How Refugee Resettlement to Canada is Funded

A common complaint about refugee resettlement is the cost.  However, refugees resettled to Canada must pay for their medical exam and their travel to Canada.  Canada’s Immigrant Loans Program ensures that refugees who are unable to pay for their resettlement have access to a funding source.

Canadian immigration legislation provides that the most that can be loaned is $126,000,000.  Historically, the Government of Canada has issued $13,000,000 in loans annually.  Approximately 93% of loaned funds are repaid.  Since 2002, the average loan has been approximately $3,000, with roughly 20% of loans issued for more than $5,000.  The current policy is to cap the maximum loan amount to $10,000 per family.

2018 Changes

Prior to 2018, the loan repayment schedule was as follows:


Balance at Start of Repayment Period (Which Is 30 Days After Arrival in Canada)
Period the Loan
Must be Repaid in Full (Months)
Start of Interest Accrual
Up to $1,200 12 13th month
$1,201 to $2,400 24 25th month
$2,401 to $3,600 36 37th month
$3,601 to $4,800 48 37th month
Over $4,800 72 37th month

In 2018, the Government of Canada amended the above to:

  • eliminate interest charges on all new immigration loans;
  • eliminate further interest accumulation on all existing immigration loans;
  • defer the loan repayment start date from 30 days to one year; and
  • extend the repayment period for all loans by two years, thus reducing the required monthly instalment amount.

 

 

The Government of Canada’s rationale for eliminating interest charges and extending the repayment period as well as the period before the loan becomes repayable was that it would “give resettled refugees more time to focus on their integration, without needing to give immediate attention to loan repayments. Given their need to learn the language, along with other integration challenges they may face, many resettled refugees take more than one year to secure employment in Canada. Thus, these amendments will give them more time to repay their loans, and keep the loans fixed at the amount that was borrowed.”

The cost of eliminating interest was estimated to be $7.3 million over 10 years.


Danger Opinions

Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

There are exceptions, however, for people who are:

    • inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or
    • inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada.

Determining Whether to Issue a Danger Opinion

In considering whether to issue a Danger Opinion for criminality, officers will go beyond looking at just the conviction and the sentence, and will also analyze a person’s past and current offences and activities to determine whether a person is a danger to the public.

The following are some of the factors that are considered:

    • criminal history and established patterns of violent criminal behaviour or threats of violent behaviour that suggest present and future danger to the public, and evidence to support the person’s pattern of behaviour;
    • convictions for serious offences involving but not limited to violence, weapons, drug trafficking, human smuggling and trafficking, sexual offences and economic crimes;
    • documents illustrating an escalation of violence or of gravity in the convictions;
    • convictions for actions by the person that caused or might reasonably be expected to have caused death, serious physical or psychological harm or significant property damage;
    • evidence to substantiate the link between the criminal conviction, the likelihood that the person will re-offend and a pattern of increasingly serious criminal activity;
    • police, correctional services or other credible source information indicating that the person continues to pose a danger to the public;
    • the circumstances of the offence(s) in order to provide insight into the level of risk the person may present to the public
    • evidence of rehabilitation on the part of the individual (education or training certificates, psychological reports, reports from the parole officer, evidence of employment, etc.);
    • multiple convictions, including serious offences, that could form the basis for a danger opinion.  It should be noted that a single conviction may sustain a finding of danger to the public if it is clearly demonstrated that the person poses a present or future risk of danger to the public, as evidenced by the nature and circumstances of the offence.

For Danger Opinions involving national security, officers will examine the seriousness and nature of the person’s actions or the actions of the organization of which the person was a member.  They will also consider whether there are reasonable grounds to believe the individual will continue to engage in nefarious activities in the future.  Some of the relevant factors include the:

    • acts committed by the individual or the group, if applicable;
    • activities undertaken by the person in the furtherance of the group’s objectives;
    • level of involvement of the person in the acts committed by the organization; and
    • level of threat either direct or indirect that the person presents to the security of Canada.

Reconsideration Requests

If a Danger Opinion is refused the Canada Border Services Agency will only consider a reconsideration request if new evidence is submitted that meets all of the following criteria:

  • Reliability – the evidence must be reliable, considering its source and the circumstances in which it came into existence.
  • Relevance – the evidence must be relevant to the decision type, in the sense that it is capable of proving or disproving a fact that is relevant to the proceeding.
  • Material – the evidence must be material, in the sense that the decision maker may have come to a different conclusion if it had been known.
  • Newness: The evidence must be capable of proving the current state of affairs in the country of removal, proving a fact that was unknown at the time of the original decision, or contradicting a finding of fact made by the original decision maker?

Reconsideration requests can also occur where it was discovered that there was a breach of procedural fairness.

Sample Documents

The following is a sample letter that the Canada Border Services Agency will send to an individual to ask them to provide submissions as to why a Danger Opinion should not be issued.

 

 

The following is an example of the Canada Border Services Agency’s template for determining whether to issue a Danger Opinion against an individual.


Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were  that while non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees and that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.  In the refugee context, this right to procedural fairness includes access to an oral hearing.

In response to the government’s concern that the Supreme Court of Canada imposing a requirement that every refugee claimant in Canada get a full hearing would be prohibitively expensive, the Supreme Court responded by stating the following (which continues to be cited with concern by those who are worried about the cost of “judicial activism”):

… the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1 [of the Charter]. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7 [of the Charter], implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

….

Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.

To recapitulate, I am persuaded that the appellants are entitled to assert the protection of 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants’ rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants’ rights within the meaning ofs. 1 of the Charter. I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.

The Aftermath

Four years after the Singh ruling, Canada created the Immigration and Refugee Board, which still exists today.  Refugee claimants are entitled to a hearing before the Refugee Protection Division, and, since 2013, also have an appeal to the Refugee Appeal Division.

 

 



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 Supreme 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.

In other words, there is a presumption that the state can protect its citizens. In order to rebut this presumption, a person seeking protection must show “clear and convincing evidence.”

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).

In other words, whether state protection is adequate depends on its operational effectiveness, not the best efforts or intentions of the state.  Indeed, a Refugee Protection Division decision will be unreasonable if the tribunal only focuses on best intentions.  In Mata v. Canada (Immigration, Refugees and Citizenship)for example, the Federal Court held:

While the Officer correctly states the general principle for state protection (adequate state protection) the decision does not demonstrate that the Officer actually considered the operational adequacy of state protection efforts. For example, the Officer notes that “Hungary is making serious efforts to address the problems that Roma individuals face in that country.” In absence of any analysis regarding the adequacy of those “serious efforts,” the Officer failed to apply the correct test for state protection.

 


Can Refugees be Extradited?

As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.
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Personalized vs. Generalized Risk

From the Big Picture

As the political situations in several Latin American countries worsens, 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.

Proophete

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.

Definition of Generliazed

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.

A good example of this principle can be found in Duarte v. Canada (Citizenship and Immigration), 2017 FC 500.  There, the Federal Court found that unique ineptitude can constitute a form of personalized risk.

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.