Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility

The Board is required, in accordance with the following three rules, to notify the Minister of Public Safety and Emergency Preparedness (PSEP) or the Minister for Immigration, Refugees and Citizenship Canada (IRCC) that intervention in an RPD case, wherein neither organization had originally intervened, may be warranted. This mechanism is referred to as a “red letter”.

Heading to this portion of the Rules: Exclusion, Integrity Issues, Inadmissibility and IneligibilityEdit

Exclusion, Integrity Issues, Inadmissibility and Ineligibility

Division of responsibility between CBSA and IRCCEdit

Rules 26-28 use the term "the Minister", but responsibility for responding to these notifications is split between two such Ministers (and Ministries): that related to the Minister of Public Safety and Emergency Preparedness (specifically its sub-entity, the CBSA or Canada Border Services Agency) and that related to IRCC (technically, still CIC or Citizenship and Immigration Canada). With the introduction of the IRCC Ministerial Reviews and Interventions pilot project in October 2012, senior immigration officers were delegated to effect reviews and interventions at the IRB. IRCC ministerial interventions are restricted to cases involving program integrity and credibility as well as cases where exclusion pursuant to article 1E of the Refugee Convention arises.

CBSA intervenes in cases involving serious criminality, security concerns, war crimes, crimes against humanity, or acts contrary to the purposes and principles of the United Nations. CBSA is also responsible for hybrid cases (i.e. those where there are combined program integrity/credibility issues and criminality or security concerns). Where the case is determined to be a hybrid case and, due to various circumstances, CBSA elects not to pursue the case on the grounds of criminality or security, CBSA has made a commitment to IRCC to go forward on credibility or program integrity grounds where warranted. The CBSA also has responsibility for detention cases, all arguments regarding the Charter of the United Nations, and designated foreign nationals.[1]

How frequently are these notification provisions used?Edit

The number of such red letters has increased steadily in recent years. In most cases where the Board provides such notification, the Minister declines to intervene:[2]

Year Total Red Letters (#) CBSA Intervention in Red Letter Cases (%) IRCC Intervention in Red Letter Cases (%) No Intervention in Red Letter Cases (%)
2013 634 21.6 9.0 69.4
2014 725 32.4 11.6 56.0
2015 758 30.5 12.0 57.5
2016 1031 19.2 9.5 71.3
2017 1627 12.1 11.6 76.3
Total 4775 23.2 10.7 66.1

The CBSA approach to interventions varies markedly across the country. For example, in Central region, due to the volume of “red letters” and its current staffing level, the CBSA team assigned to the Refugee Protection Division focuses on assessing the cases referred by the IRB red letter process, while not working on cases referred through the CBSA triage process. Central Region maintains the lowest level of intervention in red letter cases, relative to other IRB regions, largely because it has much lower staffing levels when compared to the other regions:[2]

Ratio of IRB Members to CBSA/IRCC Hearings Officers RPD
IRB Members CBSA/IRCC Hearings Officers
Eastern Region (Atlantic, Quebec, Northern Ontario) 5.3 1
Central Region (GTA, Southern Ontario) 11.8 1
Western Region (Prairie, Pacific) 2.6 1

How often does the Minister participate in proceedings at the Board?Edit

In the 1990s, the Minister of Citizenship and Immigration was represented in fewer than three percent of the refugee cases which came before the Board.[3] In part, this was a product of the legislation at the time, which limited in-person Ministerial participation in a hearing to vacation, cessation, and exclusion cases.[4] The academic Hathaway was sharply critical of this low intervention rate, writing “This ministerial lethargy is destructive of the intended non-adversarial role of refugee hearing officers, who are too frequently tempted to 'fill the shoes' of the absent Minister's representative in pursuit of matters which are important, but which have no bearing on their protection mandate.”[5] The legislation was subsequently amended and Ministerial interventions increased.

