB: Canada acknowledges common law / same sex. US does not.
                  Def of family does not include children under 18, b/c didn‟t want families to
                      send kids alone first, thus allowing the rest of the family to follow after b/c they
                      have „family‟ here
          o claimant who have a family member who is at last 18 with a pending refugee claim
          o claimants who arrive on a valid visa or do not need a visa.
    Canada has made 2 other exceptions beyond the ones in the agreement
          o Nationals or residents of moratorium countries
          o Claimants who have been charged/convicted of a crime which carries the death penalty
    Does not apply to US / Canada citizens or stateless who have habitual residence in Canada / US
    Need to prove on balance of probabilities an exception applies
    Both sides agree claimants won‟t be removed to any country besides US/Canada, and won‟t
      remove a claimant until after a determination of the claim.
    Concerns:
          o Decreased numbers here = increased backlog in US
          o May force people to resort to smuggling or illegal entry
          o Difference in how claims are handled (higher detention, less sensitivity to gender-based
              acceptances, etc)
                                                                                                      9



                                       III.   MECHANICS

Statutory Provisions
    Group sponsorship of refugees ~ s.13(2) IRPA
    Refugee protection conferred on persons determined to a Convention refugee or person in need
       of protection ~ s.95
    Convention refugee ~ s.96
    Persons in need of protection ~ s.97
    Exclusion per Articles 1E or 1F ~ s.98
    PRRA ~ s.112

Types of Claims:

   1. Inland
          a. Claims go through 2 stages
                 i. Determination of an individual‟s eligibility to seek protection (CIC)
                        1. Most ppl eligible to make a claim unless they have already been deemed
                           a refugee under IRPA or had a claim denied, a prior claim has been
                           deemed ineligible for referral/withdrawn/abandoned, recognized as
                           Convention refugee by another country, they came from a safe 3rd
                           country or they are inadmissible for security/HR/ser & org crime ~ s.101
                           IRPA
                        2. Eligibility to be determined within 3 days of when claim made ~ s.100(1)
                           IRPA. If decision not made, deemed eligible (exceptions only if referred
                           to admissibility hearing for security or awaiting judgment for serious
                           criminality)

                   ii. Determination of the substantive merits of the claim.
                          1. Claims referred to Refugee Protection Division
                          2. PIF (submitted within 25 days) & disclosure of all documentary evidence
                             well in advance of hearing
                          3. Appoint designated rep if need be, c
                          4. Claims of close family members automatically joined, and decision made
                             be made on common pool of evidence
                          5. Can hold expedited or full hearings, almost always in camera except in
                             exception circumstances with consent of claimant (ex: Hinzman)
                          6. Parties to the hearing include the Member, the claimant & counsel,
                             interpreter, RPO to assist the Board investigate the claim, and Minister‟s
                             reps (if intervening)
                          7. Reverse ordering per Guideline #7 – RPO, Member, and then claimant‟s
                             counsel
                                 a. Heavily criticized for creating a negative presumption the
                                      claimant then needs to overcome (Thamotharem)
                                                                                                        10

       b. Refugee claimants (still foreign nationals at this point in the process) may be deemed
          one of two types:
              i. Convention refugee class ~ per s.96 of IRPA, incorporates definition from UN
                  Refugee Convention
                       May be inside or outside Canada
                       Status: Protected person (foreign national)
             ii. Persons in need of protection class ~ per s.97 IRPA; incorporates either risk of
                  torture (per article 1 of Convention Against Torture) or a risk to life or cruel or
                  unusual treatment or punishment
                       Must be inside Canada
                       Status: Protected person (foreign national)

       c. If deemed be one of these to subclasses and given Protected Person status, they may
          then apply for permanent residence
                i. Must file for PR within 180 days of determination
               ii. Provide proof of identity
              iii. Not be inadmissible on the big 4 (security, human rights, crime, danger to health
                   & safety)

       d. If refugee claim is rejected or they are excluded from protection, in limited
          circumstances (ie: moratorium countries) they may still stay as person under an
          unenforceable removal order - Status: Foreign National

2. Overseas resettlement
      a. May make an application for permanent residence under the refugee / humanitarian
         protected class. 3 subclasses
               i. Convention refugees abroad class ~ ss.144-145 Regs
                      Status: Convention refugees abroad class
                      Determined to be a Convention refugee by a visa officer abroad
              ii. Source country class ~ s.146, s.148
                      Status: Humanitarian-protected persons abroad class
                      Colombia, El Salvador, Guate, Congo, Sierra Leon, Sudan
                      In country of nationality or habitual residence which has been designated a
                       source country, and have been affected by war, would be a Convention
                       refugee is outside their country, or are being detained without charges for
                       a legitimate expression of freedom of thought or civil rights re: dissent /
                       trade unions
             iii. Country of asylum class
                      Status: Humanitarian-protected persons abroad class
                      Outside country of nationality & habitual residence, and have been or
                         continue to be seriously affected by war or massive HR violation
      b. If deemed to be any of these subclasses, they will become permanent residents of
         Canada upon arrival in Canada.
      c. NB: Overseas applicants not protected by s.7 of Charter (Singh)
                                                                                                     11

Status determination

2 ways of making a claim
    Port of Entry before they are officially admitted into the country
          o Includes being in Canada‟s territorial waters
    Inland claim after you have been lawfully admitted into the country
          o No time limit afterwards – can claim 10 years later


Burden of Proof

          Legal burden of proof on refugee claimant to establish they are a Convention refugee
              o Each element determined on balance of probabilities, but each element does not
                  require proof of every fact on BOP
              o Burden to provide documents to show identity very strong – can go to adverse
                  finding of credibility or even detention
              o Objectively well-founded fear of persecution – more than a serious possibility (less
                  than BOP)
          Evidentiary presumptions can facilitate this or make it harder
              o Presumption of state protection

Multiple Countries of Reference

      Jurisprudence the same for s.96 & s.97 – countries) of nationality or the country of former
       habitual residence of no country of nationality.
      IF a claimant has multiple countries of nationality, their danger must be evaluated against each
       one separately
      Need to show real and effective connection to establish nationality – a genuine link - involves
       weighing multiple factors including habitual residence along with family ties, participation in
       public life (Katkova)
           o Katkova - Board found Israel was a country of nationality for a Jewish woman b/c of
               Law of Return, despite never being there and having no desire to go. Held: Board erred
               – being Jewish is not enough to make her an Israeli citizen.
      Stateless people must show that, on a balance of probabilities, the person would suffer
       persecution in any country of former habitual residence, and that they cannot return to any other
       countries of former habitual residence (Thabet)
           o Thabet - Stateless Palestinian had lived in Kuwait & the US. Permit in Kuwait denied
               & US denied his asylum claim. Held: Board needs to look at the reasons why person
               unable to return to country.
           o Don‟t need to show persecution in all countries, but do need to show you can‟t return to
               any of them
      Protection will be denied where it is shown that the applicant is entitled to acquire by mere
       formalities the nationality of another country which they have no well-founded fear of
       persecution in (Ward, Bouianova)
                                                                                                     12

           o TEST: If it is within the control of the applicant to acquire the citizenship of a country
             with respect to which he has no well-founded fear of persecution, the claim for refugee
             status will be denied. (Williams)
                  Williams - Rwandan citizen could gain Ugandan citizenship if they renounce
                     their Rwandan one
                  Countries of nationality include countries that the claimant can obtain citizenship
                     if they first renounce citizenship of another country

Credibility
    TEST: Is the story in harmony with the probabilities that a practical and informed person would
      recognize as reasonable in the given circumstances (Faryna v. Chorny)
    Can not be prejudged – needs to be predetermined on a case y case basis
           o Board should not be over-zealous in its microscopic examination of evidence
              (Attakora), needs to focus on relevant issues (Armson)
           o Board needs to justify why it thinks someone is not credible (Armson, Maldonado)
    Factors to consider
           o Delay in making a claim – the longer the delay, the less likely the person is actually
              afraid (but almost all claims have a delay of some sort, and very few refugees come
              directly to Canada, pus safe third country issues)
                   Failure to make a claim elsewhere – an issue to varying degrees for all inland
                      claims if they passed through other places. However, not an auto bar
                   Delay in claiming upon arrival – can be a bar, but not automatic. Can be
                      explained.
           o Legitimate for Board to examine expression of a political opinion here in Canada to
              determine if the expression is genuine and not for the purpose of creating a bogus
              refugee claim (Zewedu)
    Refugee Protection Division not bound by any rules of evidence ~ s.170(g), and may use any
      evidence it considers credible or trustworthy as determined to be so on a balance of
      probabilities ~ s.170(h) IRPA
    By nature of refugee claims, some things may not be susceptible to proof. If the applicant
      appears credible, they should be given a benefit of the doubt (Handbook on Procedures and
      Criteria for Determining Refugee Status)
           o When an applicant swears to the truth of something, this creates a presumption that it is
              true unless there is a reason to doubt the truthfulness (Maldonado)
           o No benefit of the doubt when allegations are contrary to available evidence and
              generally known facts (Chan)
    Board needs to allow witness to corroborate, but RPD has no duty to call witness for the
      claimant.
    Findings of credibility given significant deference by the courts
    Telling of stories heavily impacted by the psychological consequences of the experiences
      (PTSD, disassociation, nervous laughter, fear of telling the story), culture (ways ppl express
      themselves, perceptions of self, surroundings, time, norms, etc), interpretation (esp. btw PIF and
      hearing), Board member‟s vicarious trauma and defences (denial, avoidance)
                                                                                                         13



                               IV.CONVENTION REFUGEES (96)
                                            V.
                            PERSONS IN NEED OF PROTECTION (97)

 Convention Refugee

   Section 95 confers refugee status on someone who has been deemed to be a Convention refugee
    or a person in need of protection
          o Section 96 defines what constitutes a Convention refugee
   Canadian definition based on Article 1A(2) of the Refugee Convention
          o “well-founded fear of being persecuted for reasons of race, religion, nationality,
             membership of a particular social group or political opinion, is outside the country of his
             nationality and is unwilling to avail himself of the protection of that country; or who, not
             having a nationality and being outside the country of his former habitual residence as a
             result of such events, in unable, or owing to such fear, unwilling to return to it”.

          o Put into Canadian law as s.96 of IRPA
                 “A Convention refugee is a person who, by reason of a well-founded fear of
                    persecution for reasons of race, religion, nationality, membership in a
                    particular social group or political opinion,
                       a) is outside each of their countries of nationality and is unable or, by
                           reason of that fear, unwilling to avail themself of the protection of
                           each of those countries; or
                       b) not having a country of nationality, is outside the country of their former
                           habitual residence and is unable or, by reason of that fear, unwilling to
                           return to that country.

