Refugees and Passage Through a Third Country

26th Jan 2011 Comments Off on Refugees and Passage Through a Third Country

Last Updated on January 26, 2011 by Steven Meurrens

One issue that refugee claimants often face is demonstrating why they did not claim refugee status in a country that they travelled through on route to Canada.  For example, if an individual travels from Somalia to New York, and then from New York to Toronto, the claimant might be asked why he did not seek asylum in the United States.

While a certain inference can be made from not claiming refugee in a transit country, this cannot be the sole factor on which the Refugee Protection Division makes its decision.  The RPD must assess why there was a delay in the application, and why asylum was not considered at the first occasion.

Examples of arguments that have been used include:

  • Where a claimant’s brother or sister had successfully obtained refugee status in Canada on similar facts. (See Angel Gonzales v. Canada, 2010 FC 1292.

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Judicial Review of Refugee Decisions

23rd Jan 2011 Comments Off on Judicial Review of Refugee Decisions

Last Updated on January 23, 2011 by Steven Meurrens

There are few things more devastating for a refugee claimant than when the Refugee Protection Division rejects your claim.  At that point, you essentially have two main options: make a pre-removal risk assessment application or seek judicial review.

The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law.  Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case.

In this post, I outline some possible grounds that you may use to successfully obtain a judicial review.  While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel.

Did the RPD misapply credibility during the section 97 analysis?

Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground.  However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks.

The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act.  Section 97 requires that the Board consider the generally known country conditions of the claimant’s country of origin.  The Board is required to analyze how these conditions might establish a section 97 claim.  It is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record.

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National Documentation Packages

23rd Jan 2011 Comments Off on National Documentation Packages

Last Updated on January 23, 2011 by Steven Meurrens

The Immigration and Refugee’s Board (“IRB“) National Documentation Package (“NDP“) is the starting point for compiling information for a refugee case.  The NDP contains information on almost every country on earth.  Each package contains a selection of documents on human rights, security conditions, and other issues that are relevant to the determination of refugee protection claims.  They are regularly reviewed and updated.

Each NDP is broken down into the following sections:

  1. General Information and Maps
  2. Human Rights
  3. Identification Documents and Citizenship
  4. Political Activists and Organizations
  5. Gender, Domestic Violence, and Children
  6. Sexual Orientation
  7. Criminality and Corruption
  8. Military Service Issues
  9. Judiciary, Legal, and Penal Systems
  10. Police and Security Forces
  11. Media Freedoms
  12. Religion
  13. Nationality, Ethnicity, and Race
  14. Exit/Entry and Freedom of Movement
  15. Labour, Employment, and Unions
  16. Other

It is important that anyone with a case before the Refugee Protection Division familiarize themselves with the NDP for their country of origin.

Related Jurisprudence

Refugee Protection Division members do not have a duty to make themselves aware of information before it becomes vetted and becomes part of a country’s National Documentation Package.  An exception is if an applicant directs the Member’s attention to the information in question prior to a decision being made.  (Ramos v. Canada, 2011 FC 15)

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Appealing IRPA Decisions to the Federal Court of Appeal

17th Jan 2011 Comments Off on Appealing IRPA Decisions to the Federal Court of Appeal

Generally, when the Federal Court makes a decision on an immigration matter, the decision is final. As most lawyers tell their clients at the outset, there is no right to appeal a Federal Court decision unless the Federal Court certifies an issue raised in the litigation as being a question of general importance. However, it is important that representatives be familiar with some exceptions to this rule.

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Chinese Immigration and Vancouver Real Estate

16th Jan 2011 Comments Off on Chinese Immigration and Vancouver Real Estate

Last Updated on January 16, 2011 by Steven Meurrens

The topic of the relationship between wealthy, primarily Chinese, immigrants and their effect on Vancouver’s housing market has recently become a bit of a hot topic in the city.  I was recently quoted in Vancouver Magazine on the topic, and specifically on the relationship between the Canada and Quebec immigrant investor programs and immigration to Vancouver.

The answers to such questions lie largely in the numbers, though not necessarily the obvious ones. Anyone in real estate will tell you the wealthy arrivals dominating the market are mostly from mainland China, yet immigration from there has been dropping in recent years. In 2009, just under 9,000 mainland Chinese arrived in Vancouver, down from almost 13,000 in 2005. But, says Steven Meurrens, an immigration lawyer with Larlee Rosenberg, official numbers don’t necessarily reflect reality. About half the Chinese immigrants arriving in Vancouver are in the investor class and thus must prove a net worth of at least $1.6 million (doubled since new rules were instituted in late 2010).

That number might mean only 1,200 or 1,500 households-not terribly significant in a region where sales exceeded 40,000 in 2010-but Meurrens says the number of investor immigrants from mainland China landing in B.C. is actually considerably higher than what those reports suggest. In the 12 months ending September 30, Quebec (which has its own immigration system) turned away virtually no one, issuing almost 6,000 investor-class visas of its own. There are no restrictions on where visa recipients settle, and a significant number choose Vancouver over Montreal. “The money goes to Quebec,” says Meurrens, but “our office regularly advises people who immigrated under the Quebec Investor program and have a wife and child living in B.C.”

Indeed,

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Inadequacy of State Protection

15th Jan 2011 Comments Off on Inadequacy of State Protection

Last Updated on January 15, 2011 by Steven Meurrens

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;

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Persuassive Decision on Tamil Refugees (Updated)

11th Jan 2011 Comments Off on Persuassive Decision on Tamil Refugees (Updated)

A persuasive decision is a decision that is considered to have persuasive value in developing consistent jurisprudence. They provide clear, complete, and concise reasons with respect to the particular element that is thought to have persuasive value, and consider all of the relevant issues in a case. Other members are encouraged to rely upon persuasive decisions in the interests of consistency.

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Immigration and Health Care (British Columbia MSP)

10th Jan 2011 Comments Off on Immigration and Health Care (British Columbia MSP)

We are often asked whether getting a student permit, work permit, visitor visa, etc. will result in an individual being eligible for MSP in British Columbia.

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Introducing New Evidence at a Judicial Review

6th Jan 2011 Comments Off on Introducing New Evidence at a Judicial Review

Although you should hire representation if you want to file an application for judicial review of an immigration decision, you should also understand the basics of judicial review.

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Information Technology Workers to British Columbia

6th Jan 2011 Comments Off on Information Technology Workers to British Columbia

CIC has announced a change in the salary range for BC and Quebec companies wishing to hire foreign workers in the IT sector. A work permit will not be issued unless the prospective foreign worker’s salary is in line with the following salary ranges:

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