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.

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No Credible Basis in Refugee Claims

Canada’s Immigration and Refugee Protection Act provides:

No credible basis

107(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

A finding of “no credible basis” may only be made where there is no credible or trustworthy evidence on which the Refugee Protection Division (the “RPD“) could make a positive finding. It is a high threshold that limits an applicant’s subsequent procedural rights.  Before determining that an applicant’s refugee claim has no credible basis, the RPD must look to the objective documentary evidence for any trustworthy or credible support for an Applicant’s claim.

A lack of credibility is not the same as saying that a claim has no credible basis.

Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300

In Canada (Citizenship and Immigration) v. Singh, the Federal Court of Appeal answered the question of whether the RPD could still determine that a claim was manifestly uncredible after it had determined that an individual was excluded from refugee protection under Article 1F of the 1951 Refugee Convention because because of serious criminality or human rights abuses. Specifically, the Federal Court of Appeal asked:

Considering the authority of the Refugee Protection Division under subsection 107(2) and section 107.1 of the Immigration and Refugee Protection Act to determine that a claim has no credible basis or is manifestly unfounded, is the Refugee Protection Division precluded from making such a determination after it has found that the claimant is excluded under section F of Article 1 of the Refugee Convention?

The Federal Court of Appeal answered the question in the affirmative.



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).


Certified Questions on Cessation

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

Rejection

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.

Exception

(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.

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Admitting New Evidence at the Refugee Appeal Division

Section 110(4) of the Immigration and Refugee Protection Act (“IRPA“) provides that at the Refugee Appeal Division (the “RAD“) a person may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have expected in the circumstances to have presented, at the time of the rejection.

Specifically, it states:

Evidence that may be presented

(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

Exception

(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.

Hearing

(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)

(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;

(b) that is central to the decision with respect to the refugee protection claim; and

(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.

2001, c. 27, s. 110; 2010, c. 8, s. 13; 2012, c. 17, ss. 36, 84.

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Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), 2014 FC 799 the Federal Court determined that this was an incorrect approach.

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DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:

Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?

If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?

The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).

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