Category Archives: Refugees

Should People Who Lose Their Refugee Status Be Deported?

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Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act - has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act.  This past week, members of the immigration bar raised concerns about another questionable change.  In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.

Currently, the Immigration and Refugee Board may cease a person’s refugee status.  Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status.  Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.

Bill C-31, however, changes this.  It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status.  Bill C-31 also provides that such an individual would be inadmissible toCanada.  Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.

This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad.  It would apply to refugees who recently obtained status, and to refugees who became permanent residents many, many years ago.

Before jumping to conclusions about whether this is or is not good law, it is useful to present some examples of when someone’s refugee status might be ceased.

Tisha is a Tamil fromSri Lanka.  In 2008, she arrived inTorontoand claimed refugee status because of the ongoing war inSri Lanka. In 2010 Tisha’s refugee status was approved.  She became a permanent resident later that year.  She has lived continuously inCanadasince arriving in 2008.  She runs a restaurant that employs 15 people.  In 2012, the IRB determined thatSri Lankawas now safe for Tamils because the civil war had ended.  It ceased her refugee status.

 

Wang is a Chinese citizen who is a Catholic.  In 2008, he arrived inVancouverand claimed refugee status.  He married a Canadian in 2009. His claim was approved in 2010, and he became a permanent resident in 2011.  Wang immediately returned toChina, and has lived there while working abroad for a Canadian company since. In 2012, the IRB determined that Wang was no longer at risk of persecution for being Catholic, and ceased his refugee claim.

 

Kim is fromKorea.  She fled an abusive husband who was a high ranking official in the government, and also had ties to the mafia.  Her refugee status was approved in 2006, and she became a permanent resident of Canada in 2008.  She has two Canadian born children, and is the director of aCanada– Korean business association.  In 2011, her husband died. In 2012, the IRB determined that Kim was no longer at risk of persecution in Korea.

 

As a result of Bill C-31, all of the above individuals would lose their permanent resident status and be removed fromCanada.

When looking at the above three scenarios some may question why it is relevant where the individuals worked.  However, it is important because permanent residents do not live in a vacuum.  They become members of their local community, and conduct their affairs with the legitimate expectation that their residency inCanada is permanent, or at least subject to their control.

Bill C-31 throws a wrench in this.  It provides that refugees who became permanent residents can lose their permanent resident status and be removed from Canadathrough no fault of their own.  The loss of status is not predicated on the refugee having lied.  Rather, it is based on circumstances beyond their control.  Furthermore, there will be no degree of establishment or hardship that the permanent resident can show to keep his status.

Even if one does not believe that Canada does not owe anything to people who are not Canadian citizens, then one should still question whether the automatic revocation of permanent resident status with no appeal right is a good thing for Canada.  There will be the economic costs to Canada in the form of employees and employers abruptly having to leave. There will also be personal costs to Canadians dependent on them.

To me, the solution to the above-mentioned problems appears obvious.  If the government is determined that the cessation of refugee status should lead to a loss of permanent resident status, then it should provide an appeal right to the Immigration Appeal Division where humanitarian & compassionate considerations can be considered.

I cannot think of a single, strong reason why it should not do so.

Was Bill C-37 Worth the Political Cost?

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On February 16, Jason Kenney and the Conservative government introduced Bill C-31, the Protecting Canada’s Immigration Act.  The Act makes many reforms to Canada’s refugee system, and amends previous amendments to Canada’s immigration legislation contained in the Balanced Refugee Reform Act which have not yet come into affect.  Bill C-31 was greeted by many refugee lawyers and advocates with much criticism, and was received with particular indignation from the New Democratic Party.

It is not difficult to see why the NDP was outraged by the introduction of Bill C-31.  Less than two years ago, the Conservatives and the NDP worked together to introduce the Balanced Refugee Reform Act.  Its passage was seen as a good example of compromise, and how the parties in a minority Parliament can cooperate to introduce what was generally viewed as good legislation.  I would also imagine that the NDP spent some political capital with its base by cooperating with the Conservatives and to makeCanada’s refugee system stricter.

Minister Kenney has now thrown all of that to the wind.

