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,
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;
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.Read more ›
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.Read more ›
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.Read more ›
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.Read more ›
Yesterday, Citizenship and Immigration Canada (“CIC“) began retroactively closing existing Pre-Removal Risk Assessment (“PRRA“) applications for which Bill C-31’s 12-month bar applies.
Bill C-31 amended the Immigration and Refugee Protection Act’s (“IRPA“) provisions regarding who was ineligible to apply for a PRRA. IRPA now provides that:
112(2) .. a person may not apply for [a PRRA] if
(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;
(c) less than 12 months have passed since their last application for [a PRRA] was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.
CIC will be closing PRRA and subsequent PRRA applications that are currently in its inventory for which a previous Immigration and Refugee Board (“IRB“) or PRRA decision (rejected, abandoned or withdrawn) has been made within the last 12 months (August 15, 2011 to August 14, 2012) and for which a country exemption does not apply.
The countries that are currently exempted from the 12-month PRRA bar are the following: Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.
However, the list of countries that are exempt from the 12-month bar applies only to cases for which an IRB or PRRA decision (rejected, withdrawn or abandoned) was rendered between August 15, 2011 and August 14,Read more ›
Bill C-31, also known as the Protecting Canada’s Immigration System Act introduced strict timelines to Canada’s refugee determination process. The Canadian government has now introduced the Regulations which provide specifics as to the new timelines.
Time limits for scheduling the first-level hearing, for filing and perfecting an appeal and for making a decision on an appeal will be as follows:
- The Basis of Claim document shall be submitted not later than 15 days after the referral of the claim to the Immigration and Refugee Board, if the claim is made at a Port of Entry. If the claim is made at an inland office, the required documents and information would have to be submitted at the time of the eligibility interview. Port of Entry claimants would be given an extra 15 days to complete the Basis of Claim, which Inland claimants must submit at the time of the eligibility interview.
- Hearings at the Refugee Protection Division shall be scheduled for a date that is not later than 30 days after the claim is referred for inland Designated Country of Origin claimants, not later than 45 days after the claim is referred for Port of Entry Designated Country of Origin claimants, and not later than 60 days after the claim is referred for non-Designated Country of Origin claimants.
- In the case of all claims entitled to an appeal to the Refugee Appeal Division, appeals shall be filed and perfected not later than 15 working days after the claimant or the Minister receives the notice of a decision and the reasons for the decision from the Refugee Protection Division.
- A decision on an appeal shall be made by the Refugee Appeal Division not later than 90 days after the day on which the appeal is perfected.
For example, refugee claimants from countries where apostasy is a crime (such as Iran) can credibly claim persecution based on the fact that they converted from Islam regardless of what their motivations for converting were.
Even where claimants convert for opportunistic reasons, they are still entitled to protection if they can establish a well-founded fear of persecution on a Convention ground.
The decision re-iterated the Ghasemian v Canada (Minister of Citizenship and Immigration), 2003 FC 1266 ruling which stated that:
Mrs. Ghasemian says that the Board also erred when it looked at her motive for conversion and applied the wrong test by rejecting her claim on the basis that it was not made in good faith i.e. she did not convert for a purely religious motive. She relies on the decision of the English Court of Appeal inDanian v. Secretary of State for the Home Department,  E.W.J. No. 5459 online: QL.
In that case, the English Court of Appeal found that even though Mr. Danian’s “refugee sur place” claim was based on outspoken political opinions, allegedly made for the sole purpose of supporting his claim, the tribunal still had the obligation to determine whether he would face persecution if returned to his country of origin.
Although the decision in Danian, above, is not binding on this Court, I find its reasoning quite persuasive and agree that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.
I note,Read more ›
CTV Ottawa is reporting that in 2011 Canada was one of the top 10 global refugee destinations.
The list is:
- South Africa: 110,000
- U.S.: 76,000
- France: 52,100
- Germany: 45,700
- Italy: 30,300
- Sweden: 29,600
- Belgium: 26,000
- U.K.: 25,500
- Canada: 25,000
- Ghana: 20,100
It’s interesting that both Belgium and Sweden took in more refugees than Canada, despite having a fraction of the population and landmass that we do.Read more ›
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.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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