STEP 1: OVERVIEW of REFUGEE CONFERRAL

S. 95 Conferral of Refugee Protection or Protected Persons

Two Questions to Ask: One Quasi-Judicial and one Administrative

1. is the claimant eligible to make an application to the Refugee Protection Division of the IRB? S. 96 and 97 (98 exc)

2. is the claimant eligible to make an application to the Minister? PRRA

S. 96 Convention Refugee

To meet the definition of “Convention Refugee,” you must show that you meet all six parts of the definition below

· If I return to my country, there is a serious possibility I will face persecution

· Legal Issue: Persecution

· This persecution is based on my race/religion/national/political opinion/ or membership in a particular social group

· I am genuinely afraid to return to my country

· Legal Issue: Subjective Fear

· I have good reason to be afraid-based on the situation in my country

· My government cannot protect me

· Legal Issue: State Protection

· I cannot live safely in any other part of the country or it is not reasonable for me – given who I am – to move to another part of the country

· Legal Issue: Internal Flight Alternative

S. 97 Person in Need of Protection

To meet the definition of “Person in Need of Protection” you must that part 1 OR 2 below is true for you:

· 1. If I return to my country, I am likely to face torture by the authorities in my country

· 2. If I return to my country, I am likely to face risk to my life, or risk of cruel and unusual treatment or punishment

and

· my government cannot protect me: they are unwilling or unable

· Legal Issue: State Protection

and

· I cannot live safely in any other part of my country or it is not reasonable for me – given who I am – to move to another part of the country

· Legal Issue: Internal Flight Alternative

and

· This risk is specific to me and NOT shared by the general population in my country

· Legal Issue: Generalized Risk

and

· This risk is NOT because of inadequate medical care in my country

* you may get protection if you can show that you are being denied medical care because of discrimination

STEP 2: WHERE ARE YOU MAKING REFUGEE CLAIM? POE or INLAND

· Outside of Canada?

· S. 99 (2) – VISA requirement

· Inside Canada?

· At a POE s. 99(3)

· Meet with CBSA officer, interview and fill out forms

· Officer has three days to determine eligibility for hearing s. 100(1)

· Claimant has 15 days to prepare/submit the basis of claim form

· 10 days before hearing to submit evidence

· Day 45 hearing if DCO and 60 hearing if NOT DCO

· BoP is on refugee to establish eligibility

· Not at a POE s 99(4) [Immigration Office/Inland]

· Fill out forms and attend CIC office for interview date/interview, submit BoC forms at this date

· Officer has three day to determine eligibility for hearing

· Submit evidence 10 days before hearing

· Within 30 days if DCO

· Within 60 days if not DCO

If the determination of eligibility is not determined in 3 days then assume that the individual is able to make the claim

STEP 3: ELIGIBLITY AT THE IRB? ARE THERE REASONS TO NOT FIND YOUR CLAIMAINT ELIGIBLE/TO SUSPEND THEIR CLAIM?

STEP 3A: SUSPENSION of CLAIM

· A claim may be suspended under s. 103 and 105

· S. 103 (1): proceedings of RPD are suspended on notice when

· A. matter referred to Immigration Division to determine whether inadmissible on grounds of violating human rights, serious criminality,

· B. officer wants to wait until the decision of a court comes down in respect to offences under an Act of Parliament

· S 105 (1): Extradition Act

· Suspend on matters concerning a person whom an authority to proceed has been issued under s. 15 of the Extradition Act. Suspended until the decision under the Extradition Act is made

STEP 3A(1): CONTINUATION OF SUSPENDED CLAIMS

· S 103(2): Proceedings will continue when the suspended claim was determined to be eligible

· S 105(2): continue if discharged under the Extradition Act

STEP 3A(2): REJECTION OF SUSPENDED CLAIMS

· S. 105(3): persons ordered surrendered by the Minister of Justice is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of S. F of Article 1

· S. 105 (4) This decision is final it may not be appealed or subject to JR unless to the extent that JR is provided under the Extradition Act

STEP 3B: INELGIBILITY

· Are they ineligible to have claim referred to the RPD for any reason?