   Can be a result of circumstances that have arisen since the claimant left their country
   Applies to both inland/POE and overseas claims
   Unwillingness of an applicant to take steps required to gain state protection will be fatal to the
    refugee claim unless that unwillingness results from the very fear of persecution itself. (Williams)

Person in Need of Protection

   Section 95 confers refugee status on someone who has been deemed to be a Convention refugee
    or a person in need of protection.
          o Section 97 outlines the definition of a “person in need of protection”
          o Added in for the first time in IRPA
   97. (1) A person in need of protection is a person in Canada whose removal to their country or
    countries of nationality or, if they do not have a country of nationality, their country of former
    habitual residence, would subject them personally
          a. to a danger, believed on substantial grounds to exist, of torture within the meaning of
             Article 1 of the Convention Against Torture; or
                                                                                                      14

        b. to a risk to their life or to a risk of cruel and unusual treatment or punishment if
                i.   the person is unable or, because of that risk, unwilling to avail themself of the
                     protection of that country,
               ii.   the risk would be faced by the person in every part of that country and is not
                     faced generally by other individuals in or from that country,
              iii.   the risk is not inherent or incidental to lawful sanctions, unless imposed in
                     disregard of accepted international standards, and
               iv.   the risk is not caused by the inability of that country to provide adequate
                     health or medical care.
 (2) A person in Canada who is a member of a class of persons prescribed by the regulations as
  being in need of protection is also a person in need of protection.



 May be granted protection by either the Board after a refugee hearing, or by the Minister after a
  PRRA.
 Only applies to people already IN Canada (diff from Convention definition)
 97(2) enables gov‟t to expand the definition within the regulations, but to date this hasn‟t
  happened yet.
 Can be a result of circumstances that have arisen since the claimant left their country.
 May even be because they have claimed protection abroad, thus exposing them to increased risk
  of torture if they go home (Charkaoui 2005).

 International Law: Section 97 based on treaty obligations under Convention Against Torture
  and ICCPR.
          o Both have monitoring bodies – “Human Rights Committee” (ICCPR) and
              “Committee Against Torture” (CAT) which gets regular reports and receives
              complaints.
          o Canada has recognize the jurisdiction of both
          o Rulings not binding, but certainly persuasive. Report, comments & decisions can be
              tools for interpreting the criteria for „person in need of protection‟
          o Differences in how w accept their role when interpreting the statute vs. when they
              are adjudicating on complaints against us?
                   “In signing the Protocol, Canada did not agree to be bound by the final views
                      of the Committee, nor did it even agree that it would stay its own domestic
                      proceedings..” (Ahani)
                                                                                                        15



                                    CONVENTION REFUGEES
                                  ELEMENTS OF THE DEFINITION



                       CONVENTION REFUGEES - WELL-FOUNDED FEAR


General
          Notion of refugee implies fleeing something – they have a well-founded fear
          There is an objective danger, and the claimant is afraid
              o These are the objective and subjective element of the claim

Objective Basis
   Need to establish a serious possibility of persecution in the country of reference.
   Objective element established as of date of hearing.
   Needs to considered in concert with other elements
          o Ie: state protection: “if a state is able to protect the claimant, then his or her fear is not,
             objectively speaking, well-founded (Ward)
   Often established by use of „objective sources‟ like country reports, HR Watch, etc, but can also
      be through personal testimony

      Level of Risk

           o Less than certainty, more than mere speculation
           o Can be described as „reasonable chance‟ – is there a reasonable chance that persecution
             would take place if the applicant is returned tot heir country o origin? Less than 50%
             but more than minimal or mere chance (Adjei)
           o Necessarily fuzzy term – cant actually be precisely determined and can only be given
             real meaning through case-by-case adjudication (INS v. Stevic)
           o US & UK jurisprudence has placed it somewhere between 10% and less than the
             probability of 50% (Chan, Cardoza-Foncesca)

      Past & Future Risk
          o Evaluation is forward looking – designed to prevent a claimant from being returned to a
             country where they will face a risk of persecution in the future (Longia).
          o Does not need to show they have actually been persecuted in the past or would be
             specifically persecuted in the future (Salibian)
          o Past persecution goes to whether or not there is risk for future persecution, but it is not
             an automatic presumption of future persecution (Sman)

      Location of Risk (Internal Flight Alternative)
          o Is there an IFA?
          o Same jurisprudence for Convention refugees (s.96) and Persons in Need of Protection
              (s.97)
                                                                                                       16

          o Notion of refugeehood is that there is no safety anywhere in your own country – if there
            is an IFA, you do not qualify in the Convention definition.
          o If claimants are able to seek refuge in their own country, then they don‟t fit the
            definition of unable or unwilling to avail themselves of protection of that country. IFAs
            are not a matter of convenience (Thirunavukkarasu)
          o Case law used to look at reasonableness of IFA (Rasarantam) but now look t it as part
            of level of risk. Would the IFA actually provide any safety?
          o In order to be deemed unreasonable, conditions must exist that would jeopardize the life
            and safety of the claimant. This must be proven with actual and concrete evidence
            (Ranganathan)
                  Significantly higher threshold than just undue hardship (jobs, family, etc)
          o Burden of proof on claimant to show on a balance of probabilities that there is no IFA.
            Must rebut presumption of state protection. (Thirunavukkarasu)
                  Must have “clear and convincing confirmation of a state‟s inability to protect”
                    (Ward)
          o IFA must:
                  Eliminate objective basis of fear
                  Be realistically accessible to the person (Thirunavukkarasu). Not expected to
                    hide out in the jungle or cross battle lines to get there.
          o Factors to consider (UNHCR Guidelines)
                  Is the IFA practically, safely and legally accessible to the person?
                  Is the agent of persecution the state (if yes, presumption the state is everywhere
                    and thus there is no IFA)
                  Is the agent of persecution a non-state actor (if yes, are they likely to follow the
                    claimant, and is there state protection available in that area)
                  Would the claimant be exposed to risk of persecution or serious harm in the new
                    area (can be new or original harm)
                  Can the claimant, in the context of the country concerned, lead a reasonably
                    normal life without facing undue hardship (considering personal circumstances,
                    past persecution, safety & security, human rights an economic survival)
                         NB: Canadian case law in Ranganathan is contrary to this point

Subjective Basis

      Along with objective basis for fear, the claimant must also subjectively feel fear.
      The act of making a claim expresses fear, as does the personal testimony of a claimant saying
       they are afraid
      Nee to meet requirements of subjective element at time of hearing
      Often gets confused with issues of credibility
                                                                                                       17



                  CONVENTION REFUGEES - WHAT IS PERSECUTION


General:
    Undefined in IRPA & Refugee Convention
    Generally determined on a case by case basis
    Courts often rely on plain language meaning, as seen in the dictionary definitions used in
      Rajudeen
         o “To harass or afflict with repeated acts of cruelty or annoyance, or afflict personally, to
            afflict or punish because of particular opinions or adherence to a particular creed or
            mode of worship” and “A particular course or period of systemic infliction of
            punishment directed against those holding a particular belief, persistent injury or
            annoyance from any source”

Criteria / Hallmarks
    Generally, the acts or omissions which constitute persecutions have the following
       characteristics:
           A. Harm is sufficiently serious AND/OR Harm is persistent, repetitious or systematic
           B. Harm has a personal nexus with a Convention ground
           C. Harm is more than criminal acts alone
           D. Does NOT require state involvement or complicity

A. Sufficiently Serious
     Harm is sufficiently serious AND/OR Harm is persistent, repetitious or systematic
           o Serious: Compromises core human rights through denying that right or active violation
               thereof.
                    What interest is being harmed, and to what extent?
                    Not all „human rights‟ were created equally. Things like freedom from
                       slavery/torture are absolute and non-derogable, freedom from arbitrary arrest &
                       detention / freedom of opinion are absolute but can be derogated, and things like
                       2nd gen rights to work, education and qualified and derogable (James Hathaway)
                    However, look to the cause of the violation of a lesser right (ie: political opinion)
                       and if there is a culmination of things (He – attended protest in China,
                       imprisoned, forced to leave career as teacher and move to new community w/o
                       choice)
           o Persistent: Repeated acts of harassment or individual acts of discrimination and
               harassment may amount to persecution
                    Generally needs to be more than an isolated incident (Kandiah)
                    No formal requirement for the act to be repeated, particularly for very serious
                       violations., but generally need to demonstrate repetition to help demonstrate the
                       seriousness.
                            Seriousness derived from totality of the acts.
                    Need to look to cumulative nature of persecution (Retnem). Can culminate as
                       persecution even if each individual act does not constitute persecution (Bandula)
           o Conclusion: Look at the big picture.
                                                                                                       18



B. Personal Nexus
     Harm has a personal nexus with a Convention ground
           o RACE
           o RELIGION
           o NATIONALITY
           o POLITICAL OPINION
           o MEMBERSHIP IN A PARTICULAR SOCIAL GROUP
     In order to establish nexus, there must be evidence the enumerated ground has caused the well-
       founded fear.
           o Can be an act or omission on that basis of the ground (active harm vs. failure to help)
           o Does not need to actually be a member of the given group – just need to prove you are
               perceived as such (cuz how the hell do you scientifically prove race or ethnicity, and the
               persecution meted out to you is b/c other ppl see you as such)
           o Mere membership usually not enough
     State at centre of analysis as either the agent of persecution, or the agent responsible for
       protection.
     Claimant asked to identify which enumerated ground applies to their situation, but the decision
       maker also has a duty to consider each possible nexus based on the facts. (Ward)
     No such thing as indirect persecution (Pour-Shariati). Convention grounds still allow for
       membership in a particular group, so impact on family can be accounted for there.

