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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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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Mootness

The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
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Refugee Claimants and Fake Documents

A challenge that arises in many refugee claims where a claimant has used fraudulent documents to travel to Canada is the balancing of the need to determine a claimant’s identity with jurisprudence that cautions against drawing negative credibility findings from the use of false documents where refugee claimants have little choice but to to use false documents to leave their country.

In Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105, for example, the Federal Court stated that:

… this Court has repeatedly cautioned against drawing negative conclusions based on the use of smugglers and forged documents to escape violence and persecution. Travelling on false documents or destroying travel documents is of very limited value as a determination of the claimant’s credibility. This is partly because it is not uncommon for a person fleeing persecution to follow the instructions of the person(s) organizing their escape.

Another, and perhaps the most frequently cited case on this principle, is Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587, where the Federal Court stated that:

Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent’s instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee.

As the Federal Court recently noted in Koffi v. Canada (Citizenship and Immigration), 2016 FC 4, refugee claimants must also establish their identity.  In Koffi, while the Court found that applicants must establish their personal identity with reliable and probative evidence, their secondary evidence should not be given very little weight just because they used fraudulent documents to travel to Canada.

When are Documents Fake?

Federal Court jurisprudence establishes that there must be some reason or evidence to rebut the presumption that government-issued documents are valid.  There must be evidence to rebut this presumption. To rebut the presumption of validity, the evidence or reason for doubting the documents must be more than general statements about country conditions.

As the Federal Court recently noted in Adesida v. Canada (Citizenship and Immigration):

In this matter the RAD admitted the documents. While it is not clear from its reasons it appears that, to some extent, the RAD may be questioning their genuineness. However, if that is the case, it provides no reason or evidence to rebut the presumption that the new evidence, government-issued documents, are not valid. Nor does it address what appears to be security features on the birth certificate and certificate of origin. This Court has previously held that the existence of official stamps constitutes a security feature for the purposes of evaluating authenticity (Dai v Canada (Citizenship and Immigration), 2015 FC 723 at para 27; see also: Elhassan v Canada (Citizenship and Immigration), 2013 FC 1247 at para 22; Ru v Canada (Citizenship and Immigration), 2011 FC 935 at para 21; Zheng v Canada (Citizenship and Immigration), 2008 FC 877 at para 18).

 


“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.

 


Regulatory Changes to Private Sponsorship of Refugees

On June 9, 2012, the Government of Canada published regulatory changes in the Gazette regarding the Private Sponsorship of Refugees Program (“PRSP“).

Under the PRSP, there are three types of sponsors.  The first are Sponsorship Agreement Holders (“SAHs“).  SAHs are local, regional, and national incorporated organizations that have signed multi-year agreements with Citizenship and Immigration Canada for the purpose of submitting sponsorship cases on a regular basis.  The second are Groups of Five (“G5s“), which are five or more Canadian citizens or permanent residents who live in the applicant’s expected community of settlement who sponsor refugees.  They account for 40% of the PRSP.  The third are Community Sponsors (“CS“), which are organizations that have not signed formal agreements.

As of 2012, the PRSP has brought over 200,000 refugees and persons in refugee-like situations to Canada.  As the PRSP has grown, so too didthe backlog and the refusal rate.  Some missions abroad currently have waiting lists exceeding five years.  Excluding Iraq, the average G5 approval rate is only 37%.

The proposed changes to the PRSP were meant to address this.  The changes included requiring that the foreign national’s application for protection from abroad be submitted at the same time as the sponsor’s application.  As well, the proposed amendments would limit G5s and CSs to submitting applications for persons recognized by either the United Nations High Commissioner for Refugees (“UNHCR“) or a foreign state as a refugee.  An additional rationale for the changes to the PRSP to that in the Gazette can be found in the Memorandum to the Minister in which Citizenship and Immigration recommended the changes to Minister Kenney.

When the changes were announced, the Canadian Bar Association expressed concerns with the requirement that privately sponsored refugees had to be recognized as refugees by the UNHCR.  The Chair of the Immigration Section wrote:

Why Requiring UNHCR or Foreign State Recognition as a Refugee is Problematic

UNHCR processing goes through three stages: registration; determination and referral. Referral numbers are artificially small because the UNHCR has difficulties in placing refugees. The number and types of referrals are influenced by willingness of resettlement states to accept referrals. Many refugees needing resettlement are not referred by the UNHCR.