· S. 99 (3) : under an order for removal

· S 101 1 (a) - (e)

· A. Refugee protection has already been conferred

· B. RP has already been rejected

· C. Prior claim was ineligible, abandoned or withdrawn

· If abandoned but want it back then that can apply for an abandonment hearing

· D. Convention refugee in another country

· E. Claimant came directly or indirectly from another country that is designated by regulations [SAFE THIRD COUNTRY]

· F. Claimant is inadmissible on grounds of security, violating human or international rights, etc.

· 101 (2): a claim is not ineligible under 101(f) unless

· conviction is for an offence punishable by a max. term of imprisonment of at least 10 years [conviction in Canada]

· conviction is for an offence punishable by a max term of imprisonment of at least 10 years [conviction outside of Canada]

SAFE THIRD COUNTRY FACTORS: If a claim is ineligible under 101(e) then consider s. 102(1) and 102(2) to determine if it is a country designated by regulations

This step involved considering whether a claim was ineligible or suspended. Where claim was is found ineligible, we will consider the appeal and JR procedures later. For now, continue forward with the steps for when a claim is found to be eligible.

An officer has determined that the claim is eligible

If ineligible Maybe PRRA [Go to STEP 9]

STEP 4: ARE YOU FROM A SAFE THIRD COUNTRY?

· No Step 5

· Yes Do they meet the exceptions? [see separate page]

SAFE THIRD COUNTRY: s. 102

The Minister of Citizenship and Immigration may enter into an agreement with another state to faciliate and implement programs pursuant to IRPA. The essence of the agreement is that both countries are “safe”, and the refugee should make their claim in the first “safe” country they reach.

EXCEPTIONS TO THE SAFE THIRD COUNTRY

Does your claimant fall under any of these categories?

· Did not enter through a land POE - entered through:

· Habour

· Airport

· Port or Ferry Terminal

· Claimant has family members in Canada

· Spouse or common law partner

· Legal guardian

· Onus is on claimant to prove this

· Unaccompanied minors whose partners are not in the US or Canada

· Claimants who hold a valid VISA other than:

· Transit visa

· Work permit

· Study permit

The safe third country is subject to the same time lane BUT they CANNOT appeal to the RAD, only for JR at the Federal Court

If you are from a country that is generally unsafe and you came through a safe third country (USA), via a land POE, then Canada will return you to the US and the US may return you to that country.

DEISGNATION OF SAFE THIRD COUNTRY

S. 102(2) defines the factors that are to be considered in designating a country as a safe third county:

· Party to the 2 Conventions

· Article 33 of Refugee Convention

· Article 3 of Convention Against Torture

· It’s policies and practices with respect to claims

· Human rights record

· Whether it a party to an agreement on sharing the responsibility with respect to claims for refugee protection

STEP 5: ELIGIBLE for IRB APPLICATION?

· Are they from a DCO? [Yes - see separate page]

· Are they from a DFN? [Yes – see separate page]

DESIGNATED COUNTRY OF ORIGIN: s. 109

DCO gives sole discretion to the Minister to delegate a country as “safe”. The Minister may consider either quantitative or qualitative factors before designating a country under this scheme.

· Quantitative Triggers: Applies to countries that

· Combined rejection, withdrawal and abandonment rate of asylum claims at the IRB of 75% or higher; or

· Combined withdrawal and abandonment rate of claims at the IRB of 60% or higher

· Over a 12 month period out of 3 years

· Quantitative triggers will apply for countries having at least 30 finalized claims in any consecutive 12 month period in the three years preceding designation

If a country meets one of these triggers, it will be reviewed for potential designation

· Qualitative Triggers: countries must meet each of the following triggers in order to be reviewed for potential designation under qualitative

· There is an independent judicial system

· The country recognized and has mechanisms for redress if basic democratic rights and freedoms are infringed

· Whether civil society organization exists

Designation is not automatic, countries are triggered according to either quantitative or qualitative criteria and then reviewed by the Minister

What makes a DCO claim different?

