Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act – has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act. This past week, members of the immigration bar raised concerns about another questionable change. In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.
Currently, the Immigration and Refugee Board may cease a person’s refugee status. Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status. Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.
Bill C-31, however, changes this. It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status. Bill C-31 also provides that such an individual would be inadmissible toCanada. Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.
This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad. It would apply to refugees who recently obtained status, and to refugees who became permanent residents many,Read more ›
On February 16, Jason Kenney and the Conservative government introduced Bill C-31, the Protecting Canada’s Immigration Act. The Act makes many reforms to Canada’s refugee system, and amends previous amendments to Canada’s immigration legislation contained in the Balanced Refugee Reform Act which have not yet come into affect. Bill C-31 was greeted by many refugee lawyers and advocates with much criticism, and was received with particular indignation from the New Democratic Party.
It is not difficult to see why the NDP was outraged by the introduction of Bill C-31. Less than two years ago, the Conservatives and the NDP worked together to introduce the Balanced Refugee Reform Act. Its passage was seen as a good example of compromise, and how the parties in a minority Parliament can cooperate to introduce what was generally viewed as good legislation. I would also imagine that the NDP spent some political capital with its base by cooperating with the Conservatives and to makeCanada’s refugee system stricter.
Minister Kenney has now thrown all of that to the wind.
By abandoning the grand compromise that was the Balanced Refugee Reform Act, Mr. Kenney has taken several political risks. First, he has abandoned any good-will that he had with the NDP. Should the Conservatives ever find themselves in a minority government again, I doubt that they will find the NDP being very willing to work with them in the same away as they did in 2012.
Second, he has provided the NDP with the ability to criticize the upcoming reforms to Canada’s refugee system. Because the NDP were co-drafters of the Balanced Refugee Reform Act, they could not really criticize the upcoming changes because they themselves owned the amendments.Read more ›
A myth exists that it costs Canada a lot of money to resettle refugees from abroad. “Why,” I am sometimes asked, “should my tax dollars pay to fly someone from Rwanda to Canada?”
The short answer is: they don’t.
The longer answer is that the cost of transporting refugees from abroad to Canada is shared between the International Organization for Migration, and the Government of Canada. The Government of Canada’s portion is $10,000, and is actually structured as a loan to the refugee through the Immigration Loans Program. In other words, the refugee is expected to repay the Government of Canada for transporting him/her to Canada.
Surrey mayor Dianne Watts recently highlighted the Immigration Loans Program when she called on the federal government to drop the Transportation Loan to refugees. The Province story on her statements summarized the loan as:
Officials with Citizenship and Immigration Canada told The Province that individual refugees may be responsible to repay up to $10,000 per person under the Immigrant Loans Program to cover the costs of medical examinations abroad, travel documents and transportation to Canada.
“The maximum amount of the loan the refugee would pay is $10,000, as there’s a cap,” said a CIC official. “Loans in excess of that amount are paid for by the IOM [International Organization for Migration]. So the refugee pays zero dollars to $10,000, then IOM would pay the remainder if it’s over $10,000.
The loan is not merely a black hole of non-repayment. In a 2008 Report to Parliament, the Minister of Citizenship and Immigration Canada (the most recent report that I could find) stated that the repayment rate currently exceed 91%. » Read more about: Refugees and Transportation Loans »Read more ›
When can military deserters can claim refugee status?Read more ›
As the political situations in several Latin American countries worsens, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.
Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.
The Federal Court has grappled with how to distinguish between personalized and generalized risk.
As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”. What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population? In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.
Definition of Generliazed
Further complicating the issue is that there are varying definitions of what the word “generalized” means. In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459,Read more ›
One of the biggest issues in refugee law, and indeed all areas of immigration law, is credibility. This post addresses the jurisprudence regarding when a tribunal can infer that an individual is not credible.
In short, where the tribunal finds a lack of credibility based on inferences, there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis.
In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.
Using the word “we feel” without providing any further evidence is an example of an unreasonable conjecture as opposed to a reasonable inference: Mahalingam, Shyama Ushandhini v. Canada (Minister of Citizenship and Immigration).
Having said that, a credibility assessment is “the heartland of the discretion of triers of fact”, and in making its determination, the Immigration and Refugee Board is entitled to take into account the discrepancies, contradictions and omissions in the evidence and to view the evidence from the perspective of rationality and common sense: Giron v Canada (Minister of Employment and Immigration).Read more ›
Australia has “boat people” issues that far exceed Canada’s. According to The Economist, in 2010 134 boats carrying 6,535 refugee-claimants landed off the shores of Australia. The Australian government has introduced many policies to reduce those numbers, including the controversial detention of most sea-arrival refugee claimants on Christmas Island.
Another potential policy, which was recently struck down by the High Court of Australia, was to exchange certain refugee claimants with United Nations High Commissioner for Refugees recognized refugees in Malaysia. Under the arrangement, Australia would send 800 seaborne asylum-seekers to join tens-of-thousands of others currently queuing in Malaysia to have their refugee claims heard by the UNHCR. In return, Malaysia would be allowed to send 4,000 people who the UNHCR had recognized as being refugees, and who were awaiting resettlement in a third country, to Australia.
