Refugees – Page 2 – Steven Meurrens

Cessation of Refugee Status

10th Aug 2015 Comments Off in Refugees

Last updated on February 23rd, 2021

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;

(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.

DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

23rd Jul 2015 Comments Off in Refugees

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“).

Does Refugee Protection Cease when a Convention Refugee Becomes a Canadian Citizen?

21st Jul 2015 Comments Off in Refugees

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837, has certified the following question:

Does refugee protection conferred pursuant to s 95(1) of the Immigration and Refugee Protection Act automatically cease by operation of s 108(1)(c) when a Convention refugee becomes a Canadian citizen, thereby preventing the Minister of Public Safety and Emergency Preparedness from applying to the Immigration and Refugee Board pursuant to s 109(1) to vacate the Board’s previous decision to confer refugee protection?

When the Federal Court of Appeal answers the question, it shall be posted here.

Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

3rd Nov 2014 Comments Off in Refugees

Last updated on September 29th, 2018

Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“) states that the provisions of this 1951 Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

Section 98 of Canada’s Immigration and Refugee Protection Act (“IRPA” or the “Act“) incorporates Article 1F(b) of the 1951 Refugee Convention into Canadian immigration law.

What is the Purpose of Article 1F(b)? Does Is it Restricted to Fugitives? If a Person is Rehabilitated Can They Still be Excluded from Refugee Protection?

In Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“), the Supreme Court of Canada (the “Supreme Court“) addressed the issue of whether the application of Article 1F(b) of the 1951 Refugee Convention is simply a matter of looking at the seriousness of a crime when it was committed, or whether it requires consideration of other matters, including, for example, whether a refugee claimant is a fugitive and/or whether an individual is rehabilitated.

The Supreme Court found that the purpose of Article 1F(b) of the 1951 Refugee Convention is to exclude people who have previously committed a serious non-political crime from seeking refugee protection in Canada, period. The Supreme Court further determined that Article 1F(b) is not directed only at fugitives. It is also not limited to a subset of serious criminals who are undeserving (are dangerous or not rehabilitated) at the time that they claim refugee protection.

Designated Countries of Origin

24th Oct 2014 Comments Off in Refugees

Last updated on May 17th, 2019

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.

Standard of Review in Refugee Appeal Division Hearings

22nd Aug 2014 Comments Off in Refugees

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,

Ezokola and the Test For Complicity

22nd Jul 2013 Comments Off in Inadmissibility, Refugees

Last updated on July 3rd, 2020

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 a part of that attack.

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.

Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law

21st Jan 2013 Comments Off in Inadmissibility, Refugees

The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“). Section 117 theoretically prohibited human smuggling. Its exact wording was:

117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

(a) on conviction on indictment

(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

(4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

As the BCSC noted, it is legitimate, necessary, and laudable for the Canadian government to attack and criminalize what is commonly referred to as human smuggling.

Refugees, Article 1F, and Rehabilitation

3rd Jan 2013 Comments Off in Refugees

Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention. It states:

Article 1F of the 1951 Refugee Convention states:

F. 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;

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act.

In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question:

When applying article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

In other words, should a refugee claimant who has committed a serious non-political crime abroad, but has since been rehabilitated, be precluded from claiming refugee status?

The Federal Court of Appeal has definitively answered that it does not matter whether a person who has committed a serious non-political crime abroad has been rehabilitated.

First Designation of Irregular Arrivals

5th Dec 2012 Comments Off in Refugees

On December 5, 2012, the Minister of Public Safety and Emergency Preparedness (the “Minister“) made his first designation of irregular arrival under Bill C-31, the Protecting Canada’s Immigration System Act.

The Washington Post is reporting that the 85 people were designated, including 35 children. Thirty of the irregular arrivals have already been arrested thus far. The refugee claimants appear to be Romanian, and arrived in Canada between February and October.

Cessation of Refugee Status

DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

Does Refugee Protection Cease when a Convention Refugee Becomes a Canadian Citizen?

Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

Designated Countries of Origin

Standard of Review in Refugee Appeal Division Hearings

Ezokola and the Test For Complicity

Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law

Refugees, Article 1F, and Rehabilitation

First Designation of Irregular Arrivals

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