Malaysia is an example of the problems which arise by requiring referral for government assisted refugees. There, the UNHCR determines many Sri Lankan Tamils to be Convention refugees, but refers almost none of them. This group is direly in need of resettlement, because Malaysia treats them as illegals, harasses them, detains them, does not allow the children to go to school, does not allow them to work, denies them medical care and so on. The UNHCR, realizing the limited global willingness to accept referrals, does not, with few exceptions, refer this population for resettlement.

This practice of non-referral plus the cap creates a dire situation for Sri Lankan Tamils, driving them into the hands of smugglers. The proposed regulation would make matters worse. The proposed regulation works at cross purposes with Bill C-31: it cuts off a legal means available to those without UNHCR or foreign state recognition, named group of five or community private sponsorship. It will accordingly increase the likelihood of smuggling.

We accept the value of UNHCR and foreign state determination, although even those are not problem free. In many countries, UNHCR compounds are guarded by local police who exact heavy bribes from foreign nationals to allow access. Many do not go through the UNHCR registration and determination process because they cannot afford to pay the bribes. This problem is even more acute with foreign state determinations in corrupt states.

The Government of Canada is concerned with its own processing delays. However, in many countries with massive refugee influxes, UNHCR or foreign state processing delays are far worse.

No artificial devices are available to avoid these delays. Families of refugees in Canada would be better off awaiting Canadian processing delays than UNHCR or foreign state processing delays. Neither UNHCR nor Canadian refugee determinations are flawless. The Canadian system recognizes the fallibility of UNHCR and foreign state determinations by doing its own determination, even with a positive UNHCR or foreign state determination. The Government of Canada acts inconsistently by rejecting positive determinations as invariably correct and then refusing to process group of five or community sponsor cases with negative UNHCR or foreign state determinations.

If the positive UNHCR or foreign state determinations can be wrong, so, surely, can negative determinations. The proposed regulation assumes that either UNHCR or foreign state refugee determinations are available. However, in some states, neither is possible. For instance, Sri Lankan Tamil or Tibetan asylum seekers in India can not be determined to be refugees either by the UNHCR or by the Government of India.

In 2015, the image of a drowned Syrian child migrant, Aylan Kurdi, shocked the world.

A Turkish police officer carries a young drowned boy
As was reported in several media outlets, Mr. Kurdi and his family were refused refugee status under the PRSP because they were not registered under the UNHCR.  It is apparently very difficult, if not impossible, for Kurdish refugees to be registered with the UNHCR.  The tragedy highlighted one of the negative consequences of requiring UNHCR registration for privately sponsored refugees.
Indeed, a chart contained in Citizenship and Immigration Canada’s 2013 Q3 Book of Basics on the number of applications to sponsor refugees appears to confirm that the 2012 regulatory changes caused the number of applications to plummet.  This, of course, was the intent.
Refugee Intake

 


Canada Lists Designated Countries of Origin (Updated October 24, 2014)

The Government of Canada has published a list of the first Designated Countries of Origin (“DCO“).

The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added):

  • Austria
  • Belgium
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Slovak Republic
  • Slovenia
  • Spain
  • Sweden
  • United Kingdom
  • United States of America

In September, 2010, I predicted ten countries that I thought would likely be designated.  Nine of them are on the above list, I assume Hong Kong will be added in the near future.

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Introducing a Residency Requirement for Social Transfers

The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning.   In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.

The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:

Criteria for eligibility — Canada Social Transfer

25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not

(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or

(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.

In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.

One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:

  1. Canadian citizens;
  2. Permanent residents;
  3. Persons who have been determined to be victims of human trafficking and who hold Temporary Resident Permits; and
  4. Convention refugees and people who are persons in need of protection.

The consequence of the Budget Implementation Act is accordingly that some provinces may introduce residency requirements for foreign nationals, including refugee claimants, before they can receive social assistance.

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