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Law Notes Immigration and Refugee Law Notes

Refugees Notes

Updated Refugees Notes

Immigration and Refugee Law Notes

Immigration and Refugee Law

Approximately 76 pages

This course was taken with Professors Lorne Waldman and Jacqueline Swaisland. Both practice exclusively in the area of immigration and refugee law and are known for high-level litigation at the Supreme Court of Canada. Given extensive changes in the Immigration and Refugee Protection Act in Canada, please note that some legislative provisions and regulations may have changed. It is advised that you cross-reference provision and regulation numbers for accuracy....

The following is a more accessible plain text extract of the PDF sample above, taken from our Immigration and Refugee Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PART VII: REFUGEES

Ultimately deals with whether an individual meets the criteria of a convention refugee under s. 101 of IRPA. Even if you do not fall under s. 96, s. 97 must be considered and vice versa. If found to be a refugee, there is a right to:

  1. apply for PR from within CDA pursuant to provisions of Part 1 of Act and Regs (s 99(4) IRPA)

  2. cannot be found inadmissible on medical grounds related to excessive demands on health or social services (s. 38(2) IRPA)

  3. cannot be arrested without warrant by immigration officer (S. 55(2))

  4. cannot be removed from CDA to country where he or she faces persecution, save and except on grounds of serious criminality or national security (s. 115)

  5. appeal removal order (s. 63 IRPA)

  6. apply for work permit (s. 207(C) of regs)

Under the new IRB procedures, a refugee hearing takes place in 6-9 months. The purpose of the reforms is to make the cycle more expeditious. Three types include 1) regular claimants (convention) 2) designated country of origin 3) migrants. An officer has the duty to act fairly with a refugee application. Person seeking resettlement in Canada as refugee entitled to counsel at review (Ha v Canada 2004 FCA 49).

Timelines for regular claimant

  • has 15 days for basis of claim (BOC) upon arrival at POE and 60 days for a hearing (there is a possibility for adjourning the date, but it’s exceptional)

  • BOC: foundational document and inconsistencies may lead to adverse inferences

Role of Counsel

  1. Prepare the basis of claim and any documentation to prove identity and corroborate facts (submitted 10 days prior to hearing)

  2. Documentation of country conditions should be included (UNHCR)

    1. National Documentation Package at IRB may help, but not always adequate given constantly changing countries

  3. Prepare claimant for questioning (counsel’s role is to clarify or address any issues at the IRB; can make special request for accommodation if claimant cannot testify)

  4. Make submissions

General Requirements

REG SIGNIFICANCE
s. 139(1)(a) Must be outside of Canada to apply for refugee class
Must apply to embassy in relevant jurisdiction and accompany application with a referral from a refugee organization, from an international agreement, or sponsorship undertaking by group in Canada
S. 139(1)(f) Officer must be satisfied that refugee seeking resettlement has sufficient financial resources to resettle without being a financial burden on CDA.
s. 139(1)(g) Successful Establishment (QC has different requirements under 139(1)(h)) Must establish that you and family will be successfully established in Canada – look to resourcefulness, presence of relatives in community, potential for employment and ability to communicate in E or F
s. 139(2) Exception for successful establishment for vulnerable persons or those in urgent need of protection
s. 139(1)(i) Must be satisfied that applicant not inadmissible to CDA. Don’t require establishing no health condition that would be a burden or adequate arrangements for care and support.

Convention Refugees

PROVISION (all IRPA) SIGNIFICANCE
s. 96 (IRPA) Convention refugee is a person who is outside their country of nationality or not having a country of nationality is outside the country of former habitual residence, has a well founded fear of persecution by reason of race, nationality, religion, membership in a particular group, or political opinion and is unwilling or unable to avail himself of protection.
Person must show that removal would subject them to dangers of risks stipulated in s. 96.
s. 98 Persons excluded under Articles 1F and E are not convention refugees
s. 99(3) Can apply for refugee protection within CDA if not subject to removal order
s. 101 (criteria used by officers to determine Convention refugee eligibility) Once a person’s claim for refugee protection has been rejected by the RPD or has been declared abandoned or withdrawn, ineligible to make subsequent claim
101(1)(a)(b)(c)(d) Ineligible if you already have refugee protection, claim for protection has been denied, abandoned or withdrawn, recognition as refugee by another country other than CDA, violation of human or international rights, security, serious (crime of 10yrs or more for which at least 2 + yrs of imprisonment occurred) or organized crime.
Nguyen v Canada 1993 FCA: constitutionality of refusal on grounds of criminality upheld.
s. 101(2) MCI must certify that claimant constitutes danger to public in cases involving criminality for offences committed outside CDA.
s. 108(1)(e) Claim can no longer succeed if reasons for which person sought status cease to exist.
s. 108(4) Grounds ceasing to exist do not apply where there are compelling reasons outside of previous persecution that caused him or her to refuse to seek protection of the country they left

PROCEDURE FOR PROTECTION

Step 1: s. 101 determination at POE

  • Officer has 3 days to decide claim at POE (s. 100(1) IRPA); if not referred it’s deemed to be referred

  • if a claim for refugee protection is made, member of the immigration division required to determine whether person is inadmissible to CDA and required to issue a removal order against them (s. 45 IRPA)

  • s. 49(2): if a refugee claim is made prior to a removal order, it must be decided before a person can be removed

  • Cannot make a claim if you have made one elsewhere, could have made one elsewhere, or are a terrorist involved in serious or organized criminality

  • Inadmissibility on grounds of international human rights violations, organized crime, crimes with sentences of 10yrs +, or terrorism means you do not have the right to a hearing or a claim

  • If eligible under 101 criteria, you receive a BOC form and a hearing

Step 2: Hearing

  • All claimants have access to the RPD

  • If rejected from RPD, can appeal to the RAD (except for DCO, foreign migrants (smuggling), persons from US, or if member found no basis for claim)

  • Stay of deportation occurs until RAD renders decision

  • 30...

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