Canadian Refugee Procedure/107 - Decision on Claim for Refugee Protection
IRPA Section 107: Decision on Claim for Refugee ProtectionEdit
Section 107 of the Immigration and Refugee Protection Act reads:
Decision on Claim for Refugee Protection Decision 107 (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.
Section 107(1): The Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or a person in need of protectionEdit
Section 107(1) of the IRPA states that the Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection. This language creates a right for those who meet the criteria to be so recognized. This tracks the language of the 1985 Rabbi Plaut report that led to the founding of the Immigration and Refugee Board, which noted that "declaring a claimant to be a refugee is not a privilege we grant, but rather a right we acknowledge." This was not always the conception of refugee protection embodied in Canadian legislation - prior to 1976, the refugee had no rights under Canadian law since the relief granted by the Immigration Appeal Board was discretionary in nature. See also: Canadian Refugee Procedure/The Board's inquisitorial mandate#Refugee Status Determination is declaratory, not constitutive.
IRPA Section 107(2): No Credible BasisEdit
No credible basis (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.
A finding that a claim has no credible basis affects appeal rights to the RADEdit
A finding that a claimant has no credible basis prevents a claimant from appealing a decision to the RAD.
Where a claimant is self-represented, the panel should ensure that they understand what a no credible basis finding means during the hearingEdit
In Olifant v. Canada, the court noted that the RPD has a positive duty to ensure that a self-represented applicant understands both the nature of the proceedings and the salient aspects of the hearing to be conducted. The court concluded that the RPD had not fulfilled this obligation:
Given the seriousness of all of the circumstances, taken together, it was unfair for the RPD to not take at least some positive steps to ensure he understood what it meant if his claim was found to have no credible basis. A careful reading of the transcript reveals that the Board did not take any positive measures to introduce the seriousness of what was to occur or explain the Minister’s Counsel would question him. Though the Board did ask if he had any questions about the process and determinative issues, it is in my view still the case that this was insufficient to ensure he understood the nature of the hearing and its salient aspects given he was an unsophisticated Applicant representing himself. Indeed, both the fact that Minister’s Delegate was present and would be participating in the manner they did (turning the matter into a far more adversarial one and rightly so on these facts), the no credible basis aspect and the implications thereof, are not things that the Applicant ought necessarily to have known. It would not take much for the RPD to ensure that he understood this – a simple check-in of“do you understand what these specific aspects of the hearing mean”or informing him of them at the outset of the hearing would suffice – but the failure to do so was, in my view, procedurally unfair.
For more information on the Board's obligations with respect to self-represented claimants, see: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
IRPA Section 107.1: Manifestly unfounded claimsEdit
Manifestly unfounded 107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.
History of this provisionEdit
Provision in the legislation for differently processing manifestly founded claims have been in the Act since the 1976 Immigration Act. At that point, the guidelines used by the Refugee Status Advisory Committee created four categories of manifestly unfounded claims: 1) claims that presented no evidence of any of the five essential criteria of the definition; 2) claims where the evidence presented was so manifestly unreliable "that no reasonable person could believe it"; 3) claims made under Section 45 of the Act when the claimant had already submitted an in-status claim and the second claim presented no new information; and 4) claims made by the spouse of a rejected claimant when the claim was based solely on the rejected spouse's claim.
- ↑ W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 17.
- ↑ W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 55.
- ↑ Perez Aquila, Jose Rodolfo v. M.C.I. (F.C., No. IMM-1722-21), Walker, February 21, 2022, 2022 FC 231.
- ↑ Olifant v. Canada (Citizenship and Immigration), 2022 FC 947 (CanLII), at para 19, <https://canlii.ca/t/jq0sf#par19>, retrieved on 2022-07-26.
- ↑ From the Immigration Manual, as cited in Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 42.