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Canadian Refugee Procedure/Canada's international obligations and the interpretation of the Rules

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International standards edit

One of the most significant obligations owed by States is non-refoulement, which prohibits them from returning refugees, and certain migrants, directly or indirectly to a country where they would be at risk of persecution or of particular, predefined, harms. A consequence of a State’s non-refoulement obligation is a ‘duty of independent inquiry’.[1] Such a duty requires States to identify individuals in need of protection before returning or transferring them to a third country.[2]

The UNHCR Handbook is considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada.[3] The following comment about how the task of refugee status determination should be approached is instructive: "Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an “undeserving case”."[4]

References edit

  1. ↑ UNHCR, UNHCR Intervention before the Court of Final Appeal of the Hong Kong Special Administrative Region in the case between C, KMF, BF (Applicants) and Director of Immigration, Secretary for Security (Respondents) (31 January 2013) para 74 http://www.refworld.org/docid/510a74ce2.html accessed 6 January 2019.
  2. ↑ Azadeh Dastyari, Daniel Ghezelbash, Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures, International Journal of Refugee Law, eez046, https://doi.org/10.1093/ijrl/eez046
  3. ↑ Canadian Council for Refugees v R, 2007 FC 1262 (CanLII), [2008] 3 FCR 606, par. 208, <http://canlii.ca/t/1tz0l#par208>, retrieved on 2020-03-22 (decision overturned at the Federal Court of Appeal on other grounds).
  4. ↑ UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020], para. 202.
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