Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

On October 30, 2014, the Supreme Court of Canada (the “Supreme Court“) rendered its decision in Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“).  This was the first time to my knowledge that the SCC has addressed Canada’s interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“), incorporated into s. 98 of the Immigration and Refugee Protection Act (“IRPA” or the “Act“) (other than in obiter).

Febles provides an opportune time to both summarize the principles articulated in it, as well as other significant Federal Court and Federal Court of Appeal cases involving Article 1F(b) of the 1951 Refugee Convention.

Image from the Aditus Foundation

Image from the Aditus Foundation

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Section 97 Refugees

Refugee practitioners colloquially refer to their clients as being either s. 96 or s. 97 Immigration and Refugee Protection Act (“IRPA”) refugees. Section 96 of IRPA provides that a person who is recognized by the Geneva Convention as being a convention refugee shall be conferred refugee protection. Section 97, meanwhile, provides that a person who is in need of protection shall also be afforded refugee protection in Canada.
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Determining Whether a Marriage Is Genuine

Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by s. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”), which provides that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”), there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7 (citations removed)

It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations. It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord.

Notwithstanding the fact that there is no set criteria for IRPR r. 4(1) analysis, numerous Immigration Appeal Division (“IAD”) decisions have noted that a non-exhausted list of factors includes:

  • the compatibility of the spouses;
  • the development of the relationship;
  • communication between the appellant and the applicant;
  • financial support;
  • the spouses’ knowledge of each other;
  • visits by the appellant to see the applicant;
  • the presence of the applicant’s family in Canada;
  • the applicant’s previous attempts to land in Canada;
  • previous marriages; and
  • the cultural context.

While the burden of proof is on an applicant to establish that a relationship is bona-fide, officers should not presume at the outset that a relationship is mala-fide. As well, while visa officers are entitled to consider and weigh numerous factors when assessing a sponsorship application, the jurisprudence is also clear that officers must be alert to an applicant’s unique circumstances, including cultural customs, dating habits, and financial circumstances.

For example, as the Federal Court noted in Lhundup v. Canada (Immigration, Refugees, and Citizenship),  2017 FC 224, it would be unreasonable for an immigration officer to unduly focus on the difference in age between a married couple.

Immigration, Refugees and Citizenship Canada has produced training materials to officers on how to spot non-genuine relationships.  Thankfully, most officers show much more common sense in assessing these applications than what their training materials suggests should be how they assess applications.


Court Discusses Hybrid Offenses in the Refugee Context

The Federal Court recently released an interesting case discussing the effect of a criminal charge or conviction abroad on an individual’s ability to claim refugee status in Canada.

In the non-refugee context, a foreign national is inadmissible to Canada if he has been convicted abroad of, or if he has committed abroad, an offense whose equivalent in Canada would be an indictable offense under an Act of Parliament.

As anyone who is familiar with Canada’s Criminal Code is aware, many criminal offenses are hybrid offenses, and the Crown can elect to proceed by summary trial or by way of indictment.

For example, s. 271 of the Criminal Code states that:

(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 36(3)(2) of the Immigration and Refugee Protection Act addresses hybrid offenses.  It provides that for the purpose of determining inadmissibility to Canada an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense.  The result is that people who are convicted abroad of minor offenses in their countries of origin are inadmissible to Canada because their offense is deemed to be indictable for the purpose of determining inadmissibility, even if it virtually impossible that the same offense if committed in Canada would actually be prosecuted by way of indictment.

Until recently, there was uncertainty if the same held true for excluding people from refugee protection pursuant to Article 1Fb, which provides that:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

Neither the 1951 Refugee Convention nor Canadian immigration legislation address how hybrid offenses are to be treated for the purpose of Article 1Fb analysis.

What do you think?  Should different standards for determining inadmissibility apply for refugee claimants and other foreign nationals?  Should hybrid offenses be deemed to be indictable for the purpose of determining inadmissibility?


Court Reminder that Humanitarian & Compassionate Requests have to be in Writing

In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship.  While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing.  As he did not, there was no obligation on the officer to consider them.


Personalized vs. Generalized Risk

From the Big Picture

As the political situations in several Latin American countries decreases, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.

Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if 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.

The Federal Court has grappled with how to distinguish between personalized and generalized risk.

As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”.  What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population?  In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.

Further complicating the issue is that there are varying definitions of what the word “generalized” means.  In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459, Justice Snider reiterated that there is nothing which requires the Immigration and Refugee Board to interpret the word “generally” as applying to all citizens.  She added: “The word ‘generally’ is commonly used to mean ‘prevalent’ or ‘widespread’. Parliament deliberately chose to include the word ‘generally’ in subsection 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.

In Baires Sanchez v. Canada (Citizenship and Immigration), Justice Crampton further tightened the screws when he stated that in order to show that a risk is not generalized applicants must establish that the risk of actual or threatened similar violence is not faced generally by other individuals in or from that country, and that applicants must demonstrate that the respective risks that they face are not prevalent or widespread in their respective countries of origin, in the sense of being a risk faced by a significant subset of the population.

Currently, one of the leading case on the matter is Portillo v Canada (Citizenship and Immigration), 2012 FC 678. There, the Federal Court articulated a two-step test for determining generalized vs. personalized test. The Refugee Protection Division (the “RPD“) must first appropriately determine the nature of the risk faced by the claimant which requires an assessment of whether the claimant faces an ongoing or future risk, what that risk is, whether it is one of cruel and unusual treatment or punishment and the basis for the risk. Second, the correctly described risk faced by the claimant must then be compared to that faced by a significant group in the country at issue to determine whether the risks are of the same nature and degree.  As well, it will typically be the case that where an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.

 

 


The Return of Incomplete Applications

One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness.  Because of processing delays, it often takes Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to IRCC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”

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Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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