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Canadian Refugee Procedure/Principles for the interpretation of refugee procedure

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Fundamental justice requires that a tribunal which adjudicates upon rights must act fairly, in good faith, without bias and in a judicial temper, and must give the opportunity for parties to adequately state their case.[1] The standards of conduct for the Board are fundamentally based on and recognize two principles: (i) that public confidence and trust in the integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence in decision-making is required.[2] This section of the book will explore the principles that have been used when interpreting these requirements in the refugee context.

Principles for the interpretation of refugee procedure as derived from caselaw

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The following are some of the principal principles regarding the interpretation and application of procedural fairness as they have emerged in the refugee context caselaw:

Principles of statutory interpretation

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As a starting point, a decision-maker interpreting a statutory provision shall do so by applying what is termed the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.[3] A full discussion of statutory interpretation is beyond the scope of this text. Some brief comments may suffice:

  • Ordinary sense of the words: Where the words of a statutory provision are precise and unequivocal, the ordinary meaning of the words will play a dominant role in the interpretive process.[4] Legislative purpose alone cannot justify a departure from the express language of a provision.[5] Where, however, words in a statutory provision are capable of supporting more than one reasonable meaning, the ordinary meaning of the words plays a lesser role in the statutory interpretation analysis.[6]
  • The presumption of consistent or uniform expression. The principle of "uniformity of expression" states that a word or phrase should have one and only one meaning across the statute and enabled regulation. Giving the same words the same meaning through a statute is a basic principle of statutory interpretation.[7] The opposite is also true, the use of different wording implies a different meaning.[8] One of the doctrines that may arise is that statutes in pari materia (i.e., statutes on the same subject or matter) should be construed harmoniously.[9] See, e.g., Canadian Refugee Procedure/Privacy Act.
  • Expressio unius est exclusio alterius. This maxim of statutory interpretation means that the expression of one thing is the exclusion of another. For example, when the legislature expressly codifies only part of the law relating to a matter, the Court may rely on implied exclusion reasoning to conclude that the part of the law not expressly mentioned was meant to be excluded.[10] In other words, whenever there is reason to believe that the legislature intended to include a particular element in its legislation, the courts may expect it would have referred to that element expressly.[11]
  • In refugee law, the exceptions to the refugee regime should be interpreted restrictively.[12] The strict interpretation principle resolves ambiguities in favour of the applicant in provisions negatively affecting their refugee status.[13] An administrative interpretation must consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way.[14] Provisions negatively affecting the status of refugees are to be strictly construed.[15]
  • Presumption against tautology. There is a presumption that Parliament has not included words in a statute which are superfluous and redundant.[16]
  • Presumption against absurdity. The legislature does not intend to produce absurd consequences.[17]
  • Interpretation Act. Other relevant principles of statutory interpretation are those arising from the Interpretation Act, such as the presumptive rule in section 11 of the Interpretation Act that “may” is permissive[18] and section 14, which provides that marginal notes and headings do not form part of a statute, and are inserted only for ease of reference (that said, it is nevertheless permissible to consider them as part of the interpretative process, although they may be accorded lesser weight than other interpretive aids).[19]
  • Subordinate legislation: the relationship between the rules, regulations, and Act. Some of the RPD and RAD rules are said to be merely procedural ones which cannot circumscribe the broad decision-making authority of a Division as described in the IRPA.[20]

Principles about the expectations that one reasonably has of the Board

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  • First, the Board should do no harm. The Board commits in the Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings that "the assigned member will request specific information about the person who is the subject of the appeal and use such information only when they have completed a risk assessment and are satisfied that there is no serious possibility that gathering the information would endanger the life, liberty or security of the person who is the subject of the appeal or any other person."[21] This is a general principle that applies to many similar information-gathering functions. For example, in all circumstances and at all times, United Nations High Commissioner for Human Rights staff have an obligation not to jeopardize the life, safety, freedom and well-being of victims, witnesses and other cooperating persons.[22] The same obligation may reasonably extend to staff of the Immigration and Refugee Board of Canada. That said, there are legal protections against criminal and civil claims provided that the Board acts in good faith: Canadian Refugee Procedure/156 - Immunity and no summons.
  • A high duty of procedural fairness is owed in the refugee context. The Federal Court of Appeal has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[23] For more detail, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is high.

Principles about the manner in which the Board is to proceed

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The Code of Conduct for Members of the Immigration and Refugee Board of Canada is based on the IRB's dedication to the following values - honesty, good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity and loyalty.[53] These values should be evinced by all of the Board's conduct and decisions. In particular:

  • Justice must be seen to be done. The Board has an institutional responsibility to ensure that the tribunal's adjudication is both actually performed at an optimum level of competency, fairness and objectivity and is perceived to have been so performed.[24] A tension exists between the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so).[54] The first set of considerations must not undermine respect for the second sort. For example, in one hearing where the Refugee Protection Division had double-booked a Member, who then tried to complete two hearings in the time ordinarily allotted to one, the court commented as follows: "while I find it commendable from an efficiency standpoint that the Member was prepared to deal with both matters, the aura of urgency that pervaded the hearing undermined the process. A reading of the transcript suggests some sense of impatience and concern on the part of the Member about being able to complete the hearing."[55]
  • Parties can expect consistency and the Board should decide like cases in the same manner. The principle of judicial comity provides that judges of the same court should follow earlier decisions rendered by judges of that court, although those earlier decisions are not binding on the judge. The same principle applies to decisions made by members of the same Division of the IRB. For example, the Federal Court holds that a Division's rules apply equally to all parties and there is no basis to hold parties to differing standards in different administrative proceedings.[56] For more details about consistency in decision-making, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.
  • The Board's procedures should not be restricted to the judicial paradigm. The courts have recognized that administrative agencies such as the IRB "are often required to be procedurally innovative in order to handle a heavy caseload effectively and to make the most efficient use of scarce resources."[57] The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nonetheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence."[58] For example, the court has held that "A hearing held by the Board should not be turned into a trial. The consequences that attach to these hearings are serious and the measure of procedural fairness must be commensurate. However, it does not reach the level of disclosure found in criminal law, for instance."[59]
  • Administrative convenience should not override fundamental justice, which includes procedural fairness.[60] Asylum adjudication is situated within administrative law structures, where tensions between values such as efficiency and economy are precariously balanced with fairness and justice.[61] As noted by Lord Dyson in his 2015 decision condemning the so‐called Detained Fast Track (DFT) in the United Kingdom, "justice and fairness should not be sacrificed on the altar of speed and efficiency".[62] Instead, as Canada's Federal Court holds, the Board “… is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice on the other.”[63]
  • The rules should not be interpreted in a way that is overly rigid. The courts have held that when interpreting the Refugee Protection Division rules, one must "avoid the mire of procedural dogma"[64] as "procedure should be the servant of justice, not its mistress".[65] The Federal Court has stated that "the door should not slam shut on all those who fail to meet ordinary procedural requirements. Such a restrictive reading would undermine Canada’s commitment to its refugee system and underlying international obligations".[66] The court has gone on to note that "the opportunity to free a family from the scourge of persecution should not rest on an overly rigid application of procedural requirements."[67] The tenor of the Rules is that flexibility is needed to guard against form trumping substance and the interests of justice and to guard against decisions not being made on their merits.[68] Refugee applications may be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice are fulfilled.[69] As the Federal Court held in Glowacki v. Canada, no slip or mistake of counsel should be permitted to bring about a miscarriage of justice.[70] This applied with special force during the period of the Covid-19 pandemic: the principle set out in the 2020 Refugee Protection Division: Practice Notice on the resumption of in-person hearings was that the Board would apply the rules flexibly in light of Covid-19.[71]
  • Claimants are entitled to representation and rules should be relaxed for unrepresented litigants. The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[72] The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”.[73] The Federal Court has cited the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons, which holds that the Court’s discretion to assist self-represented litigants does not extend to rectifying substantive legal deficiencies.[74] For more detail, see: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#The Board may have a heightened duty of procedural fairness when dealing with self-represented claimants.
  • Members should exercise their discretion with a spirit of justice and sensitivity. The Board states in its Guideline 8 that all persons appearing before the IRB need to be treated with sensitivity and respect.[75] Caselaw from the Federal Court also states that the member must at all times be attentive and sensitive to claimants.[76] The Federal Court also indicates that Members are expected to act with "civility and care".[77] The following comment from the UNHCR Handbook 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’."[78] The German Ansbach Court has stated that "in order to comply with the spirit of the Geneva Convention, the provisions of the Convention should be interpreted liberally and with human compassion, and thus generously. [translated]"[79] In the words of Rabbi Plaut's report that led to the founding of the Immigration and Refugee Board, "the refugee determination process must be seen and designed as an act of welcome. It must be forever responsive to our humanitarian impulses and obligations and wary of any encroachment that would seek to impose other considerations and concerns upon it."[80] The Federal Court reflects this when it notes that in refugee claims, the claimant is not in an adversarial position to the state.[81]
  • A panel of the Board must keep an open mind until all of the evidence has been heard. Members should always maintain a "judicial temperament".[38] It is necessary to listen patiently and extend "professional courtesy" to all participants.[38] As the Federal Court held in Ayele v. Canada, "the essence of adjudication is the ability to keep an open mind until all evidence has been heard. The reliability of evidence is to be determined in the light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence."[82] See: Canadian Refugee Procedure/The right to an impartial decision-maker#Statements or conduct that might indicate a predisposition on the part of the decision-maker.
  • The Board should interpret submissions and reasons in a spirit consistent with the principle of charity. The Federal Court has indicated that where there is a mistake in a decision that may be excused as a mere slip of the pen, the decision should not be faulted for that reason.[83] The same principle should apply to how the Board interprets submissions and reasons that it is reviewing. Clerical mistakes do occur and they should not be the sole basis for rejecting a claim for asylum.[84] The following observation offered with respect to Canadian courts would seem to apply with equal force to the refugee context: reasons offered “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict”.[85] In the words of the Supreme Court of Canada, the Board's reasons "are not to be read microscopically".[86]
  • The Board should have strong reasons before attributing dishonesty or malicious intent to a claimant. The Federal Court has held that "attributing dishonesty or malicious intent to an applicant is subject to a very high threshold".[87] In the words of the Federal Court, "Credibility is the most important thing any of us has. It is earned and maintained through our life history, our actions and our words. Losing our credibility affects the very core of our reputation. For persons seeking refugee protection, credibility lies at the very heart of their claim."[88]
  • Claimants should be given the benefit of the doubt in appropriate circumstances.[89] The Federal Court holds that the Board has a broad discretion to alleviate the burden of proof upon a refugee claimant in appropriate circumstances.[90] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that the benefit of the doubt should be granted to the claimant in certain circumstances: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to 'prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."[91] Canadian law accords with this view, providing that it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts or the available evidence.[92][93] Furthermore, the “benefit of the doubt” principle does not apply to speculation.[94] The words of the Canadian Bar Association, Quebec Section from the mid-1980s are instructive, if not legally binding, on this point: "There are indeed unfounded claims and they will always exist. But one must also recognize that the risk of error on the subject is very great. One should recall how several years ago the statements of Salvadoran and Guatemalan citizens about 'death squads' were believed to exist only in the imagination of the applicants. It will always be like this. Refugee movements come in waves and we must be modest enough to recognize our ignorance about certain new situations and to mistrust ready judgments."[95]
  • The Board will ensure the integrity of the administration of justice. The court observes that there is a fundamental need to ensure the integrity of the administration of justice in proceedings, including immigration proceedings.[96] See further: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights.

Principles about the expectations that one reasonably has of claimants

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  • Claimants may be expected to submit asylum claims promptly. Article 31 of the Refugee Convention provides that states shall not impose penalties on asylum seekers, but only if they present themselves to authorities without delay: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."[97] Similarly, Canada's Federal Court has noted that claimants may be expected to submit asylum claims promptly: "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly".[98] There is an "onus on a refugee claimant to present their claim, including the evidence in support of it, in a timely and efficient manner."[99]
  • Parties will cooperate with the asylum process and supply all pertinent information. A claimant must come to a hearing with all of the evidence that he or she is able to offer and believes is necessary to prove the claim.[100] Claimants may not misrepresent, suppress, or conceal any material fact.[101] The Federal Court holds that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose.[102] The legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should assist the examiner to the full in establishing the facts of their case and supply all pertinent information concerning themself and their past experience.[103] The Federal Court states that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly, or complying with procedures to regularize their stay."[98] There is a duty upon an applicant in immigration proceedings to make sure that their documents are complete and accurate.[104] See the Basis of Claim form instructions: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#Requirement that the information provided be complete, true and correct. Indeed, where the Minister is not participating in a case, rules on ex parte proceedings may impose special obligations on counsel. For example, the Law Society of BC’s rule states that “In an ex parte proceeding, a lawyer must act with utmost good faith and inform a tribunal of all material facts, including adverse facts, known to the lawyer that will enable the tribunal to make an informed decision.”[105] For details about how this principle takes shape in the RPD Rules, see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#What documents does a party need to provide when?.
  • Concerns about defects of procedural fairness should be raised by parties at the earliest opportunity. The general rule is that a party should raise allegations about procedural fairness at the earliest possible opportunity.[106] For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Concerns about a lack of procedural fairness should be raised at the earliest practical opportunity.
  • Claimants will comply with the law and be honest. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information.... There is a duty on an applicant to ensure that their submissions are complete and correct".[107] The Federal Court has stated that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order".[98] In Canada, such legal obligations require that a claimant answer truthfully all questions put to them in the refugee claim process[108] and to disclose material facts pursuant to the duty of candour that foreign nationals seeking to enter Canada have.[109] Applicants have a duty of candour to provide complete, honest and truthful information.[110] This is specified in s. 16 of the IRPA which stipulates that "A person who makes an application must answer truthfully all questions put to them for the purpose of the examination". Similarly, the IRPA provides at s. 100(1.1) that "the burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them". This obligation may be read in conjunction with Art. 2 of the Refugee Convention, which provides that, “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”[103] Similarly, the (legally non-binding) handbook issued by UNHCR stipulates that the applicant should tell the truth.[103] See also: Canadian Refugee Procedure/Information and Documents to be Provided#Requirement that the information provided be complete, true and correct.
  • Claimants will put their best evidentiary foot forward at their first hearing. In Tahir v. Canada, the Federal Court commented about a claimant that "he was required to put his best evidentiary foot forward [at the RPD]. Not having done so, Mr. Tahir could not place better evidence before the RAD."[111] Indeed, absent new evidence on an issue, the Refugee Appeal Division cannot consider a new argument, developed for the first time on appeal.[112] See also the commentary to RPD Rule 34: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.
  • Parties are responsible for their own files. The Federal Court has noted that there exists "[abundant case law] to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be."[113] While "a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, [] at some point a claimant will be considered the author of their own misfortune."[114] For example, the Federal Court has held that judicial review should not be granted where an applicant “show[ed] little or no interest in what [was] happening to [her] own application”.[115] The Federal Court holds that "counsel puts into doubt the well-foundedness of his/her case when counsel does not respect the rules of the [Division]."[116] Furthermore, it is incumbent on applications in immigration applications to inform themselves and inquire into any concepts that they do not fully understand in completing their application.[117] The court has held that the RPD should not bear responsibility for an Applicant’s failure to corroborate their own story.[118]
  • Parties should be aware of the information on file. The Federal Court holds that applicants must take responsibility to ensure that they understand the written correspondence they receive regarding their refugee claim.[119] The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that "the RPD provides the parties with information as to where the [National Documentation Package] can be found on the Board's website, and it is the parties' responsibility to check the IRB website for the newest version of the relevant NDP(s) prior to their hearing."[120] This is also stated in the Important Instructions claimants receive when they make their claim: “You should also check the IRB website for the newest version of the NDP prior to your hearing” and is stated in similar terms in the Claimants’ Guide.