Rule 26 - Possible ExclusionEdit

The text of the relevant rule reads:

Notice to Minister of possible exclusion before hearing
26 (1) If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible exclusion during hearing
(2) If the Division believes, after a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Disclosure to claimant
(3) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing
(4) The Division must fix a date for the resumption of the hearing that is as soon as practicable,
(a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or
(b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

History of this ruleEdit

This rule is to Rule 23 in the previous version of the Refugee Protection Division Rules from 2002.[6] Changes include that the phrase "after a hearing begins" in Rule 26(2) previously read "at any time during a hearing" in the previous version of the Rules and that the previous Rule did not speak of needing to adjourn the hearing:

23.(1)  If the Division believes, before a hearing begins, that there is a possibility that sections E or F of Article 1 of the Refugee Convention applies to the claim, the Division must notify the Minister in writing and provide any relevant information to the Minister. (2) If the Division believes, at any time during a hearing, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must notify the Minister in writing and provide the Minister with any relevant information.[7]

What are sections E or F of Article 1 of the Refugee Convention?Edit

The schedule to the IRPA includes the full text of these articles of the Refugee Convention:

Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees

E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

These grounds for denying protection have been directly incorporated into Canadian law through section 98 of IRPA.[8]

When will there be a "possibility" of exclusion?Edit

The standard used in Rules 26(1) and 26(2) relates to whether or not there is a “possibility that section E or F of Article 1 of the Refugee Convention applies to the claim”. Specifically, Rule 26(1) provides that "if the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 26(2) requires notification where, inter alia, there is a “possibility that section E or F of Article 1 of the Refugee Convention applies to the claim”. This provision turns on the Division believing that there is a "possibility" of the claimant being excluded. The RAD has held that the term "possibility" suggests a "low threshold that need only be met in order to prompt the RPD to notify the Minister that exclusion may apply in the claim".[9] Generally speaking, this threshold will be met in the following types of cases:

