Refugee

Question 1

UNHCR

(United Nations High Commisioner for Refugees)

Answer 1

International agency responsible for supervising refugee status determination process and safeguaring the rights of rufugees and to monitor and assist stateless person

Also provides programs and funding to assist with:

• voluntary repatriation
• integration into the country of refuge
• resettlement in third country

Question 2

Principle of Refugee Convention

Answer 2

Includes non-discimination, non-refoulement, non-penalization for illegal entry or stay, and the acquisition of rights over time

Question 3

Principle of Non-Refoulement

Answer 3

Obliges countries to provide protection to refugees against return to the country where they face risk of persecution, or where their life or freedom would be threathened because of

• race
• religion
• nationality
• membership in a particular social group
• political opinion

Canada does not expel immigrants prior to their applications being settled, therefore they remain in Canada until their claims are settled.

Protection again refoulement occurs when:

• a FN makes a claim and is granted automatic stay of removal with the issuance of a conditional removal order pending the outcome of their claim
• FN has a refugee or protected person status and has a PR status pending
• PR has a refugee or PP status
• FN is under removal order but applying for PRRA

*** Exceptions: not eligible for non-refoulement in the case of serious grounds: security risk, human rights violations , serious criminality. May remain temporarily under a stay of removal until circumstances change, without refugee protection being granted or moved to another country of choice

Question 4

Burden of Proof

Answer 4

Federal Court of Appeal has maintaned that a claimant’s sworn statement is presumed to be true unless there are reasonable grounds to doubt the truthfullness.

The burden of proof lies within the claimant

• no negative inference can be drawn from the failure of the media to report an event, unless there is reasonabel basis to believe that it normally would be reported.

Question 5

s. 96

Inclusion Clause

Answer 5

A refugee that meets all the elements of the inclusion clause is granted Convention Refugee status, the four criterias include

• alienage
• well founded fear
• persecution
• the nexus - persecution under one of the five grounds in the IRPA

Alienage: when their governmnet is either unable or unwilling to protect them that they need to seek protection from another country

• claimants must be out of their country or place of habitual residence to have their claims assessed
• must establish a claim against all countries of nationality of habitual residence, if there are more than one
• if claimant is entitled to nationality at another country they are expected to take steps to avail themselves of this option

Well Founded Fear

• two fold (Objective and subjective). Objective considers if the fear is reasonable in the circumstances and subjective is taking the personal perspective into consieration
• claims by each family member will be evaluated on its own merits and must establish a balance of probabilities
• generally it is evaluated on a forward looking basis- meaning the focus of the inquiry is to determine if there is a serious possibility of persecution should the claimant return to their country of origin
• there is no safe haven within the claimant’s home country where they will be able to have protection
• the subjective of well founded fear considers the claimant individual state of mind and fearfulness - based on their own background and experiences, often tied very closely to credibility

Persecution

• an act or series of acts must present a serious harm - a threat to life or personal freedom or other persistent and serious violations of human rights

The Nexus (the five grounds of persecution)

• race, religion, nationaly, membership to a partciular social group and political opinion

Question 6

Refugee Sur Place

Question 7

Exclusions

IRPA 96 & 97

Answer 7

Even when the claimant meets all requirements to be a refugee in 96 or a protected person in 97 , they will be denied if any of the following exclusions exists:

• already has protection elsewhere
• is likely guilty of persecuting others
• likley guilty of a serious non political crime
• is likely guilty of acts contrary to purposes and principles of the UN
• if the claimant is able to have asylum elsewhere, even if it is economically different than they are expected to do so
• a serious non-political crime is understood to be an act committed for personal reason or gains with no political end or motive involved. There are five factors to consider in this (element of crime, mode of prosecution, penalty prescribed, facts, mitigating and aggravating circumstances underlying the conviction. Must decide if there is a political distrubance related to a struggle to modify or abolish the government or policy.

Question 8

CASE LAW

Ezokola v Canada

Answer 8

The Supreme Court clarified that for finding complicity in war crimes and crimes against humanity is not enough for a claimant to simply belong to a group that commits criminal offences, it is necessary for the claimant to voluntarily and knowingly make a significant contribution to these crimes.

Question 9

Cessation for Protection

Answer 9

s. 108 a claim for proteection will be rejected if the person has done any of the following:

• voluntarily “reavailed” oneself to the protection of the country of nationality
• reacquired their nationality
• acquired a new nationality and is enjoying the protection of that new nationality
• resetablished themselves in the counter of former country of place of residence where the claim was based upon
• is no longer a refugee if the reasons for the reasons for the claim no longer exists or the condition of that country has stablized
• once a person cessation is due to voluntary reavailment, a person loses PR in Canada and becomes inadmissble in Canada
• if status has already be given then the Minister has the burden of proof to show that the protection should cease, there is no recourses other than the Federal Court if approved

EXCEPTION: rare cases whre a refugee is so traumatized by their experience that they refuse to trust the protection of the country of origin when it is offered.

• must provide compelling reasons arising out of the previous persecution, torture or ill treatment

Question 10

Persons in Need of Protection

Answer 10

For people that faces individualized risk of death, torture, or cruel and unusual treatment or punishment

Requirements

• risk of life, or cruel and unusual treatment) if returns to country of citizenship or habitual residence
• personal risk - must demonstrate on a balance of probability that they are personally subjected to this and not as a country as a whole
• Groudns - danger of torture or risk to life (three questions - who? what? and why?) must prove on balance of probability

Question 11

Canada’s Scope of Protection

Three ways

Answer 11

1. Abroad - through the selection of FN who apply for PR or TR when they have already been determined to be a Conventional Refugee or a person in a similar circumstance
2. in Canada - through the determination by the RPD of the IRB that they are in need of protection
3. in Canada - through an administrative decision on an application in certain cases prior to removal (ie. PRRA)

Question 12

Decision Makers of Refugee Claims

Answer 12

Decided solely by the RPD and RAD

Question 13

PRRA

Answer 13

Claimants in Canada who are unsuccessful in arguing their case for status and other FN that claims that they face a risk if they are returned, may have their risk assessed.

• IRCC is responsible for this program