No Credible Basis in Refugee Claims

10th May 2016 Comments Off on No Credible Basis in Refugee Claims

Canada’s Immigration and Refugee Protection Act provides:

No credible basis

107(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

A finding of “no credible basis” may only be made where there is no credible or trustworthy evidence on which the Refugee Protection Division (the “RPD“) could make a positive finding. It is a high threshold that limits an applicant’s subsequent procedural rights.  Before determining that an applicant’s refugee claim has no credible basis, the RPD must look to the objective documentary evidence for any trustworthy or credible support for an Applicant’s claim.

A lack of credibility is not the same as saying that a claim has no credible basis.

Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300

In Canada (Citizenship and Immigration) v. Singh, the Federal Court of Appeal answered the question of whether the RPD could still determine that a claim was manifestly uncredible after it had determined that an individual was excluded from refugee protection under Article 1F of the 1951 Refugee Convention because because of serious criminality or human rights abuses. Specifically, the Federal Court of Appeal asked:

Considering the authority of the Refugee Protection Division under subsection 107(2) and section 107.1 of the Immigration and Refugee Protection Act to determine that a claim has no credible basis or is manifestly unfounded,

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Certified Questions After Kanthasamy

1st Apr 2016 Comments Off on Certified Questions After Kanthasamy

Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question.  Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted.  However, as a result of recent Supreme Court of Canada decisions, this is changing.

In Agraira v. Canada (Public Safety and Emergency Preparedness)the Supreme Court of Canada applied the reasonableness standard to answer the following certified question:

When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest?

The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that:

 A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal Court certifies a serious question of general importance (paragraph 74(d) of the Act). This case, like Agraira has proceeded to this Court on the basis of a certified question from the Federal Court. In this case, as in Agraira, the certified question asks a question that requires an interpretation of a provision of the Act.

This Court has consistently taken the view that where a certified question asks a question of statutory interpretation,

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Singh v. Canada: The Charter Applies to Refugee Claimants

17th Aug 2010 Comments Off on Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were  that while non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees and that the principles of fundamental justice demand,

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