  • Where it is evident that the Member subjectively believes that there is a possibility of exclusion: As the RAD notes, "Rule 26 of the RPD Rules specifically refers to the belief of the RPD member."[10] As such, where it is clear from a Member's conduct that they believed, before a hearing began, that there was a possibility of exclusion, then notification should have been provided. For example:
    • Where a panel identifies exclusion as an issue at the hearing: Where the panel identifies exclusion as an issue at the beginning of the hearing, then it is clear that the “possibility” standard has been met on the basis of the pre-hearing evidence and formal notification is appropriate. For example, in Kanya v. Canada, the Member stated at the beginning of the hearing that "The issues in this claim ... from what I can figure out from the narrative, it might be an issue [of] exclusion on 1F(b)." Justice Rouleau of the Federal Court held in that case that "the Board has a duty to notify the Minister if there is a ‘possibility’ that Article 1(F)(b) should apply to a refugee claimant. The Board clearly indicated from the outset of the proceedings that there was a ‘possibility’ that 1(F)(b) would apply to the applicant. The hearing should have been adjourned from the outset; the Minister should have been notified and the applicant should have been given time to prepare for an exclusion determination."[11]
    • Where the panel asks questions about the issue: The court commented in Canada v. Louis that the Board erred by questioning a claimant about exclusion issues without having previously notified the Minister of the possibility of exclusion. The fact that the panel asked the claimant questions about their possible exclusion was a sufficient basis on which to conclude that there was a “possibility” of it.[12] That said, the fact that a panel asks questions about an issue that could relate to exclusion does not always mean that the "possibility" threshold has been met, especially when the questions could equally relate to other issues such as the claimant's general credibility. For example, in one case the RAD noted that "The RPD member [] told the respondent at the beginning of his RPD hearing that she will have questions about his role with the army. I note that the RPD member did question the respondent about why he joined the army, how long he was in the army, what his duties were in the army, and where he was stationed while in the army." The Minister had appealed the RPD's positive determination on the basis that the Member should have notified the Minister that there was a possibility of exclusion in the case as, in their view, the panel "simply overlooked the evidence of his service in the Afghan National Army and did no analysis of whether his service and responsibilities amount to complicity in war crimes or crimes against humanity." The RAD rejected this argument noting that "there was no evidence that was before the RPD [that] could have alerted the RPD member to the possibility of exclusion being a live issue for the RPD hearing" and that the fact that the Member asked questions that could relate to such issues did not, without more, trigger the obligation to notify the Minister.[10]
    • Where the Board makes a factual finding relating to the issue in its reasons: In Canada v. Oladapo, the court considered a case in which the Minister sought judicial review on the basis that "the Board did not notify the Minister upon becoming aware that section 1E of the Convention...possibly applied to the claim". The Minister stated that the Board was clearly aware there was a possibility [Article 1E] applied since it took the time to review the evidence and make a finding. The Minister argued that had it had the chance to participate in the proceedings, it could have provided evidence on the respondent’s status in Spain and other questions relevant to whether or not the respondent had status substantially similar to that of Spain’s nationals. The court concurred: "the Board considered and then rejected exclusion. The Board made a factual finding relating to the respondent’s status in Spain. This reaches the threshold of 'possibility' as used in [then-]Rule 23 and therefore requires notice to the Minister."[13] In such circumstances where a Member considers exclusion in their reasons, unless it can be said that the issue only arose after the hearing began, then it should be concluded there was a possibility of exclusion in the case and that the possibility existed prior to the hearing commencing.
  • When there is evidence on the record that should have alerted the panel to the issue: Even where it is clear that the Member did not subjectively believe that there was a possibility of exclusion, if the Member's failure to form that belief is unexplained or unreasonable in light of the evidence that was before them, then reviewing bodies have been quite willing to conclude that there was a possibility of exclusion and that the Minister should have been so notified. Examples of cases where the RAD and courts have reached this conclusion follow.
    • The claimant admits to having committed a serious crime: For example, in one case a claimant had stated in his Basis of Claim form that the state wanted him to pay back 3 billion Soums he stole and that he had left Uzbekistan because he did not have the money. The RAD held that with that information in front of it, the RPD had erred in not notifying the Minister of possible exclusion for serious criminality, notwithstanding the fact that the RPD had ultimately rejected the claim in question.[14]
    • Information in the NDP establishes that the claimant was involved with a problematic group:
      • Examples of where notification was appropriate: For example, in one case a claimant indicated that he was involved with the Sudan People’s Liberation Movement (SPLM). Information in the National Documentation Package was that the SPLM or factions of the SPLM were involved in excessive acts of violence and the targeting of civilians. The group was also accused of recruiting child soldiers. Even where there was no explicit evidence in the record that the claimant was actively and personally involved in activities that would lead to exclusion, there was evidence in the record which established that the group with which he admitted he was a highly active member was involved in such activities. The RAD concluded that this gave rise to the possibility that exclusion may apply to the claim and thus the obligation to notify the Minister.[15] Similarly, in Canada v. Mukasi there was evidence before the Board that the claimant was associated with violence, particularly that the claimant "led a faction of UPRONA that was opposed to the peace process in Burundi. He was arrested for his stance. UPRONA was associated with a violent militant group." In the view of the court, this evidence "should have alerted the Board to the possibility that Mr. Mukasi might be excluded from the definition of a Convention refugee based on Article 1(F) of the Convention."[16]
      • Examples of where notification was unnecessary: That said, the Minister need not be notified where the possibility of exclusion is purely speculative. For example, RAD Member Rena Dhir considered a case in which the Minister appealed a positive determination from the RPD regarding an Afghan national. In that case, the claimant had a record of service with the Afghan National Army. The Minister argued that issues of exclusion should have been canvassed, and notification provided, on the basis that there have been documented human rights abuses in Afghanistan on the pro-government side attributed to pro-government armed militias, who operate outside of government control, but may at times have some contact with the army, and on the basis of the Army's own past activities. The RAD held that this was an insufficient basis on which to conclude that any such notice needed to be provided, noting that "there is no evidence, from my review, that indicates that the ANA was complicit in war crimes regarding the issue of Exclusion as it relates to Article 1(F)(a) when the respondent was part of this organization" and that the organization's more tangential links to armed militias were also insufficient to trigger this rule.[17]

What does it mean that the Division must notify the Minister "without delay"?Edit

The standard used in Rule 26(1) is that "if the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 26(2) requires the Division to "adjourn the hearing and without delay notify the Minister in writing" where certain conditions are met.

What does "without delay" mean in this context? The Federal Court commented on this in Kanya v. Canada, noting that where the Board determines that there is a possibility of exclusion, the hearing should be adjourned immediately:

The Board clearly indicated from the outset of the proceedings that there was a "possibility" that 1(F)(b) would apply to the applicant. The hearing should have been adjourned from the outset; the Minister should have been notified and the applicant should have been given time to prepare for an exclusion determination.