Principles about the expectations that one reasonably has of the Minister

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  • The Minister has a particular duty of candour. The Federal Court states that frankness can be expected of the Minister and that the Minister has a duty of candour.[121] See further: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the Minister. For the duty of candour that applies to claimants, see the section above. See also the discussion above regarding rules on ex parte proceedings where the Minister is not participating in a case and how these may impose special obligations on counsel. For example, the Law Society of BC’s rule states that “In an ex parte proceeding, a lawyer must act with utmost good faith and inform a tribunal of all material facts, including adverse facts, known to the lawyer that will enable the tribunal to make an informed decision.”[105]
  • The good faith of counsel and immigration officers can be presumed. There is a long line of jurisprudence from the Federal Court holding that most immigration officers have no vested interest in the outcome of a claim and their official records and actions can generally be relied upon.[122] Similarly, counsel are under professional obligations to act with good faith. For example, the Law Society of Ontario's Rules of Professional Conduct provide that when acting as an advocate, “a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.[123]

Principles about the expectations that one reasonably has of claimant counsel

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Practicing law is an honour and a privilege but it comes with significant responsibilities.[124] Of note:

  • Counsel should be presumed to have acted competently. There is a strong presumption that former counsel’s conduct fell within the wide range of reasonable professional assistance.[125] While this presumption of competency can be applied, the court cautions that it is inappropriate to make findings on the basis of inferences from the experience and expertise of particular counsel, just as it would be inappropriate for the RPD to ask applicants (or their counsel) about such privileged matters directly.[126] However, other Federal Court panels have concluded that it is appropriate to consider that an applicant was represented by experienced counsel.[127] Furthermore, it is common in other areas of law to consider this factor, for example in class action law it is expected that the court should assess and consider the competence of the representative plaintiff’s counsel.[128]
  • Counsel will have explained at least the basic tenets of a refugee claim to their client. The Federal Court has held that, "absent contrary evidence, it is reasonable to expect that a legal representative has explained at least the basic tenets of a refugee claim to their client. This includes the obligation to provide acceptable documentation regarding the refugee claim, including as to identity, the onus on the claimant to prove their claim, and the need to put their “best foot forward” to do so."[129] See further: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#1) Incompetence.
  • Deficiencies in counsel's conduct are properly attributed to their clients. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information and are bound by the submissions made by those who represent them in the process".[107] The general rule is that you do not separate counsel's conduct from their client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[130] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which note that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[131] In most instances, reliance on legal advice will not excuse a failure to submit significant information in support of a claim.[132] That said, there are exceptions to this principle where counsel’s conduct falls sufficiently below the standard expected of competent counsel: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#In what contexts will counsel incompetence render a hearing unfair?. As the Federal Court held in Glowacki v. Canada, no slip or mistake of counsel should be permitted to bring about a miscarriage of justice.[70]
  • Counsel have a duty of candour and the tribunal should be able to trust and rely on the representations made by them. It is said that in court, judges ought to be able to rely on the representations that counsel make as officers of the Court.[133] Tribunal members may expect no less of counsel. As the court noted in Diakité v Canada, our justice system functions in large part because the Court expects to be able to trust and rely on the representations made by officers of the Court.[134] The same may also be said of tribunal members and the reliance they place on the representations made by counsel. While a lawyer shall seek to fearlessly advocate for their client, they must do so honourably, in compliance with the law, and in a manner that complies with their professional obligations. This includes their duty of candour. Counsel must never mislead or attempt to mislead. If counsel has inadvertently done so, then counsel must correct it the moment it comes to their attention.

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act

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This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives".[135] Those objectives, in so far as they concern refugees, read as follows in the current IRPA:

Objectives — refugees
3...
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
(f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application
(3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.

The above objectives can be compared to the section of the IRPA that sets out objectives for the immigration (as opposed to humanitarian or refugee) streams:

Objectives — immigration

3...
3 (1) The objectives of this Act with respect to immigration are
(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;
(b.1) to support and assist the development of minority official languages communities in Canada;
(c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
(d) to see that families are reunited in Canada;
(e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
(f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
(f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system;
(g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;
(h) to protect public health and safety and to maintain the security of Canadian society;
(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and


(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice."[136] As such, in Catherine Dauvergne's view, the objectives "are so complex that they can neither guide nor constrain."[137] Shauna Labman writes that the twenty-five separate paragraphs addressing the objectives and application of the act add to the IRPA's "contradictions and confusions".[138] Dauvergne writes that these provisions "serve no purpose other than to announce that the government is aware of how thorny an issue immigration is in Canadian politics and to ensure that the law is able to mirror prevailing political views without amendment."[137] Indeed, the Federal Court has concluded that even if an RPD Rule is non-compliant with one of these objectives, this would not render it ultra vires of its enabling provision in the Act.[139]

IRPA Section 3(2)(a) - The refugee program is about saving lives and offering protection

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Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

This has been a long-standing provision in the Act

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This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[140]

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Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. The protection envisaged is not just protection from refoulement, but also the suite of positive rights enumerated in the Refugee Convention. In the words of Donald Galloway, Canada’s obligation under the Refugee Convention is not merely the negative duty of not returning a person to a place where they face a risk to their life or their freedom is threatened – the duty found explicitly within Article 33 of the Convention. Canada’s duty also embraces the wider positive duty to recognize the status (and a host of other rights) of individuals who are unable to or are justified in not availing themselves of protection in their country of origin.[141] The Refugee Convention enumerates a number of core rights that all refugees benefit from, and then additional entitlements may accrue as a function of the nature and duration of the refugee's attachment to the asylum state. The most basic set of rights inhere as soon as a refugee comes under a state’s de jure or de facto jurisdiction; a second set applies when he or she enters a state party’s territory; other rights inhere only when the refugee is lawfully within the state’s territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement.[142] In sum, the rights discussed in the Convention are those that follow:

Within state’s jurisdiction Art 3: Non discrimination

Art 12: Personal status

Art 13: Acquisition of movable and immovable property (same as foreigners)

Art 16: Access to the courts and legal assistance (same as citizens)

Art 20: Rationing access (same as citizens)

Art 22(1): Elementary education (same as citizens)

Art 22(2): Secondary and tertiary education (same as foreigners)

Art 29: Fiscal charges/taxation (same as foreigners)

Art 30: Transfer of assets

Art 33: Non-refoulement

Physical presence Art 4: Freedom of religion (same as citizens)

Art 25: Administrative assistance

Art 27: Identity papers

Art 31: Freedom from penalisation for illegal entry

Lawful presence Art 18: Self-employment (same as foreigners)

Art 26: Freedom of movement (same as foreigners)

Art 32: Non expulsion

Lawful stay or habitual residence Art 14: Artistic rights and industrial property (same as citizens)

Art 15: Right of association (most favourable treatment accorded to foreigners)

Art 17: Wage-earning employment (most favourable treatment accorded to foreigners)

Art 19: Liberal professions (same as foreigners)

Art 21: Housing (same as foreigners)

Art 23: Public relief (same as citizens)

Art 24: Labour legislation and social security (same as citizens)

Art 28: Travel documents

Long-term residence Art 34: Facilitate naturalisation[143]

The big picture rationale behind the inclusion of these rights in the Convention was the objective of preventing refugees from becoming legal non-persons. In the words of the UK House of Lords, "the general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community."[144] After the First World War, the academic Alleweldt states, the typical problem of refugees was the lack of any legal status in the state of refuge, which deprived them automatically of many rights and opportunities. Accordingly, the parties to the Convention envisaged, for humanitarian reasons as well as for practical reasons of cooperation, providing refugees with a status which would comprise a key set of their human rights and freedoms.[145] In short, the rights guaranteed to recognized refugees by the Convention are intended to provide them with the rights necessary to start life anew.[146]

The fact that the refugee protection is in the first instance about saving lives and offering protection can be contrasted with the goals for the immigration programs provided in the IRPA

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The court appears to indicate that the fact that Parliament has dictated that the IRPA “is in the first instance about saving lives and offering protection to the displaced and persecuted [emphasis in original decision]” implies this goal's importance and priority.[147] Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. This can be contrasted with the broader set of objectives for Canada's immigration programs set out in s. 3(3)(1) of the Act, which include the successful integration of immigrants and maximizing immigration's economic benefits for Canada. This contrast should inform interpretations of the Act. While in immigration law, writ large, the desirability of an immigrant (e.g. their work experience, education, fluency in French or English, or youth) is recognized as a proper consideration for how the government may choose to accord status, refugee law, in contrast, provides the framework for individuals who are fleeing persecution to seek safety in which the primary consideration is to be, in the words of s. 3(2)(a) of the IRPA, saving lives and offering protection. In the words of Molly Joeck, "conflating the two is a dangerous exercise".[148]

The fact that the refugee protection is in the first instance about saving lives and offering protection points to the importance of decisions being correct

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Justice Gauthier, referring to the objectives of the IRPA, in particular "saving lives and offering protection to the displaced and persecuted," held that the RAD is a "safety net that would catch all mistakes made by the RPD, be it on the law or the facts." This required that the RAD's standard of review, applicable both to questions of law and questions of fact, be correctness.[149]

IRPA Section 3(2)(b) - Fulfilling Canada’s international legal obligations with respect to refugees

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Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

This has been a long-standing provision in the Act

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This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[140]

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Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law.[150] The Supreme Court of Canada holds that the provisions of the IRPA "cannot be considered in isolation from the international norms which they reflect".[151] Section 3(2)(b) of the Act reinforces that, where possible, the provisions of the IRPA should be interpreted in a way that fulfills Canada's obligations pursuant to, inter alia, the Refugee Convention. This is a critical legal constraint on interpretation of the IRPA - one that Parliament has mandated that immigration adjudicators consider in interpreting the legislation, regardless of whether arguments about international treaties like the Refugee Convention are explicitly raised by the parties in submissions or not.[152]

See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention.

The Refugee Convention sets out a number of rights to which refugees are entitled

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See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee program aims to offer protection, including the legal rights specified in the Refugee Convention. That said, te Convention is not fully incorporated into Canadian legislation. While the terms of the Convention are largely reflected in the IRPA, there are some differences between the operation of the Convention and the operation of the IRPA.[153]

The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee Convention

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The rules of treaty interpretation for discerning the content of Canada's international legal obligations with respect to refugees were codified in the Vienna Convention on the Law of Treaties. Arts. 31 and 32 of the Vienna Convention provide that:[154] 

ARTICLE 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

ARTICLE 32: Supplementary means of interpretation
1. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: 
(a) leaves the meaning ambiguous or obscure; or 
(b) leads to a result which is manifestly absurd or unreasonable.

ARTICLE 33: Interpretation of treaties authenticated in two or more languages
1.When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3.The terms of the treaty are presumed to have the same meaning in each authentic text.

4.Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

This said, the Vienna Convention does not in and of itself apply to the Refugee Convention, given that the Vienna Convention applies only to treaties which are concluded by states after the Vienna Convention entered into force on January 27, 1980 (per Article 4 of that Convention)[155] and the Refugee Convention of 1951 and the 1967 Protocol to the Convention predate this. That said, as Hathaway notes,[156] the approach to treaty interpretation codified in the Vienna Convention has been recognized by the International Court of Justice as embodying customary norms of treaty interpretation.[157] Those rules are generally regarded as a codification of the public international law rules of treaty interpretation as a matter of general (or customary) international law.[158] As such, Articles 31 to 33 of the Vienna Convention constitute a general expression of the principles of customary international law relating to treaty interpretation.[159] In this way, the norms of treaty interpretation embodied in the Vienna Convention are properly considered when interpreting the Refugee Convention, even if its articles do not sensu stricto apply to the Refugee Convention. For this reason, in the context of the Refugee Convention, domestic courts in New Zealand,[160] the UK,[161] and Canada[162] have seen fit to apply Arts. 31 and 32 of the VCLT when interpreting the Refugee Convention.

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Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. These obligations must be interpreted in good faith.[163] This is consistent with Art. 31 of the Vienna Convention, supra, which states that "a treaty shall be interpreted in good faith". It is also consistent with Article 26 of the Vienna Convention, which requires states to perform their international treaty obligations in good faith. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[164] That said, in Britain Lord Bingham has concluded that "there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do."[165] Relatedly, Canada's Federal Court has held that "an unduly textual and restrictive interpretation [of the IRPA]" that "would impose a result that is inconsistent with and contrary to the objectives of the IRPA" must be avoided.[166]

The Refugee Convention should be interpreted in good faith in light of its object and purpose

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Under Art. 31 of the Vienna Convention on the Law of the Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”.[167] This raises the question of what the object and purpose of the Refugee Convention are. The principal answer that emerges in the jurisprudence relates to the Convention's humanitarian purposes. The UK House of Lords has held that a ‘good faith’ interpretation of the Refugee Convention is one that works to bolster the effectiveness of its protection purpose, and thus seeks a construction consistent with humanitarian aims and not simply a literal linguistic approach.[168] These humanitarian aims are underscored in the IRPA with the statement at s. 3(2)(d) that "the objectives of this Act with respect to refugees are to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution". The academic Michelle Foster writes that "one perspective is that the aim of the Refugee Convention is fundamentally to pursue a social and human rights inspired purpose, namely to provide for the international protection of those individuals falling within the refugee definition."[169] The Supreme Court of Canada has noted the human rights purpose of the Refugee Convention, for example remarking upon its "obvious human rights purpose" in Németh v. Canada.[170] Similarly, in Ezokola v Canada the court refers to the "overarching and clear human rights object and purpose [of the Refugee Convention]".[171] This is articulated as follows by the Supreme Court of Canada in Canada v. Ward: the underlying objective of the 1951 Convention is "the international community's commitment to the assurance of basic human rights without discrimination."[172]

That said, the following words of caution from the Australian courts are apposite: "the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives."[173] Indeed, Lord Bingham in the UK has emphasized that the 1951 Convention was "a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other."[165] Foster suggests that it is possible to reconcile these two approaches by emphasizing that the 1951 Convention's focus is on "the need for co-operation in order adequately to deal with the humanitarian problem".[174] Drawing on Klabbers' view that if a treaty's substantive provisions deal with a particular topic, then it may be surmised that that topic is the treaty's object and purpose, Foster argues that the 1951 Convention's overwhelming purpose is a human rights one. In essence the treaty provides for refugees' rights and entitlements under international law.[174]

The Refugee Convention does not explicitly prescribe any particular Refugee Status Determination procedure

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The objectives of this Act include fulfilling Canada's international legal obligations with respect to refugees. How does that relate to refugee procedure? Canada's refugee status determination process reflects Canada's international obligations, including those stemming from the Convention Relating to the Status of Refugees of 1951. The challenge of refugee status determination is determining who is a “refugee” and, conversely, who is not. As to the process by which this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of the Office of the United Nations High Commissioner for Refugees, none of which address the issue of Refugee Status Determination (RSD).[175] In the words of the UNHCR’s Handbook on Procedures and Criteria, “the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status.”[176]