      Nationality
          o Not restricted to legal status – can mean legal citizenship but can also mean broader
             ethnic or linguistic group (UNHCR Handbook) (nation as group of people connected)
                  Can include internationally unprotected person resident in a country but are
                     unprotected b/c f status as „foreigner‟ (Kurds in Iraq, Turkey & Germany);
                     Persons denied full citizenship in their own country (Palestinians in Israel);
                     situations where people are disenfranchised by ascribing them a different
                     „nationality‟ within their home state (Black „homelands‟ in South Africa); and
                     states composed of previously sovereign territories when people suffer abuses
                     b/c they continue to define their nationality in terms of allegiance o the
                     predecessor state.
          o Must be distinguished from its usage when determining country of reference (where is it
             means legal citizenship)(Hanukashvili)
          o Can be difficult to separate nationality from political opinion when a specific political
             movement is associated with a specific nationality (UNHCR Handbook)

      Race
          o Broad definition. Article 1 of Convention on the Elimination of All Forms of Racial
            Discrimination defined it as race, colour, descent, national or ethnic origin
                Can overlap with nationality
                Does not include distinctions/exclusions/preferences made between citizens and
                   non-citizens
                                                                                                    19

       o Equation of race wit minority status must be viewed in context of political power, not
         just pure numbers. Key factor is political disenfranchisement , genuine risk of harm not
         remediable by national protection.


   Religion
       o UNHDR & ICCPR protects freedom of conscience – protects religion and any
           behaviour that flow from that (worship, practice, teaching)
       o Membership alone is not enough (Ahmed).
       o Persecution does not need to be targeted at the religion itself (ie: preventing from
           attending to religious practice) but is because of your religion.

   Political Opinion
       o Definition: Any opinion on any matter in which the machinery of the state, government
            and policy may be engaged (Ward)
       o Based on the perceptions of the claimant by the persecutor, even if untrue. May often
            impute someone‟s political opinion based on their family, community, etc
                 Contrast with US approach, that emphasizes the claimant‟s actual opinion, rather
                    than the persecutor‟s perceptions thereof (majority in INS v. Elias-Zacarias)
       o Not enough to just hold different opinions from those of the gov‟t – need to show you
            will face persecution for that difference of opinion.
                 Includes any opinion that attracts persecution, including those where the gov‟t
                    officially agrees with you (Klinko – complained about corruption in Ukraine,
                    gov‟t made promises it was trying to clean up the system)
                 When corruption permeates the gov‟t to such an extent it is part of its very
                    fabric, denouncing corruption is political opinion (Klinko)
       o Usually implies the gov‟t knows your opinion, or will inevitably find out sooner or later
       o Need to make a distinction btw political opinion and politically-motivated acts. If
            prosecuted under law of general application b/c of a punishable act motivated for
            political reasons, fear of such prosecution will not itself be grounds for refugee
            (UNHCR Handbook)
                 Need to evaluate if they are just using the act as a pretext for actually punishing
                    the person for their opinion, or if the punishment is excessive or arbitrary (which
                    would then qualify as persecution)
                 Also need to look at the context f the act – the motives, the nature of the act
                    itself, the nature of the prosecution, and nature of the law
       o Klinko - From Ukraine, complained about corruption in regional government, claimant
            was beaten, property damaged, family harassed. FCA said political opinion broad
            enough to include all opinion that attracts persecution, even if the gov’t officially
            agrees.

   Membership
      o Leading case is Ward
      o Ward: Protected characteristics approach. Term must be limited in scope and analogous
         (but not identical) to the other enumerated grounds. 3 types of „particular social groups‟
                                                                                                        20

                      Groups defined by an innate or unchangeable characteristic (gender, language,
                       sexual orientation)
                    Groups whose members voluntarily associate for reasons so fundamental to their
                       human dignity they should not be forced to change (human rights activists)
                    Groups associated by former voluntary status, now unalterable due to their
                       historical permanence.
           o   „particular social group‟ must be evaluated on the basis of the basic principles in the
               Refugee Convention of human rights and anti-discrimination a the basis for int‟l refugee
               protection (Ward)
           o   UNHCR Guidelines: Does not always require socialization with other members of the
               group (see Chan – forced sterilization as a social group). Not all members of the group
               must be at risk of being persecuted.
           o   Focus on internal characteristics rather than external perceptions thereof. However, the
               experience of persecution may go identifying or creating the social group in society. Ie:
               suddenly persecuting left handed men. It is an internal characteristic, but the social
               group would be created by the persecution.
           o   Potential breadth of social group is limited by the requirement that claimants establish a
               nexus between who the are/what they believe and the risk of serious harm (Ward,
               Refugee Appeal No. 131/93)
           o   Examples of social groups recognized thus far: (also trade unionists, children, etc)
                    Women (Narvaez – women subject to domestic violence in Ecuador) (Ali –
                       female child in Afghanistan, can‟t go to school):
                    Sexual orientation: Clearly included as example of the first category of social
                       groups in Ward
                    Family: Al-Busaidy – harm inflicted on whole family b/c of one person

      Generalized danger: Needs to personally targeted, or as a member of a particular group, rather
       than harm experienced by the general public.(Salibian – Lebanese in civil war)
           o Need a differential impact (Salibian, Adan). TEST: Treatment afforded similarly situated
               persons in country of origin (Salibian)
           o Can look to similarly situated persons as evidence of persona risk
           o Non-comparative approach (esp. in civil war contexts) – do not look to see if harm to
             the one is greater than the harm to all, but rather evaluate the claim as you would any
             other refugee claim entirely on its own merits (Ali)

C. More than criminal acts
    Harm is more than criminal acts alone
          o Must also be serious, for a Convention reason and with no state protection if it is to
             qualify as persecution

D. Does not require state involvement or complicity
    Does NOT need to be state actors
    Does not require state involvement or complicity, just so long as the state is unable to provide
      protection.
                                                                                                      21



                           VI.    PERSONS IN NEED OF PROTECTION
                                 ELEMENTS OF THE DEFINITION


Personal Risk
   Stated twice – in both general 97(1) “…would subject them personally to…” and again in
     97(1)(b)(ii)
   Need to focus on circumstances of the individual themselves – not just broad general patterns or
     practices in the country.
   Burden of proof is „substantial grounds‟ need evidence of specific threats to the person
     personally.
           o Higher threshold than Convention refugee – means “more likely than not” (Li, Selliah)

97(1)(a): Risk of Torture
    Definition of torture per Article 1 of the Convention Against Torture – incorporates the
      Convention directly into domestic law
            o Deliberate infliction of cruelty, suffering, pain, etc
            o Intent is key – human rights violation + subjective suffering
    Danger is „believed on substantial grounds to exist‟
    Must be personal risk
    Things that don‟t quite reach the threshold for torture may still be deemed cruel and unusual
      treatment per 97(1)(b)
    Don‟t need to ascertain the purposes of the torturer (just like don‟t need to know the „why‟ for the
      agent of persecution in Convention cases)
    Torture must be inflicted by or at the consent/acquiescence of a public official acting in an
      official capacity (Article 1, CAT)
            o Must involve state. By definition, won‟t include torture by guerrillas, anti-gov‟t, etc
            o Diff from Convention definition which can be state OR non-state

97(1)(b): Risk to Life or Risk of Cruel and Unusual Treatment or Punishment
    Risk to life – fundamental right per ICCPR, CAT, Charter s.7, etc
    Risk of Cruel and Unusual Treatment or Punishment
           o Punishment: Implies punishment is disproportionate, could mean criminals protected
               here so long as not excluded per Article 1F
           o Treatment: things that are outrage decency; inhuman or degrading
           o Must fulfill all 4 conditions:
                    Lack of State Protection: “unable or, because of that risk, unwilling to avail
                      themselves of the protection of that country”. Effectively the same jurisprudence
                      as state protection or Convention refugees
                    Risk in Every Part of the Country (No IFA – same as Convention) and Risk Not
                      Generally Faced by Others: same exclusions of civil war, natural disaster, etc.
                      However, where generalized risk (widespread criminality) brings specific threat,
                      it may no longer be deemed a general risk.
                    Risk not Inherent or Incidental to Lawful Sanctions: so long as sanctions lawful
                      in country and in accordance with international standards
                                                                                 22


 Risk not due to Inadequate Health Care – only unique part of definition. Wanted
  to avoid wave of ppl making claims to access Canadian health care system (see
  Covarrubias) Distinction between inability and unwillingness – if state unwilling,
  then still able to gain protection
                                                                                                        23




