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, Canada’s international obligations, and any other relevant facts.
In Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, the Federal Court stated that the burden is on the Minister of Citizenship and Immigration to establish a prima facie case that a claimant holds or held status substantially similar to that of nationals in a third country before being able to invoke Article 1E. The Court also found that a claimant’s choice to allow his or her status in a third country to expire amounts to an impermissible form of asylum shopping.Read more ›
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 breaches of the principle of non-refoulement.
Under the Safe Third Country Agreement, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection in Canada. Instead, they are sent back to the United States, it being the first “safe country” in which they arrived.
There are exceptions to this. Canada retains responsibility for determining the refugee status of claimants arriving from the United States in the following scenarios:
- where the claimant has family members in Canada and the family member is a Canadian citizen,
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.
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
$1,201 to $2,400
$2,401 to $3,600
$3,601 to $4,800
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,Read more ›
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;
Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University. She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.
In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims. Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim. How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect? How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.
1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.
5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?
20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?
34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?
36:40 – What is the standard of persecution in the LGBT context?
44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?
53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.
Post Show Notes
After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues.Read more ›
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.
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,Read more ›
The following is a cross-post from Policy Options.Read more ›
Section 110(4) of the Immigration and Refugee Protection Act (the “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.
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
(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.Read more ›
Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:
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.
(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.Read more ›
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“).Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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