The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee Convention

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Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees include fulfilling Canada's international legal obligations with respect to refugees. In ratifying the Refugee Convention, Canada has made a number of commitments, the most important of which is arguably the principle of non-refoulement enshrined in Article 33 of the Refugee Convention. How do such commitments relate to the procedures Canada selects for refugee status determination? Hofmann and Löhr write that, with respect to the 1951 Convention, it might be stated that the Convention does not necessitate (or prohibit) any specific procedure as such, but obliges states not to introduce procedures which would result in applicants for asylum being denied the rights that Canada undertook to respect when signing the Convention. This flows from the foundational principle of international law pacta sunt servanda, the rule that agreements must be kept,[177] in this case Canada's agreement to abide by the terms of the Convention. With respect to procedures, international courts have established the principle that a state's procedural rules must ensure the effectiveness of the substantive provisions of its international commitments. This has been held by, among others, the International Court of Justice in the LaGrand (Germany v. United States of America) case, where it ruled that the duty incumbent on states to ensure that their international obligations be fully respected implies that domestic procedural law must be construed in such a way as to give full effect to a purposive interpretation of the state's international legal commitments.[178] For example, if a state uses deficient procedures, which lead to prohibited refoulement, the introduction of such procedures constitutes per se a violation of Article 33 of the Refugee Convention and its prohibition on non-refoulement.[179] This has implications for the procedures that a state selects; for example, UNHCR states that a consequence of a state’s non-refoulement obligation is a ‘duty of independent inquiry’.[180] Such a duty requires states to identify individuals in need of protection before returning or transferring them to a third country.[181]

The Refugee Convention should be regarded as a living instrument that evolves to meet contemporary needs

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States have expressly recognized the Refugee Convention as “the foundation of the international protection regime [with] enduring value and relevance in the twenty-first century”.[182] The UK House of Lords has concluded that "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument."[183] This is consistent with statements from the Supreme Court of Canada that "international conventions must be interpreted in light of current conditions".[184] Indeed, the Vienna Convention on the Law of Treaties delierately does not constrain the meaning of terms in a treaty to their meaning at the time of the treaty's conclusion. A limitation to this effect was deleted from an earlier draft of Art. 31, para. 3(c), of that Convention on the basis that this could restrict the evolution of the law and that, in any event, the correct meaning of the provision would be derived from an "interpretation of the term 'in good faith'".[185]

There can only be one true interpretation of the Refugee Convention

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See below: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention.

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Section 3(2)(b) of the Act provides that the objectives of this Act with respect to refugees include 1) fulfilling Canada’s international legal obligations with respect to refugees, and 2) affirming Canada’s commitment to international efforts to provide assistance to those in need of resettlement. Resettlement falls into the second category, as opposed to the first, insofar as Canada does not have an international legal obligation to resettle refugees from abroad. When negotiating the Refugee Convention, the international community recognized the importance of burden sharing and prominently placed it in the preamble to the Convention, but burden sharing was not made into a binding legal obligation.[186] Indeed, as Hathaway notes, when negotiating the Refugee Convention, governments were emphatic in their rejection of a duty to reach out to refugees located beyond their borders, accepting only the more constrained obligation not to force refugees back to countries in which they might be persecuted.[187] Subsequent international efforts to articulate an individual right of asylum at international law have been unsuccessful - for example, the 1967 UN General Assembly Declaration on Territorial Asylum is non-binding and a proposed Convention on Territorial Asylum never materialized.[188] For more details on burden sharing, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention.

IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecution

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Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

This has been a long-standing provision in the Act

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This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[140] This is also reflected in the IRB's mission statement, including its emphasis on the Board acting on behalf of Canadians: "Our mission, on behalf of Canadians, is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly, and in accordance with the law."[38]

The importance of Board procedures being fair to the public perception of the refugee program

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In addition to ensuring overall fairness and facilitating the giving of evidence, procedural fairness is also about maintaining the integrity of the refugee determination process in the eyes of the public. For example, stakeholders may come to question the integrity of the system if they observe unfair, biased, stereotyped, arbitrary, or otherwise inappropriate processes that do not provide fair consideration to those who come to Canada and file a claim. As the legal philosopher Patricia Mindus argues, arbitrariness undermines legitimacy and erodes trust in the law in a deep way that is not easy to remedy.[189] Ensuring procedural fairness is in this way integral to maintaining the reliability of the hearing and refugee determination process and public support therefor.

Part of the Board's role in ensuring that fair consideration is provided to those who come to Canada claiming persecution relates to the nature of the reasons that are offered in their cases. As Thériault argues, "reasons encourage the acceptance of decisions and reinforce confidence in the judicial system. The act of writing reasons helps to ensure that decisions are arrived at rationally and imposes on judges a form of self-discipline. Reasons allow parties to understand why a case was decided a certain way. Reasons allow appeal judges to assess the merits of decisions under review. Reasons are also necessary for the proper development of the common law through the principle of stare decisis, and serve an educational purpose by informing both the legal community and those outside it of the content and evolution of legal rules."[190]

This provision relates to the Canadian Bill of Rights provision on principles of fundamental justice

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Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This tracks Section 2(e) of the Canadian Bill of Rights, which states that no law of Canada shall be construed or applied so as to "abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations."[191]

This provision relates to Canada's international obligations

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Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of this "fair consideration", see Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The objectives of this Act with respect to refugees include the establishment of procedures that will uphold Canada's respect for the human rights and fundamental freedoms of all human beings.

The focus of this provision is on those who are claimants within Canada

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Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This provision can be interpreted as being focused on those who come to Canada claiming protection (asylum seekers) as opposed to those who are abroad (awaiting resettlement) given that resettled refugees do not come to Canada "claiming" protection as their claim has generally been accepted prior to that point. See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Canada does not have a binding legal obligation to accept refugees from abroad for resettlement. An alternative interpretation of this phrase could be that "those who come to Canada claiming persecution" uses Canada as an eponym in place of the Government of Canada, as opposed to the territory of the country, though this is arguably a doubtful interpretation of the phrase.

IRPA Section 3(2)(d) - Offering safe haven

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Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

The idea that the objectives of the refugee provisions in the Act involve offering safe haven implicitly means that the grant of refugee status involves a judgment of the source country

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Section 3(2)(d) of the objectives of the Act provides that its objectives with respect to refugees include offering safe haven to specified persons. The idea of offering a safe haven in Canada implicitly involves a judgment that the source country is not providing that safe haven. As Plaut writes, in this way, according refugee status inherently involves passing judgment on the source country: "what is the Geneva Convention but a moral judgement of offending countries' policies? Any time a nation accepts a person as a legitimate refugee it is judging the refugee's country of origin."[192] He goes on to write that, "accpeting an individual refugee under the Convention appears to imply that his/her country of origin, by creating refugees on its territory, does not live up to proper international standards."[193]

The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceases

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The objectives of this Act with respect to refugees include offering safe haven to persons with a well-founded fear of persecution for a Convention reason, as well as those at risk of torture or cruel and unusual treatment of punishment. This obligation, which partly tracks the criteria of the Refugee Convention, reflects the fact that the 1951 Convention can be viewed as a third party agreement: a treaty whereby the contracting states take on obligations towards each other for the benefit of a third party, namely the refugees who are, per the terms of the treaty, provided with refugee rights.[194] As Haddad writes, the refugee is someone who has exited their state of origin by crossing an international border and hence has become an issue of concern on the international agenda and a ward of international society.[195]

The "safe haven" that is to be offered to refugees is independent of other types of tenuous immigration status that Canada offers such as permanent residence. An applicant’s asylum status is not affected because their permanent residence status was lost or because their application for permanent residence was refused.[196] Even where a refugee moves onward from a state which has granted international protection, that state bears ongoing obligations towards the individual, unless their status has ceased.[197] Indeed, even those who are granted status as protected persons by the IRB may not meet the criteria to become permanent residents or citizens in Canada: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#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 accepted. That said, it is clear that refugee status ends with the application of the cessation clauses in the Convention.[198] For example, Article 1(C)(3) of the Refugee Convention provides that refugee status is terminated upon naturalization, i.e. a situation where a refugee “acquire(s) a new nationality, and enjoys the protection of the country of his new nationality.”[199] Once the criteria in one of the cessation clauses in the Refugee Convention are met, then 'refugeehood' can rightfully be regarded as having ceased. Until then, it may be observed that refugeehood is inherently characterized by a temporal uncertainty; indeed, as Agier notes, that the word ‘refuge’ itself ‘denotes a temporary shelter, while waiting for something better.’[200] See also the following discussion of the interaction between the cessation clause in the Refugee Convention and the acquisition of Canadian citizenship: Canadian Refugee Procedure/RPD Rule 64 - Applications to Vacate or to Cease Refugee Protection#This provision applies even to those who have become Canadian citizens.

IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights

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Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

The objectives of this Act with respect to refugees include the establishment of efficient procedures

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Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures. Section 162(2) of the IRPA provides that each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit; for further discussion of this, see: Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and quickly.

The starting point regarding the position of an alien, at common law, was summa­rized by Lord Denning as follows:

At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his own country at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his own country. The position of aliens at common law has since been covered by various regulations; but the principles remain the same.[201] [internal citations omitted]

The reality of having largely unstoppable flows of desperate people who do not have a legal right to enter or remain in Canada has been one that the refugee determination system has had to repeatedly contend with. In this way, Hathaway writes when describing the situation that spawned one of the Refugee Convention’s historical antecedents, the credibility of border controls and of the restriction of socioeconomic benefits to nationals is at stake with refugee programs: by legitimating and defining a needs-based exception to the norm of communal closure, refugee law can sustain the protectionist norm. In this way, “so long as the admission of refugees [is] understood to be formally sanctioned by states, their arrival [ceases] to be legally destabilizing.”[202] This motivation has a number of implications. The Federal Court of Appeal has stated that “there is compelling public interest, in Canada, in having refugee status determined as soon as is practically possible after a claim is made.”[203] As the Canadian Bar Association has submitted, a lack of expeditiousness "leads to legitimate claims languishing in the system and encourages the proliferation of unmeritorious claims."[204] The Supreme Court of Canada emphasizes the importance of proportionality when selecting a procedure, as "the best forum for resolving a dispute is not always that with the most painstaking procedure".[205] These goals are reflected in the structures and procedures enshrined in the Act, including:

  • The control over proceedings that has been granted to decision makers: To increase the efficiency of hearings, procedures were amended following passage of the Balanced Refugee Reform Act (2010) and the Protecting Canada's Immigration System Act (2012) to give decision makers greater control over refugee protection proceedings.[206] The fact that each Division of the IRB is required to deal with all proceedings before it as informally and expeditiously as the circumstances of fairness and natural justice permit supports, for example, the right of a tribunal Member to control the process and not waste time on matters that are irrelevant.[207] See: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses#44(5): In deciding whether to allow a witness to testify, the Division must consider any relevant factors.
  • Ways that duplicative processes have been excised from the Act: The Refugee Appeal Division, when considering issues of efficiency, has observed that an interpretation of the Act which would reduce duplication of work and having an additional, unnecessary, hearing is to be preferred.[208] The Federal Court has noted a sympathy "to any argument intended to achieve judicial economy in avoiding unnecessary procedures".[209] This principle can be seen in the legislative history of section 97 of the Act. Section 97 was introduced with the transition from the Immigration Act to the IRPA, and in this way expanded the scope of asylum protection to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of section 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a guide for decision-makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".
  • Fairness requirements to hold a claim in abeyance pending additional evidence: The court has held that fundamental justice requires a tribunal to delay its decision if it knows that, given a reasonable time, an applicant can obtain a crucial document.[210] See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Requests to delay convening a hearing or issuing a decision pending the receipt of new evidence.

The objectives of this Act with respect to refugees include the establishment of procedures that will maintain the integrity of the Canadian refugee protection system

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Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. The UN High Commissioner for Human Rights states that "Because of their vulnerable situation, refugees may face pressures to exaggerate or conceal information about human rights violations they have suffered or witnessed. For example, they may exaggerate problems they have experienced if they believe that they will have a better chance of receiving humanitarian assistance or refugee status."[211] As Harold Troper notes, a concern that the refugee program must seek to address is the worry that "many of the refugee claimants, including some who successfully made it through the determination process, were not really legitimate refugees but individuals looking for a way around tough Canadian immigration regulations."[212] Indeed, fraudulent applications are said to have "plagued" a number of Canada's immigration programs, and are not simply a concern with the in-Canada asylum system.[213] For example, under the former source country class in the IRPA for resettlement, the ICRC indicated that individuals used fraudulent referrals allegedly from the ICRC at the Canadian embassy.[214] In 2004, a scheme was discovered by Colombian authorities in which substantial bribes were being paid to civil servants employed by the Colombian National Senate for documents identifying individuals as victims of death or abduction threats from either the guerrillas or the paramilitaries. The documents were reportedly used at the Canadian embassy in Bogota to achieve source country class resettlement for at least fifty people.[213]

The Immigration and Refugee Board has stated that one of the challenges that it faces is to ensure that individuals and groups cannot use refugee claims as a means to circumvent our national immigration policies.[215] When the IRB came into existence, the government programme delivery strategy stated that the removal of non-credible refugee claimants was the law’s "cornerstone".[216] This necessarily involves a balancing, one which Jennifer Bond and David Wiseman discuss when they write that the procedural framework governing Canada's asylum system contains a number of mechanisms aimed at enabling both flexibility and rigour.[217] These considerations also relate to what the Supreme Court of Canada refers to as the importance of maintaining "the dignity of refugee status".[218] The UNHCR refers to similar considerations when it writes that "to preserve the civilian character of asylum, States...need to assess the situation of arrivals carefully so as to identify armed elements and separate them from the civilian refugee population."[219] The Federal Court of Appeal writes that "maintenance of the integrity of the Canadian refugee protection system is a valid purpose to consider, and one which the system requires as a duty to be taken seriously by all concerned."[220]

Section 3(1)(f.1) of the IRPA provides that the objectives of this Act with respect to immigration are...to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system. This is said to be a "sister provision" of s. 3(2)(e).[221]

The objectives of this Act with respect to refugees include the establishment of procedures that will uphold Canada's respect for the human rights and fundamental freedoms of all human beings

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Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees are to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. This can be considered in conjunction with section 3(2)(c) of the IRPA, which provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of "fair consideration", it should be considered in conjunction with s. 3(3)(f) of the IRPA, which provides that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. When considering such human rights instruments, regard may properly be had of the provision of the International Covenant on Civil and Political Rights that provides individuals with extensive rights relating to a fair trial in the determination of a person's "rights and obligations in a suit at law",[222] which, as Macharia-Mokobi argues, may fairly be held to cover refugee status determination procedures.[223] This also reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination ... have agreed as follows: ...[224]

This has implications for the procedures that are used and the evidence that is accepted in them. For example, any statement or evidence obtained as a result of torture is not to be relied on as evidence in any proceeding.[225] In the words of Lord Hoffmann from the UK House of Lords, "The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it."[226] As Justice Blanchard writes, "the admission of such evidence is antithetical to and damages the integrity of the judicial proceedings."[227] For more information on fair procedures for refugee status determination, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

IRPA Section 3(2)(g) - Protecting the health and safety of Canadians and maintaining the security of Canadian society

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Objectives - refugees
(2) The objectives of this Act with respect to refugees are ...
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

This is worded identically to s. 3(1)(h) of the Act

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Section 3(1)(h) of the IRPA is worded identically, stating that "the objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society". That provision was considered in Medovarski v Canada, in which the Supreme Court of Canada noted that "the objectives as expressed in the IRPA indicate an intent to prioritize security":

The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.[228]

This objective is implemented through the grounds of inadmissibility found in ss. 34-42 of the IRPA.[229] Which see: Canadian Refugee Procedure/33-43 - Inadmissibility.

