Ezokola and the Test For Complicity

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

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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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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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.


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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