International Context

International Context

The definition of a Refugee

UNHCR

International Instruments

Deficiencies in implementing international law

Debate: aims of refugee law

s. 97 – Cdn addition to convention def’n

Interdiction

Clash of paradigms

Preventing and deterring arrival of asylum seekers

Liaison officers – Canadian Border Services Agency

Does Charter apply to government actions outside Canada?

Safe Third Country Agreement

Safe Countries of Origin

Canadian system – Quantitative and Qualitative Triggers for Designation

The Quantitative Grounds (1) – 109.1(2)(a) (i)

Quantitative ground (2)

Qualitative Ground for designation

Designated Foreign Nationals

Human Smuggling Definition in IRPA

Refugee Determination

Stages of Process: best case scenario

Procedural Considerations for Refugee Lawyers

Difficulties

Singh

Eligibility

Classes of Claimants

Hearings before the RPD

The Basis of Claim Form

Appeals to the RAD

Pre-Removal Risk Assessment: Applications for Protection

Humanitarian and Compassionate Grounds Applications

Vacation and Cessation

Reform and Access to Counsel

International Context

The definition of a Refugee

Basic definition is a Convention Refugee: originated in Article 1(A) of the 1951 Convention on the Status of Refugees.

•incorporated into Canadian statute law in s.96 of the Immigration and Refugee Protection Act (IRPA)

Elements

•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 Opinionis outside countries of nationality and is unable or unwilling because of that fear to avail self of the protection of these countries

The definition is qualified by provisions that exclude certain individuals.

•In Canada, the most prominent classes excluded are found in IRPA s.98

“A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee….”

Articles 1(E) and 1(F)

E. 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.

F. 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;

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.

IRPA supplements the Convention definition

Section 97 identifies “persons in need of protection”

referring specifically to persons identified in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

S. 98 also qualifies s. 97

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

(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.

IRPA Regulations also supplement the definition

•144.The Convention refugees abroad class is prescribed as a class of persons who may be issued a permanent resident visa on the basis of the requirements of this Division.

•145.A foreign national is a Convention refugee abroad and a member of the Convention refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.

•147.A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because

a)they are outside all of their countries of nationality and habitual residence; and

b)they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries.

The law uses the definition in relation to two separate activities and supplements it differently for each:Section 95

95.(1)Refugee protection is conferred on a person when

(a)the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;

(b)the Board determines the person to be a Convention refugee or a person in need of protection; or

(c)except in the case of a person described in subsection 112(3), the Minister allows an application for protection.

A person who has fled their country of origin may apply (from another country) to come to Canada:

•Need a visa.

•Need to meet the criteria of eligibility;

•Must not be inadmissible

•Like individuals seeking to come to Canada for economic reasons or family reasons they must join a pool of applicants. The pool is immense.

UNHCR

Mandate: UNHCR identifies is charged with developing and implementing durable solutions.It has identified three:

Voluntary Repatriation
Local Integration
Resettlement

•Specific obligations identify that the refugee is in the territory

•Article 4:The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.

International Instruments

Article 15

•As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

Most important Article 33

•No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationali- ty, membership of a particular social group or political opinion.

•2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Deficiencies in implementing international law

A legal duty to resettle refugees?

•The Refugee Convention does not impose on signatory states a duty to resettle a given number of refugees.

•A refugee does not have a right to be resettled by Canada.

•However, the Preamble of the Convention does refer to shared responsibility:

•CONSIDERING that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation ,

•EXPRESSING the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,

•NOTING that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,

Debate: aims of refugee law

An important aspect of refugee status

•Is a person a refugee merely because they meet the definition?

•Alternatively, is a person a refugee only when they have been determined to be so by a body with the authority to do so?

•If a refugee has rights, does he or she have these rights even before there status is determined?

The UNHCR view

•A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one.

(Handbook on Procedures and Criteria)

Explaining current tensions

•If states owe duties to refugees in their territories, can they prevent the arrival of refugees so that they can avoid these duties?

Relevant law

•Duties to rescue on the High Seas

•Law of the Sea Convention

Article 98:

Duty to render assistance

•1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

•(a) to render assistance to any person found at sea in danger of being lost;

Palermo Protocols on Human Smuggling

•Canada’s Reservations

s. 97 – Cdn addition to convention def’n

(a)to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(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.

Elements of s. 97(1)(a)

•Removal of a person would subject them personally

•To a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the CAT

•The definition requires the involvement of a public official or a person acting in an official capacity at least acquiescence

•Torture defined as intentional infliction of severe pain and suffering physical or mental“for such purposes as intimidating or coercing him…. or any reason based on discrimination of any kind”

Level of risk

•A danger “believed on substantial grounds to exist” has been interpreted to mean believed to exist on the balance of probabilities (Li, FCA 2005)

•Court stipulates that the same standard should be applied to the risks outlined in s.97(1)(b). But what does that mean?

Elements of s.97(1)(b)

•Return would subject them to a risk to their life or to a risk of cruel and unusual treatment or punishment

•Does claimant have to show on the balance of probabilities that they would be killed or does the claimant have to show on the balance of probabilities that there is a personal risk of death? Cases go both ways.