IRPA Section 3(2)(h) - To promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals

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Objectives - refugees
(2) The objectives of this Act with respect to refugees are ...
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

While the IRPA may use terms similar to that of Canada's Criminal Code, they need not be interpreted identically

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In Rana v. Canada, the Federal Court commented that:

[47] More generally, although broadly speaking both the Criminal Code and the IRPA share a concern with public safety and security, they do not “operate in tandem” or function together as parts of a single regulatory scheme, not even with respect to the specific matter of terrorism (cf. Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII) at para 46 [Bell ExpressVu]). They do not deal with the same subject matter in the way that is necessary to engage the principle that statutes in pari materia should be construed together and can be explanatory of one another (cf. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 416-21). As a result, in my view this principle does not justify applying the meaning of “terrorist activity” in the Criminal Code to the term “terrorism” in section 34(1) of the IRPA. I must, therefore, respectfully disagree with my colleague Justice Brown, who relied on this principle in Ali v Canada (Citizenship and Immigration), 2017 FC 182 (CanLII) [Ali], to import the meaning given to “terrorist activity” in the Criminal Code into the IRPA for the purposes of a finding under section 34(1)(f) of the latter (see Ali at paras 42-44; see also Alam at paras 26-28).[230]

The objectives of the Act include promoting international justice and security, and regard may be had to Canada's international obligations thereon

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The objectives of the Act include promoting international justice and security, and regard may be had to Canada's international obligations on those points. For example, the Federal Court has noted that:

Canada has numerous and significant international obligations to combat terrorism, including: International Convention for the Suppression of the Financing of Terrorism, 12 December 1999, UNTS 2178 at 197; International Convention for the Suppression of Terrorist Bombings, 15 December 1997, UNTS 2149 at 256; International Convention against the Taking of Hostages, 17 December 1979 UNTS 1316 at 205; Security Council resolution 1373 (2001) [on threats to international peace and security caused by terrorist acts] (UNSC, 56th Sess, UN Doc S/RES/1373(2001) SC Res 1373); Security Council Resolution 2322 (2016) [on threats to international peace and security caused by terrorist acts], UNSC, 2016, S/RES/2322; Security Council Resolution 2178 (2014) [on addressing the growing issue of foreign terrorist fighters], (UNSC, 69th Sess, UN Doc S/RES/2178 (2014) SC Res 2178)), which form a crucial part of the interpretive context for the IRPA (IRPA, ss 3(1)(i) and 3(2)(h).[231]

IRPA Section 3(3)(b) - This Act is to be applied in a manner that promotes accountability and transparency by enhancing public awareness of immigration and refugee programs

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Application
(3) This Act is to be construed and applied in a manner that
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

It is important that the public perceive the determinations made under the Act as being legitimate

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Section 3(3)(b) of the Act provides that that it is to be construed and applied in a manner that enhances public awareness of immigration and refugee programs. As the Court held in Rezaei, the Board's stakeholders "include not only the claimants who appear before the Board and its Divisions, but also the Canadian public at large, which is served by effective mechanisms for the application of immigration policy.”[232] The Board must seek to maintain the support of both groups of stakeholders. The Supreme Court of Canada has linked preserving "the integrity and legitimacy of the refugee protection system" to "the necessary public support for [the system's] viability".[218] Refugee lawyer David Matas speaks to a policy concern related to this when he states that if the public lacks confidence in the refugee determination system “people will eventually give up all hope in the system. ... [T]hose concerned with protecting refugees will adopt extra-legal rather than legal strategies - a Canadian sanctuary movement is possible”.[233] Refugees pose a problem for the Canadian government quite different from that of other foreigners and it is necessary that decisions on asylum clearly communicate either why an individual should be entitled to stay in Canada or else why they can be returned to their state.[234] This said, it does not appear to be an objective of the refugee system to denounce foreign states.

IRPA Section 3(3)(c) - This Act is to be applied in a manner that facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations, and non-governmental organizations

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Application
(3) This Act is to be construed and applied in a manner that
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

Canada has an obligation to cooperate with the UNHCR and the IRPA should be construed and applied in a manner that facilitates and respects this obligation

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Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and international organizations. This provision of the Act relates to Canada's international obligations. Opinions and interpretations by the UNHCR are of particular interest because of Article 35 of the Refugee Convention, which provides that member states have an obligation to facilitate the duty of UNHCR in supervising the application of the provisions of the Convention. Article 35 of the Refugee Convention and Article 2(1) of the 1967 Protocol stipulate that “[t]he States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol”.[235] Furthermore, the preamble to the Refugee Convention reads:

The High Contracting parties, ... noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner, ... have agreed as follows: ...[224]

Furthermore, UNHCR is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention.[236] As such, statements emanating from the UNHCR, such as those in its handbook, are considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada.[237] The Federal Court of Appeal noted as much in Rahaman v. Canada, holding:

in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.[238]

This holding is consistent with caselaw in Britain that UNHCR’s guidance concerning the interpretation and application of the Refugee Convention “should be accorded considerable weight”.[239] The UK Supreme Court has held that “the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority”.[240]

That said, there is no requirement that panels of the Board expressly mention UNHCR guidelines in their reasons.[241] Furthermore, the UNHCR's supervisory role does not include a mandate to provide an authoritative interpretation of the Refugee Convention.[242] Accordingly, the UNHCR can only issue guidance on the Convention's interpretation. In the words of the Federal Court of Appeal from Jayasekara v Canada, UNHCR’s statements "cannot override the functions of the Court in determining the words of the Convention."[243]

Furthermore, there are also a multitude of pronouncements emanating from the UNHCR, with different levels of persuasiveness. Specifically, English jurisprudence persuasive holds that pronouncements of the UNHCR Executive Committee have been held to warrant greater weight than publications merely penned by UNHCR staff, such as the “Guidelines on International Protection” issued by the UNHCR’s Department of International Protection.[244] That said, even the UNHCR Executive Committee Conclusions are not binding on States, even if they may be instructive in interpreting and applying the 1951 Convention.[242]

Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention

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Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the importance of "burden sharing" and "responsibility sharing" in the refugee regime. It is said that the Refugee Convention is based on two principles: non-refoulement, the rule that asylum seekers cannot be turned away or forced to return to their countries of origin; and responsibility sharing, the idea that member nations should share the costs, labour, and risks of refugee aid.[245] While the first principle is explicitly outlined in the operative clauses of the Convention, the second is implicit in the preamble to the Refugee Convention, which reads:[246]

The High Contracting parties, ... considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, ... have agreed as follows: ...[224]

James Hathaway writes in The Law of Refugee Status that burden sharing was historically one of the core motivations for the Refugee Convention:

... the majority of the states that drafted the Convention sought to create a rights regime conducive to the redistribution of the post-war refugee burden from European shoulders. The Europeans complained that they had been forced to cope with the bulk of the human displacement caused by the Second World War, and that the time had come for all members of the United Nations to contribute to the resettlement of both the remaining war refugees and the influx of refugees from the Soviet bloc. Refugees would be more inclined to move beyond Europe if there were guarantees that their traditional expectations in terms of rights and benefits would be respected abroad. The Convention, then, was designed to create secure conditions such as would facilitate the sharing of the European refugee burden.[247]

Today, most refugees reside not in Europe, but in low-income states; the world’s six richest countries host under 10% of the world’s refugee population, while 80% of the world’s refugee population live in countries neighbouring their own.[248] The majority of these countries are low-income ones, with significant resource and governance challenges of their own.[249] As an example, Canada has welcomed 1,088,015 refugees since 1980[250] through both the resettlement and in-Canada asylum processes. Between 1979 and 2018, a total of 707,421 refugees were resettled to Canada, including 313,401 refugees who came through the private sponsorship program, 385,014 through the Government-Assisted Refugee program, and 9,006 through the Blended Visa Office Referred (BVOR) program.[251] The remainder came through the in-Canada asylum system. All together, these refugee numbers represent about 3% of the current Canadian population. In comparison, Jordan today hosts refugees equivalent to 9% of its current population and Lebanon hosts refugees equivalent to more than 20% of its current population, all with substantially fewer financial resources than Canada has.[252]

Responsibility sharing, as a concept, has been said to refer to the 'sharing' of people, while burden sharing refers to the sharing of financial resources and other costs related to refugees.[253] These principles have a number of implications. First, it is to this end that the UNHCR Executive Committee has encouraged states to continue to promote, where relevant, regional initiatives for refugee protection and durable solutions.[254] The Federal Court has noted that "in principle, international refugee law does not confer upon refugees the right to choose their country of asylum".[255] The Federal Court also notes that international refugee law "does not authorize their irregular movement between successive countries solely in order to benefit from more favourable conditions."[98] The Federal Court has also cited with approval the UNHCR document Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-seekers (2019) which includes a related discussion.[98] One manifestation of this principle in the IRPA is through the responsibility sharing arrangement between the "Five Eyes" countries established by s. 101(c.1) of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim.

All this said, under international law refugees are under no obligation to apply for asylum in any particular state at any specific stage of their flight from danger.[256] Indeed, the 1951 Convention at the time of its adoption was seen as an instrument of responsibility sharing and, to this end, binding obligations upon states were considered a requirement for effective international cooperation, as well as more equal commitments and sharing of responsibility with regard to refugee problems.[257] In this way, in-country asylum systems have come to be seen as durable methods of responsibility sharing. Shauna Labman writes about the comparative "fragility and vulnerability" of state resettlement programs in contrast to asylum when she notes the fact that politicians have more control over resettlement levels than they do asylum numbers, and in fact resettlement programs can simply disappear.[258] See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Canada does not have a binding legal obligation to accept refugees from abroad for resettlement. In contrast, the “non-refoulement” rule has been called "the only binding principle for allocating refugee responsibilities in international law".[259]

While the phrase “asylum shopping” is sometimes used, the Federal Court has noted that this is "not a legal concept and there is no definition of it in international law. ... In practice the phenomenon, to the extent that it exists, rarely involves a choice between competing asylum systems but consists of an attempt by a person fearing serious harm to select the least uncertain among uncertain options."[260]

States should do everything in their power to prevent the problem of refugees from becoming a cause of tension between states

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Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision can be seen to reflect the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, ... have agreed as follows: ...[224]

Relatedly, in 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed toward States. The Declaration states that granting asylum is a peaceful and humanitarian act that cannot be regarded as unfriendly by any other State.[261] Indeed, the modern refugee regime can be seen as one institution that supports the stability of states and their borders in that it provides a mechanism for individuals to be recognized after they cross a border and arguably may thereby reduce calls for borders to be reconfigured to reflect shifting ethnic or political differences.[262]

The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”

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Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Canada’s Senate, in amending relevant bills, has been said to have tried to ensure that the safe third country provisions in the IRPA do not result in “refugees in orbit”, refugees forced to travel from country to country in search of protection.[263] There are different definitions of what this term means.

The classic "refugees in orbit" were the Jews of antiquity, being admitted to many states on a temporary basis, but securing permanent residence in none. In Rabbi W. Gunther Plaut's words, Christian Europe dubbed them "the wandering Jew" and treated them in accordance with what such otherness implied:

Wanderers seemed to be a natural part of the human landscape; they arrived, stayed and often departed. As long as they were "other" and not allowed to integrate, they presented no political danger. They were simply there to be utilized, and could be discarded when they were of no further use. They had no right to permanent settlement and in a sense remained "refugees in orbit".[264]

In this way, refugees in orbit may be those who have been displaced and moving - some constantly, some intermittently - for years, even decades or generations.[265] Audrey Macklin provides a more contemporary example of the "refugees in orbit" concept, stating that a “refugee in orbit” situation is constituted when:

Country A designates country B as a safe third country, thereby entitling country A to refuse to adjudicate the claim of an asylum seeker who arrived in country A via country B. However, in the absence of a readmission agreement, country B may refuse to re-admit the asylum seeker, and send the person to country C, who may in turn bounce the person concerned to country D, and so on.[266]

The phrase and concept of refugees "in orbit" was a common one when the Safe Third Country Agreement provisions were being enacted in Canada's immigration legislation in the 1980s. Specifically, the Standing Senate Committee on Legal and Constitutional Affairs, which examined Bill C-55 in 1988, indicated that they had concerns about the safety involved in the 'safe country' provision of that bill. As Alan Nash describes, it was felt that the bill provided no formal mechanism to examine the fate of people to be returned to the safe third country. Individuals might easily be sent elsewhere by the country, perhaps leading to refoulement and jeopardizing their lives. The Senate Committee therefore proposed an amendment that would have provided for return to a safe third country only if a Refugee Division member and an adjudicator at an inquiry were convinced that the safe country would be willing to receive the claimant or to determine the individual's claim on its merits. In their view, this would have minimized the danger that asylum-seekers would be put "into orbit" or sent to another country.[267] While this recommendation was not accepted, measures were ultimately instituted to prevent this problem. For more details, see Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries, and in particular Article 3 of the Safe Third Country Agreement, which exists to prevent this.

Also of note, Article 33(1) of the Refugee Convention has long been interpreted as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country.[268] See: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention

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Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Grey argues that the claim of an individual seeking refugee protection is addressed not to the country of refuge as such, but to that country as a representative of the international community.[269] In this way, the IRPA should be interpreted in a way that avoids fragmentary jurisprudence which undermines the coherence of the international protection system.[270] Courts in the UK have phrase this obligation thusly: "in principle there can only be one true interpretation of a treaty".[271] As such, decisions from the UK frequently stress that each State "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty".[271] For the same reason, decisions in Canada frequently canvass jurisprudence from other countries when interpreting the meaning of the Refugee Convention and the IRPA.[272] This is appropriate given that, in the words of the Plaut report that preceded the establishment of the IRB, "whether or not a person is a refugee is a question which is not so much one of Canada law; rather, it belongs to the realm of international definition and justice."[273] See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.

The Act should be construed and applied in a manner that facilitates cooperation between the Government of Canada and non-governmental organizations like the College of Immigration and Citizenship Consultants

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Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and non-governmental organizations. Some of the central non-governmental organizations in the Canadian immigration sphere are the College of Immigration and Citizenship Consultants and Canada's provincial law societies. As such, the Board should strive to construe and apply the IRPA in a way that facilitates cooperation with those bodies. Issues of this sort can arise where an individual is providing legal advice for consideration without being a member in good standing of such a body and where a member of such a body is acting beyond their allowed scope of practice. See: Canadian Refugee Procedure/91-91.1 - Representation or Advice#IRPA Sections 91-91.1.

IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and Freedoms

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Application
(3) This Act is to be construed and applied in a manner that
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is high

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The Federal Court of Appeal has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[23] This obligation arises not only from Canada’s domestic administrative law, but also from Canada’s international commitments and obligations. The Refugee Convention provides that the expulsion of a refugee ‘shall be only in pursuance of a decision reached in accordance with due process of law’.[273] In Agiza v. Sweden, the UN Committee against Torture found that article 3 of the CAT carries with it an implicit right to an ‘effective, independent and impartial review of a decision to expel’.[274] The Board's duty of fairness is also said to be heightened when it is dealing with self-represented claimants: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.

