Refugee Protection Determination Procedure

Prepared by Patricia Maia, M.A., LL.B; Rekha McNutt, B.Comm., LL.B; Jean Munn, B.A., LL.B; Peter Wong, Q.C. all of the Alberta Bar

Immigration and Refugees — VII — Refugee Protection — 6 — Refugee Protection Determination Procedure

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VII.6

§328 Claims to refugee status may be made in Canada or at a Canadian office abroad. In Canada, claims are made either at a port-of-entry or at an immigration office. Claims made outside of Canada are made by individuals at Canadian missions abroad or with the assistance of the United Nations High Commission for Refugees. Refugee claims cannot be made by individuals still in their country of nationality. The claim in Canada is made by notifying an immigration officer and must be made in person. The claim must be made before any removal order is issued. Once the claim is made, it must be referred to the Refugee Protection Division within three working days, if the claim is eligible. The claimant has the burden of proving that the claim is eligible.

§329 A determination with respect to eligibility is made at the commencement of the claim, by the Department of Citizenship and Immigration. A claimant may also be found ineligible by the department, throughout the refugee determination process even after a claim had been determined.

§330 Persons who make a claim for refugee protection are ineligible to have the claim referred to the Refugee Protection Division if refugee protection was previously conferred on the claimant under the Immigration and Refugee Protection Act; a previous claim for refugee protection by the claimant was rejected by the Immigration and Refugee Board; a previous claim was determined to be ineligible or was withdrawn or abandoned; the claimant was recognized as a Convention refugee by another country and can be returned to that country; the claimant came to Canada directly or indirectly from a country designated by the regulations — also known as the safe third country rule — or the claimant is determined to be inadmissible on grounds of security, violating human rights, serious criminality or organized criminality.

§331 With respect to serious criminality, ineligibility differs with respect to where the crime was committed. If it is a conviction in Canada for an offence punishable by a maximum term of imprisonment of at least ten years, then the claimant is not eligible. If the conviction was outside of Canada and if committed in Canada would be punishable by a maximum term of imprisonment of at least ten years, the minister must also be of the opinion that the person is a danger to the public in Canada before the claimant is rendered ineligible.

§332 Given the geography of Canada, the safe third country rule renders many claims ineligible. The safe third country agreement came into effect in Canada on December 29, 2004. As a result, most individuals are ineligible to claim protection in Canada if they make their claim upon arrival from the United States at a land border. There are a number of exceptions to the agreement. The exceptions are listed in the regulations. The safe third country provisions have been the subject of very little reported jurisprudence but have been found to be constitutionally sound.

§333 It has been determined that persons have no right to counsel at port-of-entry examinations. The issue of whether one is entitled to counsel at an eligibility interview has not been judicially considered but many immigration officers do allow non-obtrusive counsel to be in attendance.

§334 The Immigration and Refugee Board is a statutory tribunal with three divisions including the Refugee Protection Division.

§335 The chairperson is authorized to make rules in connection with the Refugee Protection Division. The rules are available through the Immigration and Refugee Board website.

§336 When the claim is referred to the Refugee Protection Division, the officer making the referral must forward to the division the information enumerated in the rules. The tribunal officer must in turn disclose the information to the claimant if the documents are to be used at the hearing.

§337 The claimant is required to file certain information. The basis of claim form is a standard form, prescribed by the rules, which, when completed, provides the information required. The basis of claim form must be filed, with a copy, with the Refugee Protection Division. If the basis of claim form is not filed in a timely manner, the Refugee Protection Division may commence abandonment proceedings. The Refugee Protection Division holds a special hearing to determine the issue of abandonment.

§338 The Refugee Protection Division may allow a claim for refugee protection without a hearing, if the minister has not notified the Division within ten days of the minister's intention to intervene.

§339 Hearings before the Refugee Protection Division are held in the absence of the public. Refugee claimants have the right to an oral hearing held in accordance with the principles of natural justice.

§340 Claimants have a right to be represented by counsel but the right to counsel in connection with applications for adjournment is not absolute.

§341 Claimants have a right to disclosure and the disclosure must be sufficiently timely to allow the claimant and counsel to adequately prepare. The panel members must disclose any documentation they intend to rely upon. The panel members must also disclose the legal issues thought relevant by panel members such as internal flight alternative. Claimants have the right to call witnesses and to cross-examine. The claimant also has a right to a competent interpreter.

§342 Members have an obligation to consider all relevant legal grounds whether or not raised by counsel. Claimants have a right to reasons for a decision and the board must make its finding on credibility in clear and unmistakable terms.

§343 Negative decisions of the Refugee Protection Division are often based on the claimant's lack of credibility. The refugee tribunal is required to give reasons for a finding of lack of credibility in clear and unmistakable terms. The Convention Refugee Determination Division is a specialized tribunal and decisions based on findings of no credibility are subject to judicial review but only if the decision is unreasonable. Judicial review will be successful if the tribunal based its decision on irrelevant considerations, ignored evidence of material import or if the decision is otherwise perverse or capricious.

§344 Evidence may be lacking in credibility because it is inconsistent or implausible. The same standard of judicial review applies to findings of implausibility. Inferences with respect to plausibility must be reasonable. An inference not supported by the evidence is not reasonable.

§345 If a tribunal errs in its findings of fact, either because the evidence is misconstrued or ignored, the decision will only be quashed if the tribunal relied upon that erroneous finding in arriving at its final decision.

§346 When a claimant gives evidence under oath, there is a presumption that the evidence is true unless there is reason to doubt the evidence.

§347 Contradictions or discrepancies in the evidence are accepted bases for a finding of lack of credibility. However, because "the process is fraught with the possibility of innocent misunderstanding," a claimant must be given the opportunity to explain any apparent contradictions. The tribunal cannot ignore explanations with respect to apparent contradictions.

§348 In assessing the evidence, the tribunal must be careful not to apply or solely rely upon western notions of rationality. Likewise, a tribunal may only take judicial notice of matters properly the subject of judicial notice. Nor should a panel examine the evidence microscopically especially when claimants testify through interpreters and recount horrific events for which there is an objective air of reality. A claimant may satisfy the definition of Convention refugee even though found lacking in credibility.

§349 If a person receives a negative decision, application may be made for judicial review in the Federal Court. Leave must be applied for and granted before commencing with the judicial review application. Federal Courts Rules apply to this application; the Federal Court has specific rules applicable to immigration matters.