                         VII. THE ROLE OF THE STATE
                VALID PROSECUTION, STATE ABILITY TO PROTECT

When is persecution OK?
   Harm only permitable in the rarest of cases
         o Suresh: Found violation of s.7 will only be saved by s.1 in exceptional circumstances
             like war, natural disaster, etc. “The ambit of exceptional discretion to deport to torture, if
             any, must await future cases.”
         o UN Human Rights Committee: Even in states of emergency, measures still limited to
             the extent strictly required b the situation

Prosecution v. Persecution
    Presumption of legitimacy – states have right to enact and enforce legislation, and there is a
      (rebuttable) presumption of the fairness of the legal systems in other countries (Satiacum)
    Can look to human rights framework for guidance, but must be aware that very few rights are
      absolute.
    By definition, laws of general application must apply to everyone
          o Does not limit possibility that ppl will experience extra-judicial mistreatment or unfair
              process
    Need to primarily look at the intent or primary effect of the law, and the consequences of the
      law for the claimant. Must be related to Convention ground, and must be serious enough o
      constitute persecution.
    4 principals that laws of general application should be assessed against: (Zolfagharkhani)
          1. Statutory definition of Convention refuge makes the intent (or principal effect) of an
              ordinary law, rather than the motivation of the claimant, relevant to the existence of
              persecution
                   What interests is the state seeking to protect?
                   However, does not require persecutory intent to be present – persecutory effect is
                      enough (Cheung)
          2. Neutrality of law vis-à-vis the 5 grounds must be judged objectively
          3. Presumption of neutrality & legitimacy of laws – onus on claimant to show they are
              persecutory
          4. Not enough to show a regime is generally oppressive, but rather the law in question is
              persecutory in relation to a Convention ground.
    Must still keep in mind the seriousness of the rights are that being infringed
    Look to methods used to enforce the law rather than the general aim of the policy (Cheung). Is
      there proportionality between the objective and the consequences on the individual??
          1. A law of general application may also be applied in a persecutory way, esp when the
              punishment is completely disproportionate to the objective of the law (Fathi-Rad,
              Cheung)
           Think of ban on head scarfs in Turkey on arguments that religious expression threatens
              the stability of a secular society (V.M.H). Sketchy argument that has a huge impact on
              the individuals – can‟t work, imprisonment, etc
                                                                                                     24

                     Contrast wit M.A.O – enforcement of dress code in Iran which was limited to
                      being told to cover up and behave.
            China‟s 1 child policy – enforced w/ steep fines, career losses, loss of privileges and
              forced abortion/sterilization (Cheung). One child policy may be law of general
              application, but forced sterilization only affects a limited and well-defined group and
              does not have general application.
            Is it universally applied?
            Still need to prove they are unable or unwilling to seek protection from their own state.
              The law may be off, but are there adequate appeal mechanisms, internal review, etc?
                   Think Hinzman – court refused to answer certified question re: legality of the
                      war b/c they did not pass the first threshold of showing there were insufficient
                      internal protections
      Economic sanctions as a means to enforce compliance with the law does not amount to
       persecution (Cheung, Lin)

Non-State Actors
    “The definition of a „refugee‟ refers to the fear „of persecution‟, without saying that this
      persecution must be „by the government‟ “ (Zalzali)
    Can include persecution either committed or condoned by the state itself, and consist of
      behaviour either directed by the state or in it knowingly tolerating the behaviour of private
      citizens, or refusing to being unable to protect the individual from such behaviour
      (Ovakimoglu)
    Persecution is but one manifestation of the broader phenomenon: the absence of state protection
      of a citizen‟s basic needs. It is this absence of state protection which constitutes the full and
      complete negation of society and the basis of refugeehood. (Andrew Shacknove)
          o Legitimacy of the state linked to effective protection of its citizens


State Protection
    General
          o State protection considered twice – once in relation to well-foundedness of the fear, and
              once in the claimants inability/unwillingness to avail themselves of stat protection
              (Zhuravlvev).
          o Obviously tied in with whether or not there in an objective basis for that fear, esp. when
              the persecution is at the hands of the state
                   Expected to have sought state protection only in situations where state protection
                      might reasonably have been forthcoming (Ward)
          o In order to qualify as “The State”, the body needs to be more than administrative
              authority and control over a territory. Inappropriate to require claimants to seek
              protection from international organizations or militia who are occupying an area
              (UNHCR Guidelines on Internal Protection). Canadian caselaw has been vague on
              this, but has indicated that presence of foreign authority can be taken into account as a
              factor for consideration.
          o Duty to protect is owed by a state to its nationals – may not extend to ppl who are just
              habitual residents
                                                                                                  25

                Stateless just need to establish they are unable, or by reason of the fear,
                 unwilling to return to the country of reference (Refugee Convention Art. 1A(2),
                 IRPA s.96(b)). Do not need to prove lack of state protection.
       o Needs to be evaluated as a matter of state capacity rather than specific local apparatus.
         Local failures in policing (whether by refusal or inability) do not amount to lack of state
         protection – needs to be part of a broader pattern (Zhuravlvev).
              Must consider in conjunction with IFA. Local failure coupled with restriction of
                 internal movement (thus unable to reach IFA) may amount to state failure to
                 provide protection.

   Unable or Unwilling
      o Unable v. unwilling: (UNHCR, cited in Ward).
               Unable: assumes there are circumstances out of the claimants hands that make it
                an actual impossibility to gain protection from the state. Objective criteria
                (Zalzali). Evaluation tends to focus on the lack of available resources for
                protection.
                      Zalzali – failed state of Lebanon – there IS no state to turn to
                      Does not require complete failure of state – state may be capable of
                        protecting ordinary citizens but unable to protect members of a particular
                        social group who have been targeted (Mendivil)
               Unwilling: suggests protection theoretically is possible, but “by reason of that
                fear” the claimant has legitimately chosen to not follow hat course of action.
                Evaluation tends to focus on proximity of persecution to the state. If the state is
                the persecutor, it almost by definition means the claimant can not avail
                themselves of state protection (Rajudeen, Satiacum)

       o Refugee protection is not available where there has been an inadequate attempt to seek
         out the protections of one‟s home country (Ward)
       o Proof: Presumption of a state‟s ability to protect its citizens. To rebut that presumption,
         there must be “clear and convincing confirmation of a state‟s inability to protect”. Onus
         on claimant to prove inability (Ward)
              Can be evidence of similarly situated individuals
              Must generally include a request to the state for protection, unless unreasonable
                 in the circumstances (Ward)
              State not required to provide perfect protection (Villafranca).
              A few isolated incidents will not rebut the presumption of protection. However,
                 evidence of ineffective protection for claimant and/or similarly situated persons
                 may. (Mendivil)
              Refusal to protect by some officers does not automatically make the state as a
                 whole incapable of protection (Kadenko)
       o The more democratic a country, the more the claimant must have done to seek out
         protection from their home state (Kadenko)
              Burden of proof on the claimant is proportional to the level of democracy. The
                 more democratic, the more they must have done to exhaust all courses of action
                 open to them.
                      Still need to be sensitive to context re: gender, etc (Garcia)
                                                                                                  26

o Summary: Absent compete break down of the state structures by reasons of civil war,
  etc (Zalzali), there is a presumption of state protection (Ward). However, this
  presumption is rebuttable be clear and convincing evidence (Ward) that the state has
  been ineffective on a real, operational level at its protective obligations (Garcia). This
  evidence needs to be more than a few isolated incidents or the refusal of some officers
  (Kadenko), but can be established through an evaluation of similarly situated people
  (Medivil).

o Rajudeen: Tamil man in Sri Lanka experienced repeated assaults & death threats at the hands
  of a gang of private citizens. Sinhalese police remained indifferent to assaults against Tamils,
  only came after everything was done and didn’t really investigate things. Court said it was
  reasonable for him to not turn to the state for protection. They’d never helped him or anyone
  else like him
o Zalzali: Lebanese citizen who feared for his life from militias due to his support of the gov’t.
  Can be persecution when state has not participated or been complicit. Key is effective
  protection, which cannot receive if state in complete disarray
o Villafranca: policeman in Philippines marked for death by communist terrorist group. Test to
  show lack of state protection is objective and must show the claimant is either physically
  prevented from seeking it, or the state is somehow prevented from giving it. Situations of civil
  war/total collapse of internal order usually required. State not required to give perfect
  protection – just need to make serious efforts. Not enough to just say state not always effective.
       Garcia says Villafranca overruled by Ward, which said there just needs to be clear and
           convincing evidence – need to show effective protection. Also means no longer need to
           show civil war/total collapse of internal order.
o Garcia: Woman fled from sexual abuse by powerful stepfather in Brazil. Builds on Zalzali and
  Villafranca. ‘Serious efforts’ has to mean actual action (capacity and will), not just developing
  policy.
                                                                                                     27


                            VIII. CESSATION AND EXCLUSION



Cessation

      5 things which end qualification for refugee status (Refugee Convention Article 1C,
       incorporated as IRPA s.108(2) ).
           a. person has voluntarily reavailed themselves of the protection of the country of
               nationality
                     may involve physical presence, but may just be advocacy by self or family/friend
                       at embassy, etc
           b. person has voluntarily reacquired their nationality
           c. person has acquired a new nationality and enjoys the protection of that new country of
               nationality
           d. person has voluntarily become re-established in the country to person left/remained
               outside of and n respect of which the person claimed refugee protection in Canada
                     necessarily involves physical presence
           e. the reasons for which the refugee sought refugee protection have ceased to exist
                     Factual question (Yusuf)
                     Still just a matter of determining as of the date of the hearing if the claimant
                       faces persecution if they go home (Yusuf)
                     Evaluate the durability of the changes (how long have they been in pace – the
                       more recent = more dubious) and significance of the changes for the claimant
                       (relation to specific claim, who as the agent of persecution?)
                     Board has discretion to still grant status to people even when they have
                       technically cease to be a refugee if there are compelling reasons ~ s.108(4) IRPA
                            Must have actually suffered persecution in the past
                            In all cases where the claimant has suffered past persecution but refugee
                               status cannot be claimed b/c there have been a change of circumstance,
                               the Board is required to consider if the person falls under s.108(4)
                               (Yamba)
                            Tends to be grated when person suffered appalling and atrocious
                               treatment (Obstoj) but it is not limited to such cases, especially
                               considering the emotional/psychological consequences of past
                               persecution (Suleiman)
      Can be grounds for initial refusal of refugee status, or grounds upon which earlier findings of
       refugee status can be vacated (Obstoj).
           a. My go to adverse findings for other elements of the decision to grant refugee status. Ie:
               if a person goes home, may call subjective fear into question.