•S12 Charter jurisprudence will determine the factors identifying cruelty and unusualness “so excessive as to outrage our standards of decency”

•Canadian courts have looked at a number of factors as part of a kind of ‘cost/benefit’ analysis, including:

Whether the treatment goes beyond what is necessary to achieve a legitimate aim
Whether there are adequate alternatives
Whether the treatment is arbitrary and whether it has a value or social purpose.

Other considerations include:
Whether the treatment in question is unacceptable to a large segment of the population
Whether itaccords with public standards of decency or propriety
Whether it shocks the general conscience
Whether it is unusually severe and hence degrading to human dignity and worth.
Four conditions are attached (i – iv)

97(1)(b)(ii) No generalized risk

•Risk would be faced in every part of the country and is not faced generally by individuals in or from that country.

•What does the second clause mean? Many different approaches articulated in Federal Court decision making

Civil war situation

•The risk of violence is generalized. One would have to show that the risk one faces is different from the threat of random violence.

•Compare the situation of Convention refugees in civil war situations.

There is a distinction between personalized and generalized risk

•“Generally” just means prevalent does not mean that everyone is subject to the risk. A risk can be faced generally by others if it is faced widely. Just because a sub-group faces a higher risk doesn’t mean that they are faced with a risk that is not faced generally.

•Gleason in Portillo (2012)

Start with the nature of the risk. What is the nature of the risk faced and its basis? Focus on detail.
Is the risk of the same nature and degree as that faced by a significant group?
So is this person targeted to a greater extent than others
Similarly if it is not random that the gang is after them (eg if the person is a suspected informant the risk is not generalized)

Quote from Rennie J

•As noted inVivero[2012 FC 138], section 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by “criminal activity” is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met. Instead of focusing on whether the risk is created by criminal activity, the Board must direct its attention to the question before it: whether the claimant would face a personal risk to his or her life or a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from the country. Because the Board failed to properly undertake this inquiry in this case, the decision must be set aside

If the risk is inherent in legal sanctions

•It must be “Imposed in disregard of accepted international standards” which is different from the test of “cruel and unusual”

Failure to provide adequate health care

•If the risk is caused by the inability of the country to provide adequate health care it will not give rise to protection.

Interdiction

Clash of paradigms

Inclusive perspective: rise of human rights law (rights are dependent on one’s humanity rather than on one’s nationality)
Tends to base rights on humanity

•Exclusive perspective:Rise of securitization/ national interest concerns (rights are dependent on one’s status in the country)

Emphasizes the divide between citizen and non-citizen
Basis of the divide is not that there are special obligations to citizens, (only citizens should have the right to vote) but that non-citizens are in some way a threat. Increased anxiety about mobility

•Although international human rights law standards stress the fundamental rights of all individuals in the face of state action, states often attempt to define the individual rights of migrants more narrowly by emphasizing the “non-citizen” legal status of such people.

Clashes between judiciary and legislature

•Judiciary frequently promotes the human rights paradigm

Have been significant cases where the judicial balance has tended toward national security from threats caused by outsiders.

•Legislature spearheaded by an executive, promotes populist policies based on conceptions of “the national interest”

Examples of clash of paradigms

•Treatment of refugees in Canada: access to benefits, procedural safeguards, relative weight of security considerations, detention.

•“Multiple Borders Strategy”: gives the border a flexible location. Decisions made outside Canada, at Ports of Entry and within Canada are all seen as attempts to “secure the border”

Preventing and deterring arrival of asylum seekers

Implementing the national sovereignty paradigm

•Visa regimes;

•Carrier sanctions;

•Interdiction and interception mechanisms;

•Increased cooperative reliance on biometric indicators;

•Deterrent measures:

Enforced separation from family,

Reduced legal aid,

Increased detention,

Limited access to health care.

•Increased penalties for people smuggling

•Safe Third Country mechanisms

•Responses to marine arrivals

Visa decisions

•Made outside Canada

•Based on broad criteria

Regs 179: An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national

(b)will leave Canada by the end of the period authorized for their stay under Division 2;

(c)holds a passport or other document that they may use to enter the country that issued it or another country;

(d)meets the requirements applicable to that class;

(e)is not inadmissible; and

(g)is not the subject of a declarationmade under subsection22.1(1) of the Act.

22.1(1)The Minister may, on the Minister’s own initiative, declare that a foreign national… may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations.

Visa Exemptions

IRPA Regulations exempt nationals of certain countries from obtaining a visa:

190.(1)A foreign national is exempt from the requirement to obtain a temporary resident visa if they

(a)are a citizen of Andorra, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden or Switzerland; (plus special exemptions for US and UK)

Legal Control of Visa officers

The possibility of judicial review

Usually based on two grounds:

Lack of procedural fairness (including bias)
Unreasonableness

BUT procedural fairness is regarded as having a floating content and when benefits are being provided it has been regarded as having a minimal content

Seeking to come to Canada through regular processes as a refugee

•Still need visa

•Process subject to judicial review