China is one of the top source countries for temporary resident visa applications to China. In 2016, the number of people who applied for temporary resident visas was 492,370. Of the people who were granted visas, 822 declared refugee status. The number is unbelievably small, and represents what Immigration, Refugees and Citizenship Canada calls a risk ratio of 0.16%. I have reproduced an internal Immigration, Refugees and Citizenship Canada (“IRCC”) report titled 2016 Annual Refugee Claim Trend Analysis Summary report below. Notwithstanding this, IRCC is extremely diligent in monitoring which Chinese provinces have the highest amount of refugee claimants. This can apparently lead to refusals for borderline cases. Sample Claim Here are sample claims from China. I have posted this so that future claimants understand the different tests that must be met.
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; Pursuant to the Supreme Court of Canada decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, a crime against humanity is committed when each of the following four elements is satisfied: An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act); The act was committed as part of a widespread or systematic attack; The attack was directed against any civilian population or any identifiable group of persons; and The person who committed the proscribed act knew of the attack and knew or took the risk that his or her act comprised … Read More
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 … Read More
The Safe Third Country Agreement
Section 103(2) of the Immigration and Refugee Protection Act (the “IRPA”) states that the Government of Canada can designate countries that it determines comply with international standards relating to the treatment of refugees as safe third countries. Section 101(1)(e) further states that refugee claimaints coming to Canada from these designated safe third countries cannot have their asylum claims heard in Canada. Regulation 159.3 of the Immigration and Refugee Protection Regulations (the (“IRPR”) designates the United States as being a safe third party. The Safe Third Country Concept Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping. The Safe Third Country Agreement The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the “Safe Third Country Agreement”) came into effect on December 29, 2004. The Safe Third Country Agreement contains several objectives, including the orderly handling of asylum applications, ehanced burden sharing and avoiding the direct or indirect … Read More
Cessation of Refugee Status
There are 2 ways that refugee protection can be removed. A person can cease to hold their refugee status if, for example, they voluntarily reavail themselves of the protection of their country of nationality or obtain protection from another country. They can also have their refugee status vacated if they obtained that status by directly or indirectly misrepresentating or withholding material facts relating to a relevant matter. 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 … Read More
Article 1E of the 1951 Refugee Convention
Article 1E of the 1951 Refugee Convention states: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. The leading case for interpreting Article 1E is Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. There, the Federal Court of Appeal stated: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, … Read More
National Documentation Packages
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: General Information and Maps Human Rights Identification Documents and Citizenship Political Activists and Organizations Gender, Domestic Violence, and Children Sexual Orientation Criminality and Corruption Military Service Issues Judiciary, Legal, and Penal Systems Police and Security Forces Media Freedoms Religion Nationality, Ethnicity, and Race Exit/Entry and Freedom of Movement Labour, Employment, and Unions 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. … Read More
Refugee Claims by Number
The following chart shows refugee claims by province and year. Provinces/Territories 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 (Jan – Oct) Newfoundland and Labrador 5 5 — 5 10 10 15 35 20 5 Prince Edward Island — 0 0 0 0 0 0 0 0 10 Nova Scotia 40 50 20 30 40 60 65 75 90 55 New Brunswick 20 25 15 15 5 30 50 45 45 30 Quebec 4,645 4,820 2,470 2,725 3,055 5,530 25,515 29145 31265 8970 Ontario 18,560 13,815 6,840 9,265 11,020 15,210 19,570 21170 26415 9385 Manitoba 140 145 75 160 320 600 1335 620 410 160 Saskatchewan 45 55 25 25 30 75 80 65 100 30 Alberta 690 610 375 485 760 970 1385 1545 1855 780 British Columbia 1,165 950 535 730 815 1,375 2375 2345 3850 1910 Yukon 0 0 0 0 0 5 0 — — — Northwest Territories — 0 0 0 0 0 0 0 0 0 Nunavut 0 0 0 0 0 0 — 0 0 0 Outside Canada 0 0 0 0 0 0 0 0 0 0 Total – CBSA & IRCC 25,315 20,475 10,365 13,445 16,055 23,870 50390 55040 … Read More
Implausibility
One issue that applicants, and in particular refugee claimants, face is that their stories often sound implausible to third party observers. Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 is the leading decision on implausibility findings in the refugee context. There, Justice Muldoon stated: A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu. In Leung v. M.E.I. (1994), 81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307: Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to … Read More
Designated Countries of Origin
From 2011 – 2019 Canada’s refugee system contained a list of Designated Countries of Origin (“DCO“). History Bill C-11, the Balanced Refugee Reform Act, received Royal Assent on June 29, 2010. It introduced sweeping changes to Canadian refugee law, including establishing the DCO regime. The government estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy. The government has estimated that designations would result in a 57% decline in the number of claims received from such countries over the 12 months following a designation. The DCO List 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