By abandoning the grand compromise that was the Balanced Refugee Reform Act, Mr. Kenney has taken several political risks.  First, he has abandoned any good-will that he had with the NDP.  Should the Conservatives ever find themselves in a minority government again, I doubt that they will find the NDP being very willing to work with them in the same away as they did in 2012.

Second, he has provided the NDP with the ability to criticize the upcoming reforms to Canada’s refugee system.  Because the NDP were co-drafters of the Balanced Refugee Reform Act, they could not really criticize the upcoming changes because they themselves owned the amendments.  By abandoning the Balanced Refugee Reform Act and in effect replacing it with Bill C-31, Minister Kenney has provided the NDP with legitimacy to criticize the toughening of Canada’s refugee system.

Presumably, Minister Kenney believes that the benefits of the changes in Bill C-31 outweigh the above costs.

So.  What are these changes?

(It should be noted that many of the changes below will involves changes to the Immigration and Refugee Protection Regulations, and are not actually contained in Bill C-31.  However, as the Conservative government announced these changes concurrent with the introduction of Bill C-31, I am including them under the umbrella of the Bill C-31 changes.)

First, the time-frames for when a refugee hearing will be heard have been reduced.  Under the Balanced Refugee Reform Act, a refugee hearing would occur within 60 days for a claimant from a designated safe country of origin (“DCO”), and 90 days for a non-DCO country.  Bill C-31 will reduce in most cases reduce this period to 45 days and 60 days respectively.

Second, under the Balanced Refugee Reform Act, a non-successful refugee claimant from a DCO, or a claimant whose refugee claim was found to be manifestly unfounded, would have his appeal heard within 30 days.  A claimant from a non-DCO country would have had his appeal heard within 120 days.  Bill C-31 reduces the time-frame to 90 days for non-DCO countries.  It removes the ability to appeal completely for unsuccessful refugee claimants from DCOs, for people whose claims were found to be manifestly unfounded, and for irregular arrivals.

Bill C-31 also contains numerous changes that do not relate to time limitations.   The informational interview that was proposed in the Balanced Refugee Reform Act will now be replaced with a Basis of Claim document.  The ability to designate a country as being a designated safe country of origin has been transferred from a panel of experts to the Minister. The Immigration and Refugee Board will no longer be able to reopen previously decided claims or appeals once a final decision has been made at the Refugee Appeal Division or Federal Court.

Perhaps more significantly, there will no longer be automatic stays of removal for judicial reviews of refugee decisions for people from DCOs.  (It will be interesting to see how the Federal Court deals with the onslaught of stay of removal motions.)  Refugee claimants from DCO countries will also be prohibited from getting Work Permits during the processing of their refugee claim.

Essentially, most of Bill C-31 is geared towards decreasing the estimated total processing times of refugee claims (I am excluding from this the inclusion of all of the human smuggling provisions contained in Bill C-4).  Under the Balanced Refugee Reform Act, it was expected to take 171 days to process a refugee claim from a designated country of origin, and 291 days to process a non-DCO refugee claimant’s claim. The Conservative government expects Bill C-31 to reduce this to 45 days and 216 respectively.

The above reductions may seem significant.  However, considering the fact that under the current system the average number of days is 1,038, the further reductions gained by Bill C-31 over the reductions in the Balanced Refugee Reform Act seem less impressive.  For claimants from designated countries of origin, the reduction in processing times from the current average is 96% instead of 85%.  For non DCO countries, it is 79% instead of 72%.

So.  Assuming that the above changes in Bill C-31 withstand the inevitable Charter challenges that are no doubt coming, the Conservatives will years from now have to ask themselves whether the 9% and 7% further reductions that Bill C-31 achieved were worth the political cost.

We will likely have to wait until after the next election and see what the House of Commons looks like to know the answer.

Refugees and Transportation Loans

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A myth exists that it costs Canada a lot of money to resettle refugees from abroad.  “Why,” I am sometimes asked, “should my tax dollars pay to fly someone from Rwanda to Canada?”

The short answer is: they don’t.

