The Basics of Canadian Refugee Law

1
The Basics of Canadian Refugee Law

• Interpretation and Proof

2
Definition

• Person who
• a) by reason of a well-founded fear of
  persecution
• b) for reasons of race, religion, nationality,
  membership in a particular social group or
  political opinion
• c) is outside each of their countries of
  nationality (or country of former habitual
  residence)
• and d) is unable or by reason of that fear
  unwilling to avail themselves of the protection
  of each of these countries.

3
Preliminaries

• 28 days to submit Personal Information Form
• Interview notes from original interview may be
  used at hearing and may be damaging to
  credibility.
• Screening Form will be sent by RPD member
• Hearing should be limited to issues cited as
  material.
• Disclosure of Evidence - Country Condition
  Materials
• Onus of Proof on Claimant Balance of
  Probabilities

4
Credibility

• Always a factor
• The Maldonado presumption (Casebook 544) There
  must be a reason to doubt sworn evidence.
• IRPA s.106

5
The importance of Ward

• Basic rationale of Refugee Law - surrogate
  protection (Casebook 549)
• State complicity in persecution not necessary
  (Casebook 551-2)
• Two Important presumptions a) Persecution will
  be likely in the absence of state protection
  (Casebook 555) b) Nations should be presumed
  capable of protecting their citizens (unless
  complete breakdown in State apparatus (Casebook
  556)
• Clear and convincing evidence needed (Casebook
  556) Discussed in Carrillo (Website supplement)
• Individuals need not seek State protection where
  it is likely ineffective (Casebook 555)
• The connection between Refugee Law and Human
  Rights Law, and concern with actions that deny
  human dignity (Casebook 558)
• Informed by Anti-discrimination Law (Casebook
  559)

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Fear

• Screening Form under Subjective Component
• Actual fear? Apprehension?
• What is the relevance of Delay,Failure to Claim
  Elsewhere and Re-availment?

7
Well-Founded

• The Adjei test Good grounds or reasonable
  chance or serious possibility
• Discussed in Carrillo para. 13 (Website
  Supplement 39)

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State Protection and Internal Flight Alternative

• As a result of Ward analysis of State Complicity
  the notion of well-foundedness has become split
  into a number of factors identified in the
  screening form as Agents of Persecution, State
  or de facto Protection and Internal Flight
  Alternative

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State Protection

• Prior to Ward there was a distinction drawn
  between being unwilling and being unable to
  seek protection.
• Ward holds the distinction is irrelevant. The
  central focus is well-foundedness of the fear

10
State Protection contd.

• When state complicity is not an issue, a claimant
  is expected to seek State Protection. Clear and
  convincing evidence required Even where there is
  State complicity, there may be a need to seek
  protection
• Consider the range of cases
• Persecution is a State policy, Govt. persecution
  is rampant, Govt persecution is localized, State
  officials have been known to work with
  persecutors, State officials do nothing in
  response to persecution, State does not have
  sufficient resources or infrastructure to control
  persecutors, State is in an all out battle
  against persecutors but is not successful,
  breakdown of State authority

11
State Protection contd.

• No definite criteria for what is adequate
  protection - are best efforts enough? Sufficient
  to negate a well-founded fear? (Casebook 585)
• How much effort must be made by claimant?
• Ward 555-6 The claimant will not meet the
  definition where it is objectively unreasonable
  not to have sought protection of state
  authorities
• (Casebook 584-5, 613)
• Existence of democratic institutions is important
  guide Carillo (website supplement) (Casebook 584)
  FCA in Hinzman (website supplement)
• Non state protection available? Arguably
  itrrelevant (Casebook 613)

12
Internal Flight Alternative

• Two Part Test Casebook 614 a) No serious
  possibility of persecution there b) Reasonable
  in the all the circumstances for person to go
  there
• Burden of Proof on Claimant but Board must warn
  claimant that IFA will be raised and identify
  where.
• Many open questions about what factors should be
  considered under reasonableness (Casebook 615-6)
  Subjective factors are taken into account.

13
Change of circumstances and Sur place claims

• The Definition is forward looking..
• What about manufactured claims?

14
Persecution

• What counts as persecution?
• How does persecution differ from prosecution?
  (See screening form)
• Is punishment for army desertion persecution?
  (see screening form)
• How does persecution differ from discrimination?
  (See screening form)

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Persecution

• Defined in Ward as sustained or systemic
  violation of basic human rights (Casebook 558)
• Type of harm that would be inconsistent with the
  basic duty of protection (Casebook 573)
• A floating concept How serious is the right in
  relation to which violation is feared? how
  serious is the restriction that is feared? how
  serious is the harm?
• Consult Universal Declaration of Human Rights,
  the International Covenant on Civil and Political
  Rights and on Economic Social and Cultural Rights.