That said, while this is the common law rule, the extent of procedural fairness in the refugee process has been set out by provisions of the IRPA in many situations and the court notes that "these statutory requirements govern notwithstanding any common law rule."[275] See: Canadian Refugee Procedure/170 - Proceedings.

Charter issues should generally be raised before the Division

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Under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court.[276] For further discussion on this, see: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

Decisions taken under this Act are to be consistent with the principles of equality and freedom from discrimination

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Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions taken under the Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. This provision tracks the obligation in Article 3 of the Refugee Convention, which provides that the "Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin".[277]

One can observe a transformation over the past century in the nature of international migration, including that it has an increasingly multiethnic and global character. When the 1951 Refugee Convention was being negotiated, it had a primarily European orientation, and the prospect of refugees coming in significant numbers from further afield was thought to be nil. For example, the UK delegate to the conference of plenipotentiaries that negotiated the 1951 Convention, asserted there that "[the risk of European states facing] a vast influx of Arab refugees was too small to be worth taking into account."[278] This thinking about the makeup and source of refugees seeking asylum has shifted dramatically to the point where today it is recognized that most refugees are in low income countries and that individuals claim asylum in Canada against countries throughout the world. Indeed, it can be observed that while “asylum seeker” is not on its face or de jure a racial category, in the contemporary Canadian migration regime, it is a de facto racialized category, comprised largely of non-White persons.[279]

Board Members are to exercise their discretion without discrimination or reliance on stereotype, as doing so, in the words of the Federal Court, “reveals a level of ignorance and prejudice which is not only unusual in general, but is particularly astonishing on the part of a decision maker who is in a position to adjudicate sensitive claims.”[280] See also: Canadian Refugee Procedure/The right to an unbiased decision-maker#Where a member pursues questioning with a discriminatory attitude.

Decisions taken under this Act are to be consistent with the equality of English and French as the official languages of Canada

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Section 3(3)(d) of the Act states that it is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principle of the equality of English and French as the official languages of Canada. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Language of proceedings.

IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments to which Canada is signatory

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Application
(3) This Act is to be construed and applied in a manner that
(f) complies with international human rights instruments to which Canada is signatory.

In general, in Canada legislation should be presumed to conform to international law

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Canada is what is referred to as a "dualist state" in that international law and municipal law are treated as separate spheres of law. As such, in order for international obligations undertaken by the state by way of treaty to form part of the national law, these international law rules have to be transformed into national law rules through the use of enabling legislation.[281] That said, it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.[282] The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.[283] The Supreme Court of Canada articulated this rule in Baker v. Canada when it adopted the following statement from Driedger on the Construction of Statutes:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[284]

International human rights instruments are determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary

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Section 3(3)(f) of the IRPA goes beyond the general principle of statutory interpretation described above. When interpreting any provision of IRPA, account must be had of Canada’s international human rights obligations and provisions should be interpreted in a manner consistent with Canada’s international obligations, where possible. In de Guzman v. Canada the court commented that the words “shall be construed and applied in a manner that complies with …” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of IRPA. By providing that IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary.[285] As Bastarache J. held in Pushpanathan, the "overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place".[286] That said, unambiguous provisions of the IRPA must be given effect even if they are contrary to Canada’s international obligations or international law.[287] Another way of putting this is that the Act is to be interpreted and applied consistently with international instruments to which Canada is signatory, “unless, on the modern approach to statutory interpretation, this is impossible”.[288]

Sharryn Aiken, et. al., write in Immigration and Refugee Law: Cases, Materials, and Commentary that there was considerable excitement in migrant advocacy circles regarding para 3(3)(f) of the IRPA stating that the Act is to be construed in a manner that "complies with international human rights instruments to which Canada is signatory." They note that this provision seemed to provide a potential shortcut for direct access to international human rights principles.[289] However, on the basis of the Federal Court of Appeal's decision de Guzman v. Canada those authors conclude that "The de Guzman decision ensured that para 3(3)(f) is understood to reflect existing Canadian law with respect to international obligations and therefore to be essentially meaningless window dressing that adds nothing new to the interpretive framework for Canadian immigration law."[290]

That said, the courts have held that one of the effects of this provision is to mandate immigration adjudicators to consider relevant international law, including the principle of non-refoulement, regardless of whether or not this has been raised as an argument by the parties.[291]

Regard should be had to international human rights instruments that Canada is signatory to, whether or not Canada has ratified them

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In de Guzman v. Canada the court commented that the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. At international law, an instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement.[292]

Being a signatory to a treaty has a particular meaning in international law, in that it is usually a step prior to a party becoming a party to the treaty. Article 18(a) of the Vienna Convention on the Law of Treaties provides that "A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; ...".[154] That said, it is apparent that the instruments appropriately covered by this provision are not limited to instruments which Canada has signed, but not ratified. The Supreme Court of Canada has noted, for example, that the Refugee Convention itself is among the instruments appropriately referred to by this provision. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee system is inextricably linked with the concept of human rights.

Regard should be had to exactly the obligations that Canada has signed on to where Canada has made reservations or provided interpretative declarations as part of the process of ratifying a treaty. For example, Canada ratified the Convention on the Rights of Persons with Disabilities but made a reservation and interpretative declaration to Article 12 which specifically reserved the right to continue the use of substitute decision-making arrangements “in appropriate circumstances and subject to appropriate and effective safeguards.”[293]

What are the international human rights instruments to which Canada is a signatory?

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As the Federal Court of Appeal has noted, the IRPA "does not list, let alone set out the text of, the measures to which paragraph 3(3)(f) applies."[294] It went on to note that the phrase "international human rights instruments to which Canada is signatory" is "far from self-defining".[294] The Supreme Court of Canada has noted that the Refugee Convention itself is among the instruments appropriately referred to by this provision, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee system is inextricably linked with the concept of human rights.

The Department of Justice provides the following list, International Human Rights Treaties to which Canada is a Party, which may also serve to inform an interpretation of this provision:[295]

  • Convention on the Prevention and Punishment of the Crime of Genocide (1952)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1970)
  • International Covenant on Economic, Social and Cultural Rights (1976)
  • International Covenant on Civil and Political Rights (ICCPR) (1976)
    • Optional Protocol to the ICCPR (complaint mechanism) (1976)
    • Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (2005)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)
    • Optional Protocol to CEDAW (complaint mechanism) (2002)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
  • Convention on the Rights of the Child (CRC) (1991)
    • Optional Protocol to the CRC on the Involvement of Children in armed conflict (2000)
    • Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2005)
  • Convention on the Rights of Persons with Disabilities (2010)
    • Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018)

A number of additional treaties could by added to this list, including:

  • The International Labour Organization Worst Forms of Child Labour Convention (ILO Convention No. 182)
  • The International Labour Organization Minimum Age Convention (ILO Convention No. 138)
  • The Rome Statute of the International Criminal Court
  • The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime
  • The phrase "international human rights instruments" could be taken to include regional instruments in the Inter-American system that Canada has signed. Canada is not a party to the American Convention on Human Rights. Nevertheless, as a member of the Organization of American States, it is bound by the terms of the American Declaration of the Rights and Duties of Man (“American Declaration”).[296] This instrument specifies the fundamental rights to which each person is entitled, and which each member state of the Organization of American States (OAS), like Canada, is bound to uphold. The OAS Charter and the American Declaration are a source of legal obligations applicable to Canada.[297] Canada has also ratified several other inter-American human rights treaties, including the Inter-American Convention on the Granting of Political Rights to Women[298] and the Inter-American Convention on the Granting of Civil Rights to Women.[299]
  • The Geneva Conventions I, II, III, and IV and Protocols I, II, and III may be added to this list, but see the following commentary on international humanitarian law.

Regard may also be had to Canada's United Nations Declaration on the Rights of Indigenous Peoples Act, which affirms "the Declaration as a universal international human rights instrument with application in Canadian law".[300]

One of the rationales for applying the IRPA in a manner that complies with international human rights instruments to which Canada is signatory is that the Minister can examine ‘interim measures requests’ to refrain from removing foreign nationals. Such requests can be issued by the bodies of four international human rights treaties to which Canada is signatory: the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture; the International Covenant on Civil and Political Rights; and the American Declaration of the Rights and Duties of Man.[301]

When attempting to interpret this term, regard may be had of the interpretation that the African Court on Human and Peoples' Rights has given to its constituting protocol, which gives it jurisdiction over the African Charter on Human and Peoples' Rights as well as "any other relevant Human Rights instrument ratified by the states concerned."[302] That court has provided significant interpretation of this similar phrase, including how instruments can have certain provisions that are human rights ones and other provisions that are not human rights ones.

For some of the above Conventions, it is unambiguous that the IRPA is to be interpreted in conformity with provisions of them; the statute includes an excerpt from the Convention against Torture, for instance: Canadian Refugee Procedure/2-3 - Definitions, objectives, and application of the IRPA.

See also the provision of the IRPA regarding non-refoulement and how that concept relates to some of the above instruments: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement#Section 115 of the IRPA prohibits refoulement to persecution for a Convention reason, torture, or cruel and unusual treatment or punishment, subject to exceptions.

This provision may not apply to international humanitarian law instruments and texts which are not signed

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Section 3(3)(f) of the IRPA provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This arguably excludes a number of types of instruments, including:

  • Instruments that are not human rights instruments, but are instead humanitarian law instruments: Canada has signed the Geneva Conventions I, II, III, and IV and Protocols I, II, and III. These may be relevant to refugee determinations. For example, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which at Art. 45, para. 4 prohibits transferring a protected person "to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs."[303] However, this instrument forms part of international humanitarian law, not international human rights law, and thus may be argued not to fall within the ambit of IRPA s. 3(3)(f). For example, the International Law Commission has generally distinguished between the two areas of law.[304]
  • Instruments that are not signed: For example, the 1948 Universal Declaration of Human Rights is not a treaty, but instead an unenforceable, non-binding (yet aspirational) resolution of the United Nations General Assembly.[305] By its terms the Universal Declaration of Human Rights was not designed to describe binding obligations by only a 'common standard of achievement', as stated in the preamble to the declaration.[306] As such, given that this document was not signed, and as such countries cannot be said to be signatories to this declaration, it should not be regarded as one of the instruments contemplated by s. 3(3)(f) of the IRPA.
  • Customary international law: While there are other cannons of interpretation that read Canadian legislation in conformity with customary international law, such an interpretation would appear not to be required by this provision on its own terms. As such, while the UK Supreme Court has observed that "it may be that the principle of non-refoulement forms part of customary international law", that fact, if true, is not in itself germane to this provision of the IRPA.[307] But see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#In general, in Canada legislation should be presumed to conform to international law.

The refugee system is inextricably linked with the concept of human rights

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Section 3(3)(f) of the Act provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. The Supreme Court of Canada has held that the Refugee Convention itself should be considered a “human rights instrument”, within the meaning of s. 3(3)(f) of the Act:

s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory”. There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights.[308] [internal citations omitted]

In addition, the Protocol Relating to the Status of Refugees is also considered to be an international human rights instrument.[309]

This is consistent with the practice of other courts. The preamble to the Convention itself notes that "The High Contracting parties, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... have agreed as follows:".[224] Brennan CJ of the High Court of Australia relied on this preamble when making the following comment about the Refugee Convention: "the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms."[310] In 2018 the Inter-American Court of Human Rights issued an Advisory Opinion entitled “The Institution Of Asylum And Its Recognition As a Human Right In The Inter-American System Of Protection” which concluded that asylum is a human right.[311]

This is also consistent with the practice of the UN High Commissioner for Refugees. UNHCR is said to have adopted this approach that sees the Refugee Convention as a part of human rights law and has pronounced that “the human rights base of the Convention roots it quite directly in the broader framework of human rights instruments of which it is an integral part.”[312] The Commissioner himself has stated:

The issue of human rights and the problems of refugees are so inextricably linked that it is hardly possible to discuss one without referring to the other. Human rights violations are a major cause of refugee flows and also a major obstacle to the solution of refugee problems through voluntary repatriation. More positively, safeguarding human rights is the best way to prevent conditions that force people to become refugees; respect for human rights is a key element in the protection of refugees in the country of asylum; and improved observance of human rights standards is often critical for the solution of refugee problems by enabling refugees to return safely home ...[313]

Furthermore, the weight of academic commentary places the Refugee Convention within the corpus of human rights instruments. McAdam argues that refugee law is a specialized area within human rights law.[314] Similarly, Hathaway argues that refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection. In this way, he states, "refugee rights do not exist as an alternative to, or in competition with, general human rights."[315]

This provision in the IRPA should be read in conjunction with section 3(2)(e) of the IRPA, which provides that the objectives of this Act with respect to refugees including upholding Canada’s respect for the human rights and fundamental freedoms of all human beings. These legislative provisions speak to the way that the plight of refugees is inextricably linked with human rights violations. In the words of refugee lawyer David Matas, “the plight of refugees and human rights violations are not two problems, but different facets of the same problem. Human rights violations are at the root cause of mass exoduses.”[316] See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights.

