Housekeeping Nov 2

1
Housekeeping Nov 2

• assignments received and return dates
• next assignment available on Friday
• 2 more refugee classes, then on to final section
  of the course

2
Exclusions from Ref Defn contHarb v Canada 2003
FCA

• crimes against humanity standards of proof, Art
  1F(a)
• two types here membership and complicity
• crimes against humanity defined with refc to
  international instrumentson-going updating
  mechanism
• membership is broadly defined
• complicity direct or indirect, no need for
  formal membership, Minister must been a burden
  which is less than the balance of probabities
• note process of Ministerial intervention

3
M.O.Q. 2003 RPD

• main point here is compelling reasons as set
  out in s.108(4) previous persecution justifies
  extending protection, in spite of no future risk
• test has high threshold, continuing suffering
• bases for claim imputed political opinion, PSG
  family claim
• designated representative procedure

4
Protection Beyond the Refugee Definition

• persons in need of s.97 protection
• pre-removal risk assessment
• Torture Convention and the Suresh decision

5
Section 97

• danger of torture as defined by the CAT
• risk to life or of cruel and unusual punishment
  IF no local protection, whole area, not part of
  lawful sanctions, not related to inadequate
  health care
• refugee-like themes
• Art 1 E and F exclusions apply, as does s.100
• determined by the Refugee Protection Div

6
Pre-removal risk assessment

• Div 3 of Part 2
• can apply for this if named a removal order or
  security certificate (s.77)
• can lead to refugee status or a stay of a removal
  order
• cannot apply IF extradition past a certain
  point, safe 3rd country, 15 day and 30 day limits

7

• must present new evidence if have already gone to
  RPD
• hearing if the Minister (i.e. the department)
  thinks it necessary
• for those excluded bc of serious criminality,
  issues are danger to the public, danger to the
  security of Canada, nature and severity of the
  Acts committed
• Minister can revisit a decision granting a stay
  or vacate a decision bc of misrepresentation

8
Suresh v Canada SCC 2002

• factual threshold question prima facie risk of
  torture
• s.7 issue shock the conscience of the Cdn
  public torture is fundamentally unjust
• high degree of deference but Ministerial
  discretion is constitutionally constrained
• balancing act usual outcome not to expel
• danger to security of Canada and terrorism are
  not unconstitutionally vague

9

• mere membership is not protected by freedom of
  expression
• no full oral hearing requirement BUT informed,
  opportunity to respond, chance to challenge,
  caution regarding foreign assurances
• N.B. Ahani handed down on the same day

10
Re ZJA 2002

• s. 97 claimant from Guinea
• credibility analysis very plain to see here
• use of secondary evidence
• assessment is prospective, same standard as
  refugee assessment to be used i.e. substantial
  grounds to believe is treated as serious
  possibility (FC is reviewing)
• use of Suresh

11
Re ZU 2002

• Costa Rican claim under s.96 and s.97
• refugee status argument rejected bc of nexus
  i.e. the fear is not for reasons of membership
  in a psg
• s. 97 argument rejected bc emphasis is on risk to
  life throughout the country (not convenience)