Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

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;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

Continue reading “Complicity in Article 1FA Cases”

LMIA Exemption for Francophones

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Impact Assessment (“LMIA“) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.
There does not appear to be any limit on how many times the work permit can be renewed.
Depending how broadly the second requirement is interpreted, this could provide a significant advantage to francophone employers and francophones looking to immigrate to Canada.

The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

[Updated – October 2, 2014]

Please note that the LMIA exemption for Francophones ended on September 30, 2014.

As per the CIC website:

The exemption from a Labour Market Impact Assessment (LMIA) under the International Mobility Program for skilled Francophone workers destined to work in a province other than Quebec will be discontinued.

All applications received on or before September 30, 2014, 11:59 p.m. Pacific Standard Time (PST) will be processed and finalized as per the guidelines provided below. Applications received after September 30, 2014 will not be accepted. Foreign workers already in Canada will also not be able to request an extension under this exemption after September 30, 2014.

It is not hard to see why IRCC is bringing back the Francophone exemption. As the chart below shows, the percentage of immigrants of Francophone descent outside of Quebec is around 1%.


[Updated – June 2, 2016]

On June 1, 2016, the Government of Canada reintroduced the exemption, with essentially the same requirements as before.

The Preclearance Act, 2016

On June 17, 2016, Ralph Goodale, the Minister of Public Safety and Emergency Preparedness, introduced Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United states (short titled the “Preclearance Act, 2016”). Amongst other things, the Preclearance Act, 2016 provides for the creation of preclearance areas and perimeters in the United States by Canadian officers of travellers and goods bound for Canada.

Canadians who have travelled by air to the United States during the last several years will be familiar with the concept of preclearance, as the United States already has preclearance areas at most major Canadian airports. There, passengers travelling to the United States clear customs at Canadian airports. When the passengers arrive at American airports, they disembark at domestic terminals, and do not have to again clear customs.

The Preclearance Act, 2016 will allow Canada to set up preclearance areas and perimeters in the United States, and will allow the Canada Border Services Agency (“CBSA”) officials to exercise their powers under the Immigration and Refugee Protection Act in preclearance areas and preclearance perimeters whose locations will be agreed upon between the United States and Canada. Both Canada and the United States have announced that each country intends on establishing preclearance areas and perimeters for air, sea, land, and rail crossings.

At preclearance perimeters and areas and areas CBSA officers will be permitted to admit or refuse travellers to continue to Canada from preclearance facilities prior to them actually arriving at a Canadian port of entry.

Importantly, s. 48(1) of the Preclearance Act, 2016 provides that a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside of Canada. As such, both refugee protection claims and flag-poling will not be possible at preclearance facilities and perimeters.  Indeed, since preclearance perimeters and areas are deemed to be outside of Canada, then port of entry work permit applications will not be possible at them.

As well, CBSA officers in preclearance perimeters and areas will be able to prepare inadmissibility reports if they are of the opinion that a traveller in a preclearance area or perimeter is inadmissible to Canada. Importantly, s. 48(4) of the Preclearance Act, 2016 may permit CBSA to deny admission to Canada of permanent residents where the CBSA determines that the permanent resident has not met their residency requirement. I say “may” because the exact inadmissilibites that will result in the denial of entry to Canada will be prescribed at a future date.

This is just a preliminary summary of the Preclearance Act, 2016 and I hope to provide more information as it becomes available, including where exactly these preclearance areas and perimeters will be. As currently written, the Preclearance Act, 2016 will create an unusual situation in which permanent residents and foreign nationals may need to consider which airport to travel from when they travel to Canada.

Inadequacy of State Protection

Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.  There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. [My emphasis]

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Effort vs. Results

In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:

A state’s efforts, on their own, do not establish that protection was actually available to the claimant:
[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).

There is some uncertainty on this issue, and in Mudrak v. Canada (Citizenship and Immigration), 2015 FC 188, the Federal Court certified the following question:

Whether the Refugee Protection Board commits a reviewable error if it fails to determine whether protection measures introduced in a democratic state to protect minorities have been demonstrated to provide operational adequacy of state protection in order to conclude that adequate state protection exists?

In the same decision, the Court also certified:

Whether refugee protection claimants are required to complain to policing oversight agencies in a democratic state as a requirement of accessing state protection, when no risk of harm arises from doing so?

Ultimately, however, the Federal Court of Appeal refused to certify these two questions as it found that they were improperly certified.