Finally, the fact that asylum is related to human rights does not preclude it from being a branch of other areas of law; in the words of the UK Supreme Court, asylum can perfectly naturally be regarded as an aspect of immigration law.[317]

References

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  1. ↑ Singh, [1985] 1 SCR 177, at 212.
  2. ↑ Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 5.
  3. ↑ Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para. 117.
  4. ↑ Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10.
  5. ↑ Dow Chemical Canada ULC v Canada, 2024 SCC 23 at para 101.
  6. ↑ Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (CanLII), at para 84, <https://canlii.ca/t/k419v#par84>, retrieved on 2024-06-12.
  7. ↑ R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378 at p 1387.
  8. ↑ Maurice v Priel, 1987 CanLII 207 (SK CA), 46 DLR (4th) 416, per Bayda CJ, at pp. 20-21.
  9. ↑ Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23, [2011] 2 SCR 175 at para. 117.
  10. ↑ Nazifpour v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2007 FCA 35 (CanLII), [2007] 4 FCR 515, at para 20, <https://canlii.ca/t/1qg9c#par20>, retrieved on 2024-05-24.
  11. ↑ Tesfaye v. Canada (Citizenship and Immigration), 2024 FC 2040 (CanLII), at para 41, <https://canlii.ca/t/k8d50#par41>, retrieved on 2024-12-17.
  12. ↑ Júlia Zomignani Barboza, International Protection for Criminals: To Grant or Not to Grant? Lessons from Australia, Belgium, and Canada, International Journal of Refugee Law, 2024, eeae026, https://doi.org/10.1093/ijrl/eeae026, at page 21.
  13. ↑ Canada (Citizenship and Immigration) v Heidari Gezik, 2015 FC 1268 at para 61.
  14. ↑ Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 69.
  15. ↑ Canada (Citizenship and Immigration) v Heidari Gezik, 2015 FC 1268 at para 51.
  16. ↑ Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (CanLII), at para 90, <https://canlii.ca/t/k419v#par90>, retrieved on 2024-06-12.
  17. ↑ Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 27.
  18. ↑ Virani v. Canada (Public Safety and Emergency Preparedness), 2017 FC 1083 (CanLII), at para 9, <https://canlii.ca/t/hp4hx#par9>, retrieved on 2024-03-17.
  19. ↑ Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (CanLII), at para 96, <https://canlii.ca/t/k419v#par96>, retrieved on 2024-06-12.
  20. ↑ Al-Lamy v. Canada (Citizenship and Immigration), 2024 FC 1621, para. 21.
  21. ↑ Immigration and Refugee Board of Canada, Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings, Effective: May 30, 2016, <https://irb.gc.ca/en/legal-policy/policies/Pages/InstRadSpr0516.aspx> (Accessed October 2, 2023), section D.
  22. ↑ United Nations Office of the High Commissioner for Human Rights, Manual on human rights monitoring: Chapter 14 (Protection of victims, witnesses and other cooperating persons),<https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter14-56pp.pdf>, page 8.
  23. ↑ a b Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, para. 53.
  24. ↑ a b S. Ronald Ellis, The Corporate Responsibility of Tribunal Members, Canadian Journal of Administrative Law & Practice, February 2009, 22 Can. J. Admin. L. & Prac. 1, <http://www.ccat-ctac.org/CMFiles/Ron%20Ellis/21.TheCorporateResponsibilityofTribunalMembers.pdf#page15> (Accessed July 25, 2020), page 10.
  25. ↑ Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 64, <https://canlii.ca/t/1n3nx#par64>, retrieved on 2021-07-17.
  26. ↑ Conclusions Adopted by the Executive Committee in the International Protection of Refugees 1975-2009 (Conclusion 1-109). See Conclusion 8 9, <https://www.unhcr.org/en-us/578371524.pdf> (Accessed February 5, 2021).
  27. ↑ a b Immigration and Refugee Board of Canada, Questions and answers: Practice Notice on Procedural Issues, Date modified: 2024-09-09 <https://irb.gc.ca/en/legal-policy/procedures/Pages/rpd-pnpi-qa.aspx>, at question 13.
  28. ↑ Nwankwo v. Canada (Citizenship and Immigration), 2024 FC 1827 (CanLII), at para 32, <https://canlii.ca/t/k7zdl#par32>, retrieved on 2024-12-12.
  29. ↑ Sundaram v. Canada (Minister of Citizenship and Immigration), 2006 FC 291 (CanLII), par. 12, <http://canlii.ca/t/1mr2v#par12>, retrieved on 2020-04-11.
  30. ↑ Law v. Canada (Minister of Citizenship and Immigration) (2007), 2007 FC 1006, 160 A.C.W.S. (3d) 879 at para. 16.
  31. ↑ Ngyuen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17.
  32. ↑ Kerqeli v. Canada (Citizenship and Immigration), 2015 FC 475 (CanLII), at para 13, <https://canlii.ca/t/ghc6p#par13>, retrieved on 2024-12-12.
  33. ↑ Singh v. Canada (Citizenship and Immigration), 2021 FC 810 (CanLII), at para 58, <https://canlii.ca/t/jhcg4#par58>, retrieved on 2022-01-21.
  34. ↑ Canada (Citizenship and Immigration) et al. v. The Canadian Council for Refugees et al., 2021 FCA 72, para. 125.
  35. ↑ Varela v Canada (Citizenship and Immigration), 2017 FC 1157 [Barnes J].
  36. ↑ Alain Pellet, Judicial Settlement of International Disputes, Max Planck Encyclopedia of Public International Law, July 2013, <https://prawo.uni.wroc.pl/sites/default/files/students-resources/law-9780199231690-e54-1.pdf> (Accessed September 30, 2022).
  37. ↑ M.C.I v. Huruglica, 2016 FCA 93 (C.A.F.), para. 74.
  38. ↑ a b c d Immigration and Refugee Board of Canada. Mission, Vision, and Values of the Immigration and Refugee Board, Last updated: 2006 04 20, online <https://web.archive.org/web/20071115151510/http://www.irb-cisr.gc.ca/en/references/legal/rpd/handbook/hbmission_e.htm> (Accessed November 9, 2023).
  39. ↑ 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. 52.
  40. ↑ 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. 36.
  41. ↑ UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  42. ↑ Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230, at para 64, <https://canlii.ca/t/gp31b#par64>, retrieved on 2022-04-22.
  43. ↑ Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 34, <http://canlii.ca/t/gkmz2#par34>, retrieved on 2020-03-11.
  44. ↑ Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 33.
  45. ↑ Guermache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870 (CanLII), at para 4, <https://canlii.ca/t/1j2dt#par4>, retrieved on 2022-10-20.
  46. ↑ Egenti v. Canada (Citizenship and Immigration), 2023 FC 639 (CanLII), at para 20, <https://canlii.ca/t/jxd96#par20>, retrieved on 2023-09-06.
  47. ↑ Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC).
  48. ↑ J. Ramji‐Nogales et al. (eds), Refugee Roulette (2009), p. 125, citing Immigration Litigation Reduction Hearing before the S. Comm. on the Judiciary, 109th Cong. 5–7 (2006) (statement of Hon. John M. Walker, Jr., C.J., US Court of Appeals for the Second Circuit).
  49. ↑ C. Guthrie et al., ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Rev. 1.
  50. ↑ Lopez Aguilar v. Canada (Citizenship and Immigration), 2011 FC 908 (CanLII), at para 5, <https://canlii.ca/t/fn552#par5>, retrieved on 2023-11-02.
  51. ↑ Domantay v. Canada (Citizenship and Immigration), 2008 FC 755.
  52. ↑ X (Re), 2019 CanLII 129885 (CA IRB) at paras. 14 and 25 to 30. Online: http://canlii.ca/t/j59c6
  53. ↑ Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 6.
  54. ↑ Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  55. ↑ Guylas v. Canada (Citizenship and Immigration), 2015 FC 202 (CanLII), para. 39.
  56. ↑ Abi-Mansour v Canada (Passport), 2015 FC 363, and Qita v Immigration Consultants of Canada Regulatory Council, 2020 FC 671.
  57. ↑ Geza v. Canada (Minister of Citizenship and Immigration), [2006] FCJ No 477 at para 1 (CA).
  58. ↑ Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 (CanLII), [2006] 4 FCR 377, para. 56.
  59. ↑ Razburgaj v. Canada (Citizenship and Immigration), 2014 FC 151 (CanLII), par. 19, <http://canlii.ca/t/g34tl#par19>, retrieved on 2020-04-01.
  60. ↑ Singh v. Canada, 1985 1 SCR 177.
  61. ↑ Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  62. ↑ The Lord Chancellor v. Detention Action [2015] EWCA Civ 840 para. 49. Practical difficulties and complexities of the DFT undermined appellants’ rights to participate fully and effectively in their appeal processes, leading to a finding that the system operated too quickly to be considered lawful, and was ‘systemically unfair and unjust’, as discussed in Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  63. ↑ Pillai v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1417, [2002] 3 FC 481.
  64. ↑ Andreoli v. Canada (Minister of Citizenship and Immigration), 2004 FC 1111 (CanLII), para. 16.
  65. ↑ Hamel v. Brunelle and Labonté, 1975 CanLII 1 (SCC), [1977] 1 SCR 147.
  66. ↑ Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 16, <http://canlii.ca/t/gkmz2#par16>, retrieved on 2020-03-11.
  67. ↑ Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 17, <http://canlii.ca/t/gkmz2#par17>, retrieved on 2020-03-11.
  68. ↑ Ahmed v. Canada (Citizenship and Immigration), 2018 FC 1157 (CanLII), para. 44.
  69. ↑ Huseen v Canada (Citizenship and Immigration), 2015 FC 845, para. 36.
  70. ↑ a b Glowacki v. Canada (Citizenship and Immigration), 2021 FC 1453 (CanLII), at para 22, <https://canlii.ca/t/jljcw#par22>, retrieved on 2022-01-06.
  71. ↑ Immigration and Refugee Board of Canada, Refugee Protection Division: Practice Notice on the resumption of in-person hearings, June 23, 2020, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-pn-hearing-resumption.aspx> (Accessed August 1, 2020). This practice notice was revoked following the Covid period on September 9, 2024: <https://irb.gc.ca/en/news/2024/Pages/rpd-pnpi.aspx>.
  72. ↑ Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 328.
  73. ↑ Soares v. Canada (Minister of Citizenship and Immigration), 2007 FC 190, [2007] F.C.J. No. 254 (QL), at para. 22.
  74. ↑ Yu v. Canada (Citizenship and Immigration), 2024 FC 1189 (CanLII), at para 14, <https://canlii.ca/t/k61w7#par14>, retrieved on 2024-08-20.
  75. ↑ Immigration and Refugee Board of Canada, Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, Amended: December 15, 2012, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx#a1> (Accessed February 9, 2020), at section 1.5.
  76. ↑ Hernandez v. Canada (Minister of Citizenship & Immigration), [2010] F.C.J. No. 199, 2010 FC 179 (F.C.), para. 54.
  77. ↑ Khan v. Canada (Citizenship and Immigration), 2022 FC 1330 (CanLII), at para 37, <https://canlii.ca/t/js3dw#par37>, retrieved on 2022-10-20.
  78. ↑ 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.
  79. ↑ R. G. L. Fairweather, Canada's New Refugee Determination System, 27 CAN. Y.B. INT'l L. 295 (1989), page 306.
  80. ↑ W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 17.
  81. ↑ Jaballah (Re), 2010 FC 224 (CanLII), [2011] 3 FCR 155, at para 97, <https://canlii.ca/t/28cx7#par97>, retrieved on 2023-11-09.
  82. ↑ Ayele v. Canada (Minister of Citizenship and Immigration) (2007), 2007 FC 126, 60 Imm. L. R. (3d) 197 at para. 12.
  83. ↑ Aguilar Cedeno, Angel Felipe v. M.C.I. (F.C., no. IMM-2360-21), Norris, April 13, 2023; 2023 FC 537.
  84. ↑ Singh v. Canada (Citizenship and Immigration), 2023 FC 1611 (CanLII), at para 6, <https://canlii.ca/t/k1xgj#par6>, retrieved on 2024-02-09.
  85. ↑ R. v. Kruk, 2024 SCC 7 (CanLII), at para 84, <https://canlii.ca/t/k39g6#par84>, retrieved on 2024-03-14.
  86. ↑ Boulis v. Minister of Manpower and Immigration, 1972 CanLII 4 (SCC), [1974] SCR 875, <https://canlii.ca/t/1nfn8>, retrieved on 2024-05-22, page 885.
  87. ↑ A.B. v. M.C.I. (F.C., no. IMM-5967-19), Pamel, April 28, 2020; 2020 FC 562.
  88. ↑ Amiragova v. Canada (Citizenship and Immigration), 2008 FC 64 (CanLII), at para 17, <https://canlii.ca/t/1w3f0#par17>, retrieved on 2024-01-09.
  89. ↑ Nicholas Alexander Rymal Fraser, Shared Heuristics: How Organizational Culture Shapes Asylum Policy, Department of Political Science, University of Toronto (Canada), ProQuest Dissertations Publishing, 2020, <https://search.proquest.com/openview/f925dea72da7d94141f0f559633da65a/1> (Accessed August 1, 2020), at page 91 of PDF.
  90. ↑ Uppal v. Canada (Minister of Citizenship and Immigration), 2006 FC 1142 (CanLII), par. 16, <https://canlii.ca/t/1pnxv#par16>, retrieved on 2021-07-14.
  91. ↑ 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].
  92. ↑ Chan v. M.E.I., [1995] 3 S.C.R. 593.
  93. ↑ Noga c Canada (Ministre de la citoyenneté et de l’immigration), 2003 CFPI 454 paras 10-12.
  94. ↑ Razzaque v. Canada (Citizenship and Immigration), 2023 FC 420 (CanLII), at para 19, <https://canlii.ca/t/jwdhz#par19>, retrieved on 2024-03-04.
  95. ↑ W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 106.
  96. ↑ Mahjoub (Re), 2010 FC 787 (CanLII), <https://canlii.ca/t/2btjw>, para. 51.
  97. ↑ UN General Assembly, Convention relative au statut des réfugiés, 28 July 1951, available at: https://www.refworld.org/docid/48abd59af.html at Article 31.
  98. ↑ a b c d e Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 26, <http://canlii.ca/t/jc709#par26>.
  99. ↑ Mohammed v. Canada (Citizenship and Immigration), 2024 FC 713 (CanLII), at para 29, <https://canlii.ca/t/k4jc6#par29>, retrieved on 2024-07-03.
  100. ↑ Kante, Abdoulaye v. M.E.I. (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994.
  101. ↑ IRPA s. 69.2(2).
  102. ↑ Barrientos v Canada (Ministre de la Citoyenneté et de l’Immigration), 1997 CanLII 5278.
  103. ↑ a b c Uçaryılmaz, Talya. (2020). The Principle of Good Faith in Public International Law (El principio de buena fe en el Derecho internacional público). Estudios de Deusto. 68.43.10.18543/ed-68(1)-2020pp43-59 <https://dialnet.unirioja.es/servlet/articulo?codigo=7483935> (Accessed July 25, 2020), page 13 of the article.
  104. ↑ Malhi v. Canada (Citizenship and Immigration), 2023 FC 392 (CanLII), at para 19, <https://canlii.ca/t/jwbjd#par19>, retrieved on 2023-06-27.
  105. ↑ a b "Chapter 5 – Relationship to the Administration of Justice | The Law Society of British Columbia". www.lawsociety.bc.ca. Retrieved 2023-05-05.
  106. ↑ Mohammadian v Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), [2000] 3 FC 371, 185 FTR 144.
  107. ↑ a b Ahmed v. Canada (Citizenship and Immigration), 2020 FC 107, at paragraph 34.
  108. ↑ Singh v. Canada, IMM-12081-23, decision dated October 1, 2024, para. 14; Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 20, <http://canlii.ca/t/jc709#par20>, retrieved on 2020-12-21.
  109. ↑ Yang v. Canada (Citizenship and Immigration), 2019 FC 402 (CanLII), par. 40, <https://canlii.ca/t/hzrhk#par40>, retrieved on 2021-04-28.
  110. ↑ Goburdhun v Canada (Minister of Citizenship and Immigration), 2013 FC 971 at paras 28.
  111. ↑ Tahir v. Canada (Citizenship and Immigration), 2021 FC 1202 (CanLII), at para 23, <https://canlii.ca/t/jkd84#par23>, retrieved on 2022-01-26.
  112. ↑ Ganiyu v. Canada (Citizenship and Immigration), 2022 FC 296 (CanLII), at para 10, <https://canlii.ca/t/jmswk#par10>, retrieved on 2022-04-01.
  113. ↑ Andreoli v Canada (Minister of Citizenship and Immigration), 2004 FC 1111 at para 20.
  114. ↑ Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 26, <http://canlii.ca/t/jc9b0#par26>, retrieved on 2021-01-14.
