Recent Developments in Refugee Law Appellate Cases of Note Banafsheh Sokhansanj, Department of Justice
Disclaimer This presentation reflects the views of Banafsheh Sokhansanj only, and not necessarily those of the Department of Justice, or any other department, agency, member or representative of the Government of Canada
Recent jurisprudence of interest Supreme Court of Canada Standard of review in immigration context (Khosa) Federal Court of Appeal State protection (Carillo) Evidentiary burden/ standard of proof (Carillo, Parshottam and Raza) Section 97 of the IRPA (Sellan, Prophete) Scope of Article 1E and 1F(b) exclusion clauses (Parshottam and Jayasekara) Non-refoulement (Nagalingam) Canada/United States Safe Third Country Agreement (Canadian Council for Refugees)
SUPREME COURT OF CANADA
Canada (M.E.I.) v. Khosa, 2009 SCC 12 Appeal of a judicial review of an IAD decision dismissing a removal order appeal that was based on H&C grounds Khosa impacts judicial review of decisions made by all immigration tribunals, not just the IAD Federal Court and the Federal Court of Appeal applied conflicting, pre-dunsmuir, standards of review (patent unreasonableness vs. reasonableness simpliciter) Key Issue before the SCC: Interplay of Federal Courts Act, s. 18.1(4) and common law standard of review analysis as set out by SCC in Dunsmuir
Khosa, cont d (Majority) FCA, s.18.1(4) sets out grounds of review not standards of review - Dunsmuir principles still apply Post Dunsmuir and Khosa there are two standards of review only: reasonableness and correctness Reasonableness is a deferential standard, reviewing Court does not reweigh the evidence Court must determine whether the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Khosa, cont d (Majority) Guidance from the SCC on standard of review re: FCA, s.18.1(4) grounds for review: 18.1(4)(a) Jurisdictional issues: correctness 18.1(4)(b) natural justice: correctness 18.1(4)(c) Error of law: generally correctness, but the common law will stay the hand of the judge in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. 18.1(4)(d) Error of fact: reasonableness; and Parliament intended a high degree of deference
Khosa, result SCC allowed appeal Standard of review of IAD decision was reasonableness IAD s decision was reasonable weight to be assigned to evidence with respect to Mr. Khosa s prospects for rehabilitation was a matter for the tribunal, in the application of immigration policy, and not for the reviewing court. IAD was not bound by findings of the criminal court.
FEDERAL COURT OF APPEAL
State Protection / Legal and Evidentiary Burdens of Proof
Canada (M.C.I.) v. Carrillo 2008 FCA 94 Further to Hinzman v. Canada (M.C.I.), 2007 FCA 171 A claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that state protection is inadequate Local failure to provide protection does not meet the test (affirming Kadenko) Huerta v. Canada (M.C.I.), 2009 FC 216 summarizes current law on state protection
Canada (M.C.I.) v. Carrillo (RPD Decision state protection) FCA distinguished between the concepts of burden of proof standard of proof and nature or quality of the evidence required to rebut the presumption of state protection Burden of proof for state protection: decision-maker must be satisfied that state protection is inadequate The standard of proof for this legal burden is the balance of probabilities Evidence must be probative, reliable and convincing FCA appears to be reaffirming and expanding on Li v. Canada (M.C.I.), 2005 FCA 1, where the Court distinguished between the burden of proof and the legal burden under IRPA, ss. 96 and 97
Parshottam v. Canada (M.C.I.) 2008 FCA 355 Appellant s PRRA application was refused on basis that, at time of determination of the PRRA, the Appellant was excluded from protection under Article 1E of the Refugees Convention Article 1E applies, inter alia, to individuals who have permanent resident status in a country other than the one wherein they allege they would be at risk Appellant, who alleged risk in Uganda, his country of citizenship, had been a permanent resident of United States when he was admitted to Canada; however, there was evidence that his status had since lapsed
Parshottam v. Canada (M.C.I.) (PRRA Decision Article 1E Exclusion) Both majority and minority reasons include guidance on standard of proof and the application of that standard by the PRRA officer See later slides re: scope of Article 1E
Parshottam v. Canada (M.C.I.) (Standard of proof / application of the standard) Majority and Minority reasons are consistent Standard of proof under Article 1E is the balance of probabilities. Absent a statement otherwise, assume officer applied this standard (F.H. v. McDougall, 2008 SCC 53) PRRA officer s application of the standard of proof to the facts is reviewed against a standard of reasonableness The Court is highly deferential to the officer s findings: - It is not for the Court to determine for itself whether it would have concluded that evidence is sufficiently clear, convincing and cogent to satisfy a balance of probabilities (citing F.H.) - Evaluation of the evidence before her was at the core of [the officer s] expertise
Raza v. Canada (M.C.I.) 2007 FCA 385 IRPA, s. 113(a) (PRRA - new evidence) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection Date of evidence is not determinative, nor is compliance with the text of s.113(a) alone
Raza v. Canada (M.C.I.), 2007 FCA 385 (PRRA Decision new evidence under IRPA, s.113(a)) There are five criteria; if any one criteria is not met the evidence need not be considered Is the evidence credible? Is the evidence relevant? Is the evidence new (i.e. is about a circumstance that arose after the RPD hearing, proves a fact unknown to the claimant at the time of the RPD hearing, or contradicts a finding of fact by the RPD)? Is the evidence material? Express statutory conditions
Legal and Evidentiary Burdens Questions Is the door now open wider for decision-making based on insufficiency of evidence, as opposed to credibility [Ferguson v. Canada (M.C.I.), 2008 FC 1067]? Is the burden of proof under s.96 of the IRPA effectively now a balance of probabilities, as opposed to more than a mere possibility? Are findings as to whether the evidence is sufficiently clear, convincing and cogent to satisfy the balance of probabilities immune from review?
