Refugees – Page 2 – Steven Meurrens

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

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

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. The Supreme Court stated:

Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice;

Designated Countries of Origin

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

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

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.

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

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

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

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.

Retroactive PRRA Termination Begins

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;

[or]

(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,

C-31 Regulation Released Regarding Timelines

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.

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

Retroactive PRRA Termination Begins

C-31 Regulation Released Regarding Timelines

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