In that case, the court held that the Board erred when it asked a series of questions related to the narrative and the possibility of exclusion before, mid-way through the hearing, "formally" raising the possibility of 1F(b) exclusion, notifying the Minister, and ultimately setting a future date for the hearing to resume. This was held to be procedurally unfair to the claimant who had not had the requisite pre-hearing notice of this issue that is entailed by the Ministerial notification requirement. The court reaffirmed that the rule requires that the claim be suspended "immediately" and does not permit a panel to ask any additional questions prior to notifying the Minister in Oyejobi v. Canada:

My review of the transcript shows that the RPD member actually did not invoke Rule 27(1) immediately because he was trying to “give the client a chance.” As the RPD member himself stated, he wanted to see if he could find the Applicant credible (specifically with regard to her sexual orientation) – in spite of the perceived integrity issue – such that he might grant the claim. While the RPD approach is laudable in that it was likely motivated by a desire to give the Applicant the benefit of the doubt, the RPD member did not do what Rule 27 requires him to do[.][18]

In similar fashion, the court commented in Canada v. Louis, another case in which a panel proceeded to question a claimant about possible exclusion without having previously notified the Minister, that "the Board [set] aside the issues of exclusion following an examination of their merits. The fundamental problem [with the Board's conduct was] the fact that the Board indeed continued with this examination without having previously notified the Minister."[12] As such, where the Board examines the merits of an issue on which it is supposed to provide notice, without having previously provided the notice in question, it errs.

The phrase "without delay" is used not just in the Refugee Protection Rules, but across the scheme and regulations of the IRPA more broadly. For example, in the IRCC manual on port of entry procedures, it notes that a person who is arrested must be informed of their right to counsel "without delay": "For the purpose of an Immigration Secondary examination, a person is not entitled to counsel unless formally arrested or detained. A person who is arrested or detained must be informed without delay of their right to counsel and granted the opportunity to retain and instruct counsel. [emphasis added]"[19] It is easy to appreciate in the criminal context the importance of affording the right to counsel without delay, and without first asking a claimant a series of questions about the matter that they are being arrested in relation to. The fact that the same language is used in the context of this Ministerial notification obligation may be instructive.

How much notice must the Division provide where it identifies a possibility of exclusion prior to a hearing?Edit

Rule 26(1) provides that the Division must notify the Minister where it believes, before a hearing begins, that there is a possibility of exclusion in the claim. Once such notification has been provided, this rule does not provide any particular notice period for the Minister and does not require that the hearing be postponed for any specific number of days. Instead, a specific notification period only arises pursuant to Rule 26(2) in situations where the Division is of the view both that there is a possibility of exclusion and where "the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim". In such circumstances, the Division must adjourn the hearing, notify the Minister, and can only resume after the Minister responds or after 14 days have elapsed following the Minister's receipt of the notice.

As such, how much notice is required where notification is provided pre-hearing pursuant to Rule 26(1) will be driven by procedural fairness requirements, including what is fair and sufficient notice to the Minister and to the claimant regarding this new issue. The notification provisions above operate not only to the benefit of the Minister, but also ensure that a claimant has adequate notice of a potential exclusion issue and time to prepare for it. For a discussion of this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#The Board must notify the Minister where the Board's rules require it and this protects the Minister's right to be heard. As a starting point, the notice period specified in Rule 26(4) may be relied upon for an indication of what amount of notice should normally be considered appropriate, requisite, and fair, but the Division has discretion to deviate from this duration where appropriate given that there is no specific period specific in this rule.

When should a panel form the belief that there is a possibility of exclusion prior to a hearing, as opposed to forming such a belief after the hearing begins?Edit

Reading Rules 26(1) and 26(2) in conjunction, Rule 26(2) provides a panel with discretion about whether or not to notify the Minister where the panel only forms an opinion about there being a potential issue "after a hearing begins". Rule 26(1) is entitled "Notice to Minister of possible exclusion before hearing". Per Rule 26(1), where an issue is identified before the hearing, the panel must notify the Minister. In contrast, Rule 26(2) is entitled "Notice to Minister of possible exclusion during hearing". Where the panel only forms an opinion about there being a potential issue "after a hearing begins", per Rule 26(2) the Ministerial notification requirement only applies where the Division is of the view that the Minister's participation "may help in the full and proper hearing of the claim". This discretionary aspect to Rule 26(2) means that even where the panel forms an opinion that there is a "possibility" that the claimant is excluded during the hearing, the panel nonetheless retains discretion about whether or not to notify the Minister, and, as a result, adjourn the hearing.