The longer answer is that the cost of transporting refugees from abroad to Canada is shared between the International Organization for Migration, and the Government of Canada.  The Government of Canada’s portion is $10,000, and is actually structured as a loan to the refugee through the Immigration Loans Program.  In other words, the refugee is expected to repay the Government of Canada for transporting him/her to Canada.

Surrey mayor Dianne Watts recently highlighted the Immigration Loans Program when she called on the federal government to drop the Transportation Loan to refugees.  The Province story on her statements summarized the loan as:

Officials with Citizenship and Immigration Canada told The Province that individual refugees may be responsible to repay up to $10,000 per person under the Immigrant Loans Program to cover the costs of medical examinations abroad, travel documents and transportation to Canada.

 

“The maximum amount of the loan the refugee would pay is $10,000, as there’s a cap,” said a CIC official. “Loans in excess of that amount are paid for by the IOM [International Organization for Migration]. So the refugee pays zero dollars to $10,000, then IOM would pay the remainder if it’s over $10,000.

The loan is not merely a black hole of non-repayment.  In a 2008 Report to Parliament, the Minister of Citizenship and Immigration Canada (the most recent report that I could find) stated that the repayment rate currently exceed 91%.

Desertions and Refugee Status

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Image from the Big Picture

The Federal Court recently addressed the issue of when military deserters can claim refugee status.

In Kirkoyan v. Canada (Citizenship and Immigration), 2011 FC 1217, the applicant was an Israeli who refused to serve as a reservist in the Israeli Defense Forces.

In analyzing whether the Immigration and Refugee Board applied the correct law on the matter, the Court reiterated the three categories of desertion that qualify for refugee status pursuant to the Lebedev decision. The three categories are:

  1. Where the desertion pertains to conscription for a legitimate and lawful purpose that is conducted in a discriminatory way, or if the punishment for desertion is based in relation to a Convention ground.
  2. Where the evasion reflects an implied political opinion that the military service is fundamentally illegitimate under international law (i.e. – where it is intended to violate basic human rights, non-defensive incursions into foreign territory, or action in breach of the Geneva Convention.  To rely on this category, it is necessary to show that, on a balance of probabilities, the claimant would have been required to carry out the activities. (Ozunal v Canada (Minister of Citizenship and Immigration)
  3. Principled objections, or conscientious objectors.

What is Required to Show that One is a Conscientious Objector?

For a deserter to show that he is a genuine conscientious objector, he bears the onus to demonstrate that his opinions in that regard are genuine.  The Court noted that:

Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

Where an individual completes military assignments, or fails to contact relevant military committees to obtain exemptions from specific assignments, a claim will be difficult to establish. (Goltsberg v Canada)

Deserting Alone Isn’t Sufficient

Opposition to military service is not sufficient to obtain refugee status.  A serious possibility of persecution stemming from deserters must be demonstrated (Adjei v Canada (Minister of Employment and Immigration), and imprisonment does not constitute persecution in the case of deserters (Ates v Canada (Minister of Citizenship and Immigration), 2005 FCA 322). In such a situation, the Applicant needed to demonstrate to the Board that the sentence awaiting him would amount to persecution.

Imprisonment alone is not sufficient.  In  Moskvitchev v. Canada(Minister of Citizenship and Immigration), a sentence of between six months to five years for draft evasion was found not to constitute persecution.

The UNHCR on Desertion

Finally, and perhaps most useful for individuals curious on the issue, the Court reproduced the following from the UNHCR on the issue.

Continue reading →

Certified Question on Refugees, Article 1F, and Rehabilitation

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Photo from the Big Picture, REUTERS/David Gray)

The Federal Court has certified a question involving Article 1F(b) of the 1951 Refugee Convention.  As I have previously noted on this blog, 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 Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

In other words, should a refugee claimant who has committed a serious non-political crime abroad, but has since been rehabilitated, be precluded from claiming refugee status?

The Applicant’s Arguments

The Applicant argued that the 1951 Refugee Convention is a human rights instrument and that it therefore should be interpreted in a manner that is consistent with the Canadian Charter of Rights and Freedoms (the “Charter”).  Specifically, Article 1Fb must not be interpreted in a way that is either vague or overly broad.

