13
Refugee
Determination
System in
Canada
I. Introduction ............................................. 534
A. Legislative Reforms .................................. 535
B. Refugee Determination System ........................ 536
II. Case Differentiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
A. Designated Country of Origin .......................... 539
B. Designated Foreign National .......................... 539
C. Safe Third Country Agreement ......................... 540
III. Front-End Stage .......................................... 543
A. Initial Application ................................... 544
B. Examination ........................................ 546
C. Eligibility Interview .................................. 548
D. Referral to the Refugee Protection Division ............... 549
E. Security Screening ................................... 553
F. Accommodation, Work, and Study ...................... 553
G. Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554
IV. Determination Stage and the Refugee Protection Division ........ 554
A. Know and Follow the Division Rules and Policies .......... 555
B. Refugee Protection Division Rules ...................... 556
C. Before the Proceeding ................................ 564
D. Hearings .......................................... 570
E. Deciding the Claim and Reasons ....................... 579
V. Post-Determination Stage .................................. 581
A. Claim Accepted ..................................... 581
B. Claim Rejected ..................................... 583
Appendix 13.1 ............................................ 590
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Part V Refugee Law
I. Introduction
In Chapter 1, Introduction, we examined how the Canadian Charter of Rights and
Freedoms1 is part of the legal framework for refugee law in Canada. Note also that the
1985 Supreme Court decision in Singh v Minister of Employment and Immigration2 is
notable in Canadian refugee law for establishing standards of procedural fairness for
the adjudication of refugee status claims.
The core of refugee determination is found in the 1951 Convention Relating to the
Status of Refugees3 and its protocol, which was discussed in Chapter11, Refugees and
Protected Persons. In that chapter, we examined how Canada, as a signatory to the
Convention and its protocol, cannot return Convention refugees to territories where
they face persecution on the basis of their race, religion, nationality, membership in
a particular social group, or their political opinions, and that the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment4 is
also embedded in domestic law to provide protection to “persons in need of protec-
tion” who face an individualized risk of death, torture, or cruel and unusual treatment.
The statutory and regulatory provisions of the Immigration and Refugee Protection Act5
provide a basic legal framework for refugee determination. In this chapter, we explore
the logistical processes involved in determining refugee status for claimants inside
Canada.
Refugee law and Canada’s determination system are complex. Imagine the chal-
lenge decision-makers face in attempting to distinguish between someone who made
an economic choice to leave their homeland and someone who was forced to flee,
especially when the country conditions are such that there is conflict, violence, or
poverty. Recall that everyone who presents themselves at a port of entry (POE) must
have legal permission to enter Canada, so when a person who does not have status as a
Canadian citizen, a permanent resident, or a temporary resident arrives at the border,
they would normally not be allowed to enter. But what if that person asks not to be
returned to their country because they face a risk and asks for Canada’s protection?
Such a request triggers processes that are often in conflict with routine immigration
procedures.
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter].
2 [1985] 1 SCR 177, 1985 CanLII 65.
3 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), online (pdf): United Nations
<https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.23_
convention%20refugees.pdf> [Refugee Convention].
4 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), online: United Nations
<https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> [CAT].
5 SC 2001, c27 [IRPA].
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Chapter 13 Refugee Determination System in Canada
Refugee claimants who arrive spontaneously have not gone through the regular
immigration assessment processes and may not have prior approval from Canadian
authorities for admission; protection is granted later by an administrative tribunal
without regard to the refugee’s ability to speak English or French, ability for self-
sufficiency, future contribution to the economy, ability to integrate, or family ties.
We could say that such cases go against the grain, because refugees select Canada
(instead of the other way around) and, therefore, immigration officials must employ
exceptions in immigration law and procedures.
Generally, a finding that an individual is a protected person leads to permanent
residence and citizenship. Consequently, refugees are oftentimes portrayed as illegal
migrants who abuse the immigration process, and they are criticized for the illegal
ways in which they use “back-door strategies” to gain entry or “jump the queue.”
While some refugee claimants may use the refugee determination system improperly
to their advantage, the bona fide motivation or intent of a person who is genuinely in
need of protection is rooted in an overriding desire to escape human rights violations
and to seek safety and protection, rather than economic betterment. The fundamen-
tal difference, therefore, between an “illegal migrant,” “immigrant,” or “economic
migrant” and a refugee is that a refugee needs protection. Recall, too, that the core
principles of refugee law (non-refoulement, non-penalization for illegal entry or stay,
and the acquisition of rights over time) are often at odds with other immigration laws.
We should note here, too, that we should not be too quick to judge a “failed”
refugee claimant. They are not automatically a person who is trying to cheat the
Canadian system. They may have left their country to escape generalized violence
and poverty; however, their personal situation and individual experiences may not
have met the legal requirements for acquiring refugee status and Canada’s protec-
tion, or the decision-maker may have erred in the determination. For some claimants,
there may be options available through other administrative mechanisms, such as a
pre-removal risk assessment (PRRA).
A. Legislative Reforms
Bill C-11, the Balanced Refugee Reform Act,6 received royal assent on June 29, 2010,
with major amendments to the refugee determination system scheduled to come into
force on June 29, 2012. However, before these changes could be fully implemented,
the government introduced Bill C-31, the Protecting Canada’s Immigration System Act,7
which received royal assent on June 28, 2012, resulting in amendments to both the
IRPA and the BRRA. Most of the changes that affected the in-Canada refugee de-
termination system came into force on December 15, 2012; this chapter provides an
overview of this “new” refugee determination system. Any refugee claim made prior
6 SC 2010, c 8 [BRRA].
7 SC 2012, c 17 [PCISA].
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