The court commented on how the notification provisions in Rules 26(1) and 26(2) interact in Oyejobi v. Canada, noting that where issues exist on the record prior to the hearing, notification will be called for, and that the types of issues where Rule 26(2) applies are ones where a panel should be able to identify some particular new evidence on the record that caused the panel to come to its newfound belief about the possibility of exclusion:

I am unable to identify the precise testimony from the Applicant that caused the RPD member to change his mind and decide that the Minister’s assistance would, after all, be necessary to ensure a full and proper hearing. I find this to be particularly troubling, considering that the integrity issue was discovered prior to the hearing and involved the copying of BOC narratives. In my view, it is not clear from the RPD reasons how such an integrity concern would be resolved (positively or negatively) through the Applicant’s oral testimony. In other words, and contrary to the assertion of the RPD, the copying of BOC narratives would present a significant integrity issue whether or not this Applicant is believed to be bisexual.[20]

It should be noted that Oyejobi v. Canada concerned Rule 27 of the RPD Rules, but the point applies equally to Rule 26, mutatis mutandis.

How should a panel decide whether "the Minister’s participation may help in the full and proper hearing of the claim"?Edit

Where the panel only forms an opinion about there being a potential issue "after a hearing begins", per Rule 26(2) the Ministerial notification requirement will apply if, and only if, the Division is of the view that the Minister's participation "may help in the full and proper hearing of the claim". How should the Division exercise this discretion? As Madam Justice Tremblay-Lamer observed in Rivas v. Canada, when an issue of exclusion is raised during the hearing, this rule "allows a certain discretion for the RPD to determine whether the Minister’s participation will help it deal with the issue of the applicant’s exclusion".[21] The court provided some guidance on this question in Oyejobi v. Canada, as follows:

In my view, the RPD member ignored the provisions of Rule 27. The RPD member claims to have not invoked the Rule 27(1) because he was not of the opinion that the Minister could provide “meaningful assistance” when he was preparing for the hearing, and then invoked Rule 27(2) once he determined that the allegedly copied passages “would need to be addressed after all.” This explanation is simply repeated in the Decision without further analysis. I find this to be problematic for at least three reasons. First, the standard for notifying the Minister is not when there is a belief that the Minister may provide “meaningful assistance;” rather, it is triggered as soon as the RPD is of the opinion that the Minister’s participation “may help in the full and proper hearing of the claim” (emphasis added). As such, the standard is much lower than the one employed by the RPD member.[22]

The above case concerned Rule 27 of the RPD Rules, but the point applies equally to Rule 26, mutatis mutandis.

Rule 27 - Possible Integrity IssuesEdit

Notice to Minister of possible integrity issues before hearing
27 (1) If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible integrity issues during hearing
(2) If the Division believes, after a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Integrity issues
(3) For the purpose of this rule, claims in which the possibility that issues relating to the integrity of the Canadian refugee protection system may arise include those in which there is
(a) information that the claim may have been made under a false identity in whole or in part;
(b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division;
(c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or
(d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Disclosure to claimant
(4) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing
(5) The Division must fix a date for the resumption of the hearing that is as soon as practicable,
(a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or
(b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

What are "issues relating to the integrity of the Canadian refugee protection system"?Edit

Rule 27 is triggered where the Division believes that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim. What so qualifies? Those categories listed in Rule 27(3) provide guidance when it states that such issues include those in which there is:

(a) information that the claim may have been made under a false identity in whole or in part.

(b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division.

(c) information that, in support of the claim, the claimant submitted documents that may be fraudulent.