  115. ↑ Khan v Canada (Minister of Citizenship and Immigration), 2005 FC 833 (“Khan”) at para 29, citing Mussa v Canada (Minister of Employment and Immigration), [1994] FCJ No 2047 at para 3.
  116. ↑ Barrientos, Jorge Enrique Valenzuela v.  MCI (no. IMM-2481-96), Noël, June 4, 1997.
  117. ↑ Kaur v. Canada (Citizenship and Immigration), 2024 FC 416 (CanLII), at para 25, <https://canlii.ca/t/k3d36#par25>, retrieved on 2024-03-28.
  118. ↑ Ibrahim v. Canada (Citizenship and Immigration), 2024 FC 497 (CanLII), at para 46, <https://canlii.ca/t/k3trv#par46>, retrieved on 2024-05-03.
  119. ↑ Sainvry v. Canada (Citizenship and Immigration), 2013 FC 468 (CanLII), par. 16, <https://canlii.ca/t/fxbpj#par16>, retrieved on 2021-06-26.
  120. ↑ Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  121. ↑ Oladipupo v. Canada (Public Safety and Emergency Preparedness), 2024 FC 921 (CanLII), at paras 36 and 40, <https://canlii.ca/t/k5thz#par36>, retrieved on 2024-08-27.
  122. ↑ Saifullah v. Canada (Citizenship and Immigration), 2023 FC 1060 (CanLII), at para 35, <https://canlii.ca/t/jzgzf#par35>, retrieved on 2023-09-07.
  123. ↑ Anulur v. Canada (Citizenship and Immigration), 2023 FC 1070 (CanLII), at para 41, <https://canlii.ca/t/jzgzs#par41>, retrieved on 2023-12-28.
  124. ↑ Diakité v. Canada (Immigration, Refugees and Citizenship), 2024 FC 170 (CanLII), at para 50, <https://canlii.ca/t/k2p18#par50>, retrieved on 2024-10-01.
  125. ↑ Satkunanathan v. Canada (Citizenship and Immigration), 2020 FC 470 (CanLII), par. 87, <http://canlii.ca/t/j65bj#par87>, retrieved on 2020-04-17.
  126. ↑ Anulur v. Canada (Citizenship and Immigration), 2023 FC 1070 (CanLII), at para 34, <https://canlii.ca/t/jzgzs#par34>, retrieved on 2023-12-28.
  127. ↑ Mercado v. Canada (Citizenship and Immigration), 2010 FC 289 (CanLII), at para 38, <https://canlii.ca/t/2c4vw#par38>, retrieved on 2024-07-01.
  128. ↑ Richard v. The Attorney General of Canada, 2024 ONSC 3800 (CanLII), at para 411, <https://canlii.ca/t/k5mx6#par411>, retrieved on 2024-07-09.
  129. ↑ Zerihaymanot, Brhane Ghebrihiwet, v. M.C.I. (F.C., no. IMM-3077-21), McHaffie, April 26, 2022; 2022 FC 610.
  130. ↑ Jouzichin v Canada (Minister of Citizenship and Immigration) (1994), 52 ACWS (3d) 157, 1994 CarswellNat 1592.
  131. ↑ Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, Appendix page 2.
  132. ↑ Shirzad v. Canada (Citizenship and Immigration), 2022 FC 89 (CanLII), at para 37, <https://canlii.ca/t/jm412#par37>, retrieved on 2022-07-22.
  133. ↑ Sachdeva v. Canada (Citizenship and Immigration), 2024 FC 1522 (CanLII), at para 34, <https://canlii.ca/t/k71jm#par34>, retrieved on 2024-10-01.
  134. ↑ Diakité v Canada (Citizenship and Immigration), 2024 FC 170 at paragraph 48.
  135. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 27.
  136. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 29.
  137. ↑ a b Catherine Dauvergne, Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context, 2003 41-3 Alberta Law Review 725, 2003 CanLIIDocs 127, <https://canlii.ca/t/2d8f>, retrieved on 2021-06-25 at page 732.
  138. ↑ Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 43.
  139. ↑ Uppal v.  Canada (Minister of Citizenship and Immigration), 2006 FC 1142 (CanLII), par. 13, <https://canlii.ca/t/1pnxv#par13>, retrieved on 2021-07-14.
  140. ↑ a b c Clare Glassco, Before the Sun Comes Up: The Making of Canadian Refugee Policy amidst the Refugee Crisis in Southeast Asia, 1975-1980, April 1, 2020 <https://heartsoffreedom.org/wp-content/uploads/2020/04/Revised-FINAL-April-3-Before-the-Sun-Comes-Up.pdf> (Accessed April 17, 2020), page 14 of the document.
  141. ↑ Donald Galloway, Populism and the failure to acknowledge the human rights of migrants, in Dauvergne, C. (ed), Research handbook on the law and politics of migration, April 2021, ISBN: 9781789902259.
  142. ↑ Hathaway, J. (2005). The Rights of Refugees under International Law. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511614859.
  143. ↑ Colin Yeo, Book review: The Rights of Refugees Under International Law by James Hathaway, April 15 2021, freemovement.org.uk (blog), <https://www.freemovement.org.uk/book-review-the-rights-of-refugees-under-international-law-by-james-hathaway/> (Accessed April 25, 2021).
  144. ↑ Horvath v. Secretary of State for the Home Department, [2000] 3 All ER 577 (UK HL, July 6, 2000), per Lord Hope of Craighead.
  145. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, Preamble 1951 Convention, Alleweldt, at p. 232 (paras. 26-27).
  146. ↑ Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 190.
  147. ↑ Freeman v. Canada (Citizenship and Immigration), 2024 FC 1839 (CanLII), at para 72, <https://canlii.ca/t/k7zf1#par72>, retrieved on 2024-12-07.
  148. ↑ Molly Joeck, Canadian Exclusion Jurisprudence post-Febles, International Journal of Refugee Law, 17 September 2021; Advance Article, https://doi.org/10.1093/ijrl/eeab034, page 30.
  149. ↑ Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 53, 98, and 103, as cited in Martine Valois and Henri Barbeau, The Federal Courts and Immigration and Refugee Law, in Martine Valois, et. al., eds., The Federal Court of Appeal and the Federal Court: 50 Years of History, Toronto: Irwin Law, 2021, at page 316.
  150. ↑ R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53.
  151. ↑ Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (Canada), para. 59.
  152. ↑ Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers, 2024 FCA 69 (CanLII), at para 52, <https://canlii.ca/t/k419v#par52>, retrieved on 2024-04-16.
  153. ↑ Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837 (CanLII), [2016] 1 FCR 407, at para 18, <https://canlii.ca/t/gk8w0#par18>, retrieved on 2024-03-08.
  154. ↑ a b Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entry into force: 27 Jan. 1980).
  155. ↑ Leslie Katz, The Use of the Vienna Convention on the Law of Treaties in the Interpretation of the Refugee Convention and the Refugee Protocol, CanLII Connects, March 27, 2019, <https://canliiconnects.org/en/commentaries/66071> (Accessed August 28, 2020).
  156. ↑ Hathaway, J. (2005). International law as a source of refugee rights. In The Rights of Refugees under International Law (pp. 15-74). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511614859.002.
  157. ↑ Kasikili/Seduda Island (Botswana v. Namibia), Preliminary Objections, [1996] ICJ Rep 803, at 812.
  158. ↑ M. Lennard, ‘‘Navigating by the Stars: Interpreting the WTO Agreements,’’ (2002) 5 Journal of International Economic Law 17 (Lennard, ‘‘Navigating by the Stars’’), at 17–18.
  159. ↑ I. Sinclair, The Vienna Convention and the Law of Treaties (1984) at 153.
  160. ↑ Attorney-General v Zaoui and Inspector-General of Intelligence and Security [2006] 1 NCLR 289 (Supreme Court of New Zealand) at para. 24
  161. ↑ European Roma Rights Centre & Ors, R (on the application of ) v Immigration Officer at Prague Airport & Anor [2004] UKHL 55 (UK House of Lords) at para. 18 (per Lord Bingham), at para. 43 (per Lord Steyn), at para. 63 (per Lord Hope).
  162. ↑ Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, par. 52, <http://canlii.ca/t/1fqs6#par52>, retrieved on 2020-11-28.
  163. ↑ The terms of the Refugee Convention are to be interpreted pursuant to the principles set out at arts 31–32 of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Can TS 1980 No 37 as noted in Joshua Blum, When Law Forgets: Coherence and Memory in the Determination of Stateless Palestinian Refugee Claims in Canada, International Journal of Refugee Law, eeaa019, https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeaa019.
  164. ↑ Uçaryılmaz, Talya. (2020). The Principle of Good Faith in Public International Law (El principio de buena fe en el Derecho internacional público). Estudios de Deusto. 68.43.10.18543/ed-68(1)-2020pp43-59 <https://dialnet.unirioja.es/servlet/articulo?codigo=7483935> (Accessed July 25, 2020), page 15 of the article.
  165. ↑ a b R v. Immigration Officer at Prague Airport, ex parte Roma Rights Centre, [2004] UKHL 5, [2005] 2 AC 1 (UK).
  166. ↑ Mwano v. Canada (Citizenship and Immigration), 2020 FC 792, para. 23 <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/485650/index.do>.
  167. ↑ Tristan Harley, Refugee Participation Revisited: The Contributions of Refugees to Early International Refugee Law and Policy, Refugee Survey Quarterly, 28 November 2020, https://doi.org/10.1093/rsq/hdaa040, at page 4.
  168. ↑ Adan v Secretary of State for the Home Department, [1999] 1 AC 293.
  169. ↑ Michelle Foster, "A Human Rights Framework for Interpreting the Refugee Convention" in Michelle Foster, International Refugee Law and Socio-Economic Rights: Refugee from Deprivation (Cambridge: Cambridge University Press, 2007).
  170. ↑ Németh v. Canada (Justice), 2010 SCC 56 (CanLII), [2010] 3 SCR 281, par. 33, <http://canlii.ca/t/2djll#par33>, retrieved on 2020-12-19.
  171. ↑ Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, para. 32.
  172. ↑ Canada (Attorney-General) v. Ward, [1993] 2 SCR 689.
  173. ↑ Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Australia), 231 (Brennan CJ).
  174. ↑ a b Foster, M., International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (2007), p. 44, as cited in Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) at page 92.
  175. ↑ Jones, M., & Houle, F. (2008). Building a Better Refugee Status Determination System. Refuge: Canada’s Journal on Refugees, 25(2), 3-11. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26027, page 3.
  176. ↑ Jones, M., & Houle, F. (2008). Building a Better Refugee Status Determination System. Refuge: Canada’s Journal on Refugees, 25(2), 3-11. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26027, page 4.
  177. ↑ Uçaryılmaz, Talya. (2020). The Principle of Good Faith in Public International Law (El principio de buena fe en el Derecho internacional público). Estudios de Deusto. 68.43.10.18543/ed-68(1)-2020pp43-59 <https://dialnet.unirioja.es/servlet/articulo?codigo=7483935> (Accessed July 25, 2020), page 11 of the article.
  178. ↑ ICJ. LaGrand, Judgment, ICJ Reports (2001), pp. 497-498, paras. 89-91.
  179. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp, £260 hb. ISBN 978-0-19-954251-2, at p. 1100.
  180. ↑ 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.
  181. ↑ 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
  182. ↑ “Ministerial Communiqué,” UN Doc. HCR/MIN/COMMS/2011/16, Dec. 8, 2011, at [2], as cited in James C. Hathaway, The Rights of Refugees under International Law, April 2021, ISBN: 9781108810913, <https://assets.cambridge.org/97811084/95899/excerpt/9781108495899_excerpt.pdf> (Accessed March 6, 2021), at page 9.
  183. ↑ Sepet (FC) and Another (FC) v. Secretary of State for the Home Department, [2003] UKHL 15, United Kingdom: House of Lords (Judicial Committee), 20 March 2003, available at: https://www.refworld.org/cases,GBR_HL,3e92d4a44.html [accessed 26 December 2020].
  184. ↑ Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (Canada), para. 87.
  185. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, at p. 103 (para. 84).
  186. ↑ Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 5.
  187. ↑ Hathaway, J. (2005). The Rights of Refugees under International Law. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511614859 at page 161.
  188. ↑ Adamu Umaru Shehu, Understanding the Legal Rights of Refugee, Migrants, and Asylum Seekers Under International Law, Journal of Conflict Resolution and Social Issues, Vol 1 No 2 (2021) <http://journal.fudutsinma.edu.ng/index.php/JCORSI/article/viewFile/1824/1275> (Accessed February 13, 2021), pages 40-41.
  189. ↑ Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712 at page 16.
  190. ↑ Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf> (Accessed July 10, 2021), page 332.
  191. ↑ Canadian Bill of Rights, SC 1960, c 44, s 2, <http://canlii.ca/t/7vnh#sec2>, retrieved on 2020-12-22.
  192. ↑ W. Gunther Plaut, Asylum: A Moral Dilemma, Westport, Conn.: Praeger, 1995, page 124.
  193. ↑ W. Gunther Plaut, Asylum: A Moral Dilemma, Westport, Conn.: Praeger, 1995, page 140.
  194. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, at p. 40 (para. 2).
  195. ↑ Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 198.
  196. ↑ Gaspard v Canada (Citizenship and Immigration), 2010 FC 29, paras. 15-16.
  197. ↑ Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 21, <http://canlii.ca/t/jc709#par21>, retrieved on 2020-12-21.
  198. ↑ Brid Ni Ghrainne, Internally displaced persons and international refugee law, in Satvinder S. Juss, Research Handbook on International Refugee Law, 2019. Edward Elgar Publishing: Northampton, Massachusetts, page 34.
  199. ↑ Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 38.
  200. ↑ Agier, Michel. 2008. On the Margins of the World: The Refugee Experience Today. Cambridge: Polity Press.
  201. ↑ R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741 at p. 747, as cited in Maslej v. Minister of Manpower and Immigration, 1976 CanLII 2309 (FCA), [1977] 1 FC 194, <https://canlii.ca/t/jqtbs>, retrieved on 2023-09-29.
  202. ↑ Hathaway, J. (2021). The Rights of Refugees under International Law. Cambridge: Cambridge University Press. 2nd Ed. Page 21.
  203. ↑ Seth v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 348 (C.A.).
  204. ↑ Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 48.
  205. ↑ Hryniak v Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87, para. 28, as cited in Ejere v. Canada (Citizenship and Immigration), 2016 FC 749 (CanLII), at para 7, <https://canlii.ca/t/gspj8#par7>, retrieved on 2024-03-23.
  206. ↑ Neil Yeates, Report of the Independent Review of the Immigration and Refugee Board, Government of Canada, April 10, 2018, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/irb-report-en.pdf> (Accessed April 27, 2020), page 13.
  207. ↑ Canada (Citoyenneté et Immigration) c. Tavares Carrera, 2024 CF 1224 (CanLII), au para 13, <https://canlii.ca/t/k64rc#par13>, consulté le 2024-08-19.
  208. ↑ X (Re), 2020 CanLII 101305 (CA IRB), par. 70, <http://canlii.ca/t/jc74v#par70>, retrieved on 2020-12-21.
  209. ↑ Singh v. Canada (Citizenship and Immigration), 2015 FC 1415 (CanLII), [2016] 3 FCR 248, at paras 32-33, <https://canlii.ca/t/gn1jt#par32>, retrieved on 2024-07-29.
  210. ↑ Iqbal, Muhammad v. Canada (Minister of Citizenship and Immigration), (F.C.T.D., no. IMM-4207-93), Muldoon, May 7, 1996. Reported: Iqbal v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 179 (F.C.T.D.).
  211. ↑ United Nations Office of the High Commissioner for Human Rights, Manual on human rights monitoring: Chapter 11 (Interviewing),<https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter11-MHRM.pdf>, page 23.
  212. ↑ Troper, Harold,  "Immigration in Canada". In The Canadian Encyclopedia. Historica Canada. Article published April 22, 2013; Last Edited September 19, 2017. https://www.thecanadianencyclopedia.ca/en/article/immigration