Section 97 of the IRPA Persons in Need of Protection
Canada (M.C.I.) v. Sellan 2008 FCA 381 Court addressed issue of whether a separate analysis is required under IRPA, s.97 in cases where the tribunal has found that the claimant s evidence lacks credibility, except as to identity where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstrating there was such evidence.
Prophete v. Canada (M.C.I.) 2009 FCA 31 Court declined to answer following question: Where the population of a country faces a generalized risk of crime, does the limitation of section 97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a significantly heightened risk of such crime? Because: Taking into consideration the broader federal scheme of which section 97 is a part, answering the certified question in a factual vacuum would, depending on the circumstances of each case, result in unduly narrowing or widening the scope of subparagraph 97(1)(b)(ii) of the Act.
Prophete, cont d Nonetheless, the Court provided some guidance with respect to the scope of IRPA s.97 IRPA, s.97 analysis requires an individualized inquiry on the basis of claimant s evidence of present or prospective risk to himself/herself (i.e. a personalized risk) Also, Court upheld the Applications Judge s finding that, here the applicant does not face a personalized risk that is not faced generally by other individuals in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence.
Section 98 of the IRPA - Exclusion Clauses
Parshottam v. Canada (M.C.I.) 2008 FCA 355 Appellant s PRRA application was refused on basis that, at time of determination of the PRRA, the Appellant was excluded from protection under Article 1E of the Refugees Convention Article 1E applies, inter alia, to individuals who have permanent resident status in a country other than the one wherein they allege they would be at risk Appellant, who alleged risk in Uganda, his country of citizenship, had been a permanent resident of United States when he was admitted to Canada; however, there was evidence that his status had since lapsed
Parshottam v. Canada (M.C.I.) (PRRA Decision exclusion under Article 1E) Majority (Evans and Ryer, JJA) Certified question is not determinative, and declined to answer Question was whether the PRRA officer should have assessed the applicability of Article 1E as at the time the PRRA application was determined, or at the time the Appellant was admitted to Canada In obiter majority stated that it is not settled law that Article 1E is assessed as at the time of admission
Parshottam v. Canada (M.C.I.) (PRRA Decision exclusion under Article 1E) Minority (Sharlow, JA, concurring in the result) It is open to the PRRA officer to assess the application of Article 1E as at the time of admission, even if the applicant has lost status in the interim It also is open to the officer to assess the application of Article 1E as at the time of PRRA determination, if the applicant has lost status in the interim The officer should consider what steps the applicant had taken to maintain status in the interim
Jayasekara v. Canada (M.C.I.) 2008 FCA 404 RPD determined that appellant was excluded from protection under IRPA, s.98, on the basis of Article 1F(b) (reasonable grounds to believe he had committed a serious non-political crime prior to admission to Canada) Appellant was a citizen of Sri Lanka who had been convicted of selling drugs (opium) in the United States.
Jayasekara v. Canada (M.C.I.) Exclusion Article 1F(b) Serous non-political crime Appellant argued that Article 1F(b) did not apply to him because he had completed his sentence prior to coming to Canada FCA held that completion of a criminal sentence does not exempt an individual from exclusion under Article 1F(b) RPD did not err in finding the Appellant excluded from protection on the basis of Article 1F(b) appeal dismissed
Jayasekara v. Canada (M.C.I.) Exclusion Article 1F(b) Serous non-political crime FCA affirmed the purposes of Article 1F(b) exclusion as set out by Decary, JA in Zrig v. Canada (M.C.I.), 2003 FCA 178 These purposes include ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed [from Zrig]
Jayasekara v. Canada (M.C.I.) Exclusion Article 1F(b) Serous non-political crime Factors in assessing whether crime is serious include: Equivalent offence, and possible penalty, in Canada Elements of the crime Mode of prosecution Penalty prescribed Facts of the crime Mitigating and aggravating circumstances However, there is no balancing against factors extraneous to the facts and circumstances underlying the conviction Also, while regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored
Exceptions to Non-refoulement IRPA, s.115(2)(b) Inadmissibility on the basis of organized criminality
Nagalingam v. Canada (M.C.I.) 2008 FCA 153 Appeal from judicial review of Minister s opinion under IRPA, s.115(2)(b) that Appellant should not be allowed to remain in Canada as a result of nature and severity of acts committed Appellant was a Sri Lankan citizen who had been determined to be a Convention refugee Deportation order had been made against the Appellant as a result of inadmissibility for organized criminality (IRPA, s. 37(1)(a)), based on his involvement with the A.K. Kannan gang
Nagalingam, cont d Court set out a five step analysis under IRPA, s.115(2)(b): (1) A protected person or a Convention refugee benefits from the principle of non-refoulement recognized by IRPA, s.115(1), unless the exception provided by s.115(2)(b) applies. (2) For s.115(2)(b) to apply, the individual must be inadmissible on grounds of security, violating human or international rights or organized criminality. (3) If the individual is inadmissible on such grounds, the Delegate must determine whether the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
Nagalingam, cont d (4) Once such a determination is made, the Delegate must proceed to a Charter of Rights, s.7 analysis. To this end, the Delegate must assess whether the individual, if removed to his country of origin, will personally face a risk to life, security or liberty, on a balance of probabilities. This assessment must be made contemporaneously; the Convention refugee or protected person cannot rely on his or her status to trigger the application of section 7 of the Charter. (5) Continuing his analysis, the Delegate must balance the nature and severity of the acts committed or of the danger to the security of Canada against the degree of risk, as well as against any other humanitarian and compassionate considerations.
