Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.
Ward v. Canada
The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward,  2 S.C.R. 689. There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.
Specifically, the Supreme Court noted that:
Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection
The Court went on to note that:
Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities;Read more ›
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.Read more ›
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.Read more ›
People are often dismissive when they hear of refugee claimants arriving with stories of persecution at the hands of militias or gangs. This especially appears to be the case when the refugee claimants originate from a democratic country. Why, they ask, do these people not simply go to the police in their respective home countries?Read more ›
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.Read more ›
As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.Read more ›
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The CBC has compiled Canada’s refugee acceptance rate for 2006-2009. The information helps ascertain which countries will likely be designated as safe countries.Read more ›
On June 29, 2010, Bill C-11, the Balanced Refugee Reform Act, received Royal Assent. This Bill provided the most significant changes to Canada’s refugee law in several years. Getting it through Parliament proved to be extremely contentious, and it took a last minute deal between the Conservatives, the NDP, and the Bloc to pass it. It is now law, though many of its provisions have yet to take effect.
The Bill introduced significant changes to Canada’s refugee system, including:
- Replacing the 28 days to prepare a Personal Information Form with an information-gathering interview which will occur no sooner than 15 days after a claim has been made;
- Reducing the wait for a hearing from approximately 18 months after arrival to 90 days after the informational interview for most claimants;
- Allowing the government to designate certain countries of origin. Whether a country is designated or not will depend on the approval rate of refugee applications from that country. If a claimant comes from a designated country, than their hearing will occur 60 days after the informational interview;
- Creating a Refugee Appeal Division. Decisions on appeals will be held within 120 days of the original decision unless a hearing is held. Decisions on appeals from people from designated countries of origin will occur within 30 days;
- Allowing the Refugee Protection Division to declare a refugee claim as being manifestly fraudulent. If this occurs, then the time for appeal will be 30 days;
- Removing people within 12 months of a final negative decision by the Immigration and Refugee Board;
- Limiting the ability to make either a Pre-Removal Risk Assessment application or an application for a Temporary Resident Permit for an individual who has received a final negative decision from the Immigration and Refugee Board so that he/she can only make such a decision if he/she has not voluntarily left or been removed from Canada during that one year;
Citizenship and Immigration Canada has released Operational Bulletin 226, which discusses the sharing of biometric information further to the Five Country Conference (FCC) High Value Data Sharing Protocol. The FCC (Canada, the United States, the United Kingdom, Australia, and New Zealand) meets annually at the Deputy Minister level to discuss ways to improve immigration. In 2007, Canada, the US, the UK, and Australia (New Zealand was not yet a member) to committed to work towards the systemic exchange of biometric data for immigration purposes.
Biometric sharing has now commenced.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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