The Applicant also noted that the main purpose of Article 1F(b) is the protection of the public from dangerous individuals.  Although the Applicant acknowledged that the jurisprudence already indicates that Article 1F(b) analysis does not involve a seriousness of the crime balanced against the risk of excluding an individual from refugee protection, he argued that whether a person is currently a danger to the public should be a relevant factor in evaluating whether that person committed a serious non-political crime.  The way to do this is an analysis of rehabilitation factors.

Finally, the Applicant cited the United Nationals High Commissioner on Refugees Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, which states:

23. Where expiation of the crime is considered to have taken place, application of the exclusion clauses may no longer be justified. This may be in the case where the individual has served a penal sentence for the crime in question, or perhaps where a significant period of time has elapsed since the commission of the offence. Relevant factors would include the seriousness of the offence, the passage of time, and any expression of regret shown buy the individual concerned.

The Government’s Arguments

The Department of Justice noted that the Immigration and Refugee Protection Act provides that the Minister may consider rehabilitation factors in an Application for a Pre-Removal Risk Assessment, and that the Minister has the mandate to consider whether a person who is inadmissible because of serious criminality is a danger to the Canadian public.  The Act, meanwhile, according to the Department of Justice, prohibits the Refugee Protection Division from doing so.  Furthermore, based on the basic principles of statutory interpretation, Article 1F(b) should not be re-written to include an analysis of whether the Applicant poses a danger to society or not.

The Department of Justice also noted that the Federal Court of Appeal in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, explicitly held that the Refugee Protection Division must only consider whether there are reasons to believe that a claimant has committed a serious non-political crime.

The Federal Court’s Decision

The Court first cited the Federal Court of Appeal in Xie v Canada (Minister of Citizenship and Immigration), 2004 FCA 250, which stated that:

. . . The exclusion deals with denial of refugee protection. Protection remains available, though subject to considerations of public safety and security of Canada. The weighing which is called for by subparagraphs 113(d)(i) and (ii) may well be subject to review to see if those considerations constitute “exceptional circumstances” as contemplated in Suresh. But that entire exercise will occur in the context of the Minister’s consideration of the application for protection at the PRRA stage. It does not occur in the course of the Refugee Protection Division’s application of the exclusions referred to in section 98 of the Act. This conclusion is consistent with prior jurisprudence of this Court as to balancing in the application of the exclusion found in sections E and F of Article 1 of the Convention. See Gil, and Malouf.

Accordingly, the Court noted that the Refugee Protection Division’s only consideration is to determine whether or not the refugee claimant committed a non-political crime.  The considerations of rehabilitation and of current dangerousness for the Canadian public are not probative in determining whether Article 1F(b) should apply.

To the extent that sentence is relevant, the Court noted that it is only relevant in determining whether a crime was indeed serious.

Certified Question 

Given that the Court clearly stated that rehabilitation is not a relevant factor in determining whether an individual should be excluded from claiming refugee protection for having a committed a serious crime, you might wonder why the Court certified the above question.

It did so because it considered the question to be a serious issue and one of general importance.

So what do you think?

When applying article 1F (b) of the United Nations Convention relating to the Status of Refugees, should it be relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

 

Personalized vs. Generalized Risk

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From the Big Picture

As the political situations in several Latin American countries decreases, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.

Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.

As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”.  What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population?  In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.

Further complicating the issue is that there are varying definitions of what the word “generalized” means.  In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459, Justice Snider reiterated that there is nothing which requires the Immigration and Refugee Board to interpret the word “generally” as applying to all citizens.  She added: “The word ‘generally’ is commonly used to mean ‘prevalent’ or ‘widespread’. Parliament deliberately chose to include the word ‘generally’ in subsection 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.

In Baires Sanchez v. Canada (Citizenship and Immigration), Justice Crampton further tightened the screws when he stated that in order to show that a risk is not generalized applicants must establish that the risk of actual or threatened similar violence is not faced generally by other individuals in or from that country, and that applicants must demonstrate that the respective risks that they face are not prevalent or widespread in their respective countries of origin, in the sense of being a risk faced by a significant subset of the population.