On August 31, 2011, the High Court of Australia held that the plan was invalid. The main reason was because Malaysia is not a signatory to the 1951 Refugee Convention, and is therefore not legally bound to provide the access and protections required by the convention.
Ignoring the issue of whether such a swapping proposal would be constitutional in Canada, I wonder what readers think of this approach to processing refugee claimants.
Suppose that Canada were to enter into a swapping agreement with a third-party country that was a signatory to the 1951 Refugee Convention.
Would you support a policy whereby Canada would transfer refugee claimants to the third party to be processed by the UNHCR, and in exchange the UNHCR would send 1-4 times that many people to Canada?Read more ›
Some countries, such as Russia and Saudi Arabia, have a requirement that an individual obtain an exit visa (i.e. permit) to leave the country. The Federal Court of Appeal decision in Valentin v Canada (Minister of Employment and Immigration),  3 FC 390 bars self-induced refugee status. Valentin starts from the premise that a claimant has a valid exit visa. It then bars the claimant from overstaying the visa and relying on that overstay as a ground of persecution. Valentin has been cited in numerous Federal Court decisions. In Zandi v. Canada (Minister of Citizenship and Immigration), 2004 FC 311, a case involving an Iranian who defected to Canada during an athletic competition, the Federal Court stated:
To paraphrase the Federal Court of Appeal in Valentin, supra, a defector cannot gain legal status in Canada under IRPA by creating a “need for protection” under section 97 of IRPA by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit visas, i.e. returning.
Fortunately for would-be defectors, however, the analysis does not end there. Subsequent jurisprudence has since ruled that it is necessary to determine the persecutory nature of the exit law, as well as extra-judicial punishment that may result. In Castaneda v. Canada (Minister of Employment and Immigration)  FCJ No 1090, a case involving a Cuban who defected, the Court noted that:
However, as I read the Valentin decision, the isolated nature of the sentence and the lack of direct relationship between the sentence and the offender’s political opinion were determinative factors in the minds of the Appeal justices.Read more ›
On August 15, 2011, Justice Shore released his decision in Oraminejad v. Canada (Citizenship and Immigration), 2011 FC 997. The decision did not involve a particularly complicated set of facts, nor did it expand upon existing areas of law.
However, the decision contains the following paragraph that I found to be quite compelling, and which reads as follows:
It is important to note that certain questions, asked of the Applicant, apply to the practice, rites and symbols (example: the crossing of a person) of Catholics but not of Protestants (except high Anglicans), again, depending on the actual denomination of Protestantism; such specialized knowledge may not be common knowledge; thus, it must often be sought in specialized documentation requested and not decided on that which a first-instance decision-maker thinks he knows on his own or on a whim! It could be a very costly whim in regard to the life and limb of an applicant who could be returned to his country of origin to a situation of peril. It is significant that throughout history and even modern history: e.g. Christians of various denominations, Jews, Moslems, Buddhists, Hindus and Bahais have been killed for their beliefs without necessarily even having had deep knowledge, or even any knowledge, of their religions, other than adherence to their faith. Many died for their faiths but, according to the annals of history, did not live according to their faiths; yet, that did not stop their slaughter. Therefore, it is important to view the evidence in this case such as provided by the specific church in question and additional evidence therefrom that was provided.Read more ›
I spent 6 months of law school studying in Budapest, Hungary. While I was there I lived on the border of what use to be old Jewish ghetto during World War II. I became fascinated with the history of the Jewish people in Budapest, and you can view some of my flickr photos of different Jewish related sites in Budapest here. Given this curiosity, it was with great interest that I read a recent Federal Court case involving an individual who claimed that he would face persecution if he had to go back to Hungary.
Ultimately, the case was dismissed partially due to a lack of evidence regarding whether the plight of Jews in Hungary was worsening.
Given my interest, I decided to have a look at what came up on Google News when I typed “Jews Hungary”.
The results were not particularly encouraging.
The Bankito Festival itself is a music and cultural extravaganza organized by a number of Jewish and non-Jewish NGOs, which is expected to attract hundreds of people from Hungary and further afield.
“There is a high level of intolerance and a lack of critical thinking in Hungary at the moment,” says Haver CEO Mircea Cernov. “The roots of this come from the schools and is deeply rooted throughout society. What we are trying to do is address the lack of debate on these issues.
“Radical voices are getting stronger in Hungary in the last few years,” Cernov says.
“There are concrete signs and cases of discrimination against people in the Roma community and the strengthening of hard anti-Semitic narratives.”
Anti-Jewish comments from the Hungarian daily Magyar Hirlap and the passage of a restrictive new media law in early July by Hungary’s conservative government have prompted sharp criticism from American and Austrian media outlets.Read more ›
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