Anyone who presents themselves at a Canadian port of entry is making an application to enter Canada. As such, that person is subject to an examination by an officer. The purpose of such an examination is to determine whether or not the person can enter Canada as a visitor, student or foreign worker, and also to determine whether the individual is inadmissible to Canada.
Canadian immigration legislation requires that a person who is under examination must answer truthfully all questions put to them and also produce all relevant documents and information that an officer requires.
An officer during an examination can also compel a person to appear at a later date for further questioning.
When an Examination Ends
The examination of a person who seeks to enter Canada ends only when:
- a determination is made that the person has a right to enter Canada, or is authorized to enter Canada as a temporary resident or permanent resident, the person is authorized to leave the port of entry at which the examination takes place and the person actually leaves the port of entry;
- if the person is an in-transit passenger, the person departs from Canada;
- the person is authorized to withdraw their application to enter Canada and an officer verifies their departure from Canada; or
- an officer determines that someone is inadmissible to Canada and the person leaves the port of entry.
There are special rules for when examination ends for refugee claimants. In order to understand these rules, it is important to understand the process that a refugee claimant goes through when they file their initial claim.
When an individual makes a refugee claim when they are entering Canada,Read more ›
A challenge that arises in many refugee claims where a claimant has used fraudulent documents to travel to Canada is the balancing of the need to determine a claimant’s identity with jurisprudence that cautions against drawing negative credibility findings from the use of false documents where refugee claimants have little choice but to to use false documents to leave their country.
In Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105, for example, the Federal Court stated that:
… this Court has repeatedly cautioned against drawing negative conclusions based on the use of smugglers and forged documents to escape violence and persecution. Travelling on false documents or destroying travel documents is of very limited value as a determination of the claimant’s credibility. This is partly because it is not uncommon for a person fleeing persecution to follow the instructions of the person(s) organizing their escape.
Another, and perhaps the most frequently cited case on this principle, is Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587, where the Federal Court stated that:
Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent’s instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee.Read more ›
Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question:
Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport?
The Federal Court of Appeal has previously addressed the issue of the definition of “countries of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:
Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?
In Williams the Federal Court of Appeal ruled that whether the citizenship of another country was obtained at birth,Read more ›
Last updated on September 29th, 2018
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.Read more ›
Last updated on May 17th, 2019
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):
- Czech Republic
- Slovak Republic
- 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.Read more ›
Last updated on July 3rd, 2020
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;
Pursuant to the Supreme Court of Canada decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, a crime against humanity is committed when each of the following four elements is satisfied:
- An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
- The act was committed as part of a widespread or systematic attack;
- The attack was directed against any civilian population or any identifiable group of persons; and
- The person who committed the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.
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 ›
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 ›
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 ›
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 ›