Exclusion

      General
          o Grounds for exclusion are set out in the Refugee Convention and domestic law
                                                                                                  28

                 Section 98 IRPA: A person referred to in Article 1E or 1F of the Refugee
                  Convention is not a Convention Refugee or a person in need of protection.
                       Applies to both s.96 AND s.97 claims
       o   2 primary reasons for exclusion
                Lack of need of protection (Article 1E of Refugee Convention)
                Undeserving of Protection (Article 1F of Refugee Convention)
       o   Exclusion is mandatory
       o   Applies equally to inland and overseas claimants
       o   Build upon foundational ideas that 1) international protection should only be invoked
           when there is no national protection; and 2) international protection obligations do not
           trump national and international stability interests.
                Yet if human rights are universal, how can anyone be excluded from things like
                  freedom from torture?
       o   Degree of well-foundedness of their fear irrelevant to determination of exclusion under
           1E or 1F
                Making a determination does NOT involve balancing the persecution suffered by
                  the claimant against the consequences of their exclusion (Gonzalez).
                       No proportionality for 1(b) either (Gil, affirmed in Malouf)
                However, need to evaluate the manner in which the foreign state will deal with
                  the fugitive on surrender to ensure complies with the principles of fundamental
                  justice in s.7. Deportation to torture will generally violate the principles of
                  fundamental justice (Suresh – more recent that Gil/Malouf). Decision to deport
                  to torture separate analysis from determination of Article 1F (Pushpanathan)
                End result: No evaluation of proportionality unless it triggers non-derogable
                  rights such as non-refoulement.

   Interpretation
       o Guiding principle: profound consequences, so must be interpreted with these
           consequences in mind.
                Determination of exclusion under 1F means they can be sent back to the country
                  they are fleeing from, and their claim for refugee status will not be considered
                  (Pushpanathan)
       o Considering the serious consequences of exclusion, interpretation must be restrictive
           (Ramirez).
       o Burden entirely on the government to prove why claimant should be excluded
           (Ramirez).
       o Needs to be established against each individual. Exclusion of one family member or
           associate does not lead to automatic exclusion of the rest (Moreno, Lai)
       o JR of application of Article1F to the facts is on a standard of reasonableness (Lai)

   Article 1E – Lack of Need of Protection
       o This Convention shall not apply to a person who is recognized by the competent
           authorities of the country in which he has taken residence as having the rights and
           obligations which are attached to the possession of the nationality of that country.
       o Must be established on balance of probabilities – need clear evidence
                Higher threshold than 1F
                                                                                                    29

       o To be determined as of date application rather than date of hearing (to avoid having ppl
         delay to et their status elsewhere run out)
       o Need to substantively evaluate the rights upon which 1E is being invoked. 4 criteria
         (Shamlou)
               Right to return to the country of residence
               Right to work freely w/o restriction
               Right to study
               Full access to social services in the country of residence
       o If the applicant has some sort of temporary status which must be renewed, and which
         could be cancelled, or if the applicant does not have the right to return to the country of
         residence, then Article 1E does not apply (Shamlou)
       o May still undergo a PRRA and qualify as a protected person

   Article 1F – Individuals Undeserving of Protection
       o The provisions of this Convention shall not apply to any person with respect to whom
           there are serious reasons for considering that.
               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;
                        Can be accomplices as well as principal actors. Te be deemed an
                           accomplice, there needs to be some sort of active personal involvement
                           (trying to establish an elements of mens rea)
                        Mere membership not enough unless the org is principally directed to a
                           limited brutal purpose such as secret police
               b. He has committed a serious non-political crime outside the country of refuge
                    prior to his admission to that country as a refugee;
               c. He has been guilty of acts contrary to the purposes and principles of the
                    United Nations.
       d. Possible exception in Cruz, where he took such enormous risks exposing the massive
          human rights atrocities of the Mexican Army that he was found to be a refugee despite
          being an executioner of political prisioners
       o Burden of proof:
               Questions of fact must be established on “reasonable grounds to believe”
                 (Ramirez)
                      Lower threshold than 1E
                      Does not need to have been formally charged or convicted of any crime.
               Questions of law (ie: is it a war crime / crime against humanity) to be decided as
                 balance of probabilities. Need to establish that in law (per Act & Convention) it
                 definitely was (Gonzalez)
       o Evidence:
               Not bound by formal rules of evidence (Lai)
               In order to admit interrogation statements from foreign gov‟ts, Minister only
                 needs to provide general evidence as to the credible trustworthy nature of the
                 statements (Lai)
       o May not be deemed a refugee under a PRRA if excluded b/c of 1F ~ s.112.3(c) IRPA
                                                                                                 30

       o May have a PRRA under s.113(d)(ii) on basis of factors in s.97 (danger of torture / risk
         to life or cruel or unusual treatment or punishment) after consideration of the nature and
         severity of the acts committed by the applicant or b/c of the danger the applicant
         constitutes to the security of Canada ~ s.113(d)(ii)
               If deemed to need protection, they will not receive refugee status but will have
                  their removal order stayed ~ s114.1(b)
               Leaves the person in limbo – no status/rights here, but they don‟t have to go back
                  to face torture/death/etc

a) War Crimes: “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;”
      a. TEST for Complicity: Shared common purpose and the knowledge that all parties in
           question may have of it (Ramirez)
                i. Can be accomplices as well as principal actors.
               ii. Need to show BOTH knowledge and share common purpose (Moreno)
                        1. Forceful conscription into army vs. voluntary involvement may g to
                           shared common purpose
             iii. To be deemed an accomplice, there needs to be some sort of active personal
                   involvement (trying to establish an elements of mens rea) (Ramirez, Sivakumar)
              iv. Mere membership not enough unless the org is principally directed to a limited
                   brutal purpose such as secret police (Ramirez)
               v. Presence alone not enough, but presence + other factors may be. Passive
                   acquiescence not enough (Moreno). Law may require choice to not do
                   something, but doesn‟t require immediate benevolent intervention at their own
                   risk. “Law does not function at the level of heroism”(Ramirez). “But neither can
                   they act as amoral robots” (Sivakumar)
              vi. Similarly, actual presence not required if involved in planning (Sivakumar)
             vii. Power – commanders may e responsible for acts by ppl below them if they
                   knew, and the closer the person is to being a leader than an ordinary member, the
                   more likely there will be an inference they knew of the crime & shared the
                   purpose (Sivakumar)
      b. Types of crimes:
                i. Crimes against humanity – extermination, enslavement against civilians. Cruel
                   and barbarous, manifestly unlawful (Equizabel)
                        1. manifestly unlawful: that which offend the conscience of every
                           reasonable, right thinking person (Finta)
               ii. Crimes against peace – planning / preparing / initiating a war of aggression
             iii. War crimes – violation of the laws of war – ill-treatment of civilians / POWs,
                   killing hostages, wanton destruction, unjustified devastation
      c. Defences:
                i. Duress - only applies when a reasonable person would think they faced such
                   imminent danger as to deprive them from any choice, and only so long as the
                   harm inflicted is less than the punishment would be (Ramirez)
               ii. Superior orders – military/police only bound to obey lawful orders. Does not
                   extend to unlawful ones (Finta)
                                                                                                 31

       d. Ramirez (yes s.96 refugee) –voluntary member of military and present at a number of
          incidents of persecution = Art. 1F exclusion
       e. Sivakumar (yes s.96 refugee) – held several leadership positions in LTTE, committed to
          Tamil struggle through his life = Article 1F exclusion
       f. Gonzalez (did not decide s.96) – drafted into Nica army, fired on by contras and
          returned gunfire, killing 19 ppl incl. women and children. As action against armed
          enemy, it was war but did not reach level of war crime or crime against humanity
       g. Moreno – conscripted into army, present at torture but did not have key to cell so
          couldn’t help

b) Serious Crime: He has committed a serious non-political crime outside the country of refuge
   prior to his admission to that country as a refugee;
       a. Political or non-political? INCIDENCE TEST: 1) Is there an uprising / political
           disturbance to alter/abolish the govt? 2) Objective rational connection. Was the act
           committed in furtherance of the uprising, is it related to the political struggle? (Gil)
                i. Proportionality of act-to-impact depends on context. Murder may be ok in brutal
                   regime, probably never ok in liberal democracy.
               ii. Analysis is on the motive of the claimant, not the motives of the gov‟ts decision
                   to prosecute for the crime (Gil, followed in Lai)
       b. Gil – anti-govt activist in Iran, planted bombs in markets. No rational connection btw
           bombs and actually changing the govt.