Other Cases Interpreting Ward

The level of state protection that must be available is “adequate”. (Carillo, 2008 FCA 94)

In Da Souza v. Canada (Citizenship and Immigration), the claimant was a woman from St. Vincent. Her claim was based on her abusive ex-partner. She produced a letter from a police sergeant in St. Vincents. In the letter, this officer noted that Sonia did not ever report incidents to the police. The PRRA officer thus rejected her claim on the basis that the claimant never sought police protection. The Court, however, rejected this decision, noting that the fact that a claimant did not approach the state for protection will not automatically defeat a claim. The Officer was required to analyze whether the state would be able to protect effectively. The Court noted that if it was not objectively unreasonable for the claimant to not seek state protection, then she did not need to go to the authorities.

Where a refugee claimant provides evidence that contradicts the presumption of state protection, then the Refugee Protection Division must consider this evidence.  If it discounts contradictory evidence, then it must explain why (Flores Alcazar v. Canada, 2011 FC 173).  However, the onus remains on the applicant to rebut the presumption of adequate state protection, on a balance of probabilities (Carillo v. Canada, above).

Agencies other than Police

The Federal Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing state protection.  Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection (Aurelien v. Canada, 2013 FC 707).

“Country of Origin” in the Refugee Context

Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:

Convention refugee

96. 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.

There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question:

Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport?

The Federal Court of Appeal has previously addressed the issue of the definition of “countries of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:

Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?

In Williams the Federal Court of Appeal ruled that whether the citizenship of another country was obtained at birth, by naturalization or by State succession is of no consequence provided it is within the control of an applicant to obtain it, and that where citizenship in another country is available, an applicant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his power to acquire that other citizenship.

The cases that have led to what can best be defined as uncertainty at the Federal Court over how to apply Williams involve Tibetans who are Indian citizens and who have claimed refugee status in Canada.  The evidence appears to suggest that such individuals, despite being born in India, often face difficulties in obtaining Indian citizenship (or having it recognized) unless the Tibetans can produce letters of no objection from the Central Tibetan Authority, and that even when this is obtained Indian courts have not been consistent on the matter.

In Wanchuk v. Canada (“Wanchuk“) Justice O’Reilly of the Federal Court held that the above circumstances meant that Tibetans in India do not have the degree of control necessary to acquire citizenship in India.  He stated:

In my view, this evidence shows a mere possibility that Mr. Wanchuk could obtain Indian citizenship. It would require, at a minimum, that the CTA exercise its discretion not to withhold its approval and that Indian authorities recognize Dolkar as binding precedent. In fact, Mr. Wanchuk might well have to litigate the issue. I note that Ms. Dolkar expended several years in administrative and legal battles in order to obtain Indian citizenship.

In these circumstances, I find the Board’s conclusion that obtaining Indian citizenship was within Mr. Wanchuk’s control was unreasonable.

In Dolker v. Canada, Justice Hughes addressed the issue in obiter, noting that:

Nonetheless, it is disturbing that, in a case such as the present, where the Applicant was born in India and peaceably living there, she took absolutely no steps to acquire full Indian citizenship. Certainly, if reasonable steps had been taken and pursued, a failure to secure such citizenship would have gone a long way toward bolstering a claim for refugee protection in Canada.

With all due respect to Justice Russell, there is nothing in Williams that says an Applicant need not even apply for citizenship. Williams, at paragraph 22, speaks to whether it is within the control of a person to acquire citizenship. Nothing in that case encourages an Applicant not to make reasonable efforts to secure such citizenship.

Wilful neglect or even neglect to apply for citizenship where a person has a right to apply should not serve as an invitation to try your luck in Canada. There would be good grounds for a certified question if the issue was not obiter. As this discussion is obiter, as I have found that the finding that the Applicant had Indian citizenship was reasonable, I will not certify a question.

Finally, in Tretsetsang v. CanadaJustice Mosley certified the question above, and added his opinion on the matter:

In Williams, at para 27, the Court of Appeal held that an applicant must make attempts to acquire citizenship in any safe country where it is available to him. The same would seem to apply to the enforcement of rights to which the applicant is entitled by law, as a citizen, notwithstanding efforts at obstruction by officials. By the applicant’s own admission at the RPD, he has never made any attempt to acquire or enforce rights of Indian citizenship. He merely speculates that he will not be able to succeed, despite the legislation and jurisprudence in his favour. In my view, he cannot claim protection in Canada without making any effort to avail himself of Indian nationality, to which he is entitled as a matter of law in that country.