(d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. The court provided some guidance on this question in Oyejobi v. Canada, noting that a situation in which a panel suspects that a BOC narrative has been copied from another claimant is one which raises issues relating to the integrity of the system.[20]

When should the Division be of the opinion that the Minister’s participation may help in the full and proper hearing of the claim?Edit

It is clear from the focus of Rule 27 that even where such issues arise in relation to a claim, for example there is an indication that the BOC narrative was copied from another claim, the clear wording of the Rule also requires that the panel believe that the Minister’s participation may help in the hearing of the specific claim before the Member, not simply in investigating a possibility of broader integrity issues involving the other (suspiciously similar) claim. For a broader discussion of this question, see Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#How should a panel decide whether "the Minister’s participation may help in the full and proper hearing of the claim"? above.

Rule 28 - Possible Inadmissibility or IneligibilityEdit

Notice of possible inadmissibility or ineligibility
28 (1) The Division must without delay notify the Minister in writing and provide the Minister with any relevant information if the Division believes that
(a) a claimant may be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality;
(b) there is an outstanding charge against the claimant for an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years; or
(c) the claimant’s claim may be ineligible to be referred under section 101 or paragraph 104(1)(c) or (d) of the Act.

Disclosure to claimant
(2) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Continuation of proceeding
(3) If, within 20 days after receipt of the notice referred to in subrule (1), the Minister does not notify the Division that the proceedings are suspended under paragraph 103(1)(a) or (b) of the Act or that the pending proceedings respecting the claim are terminated under section 104 of the Act, the Division may continue with the proceedings.

What process does the Minister follow in order to determine ineligibility?Edit

Under the Act, the burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests solely with the refugee protection claimant, and it is not for an immigration officer to show that the claim is ineligible.[23] Prior to declaring that a claimant is ineligible, the Minister will generally send out what is referred to as a procedural fairness letter. The letter will invite the claimant to provide evidence/submissions/materials regarding their eligibility by providing a written response to the letter. An officer will make a final decision after the deadline for providing submissions. If the claimant does not respond by the stated date, an officer will make a decision with the information on file. An appointment will generally be set up shortly thereafter to discuss the matter with the claimant in a CBSA office. If the final decision is that their claim is ineligible for referral to the Refugee Protection Division, the claimant will face removal from Canada. If, and when, the CBSA commences removal arrangements, the claimant's eligibility to apply for a Pre-Removal Risk Assessment (PRRA) will be assessed.

What does it mean that the Division must notify the Minister "without delay"?Edit

Rule 28(1) provides that the Division must without delay notify the Minister if it believes that one of the listed issues may arise in the claim (regarding inadmissibility, criminality, and ineligibility). The Rule 28(3) then provides the circumstances under which the Board may continue with the proceedings. The rationale for this scheduling policy has been articulated by the Federal Court, which has observed that "there is no point in conducting a hearing if eligibility could be an issue".[24] Furthermore, the Minister argues that one of the purposes of this provision is to "avoid the need to nullify an RPD decision on a claim that is later found to be ineligible."[25] That said, these issues of admissibility and eligibility are not determined by the Board. As with the notice provisions considered above (Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#What does it mean that the Division must notify the Minister "without delay"?), the claimant will generally have a right to have the proceedings halt when the Board determines that such notification is necessary, but the claimant may waive this right and elect to continue with the questioning (with the Board's decision suspended during the 20-day notice period above) for reasons of the claimant's choice, efficiency, and other considerations.

Rule 28(1)(c): When is a claim ineligible to be referred under section 101 of the Act?Edit

Section 101 of the Act reads:

Ineligibility
101 (1) A claim is ineligible to be referred to the Refugee Protection Division if
(a) refugee protection has been conferred on the claimant under this Act;
(b) a claim for refugee protection by the claimant has been rejected by the Board;
(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;
(c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;
(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).