16
Persecution contd.

• Contrast unavailability of any education with
  unavailability of University education.
• Cumulative discrimination and harassment may
  amount to persecution (Casebook 574)
• For particular examples see IRB document

17
Persecution v. Prosecution

• Persecution and Prosecution
• If you merely fear prosecution under a law of
  general application then it is not persecution
  you fear. A Half-proposition)
• So
• One must look at both the face of the law and its
  application to determine whether there are
  discriminatory/ persecutory aspects.
• Moreover, if the law restricts human rights the
  prosecution may amount to persecution (by reason
  of political opinion)

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Examples

• 1. conscientious objection and conscription or
  desertion
• Zolfagharkhani (Casebook 575)
• Presumption An ordinary law of general
  application even in non-democratic countries
  should be given a presumption of validity and
  neutrality. The onus is on the claimant to show
  that the laws are persecutory. It will not be
  enough for the claimant to show that a particular
  regime is oppressive. The law in question must be
  persecutory in relation to a Convention ground.
• The claimant did not merely object to military
  service he objected to serving in a military
  that used chemical weapons (contrary to
  International law) against its own citizens.
  (Would include desertion) Contrast Hinzman 576

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Examples

• 2. Disproportionate punishment
• Cheung If the punishment or treatment under a
  law of general application is so Draconian as to
  be completely disproportionate to the objective
  of the law, it may be viewed as persecutory.
• 3 Regulating dress.
• Issues the nature of the restriction the
  disproportionality of the penalty the context of
  intimidation and harassment.

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Examples

• 4. Trumped up charges/procedural defects
• Where the criminal process is used for political
  grounds it may be persecutory
• 5. Punishments that are inherently persecutory
• e.g. Involuntary sterilization Cheung (Casebook
  577) Brutality is still brutality
• 6. The Exit Law Dilemma
• Where the laws relating to exit or to overstaying
  overseas have been breached and the consequences
  are severe. Valentin 1991 3 FC 390 CA holds it
  is not persecution.

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Nexus

• What is meant by for reasons of?
• Do you have to identify the persecutors
  motivations? Or the states reasons for not
  protecting?
• See Islam and Shah (595- 600)

22
Grounds of Persecution

• Why is persecution per se insufficient to ground
  a claim? NB the definition is now supplemented by
  s.97
• What is a particular social group?
• When is an opinion political?
• What if an opinion is wrongly attributed to you
• What if you can escape persecution by living
  discreetly?
• Liberal Interpretation

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Particular Social Group

• Ward (Casebook 562,591) 3 categories
• Groups defined by unchangeable characteristics,
• Groups whose members associate voluntarily for
  reasons fundamental to human dignity
• Groups who held a previous historical status that
  is now unalterable

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Particular Social Group (contd)

• Ward rethought in Chan those who face
  involuntary sterilization in China are a
  particular social group (Casebook 593) You dont
  have to associate with other members of the group
  
• The difficulty is that it seems that what holds
  the group together is the fact that they are
  subject to persecution. See Islam at 597

25
Particular Social Group

• Victims of Crime?
• Family? (Casebook 609)
• Discreet behaviour as a solution (Casebook
  600-608)
• Defining the Group (595 600)

26
Political Opinion

• Ward Any matter in which the machinery of state,
  government and policy is engaged.(589)
• Attributed opinion not real opinion.
• Ward Former Mafia member cant invoke it but
  Ward can. (564)

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Exclusion Clauses

• Article 1E Having the rights of nationality in
  another country

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Exclusion Clauses

• Serious Reasons for considering
• Article 1F(a) committed a crime against peace, a
  war crime or a crime against humanity as defined
  in international instruments
• Statute of the International Criminal Court,
  Statute of International Military Tribunal,
  international tribunal for Rwanda and Yugoslavia
• Complicity and Defences Mere membership in a
  group involved in intl offences not enough
  unless its existence is premised on such methods,
  ie it exists for that limited purpose. Duress is
  narrowly defined as is Superior Orders

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Exclusion Clauses

• Article 1(b) Committed a serious non-political
  crime outside the country of refuge
• serious
• non-political a political disturbance a
  rational nexus. Proportionality also required.
  Assassinating Kennedy non-political
  assassinating Hitler political!
• Not applicable where the person has served
  sentence for the crime.

30
Exclusion Clauses

• Article 1F(c) Guilty of acts contrary to the
  purposes and principles of the United Nations.
• Pushpanathan limit to cases of human rights
  abuse.

31
Change of Circumstances and Compelling Reasons

• S.108 IRPA

32
Vacation.

• IRPA s.109

33
No Credible Basis

• S.107 IRPA
• Consequences found in s.231 of Regulations
  removal order will not be stayed while leave to
  Federal Court is sought