#9070 - Refugees - Immigration and Refugee Law

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

Convention Refugees

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 days to appeal decision from IAD to RAD

• hearing could go to credibility

• admission of new evidence can only be admitted if it wasn’t reasonably available at the time of the application or it came to light after the date of the hearing

• if no right to appeal to RAD, can apply for judicial review at FC (but removal is not stayed at FC)

  • could seek stay from FC, but it is difficult to obtain

Step 3: PRRA (s. 111, 112)

• if ineligible for refugee status, PRRA received, but no right to PRRA for 1 yr after decision (it’s 3 years if you’re a DCO refugee)

  • first PRRA stays deportation, but any PRRAs subsequent do not

• change between rejection and PRRA can include civil war, change in law with material applicability (Perez v Canada 2006 FC 1379)

• Charter not available as recourse in PRRA app to officer

• Risk of torture, or cruel and unusual punishment must be established on PRRA (See 113(c) and (d) of IRPA)

• MCI can vacate positive PRRA if misrepresentation suspected (s. 114 IRPA) – must give notice to applicant

Who is ineligible for PRRA? (s. 112 IRPA)

1. protected person recognized as convention refugee by another country to which person may return

2. persons subject to an authority to proceed under Extradition Act

3. persons found ineligible to make refugee claims because they can be returned to a country that has been designated as a safe country by Regs (only US to date)

4. previous claimant for ref protection whose claim was ineligible, rejected, abandoned, withdrawn or who was outside Canada for less than 6 months (s. 112(2)(d))

S. 96: CONVENTION REFUGEES (Incorporated from 1951 Convention)