Serious criminality
(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Section 101(1)(c.1): What evidence the Minister considers regarding refugee claims made to another countryEdit

Section 101(1)(c.1) of the Act provides that "A claim is ineligible to be referred to the Refugee Protection Division if the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws." There are several components to this provision:

  • the claim must have been made before the claim for refugee protection was made in Canada: Importantly, the ineligibility ground applies regardless of whether a decision was ever made on a previous claim.[26] The Minister will often cite in its procedural fairness letters that the claimant was in possession of paperwork pertaining to the claim when the claimant entered Canada.
  • the claim must have been made after this provision came into force: This provision applies to all claims made after June 21, 2019. For claims made between April 8, 2019 and June 21, 2019, the provision does not apply if substantive evidence was heard by the RPD or the RPD allowed the claim without a hearing prior to June 21, 2019. This transitional provision arises from s. 309(b) of the Budget Implementation Act, 2019 (Bill C-97) which provides that paragraph 101(1)(c.1) of the IRPA applies to claims for refugee protection made during the period beginning on the day on which the Bill is introduced [April 8, 2019] and ending on the day on which it receives royal assent [June 21, 2019], unless, as of the day on which it receives royal assent [June 21, 2019] substantive evidence has been heard by the Refugee Protection Division in respect of the claim or that Division has allowed the claim without a hearing.
  • the claim must have been made to a country (not, say, UNHCR itself); and
  • the fact of its having been made must be confirmed through the type of information-sharing arrangement specified: Canada has information-sharing agreements or arrangements with the US, Australia, New Zealand, and the UK. A 2009 Data-Sharing Protocol allows these countries to conduct ‘immigration checks’ through biometric data exchanges.[26] The Minister will often cite in its procedural fairness letters that the claimant's biometrics were matched to their immigration record in the other country.

Section 101(1)(d): the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that countryEdit

When considering whether a claimant "can be sent or returned to that country", the question is whether they can "physically and legally be re-admitted" to the country in question.[27] In Jekula v. Canada (a decision affirmed by the Federal Court of Appeal, without reasons) the court held that the words can be returned did not require an immigration officer to determine whether the claimant had a well-founded fear of persecution in the country that has already granted asylum.[28] A key reason for this is the history of the statutory provision in question. In Kaberuka v. Canada, the Federal Court noted that An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 36(1) repealed the previous version of s. 46.01(2) of the Immigration Act, which had permitted those with Convention refugee status elsewhere to make Convention refugee claims against their countries of asylum. The Court concluded that this indicated Parliament had chosen to exclude persons recognized as Convention refugees by another country from claiming to have a well-founded fear of persecution in their country of asylum.[29] One of the rationales for this, as noted by the court in Farah v. Canada is the presence of other provisions in the IRPA designed to address such circumstances, including s. 115 of the Act (quoted below), and the availability of relief through processes including a stay of removal and a Pre-Removal Risk Assessment:[30]

115(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

As such, the Federal Court holds that it is sufficient for an immigration officer determining the eligibility of a claim for refugee protection in Canada to ensure that a person already recognized as a Convention refugee by another country will, if required, be able to obtain the necessary travel documents in order to be returned to the country of asylum (unless the person, when ready to be returned, tells the CBSA enforcement officer that they prefer to be returned to their country of nationality rather than the country of asylum).[31]

Other grounds of inadmissibility in the IRPA do not render claimants ineligible for a refugee hearing, but may nonetheless have consequences even where a claim is acceptedEdit

A number of grounds of inadmissibility are listed in the provision above. There are a number of others in the Act that are not listed above. As Jennifer Bond, et. al., observe, those other grounds of inadmissibility, such as health or financial criteria (ss. 38–39 of IRPA), misrepresentation (s. 40(1)(a) of IRPA), or criminality falling below the threshold described above will not make them ineligible for a refugee hearing; however, if their claim is successful and they become a “protected person”, some of these grounds of inadmissibility could prevent them from acquiring permanent resident status.[32] These include health grounds if their condition poses a danger to the public (s. 38(1)(a)–(b) of IRPA) or “serious criminality” in the absence of a conviction (s. 36(1)(c) of IRPA) or for a crime that does not carry a 10-year maximum sentence (IRPA, s. 99(4) and s. 21(2)). Such persons could not be refouled from Canada, by virtue of s. 115(1) of IRPA, but would be subject to a range of negative consequences due to their lack of permanent status.[33] This has been a part of Canadian immigration law for some time; even under the previous Immigration Act, where a claimant applying for permanent residence did not have sufficient identity documents, or he/she or a dependent included in the application was inadmissible for criminal or security reasons, it was possible that “landing” would not be granted.[34]