c) Contrary to UN: He has been guilty of acts contrary to the purposes and principles of the
   United Nations.
      a. Individuals responsible for serious, sustained or systemic violations of fundamental
          human rights which amount to persecution in a non-war setting (Pushpanathan)
      b. Need clear indications the int‟l community takes something as a sufficiently serious and
          sustained violation of human rights as to amount to persecution (ie: specific designations
          as contrary to UN, int‟l instruments). Short of this, ppl should not be denied protection
          of Convention (Pushpanathan)
      c. Pushpanathan - Conspiracy to traffic narcotics (heroin), convicted of 8 yrs in prison.
          Not in violation of 1(c).
                                                                                                  32




                  IX.    ISSUES REGARDING VULNERABLE CLAIMANTS



Mental Health
   Claimants may have mental or emotional issues that require different approaches to
      examination (UNHCR Handbook)
         o Board should obtain expert medical advice on nature of illness and ability of claimant to
             fulfil requirements normally expected of claimants
         o If fear is exaggerated or not from a real source, may need to place greater weight on
             objective factors rather than subjective part of well-founded test
         o Lighten the burden of proof normally incumbent on the claimant, and information may
             need to be gathered from elsewhere
   PTSD – symptoms can include re-experiencing the trauma while awake/asleep, emotional
      numbing to other life experiences and relationships, and symptoms of instability, depressions
      and cognitive difficulties (A. Bop Stark)
         o Most often seen in very young & very old (insufficient / inappropriate coping
             mechanisms)
   PTSD often found in female refuge victims.
         o Sexual assault as means of humiliation, destroying a political opponent
         o Rape as war crime
         o Female sexuality often carries significant socio-cultural meaning, so impact extends to
             whole family / community
         o Gender-based persecution – FGM, bride burning, forced sterilization, infanticide,
             domestic violence

Children
    No distinction in Convention btw children & adults. Same definition applies (UNHCR
      Guidelines)
         o Need to evaluate actual maturity. Minors 16+ may be mature enough o have a well-
             founded fear. Minors under 16 will normally be assumed to not be sufficiently mature
         o May need to rely more on objective factors than subjective
    If accompanied by parents, child‟s claim will be determined according to family unity. Need to
      consider circumstances of parents and other family members
    Should appoint designated representatives

      IRB Guideline #3:
          o Convention on Rights of the Child say gov‟t needs to take appropriate steps to protect
             child claimants
          o 3 types:
                  those who arrive with their parents or some tie thereafter – should be considered
                     „accompanying‟
                  those who arrive or are being looked after by people who purport to be embers of
                     their family
                                                                                                        33


                           If satisfied they are family, they should be considered „accompanying‟
                           If not satisfied, they should be considered „unaccompanied‟
                   Alone without any family – should be considered „unaccompanied‟
            o General principle is BIC
                   Should be identified right away, panel & translators assigned right away and
                      kept on throughout, given scheduling priority, designated rep appointed asap,
                      pre-hearing conference
            o All claimants should have a representative designated who is over 18, understands the
              nature of the proceedings, is not in conflict of interest, and is willing and ale to fulfil
              their duties.
                   Reps to retain and instruct counsel, inform child about proceedings an
                      make/assist child in making decisions about proceedings, assist in obtaining
                      evidence
            o May need to give differing weight to testimony and may need to weigh objective more
              than subjective
….

Gender-based claims
    General: Although Convention does not specifically enumerate gender as a ground, it may be
      interpreted as those who fear gender-based persecution by reasons of one of the enumerated
      grounds (IRB Guideline #4)
          o Gender + analysis
    Can generally be put into one of four categories (Guideline 4)
          1. Women who fear persecution for same reasons and in same circumstances as men.
              Substantive analysis remains the same.
          2. Women who fear persecution solely for reasons of kinship. The may not be accused of
              a political opinion, but experience persecution as a way to get them to reveal
              information about their family. May also have opinions imputed to them
          3. Women who fear persecution due to severe discrimination on gender grounds or acts of
              violence the state is unable/unwilling to protect them from. Can include domestic
              violence.
          4. Women who fear persecution for failure to conform/comply with gender-discriminatory
              laws/practices. By singling out women and placing them in a more vulnerable group
              than men, there may be a gender-defined social group created.

        Grounds
            o Religion – can also include freedom FROM religion, or right to practice it how you
              choose
            o Political opinion – need to remember women‟s political protest will not look the same as
              men‟s in societies where women assigned subordinate status
            o Membership in a social group
                   Gender recognized by SCC as „groups defined by an innate or unchangeable
                      characteristic” (Ward)
                   Have also recognized family as a social group (Al-Busaidy)

        Analysis
                                                                                       34

o Irrelevant that social group can include half the population
o Can have sub-groups (old women, aboriginal women, etc)
o The fact that gendered violence is universal is irrelevant (non-comparative approach).
  What are the merits of the claim against the Convention definition.
o Nee to consider socio-cultural context when determining if it was unreasonable to not
  seek protection of the state
o Not everything may be subject to proof – hard to objectively prove threats of sexualized
  violence
o General change in country circumstances may have no real impact f the woman‟s fear of
  gender-related persecution
o At hearings, women may be too ashamed to speak of their experiences, may have no
  actual knowledge of their male kin‟s activities, or may be very traumatized.
                                                                                                     35



                               X.      PROCEDURAL FAIRNESS


General
    Convention does not establish what types of procedures are to be followed (UNHCR
      Handbook)
    Pre-Baker: minimal duty, no reasons had to be given, did not need to disclose risk assessment
      reports unless the material as not reasonably available to the applicant
    Post Baker: Duty of fairness owed in H&C is more than minimal due to the extremely
      important consequences for applicant of such decisions (key factor in determining how
      much is owed)
         o “The greater the effect on the life of the individual by the decision, the greater the need
              for procedural protections to meet the common law duty of fairness and the
              requirements of s.7 under he Charter” (Suresh)
         o Circumstances require a full & fair consideration of the circumstances, and both the
              applicant and others affected by the decision must have a meaningful opportunity to
              present evidence and have it fully and fairly considered. (Baker)

Content of Duty in Refugee Context
    Duty of fairness requires oral hearing required for refugees post-Singh
           Pre-1985: no universal right to an oral hearing
           Singh [1985, SCC]: lack of oral hearing violates principle of procedural fairness sunder
             s.7, and the balance of administrative convenience did not supercede principles of
             fundamental justice.
                 o Did not give applicants the chance to present their case and know the case
                     against them
                 o Led to the establishment of the IRB in 1987
          o IRPA: s.170(b) Must hold a hearing

      General right to counsel at hearing and throughout, although not inalienable
          o Applicant & Minister may be represented by counsel ~ s.167 IRPA
          o Participation of non-lawyer consultants is a matter of federal jurisdiction, not provincial
             (Law Society BC v. Mangat)
                   CSIC – Canadian Society of Immigration Consultants – independent and self-
                      regulating body for imm consultants founded in 2003
          o Incompetence of counsel is determined by reasonableness standard on precise factual
             foundation, and onus on applicant to prove (Law Society BC v. Mangat)
                   Even having your counsel fall asleep in the hearing isn‟t enough! (Sheikh)
                   Neither does failure to complete PIF until hearing date, only submitting 1
                      country report as evidence and has no idea about the refugee process (Hunynh)
          o If detained, right to counsel arises after initial screening or once person taken into
             detention
                  i. Fundamental justice does not require refugee claimants be provided with counsel
                      at pre-hearing/pre-inquiry stage. Person not formally detained. Similarly, a
                                                                                                        36

                   secondary examination at a POE is also not a „detention‟ and thus no right to
                   counsel. (Dehghani).
               ii. If refugee claimants ordered to be detained, then there is a right to counsel per
                   s.10 of Charter (Dragosin)

   Right to a hearing free of bias before an impartial and independent institution
       o Independence: judicial independence re: relationship to others and freedom political
            interference / Impartiality: state of mind of the tribunal in relation to the parties or issue
            at bar. Related but separate. (Valente)
       o TEST: What would an informed person, viewing the matter realistically and practically
            – and having thought the matter through – conclude? (Committee for Justice & Liberty
            v. National Energy Board et al.)
                 Balance of probabilities
       o Chairperson can issue guidelines to guide decision makers ~ s.159 IRPA
                 No mention of consequences for failure it follow Guidelines in statute
                 Not binding, but if IO goes against guideline they need to justify in their
                    reasons
                 Language that implies mandatory courses of action will be a breach of
                    procedural fairness because it fetters the member‟s discretion (Thamotharem).
                    Language needs to be „recommend‟
                         Re: Guideline 7 on reverse order questioning
       o Persuasive decisions not expressly authorized by IRPA, nor are lead cases
                 Jurisprudential guides / persuasive decision identified after the hearing and
                    meant to be persuasive re: issues of law or mixed fact and law
                 Lead cases planned before hearing, and meant establish persuasive findings on
                    fact, as well as law.
       o Lead cases – intended to give Board chance to exhaust issues surrounding a particular
            type of claim. Planned and organized before case is heard.
                 Lead case process will be flawed if not sufficient institutional independence.
                 Only 1 so far – Geza – struck down b/c one of panel members was also
                    involved in preparation of case. The cases involved, RPO and counsel hand-
                    picked by IRB. Struck on basis of reasonable apprehension of bias.
                         Court said process in Geza lacked independence but did not hold against
                             lead cases as a whole.