1. IRPA specifies that the refugee claimants who are nationals of a DCO may be subject to regulations that provide for time limits [faster]

· Hearing within 45 days when claim made at POE

· Hearing with 30 days when claim made inland

2. No access to RAD, can only apply for JR at the Federal Court

3. Cannot make application for permanent residence on Humanitarian and Compassionate grounds for 12 months after a negative refugee claim determination

4. Ineligible to apply for Pre-Removal Risk Assessment (PRRA) for 36 months after negative determination

5. Denied a stay of removal while a negative refugee decision is being JR

DESIGNATED COUNTRY OF ORIGIN LIST

· Andora

· Australia

· Austria

· Belgium

· Chile

· Croatia

· Cyprus

· Czech Republic

· Denmark

· Estonia

· Finland

· France

· Germany

· Greece

· Hungary

· Iceland

· Ireland

· Israel (excludes Gaza and the West Bank)

· Italy

· Japan

· Latvia

· Liechtenstein

· Lithuania

· Luxembourgh

· Malta

· Mexico

· Monaco

· Netherland

· New Zealand

· Poland

· Portugal

· Romania

· San Mario

· Slovak Republic

· Slovenia

· South Korea

· Spain

· Sweden

· Switzerland

· United Kingdom

· USA

DESIGNATED FOREIGN NATIONAL S. 20(1)

The Minister of Public Safety can designate the arrival of persons in Canada as an irregular arrival. The legislation provides that such a designation may be made if:

· The Minister is of the opinion that the group cannot be examined in a timely manner with regards to establishing identify or determining inadmissibility

· If the Minister has reasonable grounds to suspect that the group may be involved in human smuggling or working in association with criminal organizations or terrorist groups.

Designated Foreign Nationals are subject to the same time frame as other applicants, except DCO.

What makes a DFN claim different?

1. Cannot apply for temporary resident permits or travel documents

2. Cannot access the RAD

3. Cannot benefit from an automatic stay of removal should they choose to have JR for a negative determination of refugee status

4. Barred from making a H&C grounds application for 5 years following negative determination

5. Subject to reporting requirements to an officer.

STEP 6: AT THE RPD

The hearings before the RPD are non-adversarial and will typically be presided over by a single member. Claimants are entitled to be represented by counsel at their own expense. They are entitled to interpretation in accordance with s. 14 of the Charter.

s. 170(a): may inquire into any matter that it considers relevant to establishing whether a claim is well founded.

Procedural Requirements at this stage

· Hearing: some form of presentation

· Provide the Minister with the documents and information referred to in 100(4)

· Documents they must submit such as BoC

· Reasonable opportunity to present evidence, question witnesses etc.

Consider Detention Issues and Credibility – Below

STEP 6A: DETENTION ISSUES

3 usual groups for detention in immigration context

1. Front End Detention: officer has reasonable grounds to believe the person is inadmissible and is a danger to the public

2. Back End Detention: unlikely to appear for examination, an admissibility or removal from Canada

a. If they failed a refugee claim and don’t expect to see them again

3. The officer is not satisfied of the ID of the DFN in the course of any procedure under the IRPA

*More detail in long outline

STEP 6B: CREDIBILITY s. 106

No Credible Basis and Manifestly Unfounded Claims: IRPA s. 107, s. 107. 1

The RPD must take into account, with respect to the credibility of a claimant, whether:

· Claimant possesses acceptable documents establishing ID; or

· Reasonable explanation for lack of documentation; or

· Have taken reasonable steps to obtain documentation

No Credible Basis s. 107(2)

· No trustworthy or credible evidence to support the claim

Manifestly Unfounded s. 107(1).1

· Manifestly Unfounded when of the opinion that the claim is clearly fraudulent

Considerations for failed refugee claims**

· Conduct and demeanour

· Evasiveness

· Inconsistency and Omissions

· Implausibility

· Criminal Fraud

STEP 6C: REASONS for REJECTING A CLAIM S. 108

A claim shall be rejected for s. 96 and s. 97 protection, in the following circumstances:

· Claimant has voluntarily reavailed themselves of protection of their country of nationality

· The person has voluntarily reacquired their nationality

· Person has acquired a new nationality and enjoys the protection of the country of that new nationality

· The person has voluntarily become re-established in the country that the person left to claim protection in Canada

· Reasons for the person seeking refugee protection have ceased to exist

**See long outline

STEP 7: IF CLAIM FAILS, ARE YOU ELIGIBLE FOR RAD?

You have NO access to RAD if: s. 110(2)

· DCO – (?) YZ Case challenges this

· DFN

· Decisions with respect to claimants who came to Canada directly or indirectly through USA but were nonetheless eligible to make refugee protection claims under an exception to the safe Third Country Agreement

· Abandoned or withdraw claim

· If RPD decided claim was manifestly unfounded

· Declared cessation or vacation of protected persons

If NOT eligible then JR at Federal Court : applying for leave s. 72 of the IRPA

· The application must be made within 15 days

Where there is no right to RAD there is no benefit of a regulatory stay of removal and thus no guarantee that a claimant will be able to stay in Canada and pursue JR.

