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No One Is Illegal

The No One is Illegal campaign is in full confrontation with Canadian colonial border policies, denouncing and taking action to combat racial profiling of immigrants and refugees, detention and deportation policies, and wage-slave conditions of migrant workers and non-status people.

We struggle for the right for our communities to maintain their livelihoods and resist war, occupation and displacement, while building alliances and supporting indigenous sisters and brothers also fighting theft of land and displacement.

contact NOII-Van:
email: noii-van@resist.ca
tel: 604-682-3269 +7149

 
 

 

Canadian Law AND INTERNATIONAL obligations

Canada has an obligation to grant protection to refugees and other persons in need of protection under a number of United Nations Conventions including The 1951 Convention Relating to the Status of Refugees, The 1966 International Covenant on Civil and Political Rights, and the 1984 Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment.

In particular the Universal Declaration on Human Rights, Article 14(1) states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

Section 3(2)(a) of the Objectives of the Immigration and Refugee Protection Act states that “The refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted” while 3(2)(b) of the Act states that one objective of the Act is to “affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement.”

In determining what is considered persecution, the Supreme Court of Canada stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R 689, 103 D.L.R. (4th) 1, 20 Imm. L.R (2d) 85: “Underlying the Convention is the international’s community’s commitment to the assurance of basic human rights without discrimination.”

Many IRB members are not abiding by stated IRB objectives and Canadian refugee law by ruling that, for example, refugee claimants are not more at risk than others in similar situations in their country and thus are not in need of protection. Another common ground for rejection at the IRB is that a claimant has not demonstrated personal persecution or targeting although they have established a well-founded fear of persecution for reasons of race, religion, nationality, or membership in a particular social group or political opinion.

In Salibian v. Canada (Minister of Employment and Immigration); [1990] 3 F.C. 250 (C.A), the Court states “The applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future” (Paragraph 17). Furthermore, Decary, JA.goes on to reiterate that:

The best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore the issue is not whether the claimant is more at risk than anyone else in her country, but whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political stats, then she is properly considered to be a Convention Refugee. (Paragraph 18)

In Rizkhallah, Bader Fouad v. M.E.I (F.C.A., no A 606-90), the Court confirms that “The refugee claimants must establish a link between themselves and persecution for a Convention reason; they must be targeted for persecution in some way, either personally or collectively.”

IRB judges have used extreme subjectivity and arbitrariness when deciding whether certain refugees face individual or collective persecution, despite human rights reports by Amnesty International, Human Rights Watch and the IRB’s own departmental research and reports that verifies the situation that refugees are claiming. Strikingly similar cases, for example two brothers, have received different outcomes.

Another reason for rejection is credibility, even when sufficient and acceptable documents were provided. One such example is of a Palestinian refugee who provided passports, West Bank bridge-passing card, an UNRWA registration, and letters from the Jordanian army stating he was Palestinian, yet the IRB judge ruled that he was Jordanian and not Palestinian, drawing an inference that cannot be supported in light of the documents produced.

When there are minor inconsistencies regarding specific events that date back to several years and inconsistencies that arise from language barriers, Canadian law in Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 (F.C.A) is clear that “the Board should afford the claimant or any other witness an opportunity to clarify the evidence and to explain apparent contradictions or inconsistencies within that person’s testimony.”

Furthermore, to expect a refugee to remember the exact date upon which she was beaten or tortured or fled is clearly insensitive as it ignores the trauma of the event and the essence of the claim itself. In Khawaja, Mohammad Rehan v. M.C.I. (F.C.T.D., 1999, no IMM- 5385-98), Denault J. provided a comprehensive account of the jurisdiction of the then Convention Refugee Determination Division (now the Refugee Protection Decision) in an account of credibility findings. It is now was well established that:  “The claimant’s psychological condition arising out of traumatic past experience may have an impact on his or her ability to testify. Accordingly, failure to address this factor in its reasons could be a reviewable error where the IRB member has found the claimant not to be credible.”

All these factors are not merely abstract concepts. Ultimately, refugees leave their hearing feeling vulnerable and guilty until proven innocent and the decisions rendered have life-threatening consequences for thousands of asylum-seekers.