This area of refugee law is the subject of much complaint and criticism, and there are rumors of Charter challenges being launched.  As developments arise, I will post any changes to the law here.

Inferring a Lack of Credibility

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One of the biggest issues in refugee law, and indeed all areas of immigration law, is credibility.  This post addresses the jurisprudence regarding when a tribunal can infer that an individual is not credible.

In short, where the tribunal finds a lack of credibility based on inferences, there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis.

In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.

Using the word “we feel” without providing any further evidence is an example of an unreasonable conjecture as opposed to a reasonable inference: Mahalingam, Shyama Ushandhini v. Canada (Minister of Citizenship and Immigration).

Having said that, a credibility assessment is “the heartland of the discretion of triers of fact”, and in making its determination, the Immigration and Refugee Board is entitled to take into account the discrepancies, contradictions and omissions in the evidence and to view the evidence from the perspective of rationality and common sense: Giron v Canada (Minister of Employment and Immigration).

Indicators of Credibility 

Important indicators of credibility include the consistency with which an individual has told a story, the plausibility of the evidence, and the individual’s demeanour and general reliability.

In each of these factors, while the Board cannot engage in microscopic analysis of an individual’s claim to find examples of credibility, it can point to such instances as examples of overall trends demonstrating a lack of credibility: Francis v. Canada.

In terms of demeanour and general reliability, factors that courts consider in assessing the credibility of a witness can include:

  • desire to be truthful
  • their motives
  • general integrity
  • general intelligence
  • relationship or friendship to other parties
  • opportunity for exact observation
  • capacity to observe accurately
  • firmness of memory to carry in the mind the facts as observed
  • ability to resist the influence, frequently unconscious, to modify recollection
  • capacity to express what is clearly in the mind
  • ability to reproduce in the witness-box the facts observed
  • demeanour while testifying

Courts will give tribunals significant deference on all of these factors, as the aptitude to answer questions in an honest and clear manner, the coherence and the uniformity of the answers are subject to the appreciation of a trier of fact in respect of the credibility of an applicant: Lapointe v Hôpital le Gardeur

Indeed, as noted in Wen v Canada (Minister of Employment and Immigration), an assessment of personal demeanour ought not to be interfered with by the Federal Court, which lacks the advantages available to the trier of fact.

Why Does Credibility Matter?

Credibility matters because a general finding of a lack of credibility on the part of an applicant may extend to all relevant evidence emanating from that individual’s testimony.

In the refugee context, for example, as claimant’s testimony may often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim.

 


 

Sending Refugees to a Safe Third Country

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Image from The Big Picture

Australia has “boat people” issues that far exceed Canada’s.  According to The Economist, in 2010 134 boats carrying 6,535 refugee-claimants landed off the shores of Australia.  The Australian government has introduced many policies to reduce those numbers, including the controversial detention of most sea-arrival refugee claimants on Christmas Island.

Another potential policy, which was recently struck down by the High Court of Australia, was to exchange certain refugee claimants with United Nations High Commissioner for Refugees recognized refugees in Malaysia.   Under the arrangement, Australia would send 800 seaborne asylum-seekers to join tens-of-thousands of others currently queuing in Malaysia to have their refugee claims heard by the UNHCR.  In return, Malaysia would be allowed to send 4,000 people who the UNHCR had recognized as being refugees, and who were awaiting resettlement in a third country, to Australia.

On August 31, 2011, the High Court of Australia held that the plan was invalid.   The main reason was because Malaysia is not a signatory to the 1951 Refugee Convention, and is therefore not legally bound to provide the access and protections required by the convention.

Ignoring the issue of whether such a swapping proposal would be constitutional in Canada, I wonder what readers think of this approach to processing refugee claimants.

Suppose that Canada were to enter into a swapping agreement with a third-party country that was a signatory to the 1951 Refugee Convention.

Would you support a policy whereby Canada would transfer refugee claimants to the third party to be processed by the UNHCR, and in exchange the UNHCR would send 1-4 times that many people to Canada?