  213. ↑ a b Oakland Ross, "Canada Is Conned into Taking Rebels; Colombians Given Refugee Status; Bogota Arrests 3 Civil Servants," Toronto Star (8 September 2004), A1, as cited in Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 139.
  214. ↑ Francisco Rico Martinez, "The Future of Colombian Refugees in Canada: Are We Being Equitable?" (2011), 35-36, online: Canadian Council for Refugees <http://ccrweb.ca/files/ccr_colombia_report_2011.pdf>.
  215. ↑ Government of Canada, Refugee Determination: What it is and how it works, Pamphlet, 1989, Immigration and Refugee Board, page 3.
  216. ↑ David Matas, Closing the Doors: The Failure of Refugee Protection, 1989, Summerhill Press, Toronto, ISBN 0-920197-81-7, page 143.
  217. ↑ Jennifer Bond & David Wiseman, Imperfect Evidence and Uncertain Justice: An Exploratory Study of Access to Justice Issues in Canada's Asylum System, 53 U.B.C. L. Rev. 1 (2020), page 19.
  218. ↑ a b Febles v Canada (Citizenship and Immigration), 2014 SCC 68 [2014] 2 FCR 224.
  219. ↑ National Documentation Package, Sudan, 28 March 2024, tab 14.8: ​UNHCR Position on Returns to Sudan​. United Nations High Commissioner for Refugees. May 2023.
  220. ↑ Azizi v. Canada (Minister of Citizenship and Immigration), 2005 FCA 406.
  221. ↑ Tesfaye v. Canada (Citizenship and Immigration), 2024 FC 2040 (CanLII), at para 64, <https://canlii.ca/t/k8d50#par64>, retrieved on 2024-12-17.
  222. ↑ UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 6 February 2021], Article 14.
  223. ↑ E Macharia-Mokobi, J Pfumorodze, Advancing refugee protection in Botswana through improved refugee status determination, African Human Rights Law Journal 13 (1), 01-26, <http://www.scielo.org.za/scielo.php?pid=S1996-20962013000100008&script=sci_arttext&tlng=es> (Accessed February 5, 2021), page 162.
  224. ↑ a b c d e UNHCR, Convention and Protocol Relating to the Status of Refugees, Document dated December 2010 <https://www.unhcr.org/3b66c2aa10> (Accessed August 30, 2020), at page 13 of the document.
  225. ↑ Wong v. Canada (Citizenship and Immigration), 2024 FC 862 (CanLII), at para 37, <https://canlii.ca/t/k53vz#par37>, retrieved on 2024-07-18.
  226. ↑ A & Ors v. Secretary of State for the Home Department, [2005] UKHL 71, at para. 82, as cited in Mahjoub (Re), 2010 FC 787 (CanLII), <https://canlii.ca/t/2btjw>, at page 4.
  227. ↑ Mahjoub (Re), 2010 FC 787 (CanLII), <https://canlii.ca/t/2btjw>, para. 66.
  228. ↑ Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 (CanLII), [2005] 2 SCR 539, par. 10, <http://canlii.ca/t/1lpk5#par10>, retrieved on 2020-12-25.
  229. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 408.
  230. ↑ Rana v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1080, para. 47.
  231. ↑ Talukder v. Canada (Public Safety and Emergency Preparedness), 2024 FC 1489 (CanLII), at para 73, <https://canlii.ca/t/k6zb1#par73>, retrieved on 2024-09-24.
  232. ↑ Rezaei v. Canada (Minister of Citizenship and Immigration), [2003] 3 FC 421 (TD), para. 70.
  233. ↑ David Matas and Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 146.
  234. ↑ Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 7.
  235. ↑ United Nations General Assembly. (1967). “Protocol Relating to the Status of Refugees.” United Nations Treaty Series, Volume 606, Page 267.
  236. ↑ See the Statute of the Office of the United Nations High Commissioner for Refugees, annexed to UN General Assembly Resolution 428(V), 14 December 1950.
  237. ↑ 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).
  238. ↑ Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002), per. Evan’s J.A.
  239. ↑ Al-Sirri v Secretary of State for the Home Department, [2012] UKSC 54; [2013] 1 AC 745, para 36.
  240. ↑ IA (Iran) v Secretary of State for the Home Department, [2014] UKSC 6; [2014] 1 WLR 384, para 44.
  241. ↑ Singh v. Canada (Citizenship and Immigration), 2021 FC 1410 (CanLII), at para 34, <https://canlii.ca/t/jlcdb#par34>, retrieved on 2022-08-02.
  242. ↑ a b Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) at page 79.
  243. ↑ Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, at para. 39.
  244. ↑ Secretary of State for the Home Department v. MA (Somalia), [2018] EWCA Civ 994 (Eng. CA, May 2, 2018).
  245. ↑ Mai-Linh K. Hong (2020) Navigating the Global Refugee Regime: Law, Myth, Story, Amerasia Journal, DOI: 10.1080/00447471.2020.1776571, page 3.
  246. ↑ Srobana Bhattacharya, Bidisha Biswas, International Norms of Asylum and Burden-Sharing: A Case Study of Bangladesh and the Rohingya Refugee Population, Journal of Refugee Studies, 22 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa122 at page 3.
  247. ↑ James C Hathaway, The Law of Refugee Status, Markham, Ont: Butterworths, 1991, at 6-11.
  248. ↑ Srobana Bhattacharya, Bidisha Biswas, International Norms of Asylum and Burden-Sharing: A Case Study of Bangladesh and the Rohingya Refugee Population, Journal of Refugee Studies, 22 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa122 at page 4.
  249. ↑ Srobana Bhattacharya, Bidisha Biswas, International Norms of Asylum and Burden-Sharing: A Case Study of Bangladesh and the Rohingya Refugee Population, Journal of Refugee Studies, 22 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa122 at page 2.
  250. ↑ UNHCR Canada, Refugees in Canada, Data to 2017 <https://www.unhcr.ca/in-canada/refugees-in-canada/> (Accessed December 26, 2020).
  251. ↑ Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf> (Accessed July 10, 2021), page 155.
  252. ↑ World Bank, Refugee population by country or territory of asylum, 2019 <https://data.worldbank.org/indicator/SM.POP.REFG> (Accessed December 26, 2020).
  253. ↑ Julian M. Lehmann, At the crossroads: The 1951 Geneva Convention today, in Satvinder S. Juss, Research Handbook on International Refugee Law, 2019. Edward Elgar Publishing: Northampton, Massachusetts, page 9.
  254. ↑ UNHCR Executive Committee Conclusion N° 81(k), 1997.
  255. ↑ Mohamed v Canada (Citizenship and Immigration), 1997 CanLII 16302 (FC), 127 FTR 241 at 4.
  256. ↑ Idil Atak, Zainab Abu Alrob, Claire Ellis, Expanding refugee ineligibility: Canada’s response to secondary refugee movements, Journal of Refugee Studies, 14 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa103 at page 13.
  257. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp, £260 hb. ISBN 978-0-19-954251-2, at p. 40 (para. 1).
  258. ↑ Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 46.
  259. ↑ Philipp Lutz, Anna Stünzi, Stefan Manser-Egli, Responsibility-Sharing in Refugee Protection: Lessons from Climate Governance, International Studies Quarterly, 25 February 2021, https://doi.org/10.1093/isq/sqab016
  260. ↑ Freeman v. Canada (Citizenship and Immigration), 2024 FC 1839 (CanLII), at para 62, <https://canlii.ca/t/k7zf1#par62>, retrieved on 2024-12-07.
  261. ↑ UNHCR and Inter-Parliamentary Union, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020), page 15.
  262. ↑ Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 137.
  263. ↑ David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 161.
  264. ↑ W. Gunther Plaut, Asylum: A Moral Dilemma, Westport, Conn.: Praeger, 1995, pages 44-45.
  265. ↑ Siobhán McGuirk, Adrienne Pine, eds., Asylum for Sale: Profit and Protest in the Migration Industry, PM Press: 2020, ISBN: 9781629637822, page 2.
  266. ↑ Audrey Macklin, “Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement” (2005) 36 Colum HRL Rev 365 at 373-74.
  267. ↑ Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 56.
  268. ↑ R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 532.
  269. ↑ Colin Grey, Cosmopolitan Pariahs: The Moral Rationale for Exclusion under Article 1F, International Journal of Refugee Law, 2024, eeae025, https://doi.org/10.1093/ijrl/eeae025
  270. ↑ Mathilde Crepin, The Notion of Persecution in the 1951 Convention Relating to the Status of Refugees and its Relevance for the Protection Needs of Refugees in the 21st Century, Dissertation, King’s College London, 2019, <https://kclpure.kcl.ac.uk/portal/> (Accessed August 1, 2020), at page 70 of document’s pagination.
  271. ↑ a b R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 516 (Lord Steyn).
  272. ↑ See, e.g., Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, paras. 69-77, <http://canlii.ca/t/fzq5z#par69>, retrieved on 2020-12-19.
  273. ↑ a b Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), Article 32.
  274. ↑ UN doc CAT/C/34/D/233/2003 (20 May 2005).
  275. ↑ Mohammed v. Canada (Citizenship and Immigration), 2024 FC 713 (CanLII), at para 28, <https://canlii.ca/t/k4jc6#par28>, retrieved on 2024-07-03.
  276. ↑ 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. 86.
  277. ↑ UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 25 April 2021].
  278. ↑ Krause, U. Colonial roots of the 1951 Refugee Convention and its effects on the global refugee regime. J Int Relat Dev (2021). https://doi.org/10.1057/s41268-020-00205-9 at page 17.
  279. ↑ Achiume, E. Tendayi. “Digital Racial Borders.” AJIL Unbound, vol. 115, 2021, pp. 333–338., doi:10.1017/aju.2021.52.
  280. ↑ Herrera v. Canada (Minister of Citizenship and Immigration), 2005 FC 1233.
  281. ↑ Statement applies mutatis mutandis to Canada, and is derived from E Macharia-Mokobi, J Pfumorodze, Advancing refugee protection in Botswana through improved refugee status determination, African Human Rights Law Journal 13 (1), 01-26, <http://www.scielo.org.za/scielo.php?pid=S1996-20962013000100008&script=sci_arttext&tlng=es> (Accessed February 5, 2021), page 166.
  282. ↑ R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, par. 53, <http://canlii.ca/t/1rq5n#par53>, retrieved on 2020-09-03.
  283. ↑ R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422.
  284. ↑ Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, par. 70, <http://canlii.ca/t/1fqlk#par70>, retrieved on 2020-12-22.
  285. ↑ De Guzman v. Canada (Minister of Citizenship & Immigration), [2005] F.C.J. No. 2119 at para. 75 (F.C.A.).
  286. ↑ Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (Supreme Court of Canada).
  287. ↑ Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35.
  288. ↑ Freeman v. Canada (Citizenship and Immigration), 2024 FC 1839 (CanLII), at para 26, <https://canlii.ca/t/k7zf1#par26>, retrieved on 2024-12-07.
  289. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 307.
  290. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 309.
  291. ↑ Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (CanLII), at para 52, <https://canlii.ca/t/k419v#par52>, retrieved on 2024-06-12.
  292. ↑ De Guzman v. Canada (Minister of Citizenship & Immigration), [2005] F.C.J. No. 2119 at para. 76 (F.C.A.).
  293. ↑ United Nations Treaty Series, “15. Convention on the Rights of Persons with Disabilities,” vol. 2515, https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-15.en.pdf (accessed May 15, 2021), p. 4. Canada specifically reserved the right to continue the use of substitute decision-making arrangements “in appropriate circumstances and subject to appropriate and effective safeguards.”.
  294. ↑ a b de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII), [2006] 3 FCR 655, par. 58, <http://canlii.ca/t/1m8q8#par58>, retrieved on 2020-12-22.
  295. ↑ Government of Canada Department of Justice, International Human Rights Treaties to which Canada is a Party, Date modified: 2019-07-30, <https://www.justice.gc.ca/eng/abt-apd/icg-gci/ihrl-didp/tcp.html> (Accessed April 17, 2020).
  296. ↑ Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 320.
  297. ↑ IACtHR, Advisory Opinion OC-10/89 of July 14, 1989, "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A No. 10, paras. 45-46.
  298. ↑ Inter-American Convention on the Granting of Political Rights to Women (A-44), 2 May 1948, Can TS 1991 No 29, OASTS No 3 (entered into force 29 December 1954).
  299. ↑ Inter-American Convention on the Granting of Civil Rights to Women (A-45), 2 May 1948, Can TS 1991 No 30, OASTS No 23 (entered into force in Canada 23 October 1991).
  300. ↑ United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, s 4, <https://canlii.ca/t/b9q3#sec4>, retrieved on 2024-03-29.
  301. ↑ Ahouga, Y. (2024) “Legal and Policy Infrastructures of Returns in Canada. WP2 Country Dossier” in GAPs: De-centring the Study of Migrant Returns and Readmission Policies in Europe and Beyond. DOI: 10.5281/zenodo.10836598, page 16.
  302. ↑ African Union, Protocol to the African Charter on Human And Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, June 10, 1998, <https://au.int/sites/default/files/treaties/36393-treaty-0019_-_protocol_to_the_african_charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_court_on_human_and_peoples_rights_e.pdf>.
  303. ↑ UNHCR, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020), page 14.
  304. ↑ International Law Commission, Draft articles on the effects of armed conflicts on treaties, with commentaries, 2011, <https://legal.un.org/ilc/texts/instruments/english/commentaries/1_10_2011.pdf>, at annex (page 2).
  305. ↑ UNGA Res. 217A(III), adopted Dec. 10, 1948
  306. ↑ The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, Preamble 1951 Convention, by Alleweldt, at p. 232 (para. 28).
  307. ↑ R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent), [2023] UKSC 42, <https://www.supremecourt.uk/cases/docs/uksc-2023-0093-etc-judgment.pdf>, para. 25.
  308. ↑ B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 (CanLII), [2015] 3 SCR 704, par. 49, <https://canlii.ca/t/gm8wn#par49>, retrieved on 2021-04-25.
  309. ↑ Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (CanLII), at para 54, <https://canlii.ca/t/k419v#par54>, retrieved on 2024-06-12.
  310. ↑ Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 231–232 (per Brennan CJ).
  311. ↑ Advisory Opinion OC-25/18, as cited in Esraa Adnan Fangary, A Peculiar Leap in the Protection of Asylum Seekers: The Inter-American Court of Human Rights' Jurisprudence on the Protection of Asylum Seekers, The Age of Human Rights Journal, 16 (June 2021) pp. 31-53 ISSN: 2340-9592 DOI: 10.17561/tahrj.v16.6134 at page 35.
  312. ↑ Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press,  2014. Print.
  313. ↑ Address of United Nations High Commissioner for Refugees Sadako Ogata to the UN Commission on Human Rights, 1993, as cited in W. Gunther Plaut, Asylum: A Moral Dilemma, Westport, Conn.: Praeger, 1995, page 88.
  314. ↑ McAdam, J. 2010. Status anxiety: Complementary protection and the rights of non-convention refugees. University of New South Wales Faculty of Law Research Series, working paper 1, University of New South Wales, Sydney.
  315. ↑ Hathaway, James C. The Rights of Refugees under International Law. 2nd ed., Cambridge University Press, 2021, page 10.
  316. ↑ David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 274.
  317. ↑ R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent), [2023] UKSC 42, <https://www.supremecourt.uk/cases/docs/uksc-2023-0093-etc-judgment.pdf>, para. 133.
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