A Pre-Removal Risk Assessment (“PRRA“) application by a refused refugee claimant is not an appeal or reconsideration of the decision of the Refugee Protection Division to the failed refugee claim. Section 113(a) of the Immigration and Refugee Protection Act (“IRPA“) provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the failed refugee claimant could not reasonably have been expected in the circumstances of the refugee claim to have presented. Specifically, IRPA s. 113(a) states: 113. Consideration of an application for [a PRRA] shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; Accordingly, as the Federal Court of Appeal noted in Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, PRRA officers must respect the negative refugee determination unless there is new evidence of facts that might have affected the outcome of the Refugee Protection Division hearing. There are numerous factors that PRRA officers … Read More
Claiming Refugee Status Because of Illegal Departure from a Country
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), [1993] 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 … Read More
Canada to End Source-Country Class for Refugees
There are three types of refugee classes for refugees that are re-settled from abroad. These are the Convention Refugees Abroad Class, the Country of Asylum Class, and the Source Country Class. Minister Kenney has introduced regulatory changes to eliminate the Source Country Class.
Internal Flight Alternatives
An area of refugee law that often frustrates refugee claimants is the requirement that they show that there was no reasonable internal flight alternative to claiming refugee status in Canada.
Section 97 Refugees
Refugee practitioners colloquially refer to their clients as being either s. 96 or s. 97 Immigration and Refugee Protection Act (“IRPA”) refugees. Section 96 of IRPA provides that a person who is recognized by the Geneva Convention as being a convention refugee shall be conferred refugee protection. Section 97, meanwhile, provides that a person who is in need of protection shall also be afforded refugee protection in Canada.
Interpreters and Translations
People appearing before the Immigration and Refugee Board (the “IRB“) come from all over the world, and often communicate in a language that their counsel, the hearings officers, and members do not understand. Accordingly, translators and interpreters are often used during IRB proceedings. Translators and interpreters have a very serious and important role in proceedings. Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. Accordingly, the IRB and the courts take the right to proper interpretation seriously. A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous. An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation. Jurisprudence Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161, provides a more comprehensive summary of the common law principles governing translation. These principles are that: a. The interpretation must … Read More
Judicial Review of Refugee Decisions
It is devastating for a refugee claimant than when the Refugee Protection Division rejects their claim. At that point, the person essentially has two main options: make a pre-removal risk assessment application or seek judicial review. The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law. Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case. In this post, I outline some possible grounds that you may use to successfully seek judicial review of a decision. While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel. Did the RPD misapply credibility during the section 97 analysis? Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground. However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks. The evidence … Read More
Persuassive Decision on Tamil Refugees (Updated)
A persuasive decision is a decision that is considered to have persuasive value in developing consistent jurisprudence. They provide clear, complete, and concise reasons with respect to the particular element that is thought to have persuasive value, and consider all of the relevant issues in a case. Other members are encouraged to rely upon persuasive decisions in the interests of consistency.
Jason Kenney’s Statements on the Roma – Implications for Bias at the IRB?
On July 14, 2009, Canada imposed a visa requirement on the Czech Republic. At the time, Jason Kenney, the Minister of Citizenship and Immigration, took to the air waves defending the decision, repeatedly stating that a high percentage of the Czech refugee claims were bogus.
Battered Woman Syndrome and Female Refugee Claimants
In an immigration case which focuses on gender, the reasons of the Refugee Protection Division must reflect the specific situation of an applicant, with particular attention to Guideline 4.