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) a. 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 s. 139(1)(a)

S. 139(1)(f)

s. 139(1)(g) Successful Establishment (QC has different requirements under 139(1)(h))

SIGNIFICANCE 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 Officer must be satisfied that refugee seeking resettlement has sufficient financial resources to resettle without being a financial burden on CDA. 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 Exception for successful establishment for vulnerable persons or those in urgent need of protection 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.

s. 139(2)

s. 139(1)(i)

Convention Refugees PROVISION (all IRPA) s. 96 (IRPA)

s. 98 s. 99(3) s. 101 (criteria used by officers to determine Convention refugee eligibility)

101(1)(a)(b)(c)(d)

s. 101(2)

s. 108(1)(e)

SIGNIFICANCE 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. Persons excluded under Articles 1F and E are not convention refugees Can apply for refugee protection within CDA if not subject to removal order 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 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. MCI must certify that claimant constitutes danger to public in cases involving criminality for offences committed outside CDA. 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 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) o 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) o 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 s. 112 (IRPA)

May put PRRA application forward if claim rejected by board or subject to removal order

s. 113(a) IRPA

s.166 REGS

in force Must present new evidence that arose after rejection or evidence that could not reasonably have been expected under circumstances to have been presented (Ex. civil war) Refugee protection can be filed after determination of inadmissibility, but it has to be received as soon as removal order is made. Application for protection does not result in stay of removal order.

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) 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.
- must show that removal would subject you to risk

Persecution

- 2 Types: agent is the state, agent is a non-state actor. If agents are rogue and acting without authority, you must show why you can't seek protection Must establish that mistreatment received was serious (threatens rights in fundamental way) AND repetitive or systematic (Maksoudian v Canada 2009 FC 285)
- Prosecution may constitute persecution (Ex. laws against sexual conduct not persecutory per se unless treatment or punishment Draconian; punishment for refusal to serve in military conducted in discriminatory way can count, forced sterilization, cumulative harassment). Look to p 330 for more examples)
- prosecutory: when politically charged, without merit, evidence that there is no judicial independence (presumption of fair trial), forced to breach international law (Ex. US soldiers)
- persecution: due process could be relevant
- Not enough to stand at risk of persecution in country of origin - must show well founded fear on one ground or more - motivation of persecutors can be mixed and there can be an indirect nexus to race, religion, nationality or political opinion
- Must consider all grounds of persecution even if not argued (Canada v Ward 1993 2 SCR 689) Not defined in CDN law (broad definition accepted) Protected internationally in two ways - persons may embrace or reject

Consideration goes to who invoked the problem (state or agent)

Race Religion

Nationality Membership in social group

Political Opinion

Well founded fear

Fear: OBJ and SUBJ evaluation; OBJ determination assesses wellfounded fear (Gurung v Canada 2010 FC 1097). Claims often fall on SUBJ analysis.

any theistic, non-theistic or atheistic belief without interference from state. May also live and act in accordance with beliefs subject to limitations necessary to protect public safety, order, health or morals. Extends to exercise of right in public. Lack of religion included. Need not openly express religion to obtain protection. Board must consider even if persecution not religious per se but is a consequence of the person's religious beliefs No strict definition (persons of inferior status can be considered under this category if treated as second class citizens) 1) group defined by innate or unchangeable characteristic 2) groups whose members voluntarily associate for reasons fundamental to human dignity that they should not be required to forsake 3) groups associated by former voluntary status, unalterable due to historical permanence (Canada v Ward 1993 SCC)
- Any opinion on matter in which machinery of state, government and policy may be engaged. Must consider opinion of claimant and that attributed to claimant by persecutors (See Canada v Ward factors)
- even if claimant refuses to express political opinion or disavows political views attributed, claim may be based on this ground (Rivera v Canada 1987 IADD)
- opposition to crime or corruption counts Past persecution relevant but not fully determinative.
- where refugee is a child or incompetent, Board may infer subjective belief in fear of persecution (Yusuf v Canada 1 FC 629 FCA)
- change in circumstances must be considered by IRB in assessing OBJ fear (Mileva v Canada 1991 FCA)

SUBJECTIVE/OBJECTIVE FEAR (Deference here on JR) Subjective: Question is whether your conduct indicated such fear, and hinges on credibility. Look to 1) delay in leaving country and making a claim in CDA 2) reavailment 3) failure to make claim in country that signed Convention Against Torture when available. Objective: requires more than a serious possibility or a reasonable chance of fear - goes to well founded fear. Individual characteristics (profile), past experience and experiences of the person in the relevant country are considerations. S. 97: RISK TO LIFE, DANGER, OR TORTURE s. 97 No SUBJ fear requirement. Ex. grossly disproportionate

Protected person: in need of protection in CFA whose removal would subject him or her to risk to life, danger or torture, a risk of cruel or unusual punishment or person who is in the class of persons in need of protection in regs.

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