ReferencesEdit

  1. Immigration, Refugees and Citizenship Canada, ENF 24 Ministerial interventions Policy, dated 2016-03-18 <https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf24-eng.pdf>, page 6.
  2. a b Canada Border Services Agency, Evaluation of the CBSA Hearings Program, Publication dated December 2018, <https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/ae-ve/2018/imp-pa-eng.html> (Accessed January 6, 2020).
  3. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 46.
  4. R. G. L. Fairweather, Canada's New Refugee Determination System, 27 CAN. Y.B. INT'l L. 295 (1989), page 302.
  5. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 30.
  6. Refugee Protection Division Rules, SOR/2002-228, Rule 23.
  7. Canada (Citizenship and Immigration) v. Oladapo, 2013 FC 1195 (CanLII), par. 34, <https://canlii.ca/t/g26cr#par34>, retrieved on 2021-06-11.
  8. As summarized in Jennifer Bond, Nathan Benson, Jared Porter, Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law, Refugee Survey Quarterly, , hdz019, https://doi-org.ezproxy.library.yorku.ca/10.1093/rsq/hdz019.
  9. X (Re), 2015 CanLII 40799 (CA IRB), para. 25.
  10. a b X (Re), 2016 CanLII 107938 (CA IRB), para. 23, <http://canlii.ca/t/hqh9q#23>, retrieved on 2020-01-31.
  11. Kanya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1677 (CanLII), para. 21.
  12. a b Canada (Citizenship and Immigration) v. Louis, 2009 FC 674 (CanLII), para. 24.
  13. Canada (Citizenship and Immigration) v. Oladapo, 2013 FC 1195 (CanLII), para. 27.
  14. X (Re), 2014 CanLII 96668 (CA IRB), paras. 23-28.
  15. X (Re), 2015 CanLII 40799 (CA IRB), para. 27.
  16. Canada (Citizenship and Immigration) v. Mukasi, 2008 FC 347 (CanLII), paras. 7-8.
  17. X (Re), 2016 CanLII 107938 (CA IRB), <http://canlii.ca/t/hqh9q#1>, retrieved on 2020-01-31.
  18. Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), para. 21.
  19. Immigration, Refugees and Citizenship Canada, ENF 4: Port of entry examinations, Dated 2019-08-15 <https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf04-eng.pdf>, page 36 (Accessed January 25, 2020).
  20. a b Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), para. 20.
  21. Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317 (CanLII), para. 37.
  22. Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), paras. 18-19.
  23. Hermes Ablahad v Canada (Citizenship and Immigration), 2019 FC 1315 at paras 25–26.
  24. Alhaqli v. Canada (Citizenship and Immigration), 2017 FC 728 (CanLII), para. 64.
  25. Alhaqli v. Canada (Citizenship and Immigration), 2017 FC 728 (CanLII), para. 39.
  26. a b Idil Atak, Zainab Abu Alrob, Claire Ellis, Expanding refugee ineligibility: Canada’s response to secondary refugee movements, Journal of Refugee Studies, December 14, 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa103 at page 2.
  27. Farah v. Canada (Citizenship and Immigration), 2017 FC 292 (CanLII), [2018] 1 FCR 473, para. 14, <http://canlii.ca/t/h2svb#14>, retrieved on 2020-01-25.
  28. Jekula v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9099 (FC), [1999] 1 FC 266 (affirmed by the Federal Court of Appeal, without reasons, at [2000] FCJ No. 1956).
  29. Kaberuka v Canada (Minister of Employment and Immigration), 1995 CanLII 3519 (FCA), [1995] 3 FC 252, at pages 269-270.
  30. Farah v. Canada (Citizenship and Immigration), 2017 FC 292 (CanLII), [2018] 1 FCR 473, para. 27, <http://canlii.ca/t/h2svb#27>, retrieved on 2020-01-25.
  31. Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 22, <http://canlii.ca/t/jc709#par22>, retrieved on 2020-12-21.
  32. Jennifer Bond, Nathan Benson, Jared Porter, Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law, Refugee Survey Quarterly, hdz019, https://doi-org.ezproxy.library.yorku.ca/10.1093/rsq/hdz019, footnote 37.
  33. J. Bond, Unwanted but Unremovable: Canada’s Treatment of ‘Criminal’ Migrants Who Cannot be Removed, Refugee Survey Quarterly, 36(1), 2017, 168–186.
  34. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 51.