STEP 8: ELIGIBLE for RAD

RAD for a Negative Decision

· Application must take place within 15 days

· If eligible for RAD then may remain in Canada s. 110(4)

· Claimant may submit new evidence if the evidence could not have been presented at the RPD

· Evidence that arose after the claim

· Or was not reasonable available

RAD for a Positive Decision

· Minister has a right of appeal

· Minister may submit new evidence to the RAD without restriction, claimant may submit in response

Process

RAD proceeds without a hearing on the basis of the record of the proceedings in the RPD. The RAD may hold a hearing if it is of opinion that there is documentary evidence

· Raises a serious issue w/ respect to the credibility of the person

· Evidence that is central to the decision with respect to the claim

· Evidence if accepted would justify allowing or rejecting the claim

RAD must not hold an ORAL hearing in an appeal unless there is new evidence, in which case the RAD may hold a hearing if that new evidence raises serious issue w/ respect to the credibility of the appellant, is central the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim.

TIME FRAME for APPEALS w/ RAD

· 15 days to file notice that you are making an appeal

· 30 days to perfect appeal by filling a record

· evidence

· new documents rely on

· transcript of original hearing

· RAD must make a decision, unless under subsection 110(6), within 90 days

If you fail here seek JR?

SUCCESSFUL JR at the FC the court can:

· Agree with the original decision; OR

· Disagree with RAD decision, may refer back to the RPD

UNSUCESSFUL JR may be appealed to the FCA, if there is a certified serious question of general importance arising out of the mater

STEP 9: FAILED JR, CONSIDER PRE-REMOVAL RISK ASSESSMENT OR PERMANENT RESIDENT BASED ON H&C GROUNDS

IRPA allows persons in Canada who are either

· Subject to a removal order that is in force; or

· Named in a security certificate to apply PRRA

A person cannot apply for PRRA unless they receive notification to do so.

s. 112(1) A person in Canada may apply to the Minister for protection if they are subject to a removal order that is in force.

Exceptions to PRRA

· Subject to Extradition

· Who can be returned to USA under STCA

· One year bar after claims found to be ineligible or rejected, abandoned or withdrawn

· Three year bar from DCO

· Bars don’t apply if earlier claim was vacated or if claim was rejected because of exclusion

Different Person Available for PRRA

· Refused Refugee Claimants and repeat PRRA

· Evidence restriction: S. 113(a) : an application for refugee protection has been rejected, may present only new evidence that arose after the rejection or was not reasonable available

· See outline for factors that will determine whether new evidence is admissible

· Temporal limitation: see outline

· Ineligible to make a refugee claim because of serious criminality

· Inadmissible person: see outline for procedure variation

· Persons subject to security certificates: see outline for procedure variation

In general, the question to be addressed in the PRRA is whether the person falls under s. 96 or 97 and is not excluded by s. 98

Most PRRA applications are assessed with respect to:

(A) Whether an applicant’s return to their country would subject them personally to danger of torture; or risk of cruel and unusual punishment and

(B) Whether the applicant has a well-founded fear or persecution in their home country

STEP 9A: STAY OF REMOVAL RELATING TO PRRA

After a person is notified that he is entitled to PRRA – a regulatory stay of removal is executed. It renders the removal order inoperable until the decision of the PRRA is made. The stay is effective until:

· Notification that a person does not intend to apply for PRRA

· Application not submitted under the given timeline of 15 days after the notification

· Application is rejected

· Application granted and person has obtained permanent residence status has been denied status

· Minister cancels stay after found that PRRA application was inadmissible under grounds of criminality.

· Minister may reconsider the stay at any time BUT MUST

· Give notice of re-examination of the factors that indicated a PRRA

· Provide written assessment as to whether there are any risks of torture, death or cruel punishment

Those ineligible for stay of removal

· Missed the application deadline

· Persons making subsequent PRRA applications

· Persons at port of entry

Result: may apply for a deferral of your removal order which considers

· Existence of a permanent residence application on H&C grounds

· Medical problems

· Arrangement of travel documents

· Threats to personal safety.