   Applicants must have an opportunity to know and respond to any extrinsic evidence the IO
    was relying upon to reach their decision, even if it was reasonably available to applicant
    (Haghighi)
        o Generally, only need to disclose extrinsic evidence – deemed to know publicly available
            evidence like country conditions (Chen, CIC PP3)
        o Evidence needs to disclosed in sufficient time before hearing to allow counsel to read it
            and prepare responses (Noormohamed)
   Some cases have argued officer should issue draft report for PRRA to allow applicant to
    respond to submission (know the case) (Soto). However, no obligation to do so (Zolotareva).
   Must have written reasons for negative decisions (foster better decision making & facilitate
    rights of appeal) (Baker)
                                                                                                       37



Pre-Removal Risk Assessment (PRRA)

      General
          o Used to ensure removal of a person does not violate int‟l & domestic obligations or
             contravene the Charter.
                  Emerged in response to jurisprudence requiring timely risk assessment to comply
                    w/ s.7 of Charter (Figurado)
          o A person may apply to the Minister for protection if they are subject to a removal order
             ~ s.112 IRPA
                  May be found to be a protected person
                  If inadmissible on serious grounds, removal order may still be stayed on limited
                    grounds
          o If refugee, can only introduce new evidence in application.
                  Onus on applicant. Officer under no obligation to seek clarification of
                    ambiguities (Selliah)
          o Minister may conduct a hearing (but never does) ~s.167 Regs. Usually just a paper
             based review. No entitlement to an interview (Lam)
          o Can JR negative PRRAs
          o Very low acceptance – approx. 3%
          o Carried out by CIC instead of IRB or CBSA (need independent decision maker)

      Scope of analysis
          o Generally limited to grounds in ss.96-98 IRPA
          o H&C considerations form no part of PRRA analysis even thought they are often heard
              together.
                   H&C apps under s.25(1) will consider PRRA factors – risk to life, etc, but H&C
                     broader (attachment to Canada issues)
          o Lack of health care explicitly excluded from s.97 protection and this carries over to
              PRRA as well (Covarrubias)


      Ineligibility
          o Some ppl ineligible for PRRA ~ s.112(2)
                   a) Persons subject to extradition
                   b) Refugees whose claims found ineligible b/c safe third country
                   c) Persons who have not left Canada since application for protection was rejected
                      and the prescribed period has not expired
                   d) Persons who left Canada but returned less than 6 months after their refugee
                      claim was determined to be ineligible, abandoned, withdrawn or rejected

      Denial of Refugee Protection
          o Refugee protection may not result from application for protection if: ~ s.112(3) IRPA
                  a) Inadmissible for security, violating int‟l HR, or organized criminality
                                                                                                      38

                  b) Inadmissible for serious criminality (actually punished by 2 yrs in Canada, or if
                     committed outside Canada could have been punished by a east 10 years if
                     committed here)
                  c) Refugee claim rejected b/c excluded under Article 1F
                  d) Named in security certificate under s.77


      Best Interests of the Child
          o Interests of Canadian-born children not determinative but must be considered and given
              some weight in the PRRA (Varga)
          o Removal officers should be alert, alive & sensitive to best interests of Canadian children
              and must consider what will happen to them if the parents are removed (Munar)
                   Not a full H&C evaluation, but should consider short term interests like finishing
                      the school year, provisions for leaving the child in care in Canada when parents
                      removed, etc


Judicial Review

      General
          o No appeal rights, so only JR
          o Not automatic must apply for leave ~ s.72. No appeal on decision to accept JR
          o Leave will be granted if there a serious issue raised in the leave application that needs to
             be dealt with in the JR. Not whether you would win the JR (do not look at merits), but
             whether there is a serious matter to be tried
                  Similar to the three part test for injunctions/stays – is there a serious issue to be
                     argued?
          o Can JR any deision maker who gets their authority from the At – IOs, ID, IAD Minister
   .
      Time bars
          o Application for leave must be filed within 15 days after the date of which the applicant
             is notified of the decision or becomes aware of it. If party is abroad, the time period is
             60 days – s.72(2)(b) IRPA
          o These time bars may be extended with application for an extension under s.72(2)(e)
          o If leave is granted, the judge then fixes a date and time for arguments. Must be no
             sooner than 30 days, but no later than 90 days after granting of leave ~ s.74(b) IRPA

      Grounds for granting relief in JR ~ s.18.1(4) Federal Court Act
          o Federal Court has exclusive mandate over immigration matters, along with expertise and
            experience in admin and imm.
                 Provincial courts may have concurrent jurisdiction, but should decline such
                    jurisdiction, as failure to do otherwise cold lead to forum-shopping,
                    inconsistency and multiple proceedings (Reza)
          o The F.C.T.D. may review any immigration decision or the order of any immigration
            tribunals if it is satisfied that any one of the following exists:
                                                                                      39

a) that the decision-maker below acted either without jurisdiction or beyond the
   scope of her jurisdiction or if body bellow refused to exercise its jurisdiction (ct
   will send the matter back to decision-maker and force him to make the decision;

b) if decision-maker below failed to observe any of the principals of natural justice
   or procedural fairness, or other procedure that is required (ex. denial of legal
   representation, not given an adequate opportunity to be heard = decision will be
   quashed);
        TEST: Was there a denial of procedural fairness here? (Singh) 1)If they
           had inadequate opportunity to know the case they had to meet? 2) Did
           they have adequate opportunity to state their case?
        “The concept of procedural fairness is eminently variable and its content
           is to be decided in the specific context of each case” (L‟Heureux-Dube in
           Knight; Baker). All circumstances must be considered (Knight,
           Cardinal, Old. St. Boniface, Baker)
        Content of a Procedural Fairness Duty (not exhaustive) (Baker)
                 i. “Nature of the decision” being made and the process followed in
                    making it–more that process and function of tribunal resembles a
                    judicial DM process, the more trial-like procedures are required.
                ii. Statutory Scheme – Nature of the Statutory Scheme and the
                    Terms of the statute pursuant to which the body operates
                         1. Is the decision in question a final or preliminary one? Is it
                            subject to appeal? “Greater procedural protections, for
                            example, will be required when no appeal is provided
                            within the statute
               iii. Importance of the decision to the Individual(s) affected - Greater
                    the impact of the individual, the more stringent the
                    protections need to be.
               iv. Legitimate Expectations of the person challenging the decision
                v. Choices of procedures that are made by the agency itself - esp.
                    when the statute leaves to the decision-maker the ability to choose
                    its own procedures or when the agency has an expertise in
                    determining what procedure are appropriate in the circumstances.

c) if decision-maker below erred in law (little deference to decision-maker);

d) if decision-maker below based her decision on erroneous findings of fact, which
   findings were made in a capricious or perverse manner, or without regard to the
   material before it = findings of fact have to be supported by evidence;

e) if decision-maker below acted or failed to act because of fraud or perjured
   evidence (ex. Minister or person told a lie) = decision will be quashed;

f) if decision-maker below acted in any other way that was contrary to the law =
   decision will be quashed.
                                                                                                   40


   Standard of review (degree of deference owed)
       o What is deference? - Respect that requires not submission, but a respectful attention to
          the reasons offered or which could be offered in support of the decision. (Baker)
        The applicable standard of review is arrived at through analysis of 4 key factors –
          pragmatic and functional approach - Established in Bibeault, affirmed in Southam, court
          gave unequivocal primacy to this approach in Pushpanathan.
        All about trying to discern legislative intent – how much did the legislators intend the
          courts to get involved, vs. leaving it in the hands of the original decision makers?
               Courts cannot import constraints into the duty of procedural fairness that are
                  incompatible with the decision making scheme set by Parliament (Singh)
               Crucial question in determining the standard of deference to be shown to a
                  particular kind of decision made by a particular authority or tribunal is: What
                  was legislative intent? (Pushpanathan, Baker, Suresh)

          TEST: Pragmatic and Functional approach
              1. Presence or absence of a privative clause or statutory right of appeal; Broad
                 appeal rights or provision for a certified question – suggests a more searching
                 standard of review (Southam, Baker).
              2. Expertise of tribunal relative to the reviewing court on the issue in question;
                 Need to consider 1) expertise of the tribunal; 2) courts expertise relative to the
                 tribunal; and 3) nature of he specific issue relative to the tribunal‟s expertise
                 (Pushpanathan). Most important factor.
                      Baker: H&C decision – found that the fact that it was the Minister who
                          made the decision was relevant and was cause for greater deference and
                          b/c it usually involves particular facts rathe than law and the Minister has
                          greater expertise – discretionary power
                      Suresh: Same was said in relation to the Minister‟s decision that on a
                          factual basis a refugee claimant poses a security threat. Minister is in a
                          better position to know – greater access to special info, etc
              3. Purpose of the legislation and the provision in particular; Greater deference
                 when balancing multiple interests, concerns of protection of the public, engages
                 policy or choice btw numerous different remedies (implies lots of discretion)
                 will all suggest greater deference. (Dr. Q; Pezim; Southam)
                           Suresh: SCC decided the purpose of the Minister‟s power to decide if
                              a refugee is a danger to national security is to balance numerous
                              interests in a humanitarian way. Balance the risks the person poses to
                              Canada against the danger posed to the individual if they are sent
                              back
              4. Nature of the question (law, fact, mixed). Pure fact = more deference / Pure law
                 = less deference . Litmus test: general propositions with potential to apply to
                 many cases, questions about what the right legal test is = law / very particular
                 sets of circumstances of little interest to judges in the future, questions of what
                 actually took place = facts (Southam)

   Federal Court of Appeal
                                                                                                      41

         o May only appeal to FCA if the FC judge has certified a serious question of general
           importance ~ s.74(d)
         o Decision if something is a „serious question of general importance‟ is JR‟d n a
           correctness standard (makes sense – its law that is unclear) (Pushpanathan)

Substantive Review of Discretion

     General
         o GUIDING PRINCIPLE: Discretionary decisions must be made within the bounds
            conferred by the statute, but considerable deference will be given to decision-makers in
            reviewing the exercise of that discretion and determining the scope of the decision
            maker‟s jurisdiction (Baker)
                 Needs to be within reason (Roncareli v. Duplessi) and consistent wit the
                   Charter (Slaight Communications)
         o No clear distinction between law and discretion (Baker)
         o Courts should use pragmatic and functional approach for discretionary decisions as
            well (Baker)
         o The content of the duty of fairness will depend on the situation, and the discretionary
            decision must comply with whatever procedural safeguards the situation demands.
                 Ex: in Suresh, he faced deportation to torture, so even though it was a
                   discretionary decision to stay deportation, the Minister still needed to inform
                   him of the case he needed to meet, provide submissions in response, provide
                   written reasons, etc. Minister may not need to do all of this when it is a lesser
                   context, like decision to exempt from overseas application.

