Canadian Refugee Procedure/Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues

The Guideline

The text of the relevant Guideline reads as follows:

Introduction

Children, persons under 18 years of age, can make a claim to be a Convention refugee and have that claim determined by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB). ''The Immigration Act'' does not set out specific procedures or criteria for dealing with the claims of children different from those applicable to adult refugee claimants, except for the designation of a person to represent the child in CRDD proceedings. The procedures currently being followed by the CRDD for an adult claimant may not always be suitable for a child claimant.

The international community has recognized that refugee children have different requirements from adult refugees when they are seeking refugee status. The United Nations ''Convention on the Rights of the Child'' (CRC) has recognized the obligation of a government to take measures to ensure that a child seeking refugee status receives appropriate protection. In addition, the United Nations High Commissioner for Refugees (UNHCR) has issued guidelines on the protection and care of refugee children.

There are three broad categories of children who make refugee claims at the IRB. In all three categories, there are procedural and evidentiary issues which affect the child claimant:

# The first category consists of children who arrive in Canada at the same time as their parents or some time thereafter. In most cases, the parents also seek refugee status. In these situations, the child should be considered an accompanied child. If the child arrives at the same time as the parents, then his or her claim is usually heard jointlyNote 6 with the parents but a separate refugee determination is made.
# The second category consists of children who arrive in Canada with, or are being looked after in Canada by, persons who purport to be members of the child's family. If the CRDD is satisfied that these persons are related to the child, then the child should be considered an accompanied child. If the CRDD is not satisfied as to the family relationship, then the child should be considered an unaccompanied child.
# The third category consists of children who are alone in Canada without their parents or anyone who purports to be a family member. For example, an older child may be living on his or her own or a child may be in the care of a friend of the child's family. These children should be considered unaccompanied.

These ''Guidelines'' will address the specific procedural issue of the designation of a representative and the more general procedural issue of the steps to be followed in processing claims by unaccompanied children. The ''Guidelines'' will also address the evidentiary issues of eliciting evidence in a child's claim and assessing that evidence.

Procedural Issues

In determining the procedure to be followed when considering the refugee claim of a child, the CRDD should give primary consideration to the best interests of the child.
The best interests of the child principle has been recognized by the international community as a fundamental human right of a child.Note 7 In the context of these Guidelines, this right applies to the process to be followed by the CRDD. The question to be asked when determining the appropriate process for the claim of a child is what procedure is in the best interests of this child? With respect to the merits of the child's claim, all of the elements of the Convention refugee definition must be satisfied.Note 8
The phrase best interests of the child is a broad term and the interpretation to be given to it will depend on the circumstances of each case. There are many factors which may affect the best interests of the child, such as the age, gender,Note 9 cultural background and past experiences of the child, and this multitude of factors makes a precise definition of the best interests principle difficult.

This guideline is to be taken into account in a procedural, not a substantive manner

The Chairperson Guidelines 3 are to be taken into account in a procedural, not a substantive manner: Zidan v Canada. The Chairperson Guidelines 3 concern the fair conduct of a hearing and not deficiencies in the claim itself: Newton v Canada.