If can’t get a deferral of your removal order then can apply a stay of removal from the FC

This three part test asks whether (case; Toth)

1. There are serious issues to be determined

2. Irreparable harm that is likely to be suffered on a BoP

3. Whether the balance of convenience favours the applicant

STEP 9B: ASSESSMENT OF PRRA CLAIM

1. Oral Hearing

· Unlike refugee claims before RPD not everyone will be afforded an oral hearing. It is only where it is imperative to credibility. Consider whether

· Evidence raises a serious issue of the applicant’s credibility

· Is the evidence central to the decision

· Would the evidence support a positive PRRA decision?

2. Issues and Considerations

· Evaluation under s 96 and 97

· May be excluded subject to an evaluation of s. 98

· May consider the best interests of the child

· May consider H&C applications

STEP 9C: DECISIONS AND APPEALS OF PRRA

1. Positive Decisions

· Where a PRRA application has been granted, the person will be granted refugee protection and then may apply for permanent resident status. Those excluded by s. 112(3) will not benefit from protection nor permanent resident status but are granted a stay of removal.

2. Rejected Decision Reasons

· Vacation: Minister of Public Safety and Emergency Preparedness can apply to vacate a positive PRRA decision, if of the opinion that a decision to allow an application was obtained as misrepresenting or withholding material facts

· Decisions is nullified and rejected

· Abandonment: under two situations

· Applicant ails to appear at a hearing – abandoned – or does not show up to a second subsequent hearing

· Applicant voluntarily departs from Canada

· Withdrawal

· May be withdrawn at any time by notifying the Minister of Citizenship of Immigration in writing

Applicant who receive a negative RPPA have only one method of recourse:

· The may apply for leave to seek JR of the decision to the FC

· The regulatory stay of removal ends with a negative PRRA decision, thus the application must be accompanied by a motion seeking a judicial stay of removal to prevent the applicant from being removed from Canada

STEP 10: ISSUES w/ CESSATION and VACATION

STEP 10A: CESSATION

The Minister of Citizenship and Immigration may apply in writing to the RPD to cease refugee protection. The clause in the IRPA authorizing such an application is based on Article 1C of the Refugee Convention and expresses the view that international protection should not be granted when it is no longer necessary or justified. The onus is on the Minister to provide evidence that refugee protection should cease. However, the claimant still has the burden to prove an ongoing fear of return.

Cessation occurs where

· Where the person voluntarily reavails herself of the protection of their country of nationality**

· Where the person has voluntarily reacquired their nationality;

· Where the person has acquired a new nationality and enjoys the protection of the country or that new nationality;

· Where the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

· Where the reasons for which the person sought refugee protection have ceased to exist

**The Court in Nsende refers to three requirements in making a finding of reavailment:

(a) voluntariness: the refugee must act voluntarily;

(b) intention: the refugee must intend by his action to reavail himself of the protection of the country of his nationality; and

(c) reavailment: the refugee must actually obtain such protection

Results of Finding of Cessation

Recent amendments to the IRPA attach a number of significant consequences to a cessation decision.

· Section 46(1)(c.1) of the IRPA establishes that permanent residence may be lost following a cessation decision made by the RPD, except where there has been a change of circumstances under section 108(1)(e).

· In addition, section 40.1 of the IRPA renders a person inadmissible upon cessation of refugee protection, thus making the individual subject to removal.

· Also, section 21(3) of IRPA bars a protected person from becoming a permanent resident while a Minister is pursuing cessation.

Recourse for Finding of Cessation

· The only avenue a person may have is to seek leave from the Federal Court to apply for JR

STEP 10B: VACATION

The RPD, on application by the Minister of Citizenship and Immigration, may also vacate a decision conferring refugee protection on a person if it finds that the decision was obtained by directly or indirectly misrepresenting or withholding material facts related to the refugee claim. Vacation renders the protected status void ab initio. In considering such an application, the RPD must consider any evidence cited in support of the original positive determination and whether such evidence is “tainted” by the material misrepresentation or withholding of facts.

The burden is on the Minister of Citizenship and Immigration to show that there is sufficient new evidence that shows a misrepresentation to merit a vacation. Materiality is to be determined on a balance of probabilities in light of the significance of the information not disclosed

While the Minister may adduce new evidence, the claimant may not bring forth new evidence to show that, notwithstanding the misrepresentation, his or her claim should be allowed. Despite this limitation, claimants can adduce reply evidence to rebut the Minister’s allegations