The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
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; 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 … Read More
Designated Countries of Origin
From 2011 – 2019 Canada’s refugee system contained a list of Designated Countries of Origin (“DCO“). History Bill C-11, the Balanced Refugee Reform Act, received Royal Assent on June 29, 2010. It introduced sweeping changes to Canadian refugee law, including establishing the DCO regime. The government estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy. The government has estimated that designations would result in a 57% decline in the number of claims received from such countries over the 12 months following a designation. The DCO List 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
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) … Read More
Examinations
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 … Read More
“Country of Origin” in the Refugee Context
Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that: Convention refugee 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 … Read More
Refugee Claimants and Fake Documents
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 … Read More
Introducing a Residency Requirement for Social Transfers
The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning. In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion. The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that: Criteria for eligibility — Canada Social Transfer 25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not (a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or (b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence. In other words, provinces and territories … Read More
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 … Read More
Regulatory Changes to Private Sponsorship of Refugees
On June 9, 2012, the Government of Canada published regulatory changes in the Gazette regarding the Private Sponsorship of Refugees Program (“PRSP“). 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. … Read More
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