     Types of discretionary decision
         o Ministerial: Ministers power to grant exemptions and/or PR is broad and
            discretionary. However, this power is not limitless/unbounded/unfettered - must be
            used fairly and in accordance with domestic law and int‟l obligations
                 The courts do not lightly interfere in the Minister‟s discretion. It is insufficient
                    to interfere just because the court would have reached a different decision.
                    (Baker)
                 Ministerial decisions that someone constitutes a danger to the security of
                    review should only be set aside if it is patently unreasonable b/c it was made
                    arbitrarily, in bad faith, cant be supported by the evidence or the Minister failed
                    to consider appropriate factors (Suresh)
         o Other: Interpretation of imprecise statutory language, prioritization of applications,
            decisions to interview an applicant (or not), make a report on inadmissibility, admit or
            reject an economic class applicant with too few/many points, issue a TRP to an
            otherwise inadmissible person, or issue a stay on a removal order.
                                                                                                    42



                                 XI.    ARREST AND DETENTION



   General
    Can be detained for examination, inquiry or removal
    Custody characterized as preventative rather than punitive
    No limits in IRPA about length of detention, but does require detention reviewed at regular
      intervals
          o UN Human Rights Committee – detention should not continue beyond the point that a
              State can provide justification (and need consider individual circumstances, alternatives
              to detention, etc). Need substantive judicial review of continued detention. (Mr. C v.
              Australia)
    Detention for people under removal order only justifiable under s.7 if removal order can be
      executed in a reasonable amount of time
    Delays often b/c of problems ascertaining the identity of the person, or problems securing
      cooperation of country which the person is to be removed to.
    Will only detain children as absolute last resort ~s.60 IRPA
    Reasonable grounds to believe: The requirement of reasonable grounds before affecting an
      arrest of detention is a mandatory minimum condition for the validity and the appropriateness of
      almost any arrest or detention
          o Khan: Officers considered her a flight risk b/c uncertainty about where she live.
              Officers didn‟t attempt to verify her address before they arrested her, which they could
              have done by just making one quick phone call. Arrest should only be as last resort.
          o Exception: Arrest at border is „reasonable grounds to suspect‟ – lower threshold


   Arrest & Detention under Security Certificates
    If subject to security certificate, mandatory arrest w/o warrant for foreign nations, and possible
      detention with warrant for perm residents ~s.82 IRPA
    Regular reviews for permanent residents in custody ~ s.83 IRPA
    Can impose conditions upon release in security certificate situations (s.78 enables court to make
      modifications to usual process)
    No right of review for foreign nationals
          o Violates Article 9 of ICCPR (right to timely trial) (UN Woking Group on Arbitrary
              Detention)

Arrest & Detention with a warrant
    2 circumstance
             1. an officer may issue an arrest/detention warrant against a PR or FN who the officer
                 “has reasonable grounds to believe is 1) both inadmissible and a danger to the
                 public, 2) a flight risk = likely not to appear for an inquiry, removal, etc ~s.551(1)
             2. The person is named in a s.77 security certificate and there are reasonable grounds to
                 believe that the named PR is either a danger to security of Canada or danger to a
                 safety of any person or unlikely to appear~s.82(1)
                                                                                                      43



Arrest & Detention without a warrant
    3 major situations in which an officer (or in one case, the two Ministers) can arrest and detain
       an FN without a warrant:
           a) when an officer has reasonable grounds to believe the FN is either a flight risk or both
              inadmissible and a danger to the public. Inadmissibility always has to co-join with
              danger to public/safety and security ~s.55(2)(a) IRPA
           b) when an officer is not satisfied of the identity of the FN in the course of any
              immigration proceeding ~ s.55(2)(b) IRPA;
                  i. S.55(2)(a) and (b) don‟t apply to the case of a protected person = such protected
                     persons cannot be arrested on ss.55(2) grounds without a warrant.
           c) Section 77 security certificate – mandatory for foreign nationals

   Arrest and detention in the process of entering Canada
   1) A PR or FN may be detained on entry if the officer considers it necessary in order to complete
      an examinations, s.55(3)(a) IRPA. This smacks of detention for mere administrative
      convenience and many unnecessary arrests. So abuses resulting from this led to a lot of outcry
      from immigration advocates. Detention is supposed to be an exception, not the rule.
   2) A PR or FN may also be detained on entry if an officer has reasonable grounds to suspect (not
      believe) that she is inadmissibility on grounds of security or the violation of human or
      international rights, s.55(3)(b) IRPA..

   Detention Reviews
    Review done before Immigration Division
    Each detention review is a hearing de novo. Minister must provide adequate reasons for
      continued detention (prima facie case). If prima facie case established, person detained must
      also show why detention should not continue.
          o Exception: foreign nationals detained under s.77 security certificate
    Must have first review within 48 hours, within 7 days from first review, and every 30 days
      thereafter
          o Exception: foreign nationals detained under s.77 security certificate
    Factors to consider re: detention / release (initially came from Sahin, and were later
      incorporated into statute ~ s.248 Regs)
          o reasons for detention
                  case for continued detention stronger when person is a danger
                  degree of danger may fade over time (consider with 2nd factor)
          o length of time in detention
                  The fact that you have been detained a long time and are likely to continue
                     detention favours release
          o ways to determine how much loner detention will go on for (not from Sahin)
          o unexplained delays/lack of diligence by ID or claimant
          o alternatives to detention (bail, periodic reporting, etc)

   Release – non s.82 (security certificate) detention
    ID shall release unless: ~s.58(1)
          a) Danger to the public
                                                                                                  44

                  Consider factors like Ministerial opinion, involvement in organized
                   crime/trafficking, previous convictions inside or outside Canada for serious sex,
                   drugs or weapons crimes (non-exhaustive lists)~s.246 Regs
                To be assessed prospectively – will consider past behaviour, but question is if
                   you pose a danger in the future
       b) Unlikely to appear / flight risk
                Consider factors like previous compliance with proceedings and conditions
                   being a fugitive from another jurisdiction, involvement with human
                   smuggling/traffic (incl vulnerability) and ties to community in Canada ~ s.245
                   Regs
       c) Minister is taking necessary steps to inquire into a reasonable suspicion that they are
           inadmissible on grounds of security or for violating human or international rights
                Consider factors like cooperation with officials, ability to get docs from home
                   country without divulging whereabouts of refugee claimants, destruction of
                   documents, contradictory information ~ s.247 Regs
       d) Identity has not been established (but could be) and person not cooperating
   Other factors to consider: ~s.248 Regs
       o (a) the reason for detention; (b) the length of time in detention; (c) whether there are any
           elements that can assist in determining the length of time that detention is likely to
           continue and, if so, that length of time; (d) any unexplained delays or unexplained lack
           of diligence caused by the Department or the person concerned; and (e) the existence of
           alternatives to detention.
       o Section 7 of Charter is relevant to exercise of discretion to continue detention or not
           (Sahin)
   Person (PR or FN) can also make an application to the Minister for release to permit their
    departure from Canada ~s.84(1)

Release – s.82 detention (b/c subject to s.77 security certificate)
 Permanent Residents:
       o Section 83 IRPA
       o First review within 48 hours and every 6 months thereafter. Detention to be continued
           so long as judge convinced person continue to be a danger to national security or the
           safety of any person, or if unlikely to appear at proceedings/removal
                Danger may be diminished over time (Charkaoui, FC)
       o Burden on Minister to prove they continue to pose a threat (Charkaoui)

   Foreign National:
       o Section 84 IRPA
       o Release after application under s.84(2) is not automatic (Jaballah)
       o Can only apply for release 120 days after Fed Crt determines certificate is reasonable.
          May impose terms & conditions if satisfied
              FN will not be removed in reasonable amount of time AND
              Release will not pose a danger to national security or safety of any person
                 ~s.84(2)
       o Burden on FN to prove on balance of probabilities these two factors (Ahani, affirmed in
          Almrei, Jaballah) (different burden than PRs )
                                                                                                   45

               Judge must look at the delay and its causes to determine if it is reasonable. Can
                not look for judicial relief if the cause of the delay is the applicant‟s appeals and
                attempts to defer removal (Almrei)
       o Forward looking analysis, (will you be removed soon?) but history and time already
         detained may go to credibility of gov‟t assertions (Almrei)


Surety
 May impose any conditions on release such as bond ~s.56 (if released by IO before first
   review); s.58(3) (if released by ID any point thereafter)
       o Problematic for the poorest / ppl with no connections in Canada
 Theory of security deposit is incentive for compliance with release conditions
 Onus on detainee to satisfy adjudicator the surety is acceptable (Zhang)
       o To avoid having surety paid for by traffickers

								
To top