This is where I must, with respect, decline to follow Wanchuk. At para 10 of that decision, Justice O’Reilly expressed the view that obtaining Indian citizenship was a “mere possibility” for a similarly situated applicant, since it might require litigation. That does not, in my view, amount to the level of the “intolerable burden” that Justice Russell found to apply in Hua Ma in light of the one child policy and other considerations in China. Nor is it consistent with the teachings of Williams. Applicants are expected to take reasonable steps to acquire or enforce any citizenship rights which are available to them. A right which is enshrined in legislation and has been enforced by the courts amounts to more than a “mere possibility”. There is nothing unreasonable about expecting the applicant to take legal action if his state of nationality attempts to deny his rights.

In Tretsetsang v. Canada (Citizenship and Immigration)2016 FCA 175, the Federal Court of Appeal reformulated the certified question referenced above as follows:

Is any impediment that a refugee claimant may face in accessing state protection in a country in which that claimant is a citizen sufficient to exclude that country from the scope of the expressions “countries of nationality” and “country of nationality” in section 96 of the Immigration and Refugee Protection Act?

The Federal Court of Appeal answered no. It found that a claimant who alleges the existence of an impediment to exercising his or her rights of citizenship in a particular country, must establish, on a balance of probabilities (a) the existence of a significant impediment that may reasonably be considered capable of preventing the claimant from exercising his or her citizenship rights of state protection in that country of nationality; and (b) that the claimant has made reasonable efforts to overcome such impediment and that such efforts were unsuccessful such that the claimant was unable to obtain the protection of that state.

What will constitute reasonable efforts to overcome a significant impediment (that has been established by any particular claimant) in any particular situation can only be determined on a case-by-case basis. A claimant will not be obligated to make any effort to overcome such impediment if the claimant establishes that it would not be reasonable to require such claimant to make any such effort.


Solicitor-Client Privilege

Clients often ask whether I, as their lawyer, will be keeping what they tell me a secret from immigration authorities, the media, their family and/or their friends.  I assure them that they have nothing to be concerned about, because lawyers, and the state, are bound by the rules of solicitor-client privilege.

Overview of Solicitor-Client Privilege

As the Supreme Court of Canada reiterated in Canada (National Revenue) v. Thompson, solicitor-client privilege is a a principle of fundamental justice in Canada.

There are several aspects to solicitor-client privilege.

First, the confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

Second, unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

Third, when the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

Fourth, laws which abrogate solicitor-client privilege must be interpreted narrowly.

Fifth, solicitor-client privilege is a right that belongs to, and can only be waived by, a client of a legal professional.

Where an individual seeks legal advice of any kind from a lawyer, then the communications relating to that purpose are permanently protected from disclosure.

The Professional Conduct Handbook

The Professional Conduct Handbook governs the conduct of British Columbian lawyers.  It contains many legally binding guidelines for lawyers.  Some of the relevant ones that clients should know are:


1. A lawyer shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, regardless of the nature or source of the information or of the fact that others may share the knowledge, and shall not divulge any such information unless disclosure is expressly or impliedly authorized by the client, or is required by law or by a court.

2. A lawyer shall take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information.

3. A lawyer shall not disclose the fact of having been consulted or retained by a person unless the nature of the matter requires such disclosure.

4. A lawyer shall preserve the client’s secrets even after the termination of the retainer, whether or not differences have arisen between them.


6. A lawyer who engages in literary work such as an autobiography or memoirs shall not disclose confidential information.

7. A lawyer shall not disclose to one client confidential information concerning or received from another client in a different matter, and shall decline employment or withdraw from a retainer which might require such disclosure.

8. A lawyer shall avoid indiscreet conversations or gossip, and shall not repeat gossip or information about a client’s affairs, even though the client is not named or otherwise identified.


11. A lawyer may:

(a) with the express or implied authority of the client, disclose confidential information, and

(b) unless the client directs otherwise, disclose the client’s affairs to partners, associates and articled students and, to the extent necessary, to legal assistants, non-legal staff such as secretaries and filing clerks, and to others whose services are utilized by the lawyer.


12. A lawyer may disclose information received as a result of a solicitor-client relationship if the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.


13. A lawyer who is required by law or by order of a court to disclose a client’s affairs shall not divulge more information than is necessary.

14. A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.


Canada (Citizenship and Immigration) v. Mahjoub recently summarized the jurisprudence for the waiver of solicitor-client privilege.  The principles are:

(a)   waiver of privilege as to part of a communication  will be held to be waiver as to the entire communication.

(b)   where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.

(c)   in cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived.

(d)   the privilege will deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action.

(e)   the onus of establishing the waiver rests on the party asserting waiver of the privilege.


Certified Questions on Cessation

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:


108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.


(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

Continue reading “Certified Questions on Cessation”