Nagalingam, cont d Court also provided guidance re: complicity under s.115(2)(b) there must be reasonable grounds to believe that the person committed, himself or through complicity, as defined in our criminal legal system, acts of organized criminality (para. 68) the Delegate had to reasonably link the appellant to the acts of the organization in which he was a member, taking into consideration, if applicable, his role and responsibilities within the criminal organization. In doing so, the Delegate had to caution himself that it is only in exceptional cases that a Convention refugee or a protected person will lose the benefit of subsection 115(1). Thus, only acts which are of substantial gravity will meet this high threshold. (para. 76)
Canada/United States Safe Third Country Agreement
Canadian Council for Refugees Challenge to validity of the Canada/US Safe Third Country Agreement and IRP Reg., ss. 159.1-159.7 implementing that Agreement Under the Safe Third Country Agreement refugee claimants who enter Canada from the United States at a land border port of entry are, with some exceptions, sent back to the United States The enabling authority for IRP Reg., ss. 159.1-159.7 is in IRPA, ss. 101-102
Canadian Council for Refugees Decision Being Appealed Federal Court had declared IRP Regs., ss. 159.1-159.7 to be ultra vires, based on a finding that the United States does not comply with Article 33 of the Refugees Convention and Article 3 of the Convention Against Torture ( CAT ) The Federal Court held that this compliance was a pre-condition under IRPA, s. 102(1) for promulgation of IRP Regs., ss.159.1-159.7
Canadian Council for Refugees Decision Being Appealed, cont d The Federal Court also held that the application of the Safe Third Country Agreement to (certain classes of) refugee claimants would breach sections 7 and 15 of the Charter of Rights
Canadian Council for Refugees Majority (Noel and Richard, JJA) The promulgation of a regulation is not a tribunal decision The vires of the regulation is reviewed against a correctness standard Events and facts that postdate the coming into force of IRP Regs., ss. 159.1-159.7 are not relevant in assessing the vires of the regulations Actual compliance with the Refugees Convention and/or CAT is not a precondition for designation of a safe third country under the IRPA; it is sufficient if the Governor in Council ( GIC ) has considered the four factors set out in IRPA, s. 101(2) The GIC is presumed to have acted in good faith and for a proper purpose
Canadian Council for Refugees Majority (Noel and Richard, JJA) Insofar as the Applications Judge found that the GIC s failure to conduct ongoing review of the United States as a safe third country, this was not alleged in the Application for Leave and for Judicial Review, and, therefore, should not have been considered In any event, the GIC complied with its review obligations under the IRPA
Canadian Council for Refugees Majority (Noel and Richard, JJA) Charter of Rights challenge should not have been heard or determined The two public interest applicants based this challenge on a hypothetical class of refugee claimants However, constitutional challenges to legislation should not be determined in the abstract, unless it can be shown that the legislation otherwise would be immune from challenge
Canadian Council for Refugees Majority (Noel and Richard, JJA) The unnamed applicant, John Doe, was outside Canada; he had not presented himself at the Canadian border There was no evidence that a refugee would have to bring a challenge from outside Canada A Charter of Rights challenge should be assessed only in the proper context, that is, when made from within Canada by an individual who has been denied asylum and faces a real risk of refoulement in being sent back to the United States
Canadian Council for Refugees Minority (Evans, JA, concurring in the result) Judicial review should have been dismissed without hearing the merits on any of the issues Safe Third Country Agreement and IRP Regs., ss. 159.1-159.7 are not engaged on the facts, and alternative remedies would be available if a potential breach of the Charter of Rights in a specific case Suggests process for a risk assessment if, in fact, a real risk of refoulement if returned to the United States, and the Safe Third Country Agreement and regulations may not lawfully be applied
Parting Words No administrative regime in Canada has a more profound impact upon the lives of individuals than that governing immigration and the determination of refugee status. Law Society of Upper Canada v. Canada (M.C.I.), 2008 FCA 243 at para. 4