Credible Persecution: How Refugee Claims are Decided in Canada

refugees welcome

With the escalation of the conflict in Syria, the developed world has faced increasing pressure to accept the ensuing refugees. Prime Minister Justin Trudeau has used the refugee crisis as an opportunity to reestablish Canada’s reputation as a country of compassion and generosity, a reputation that faltered under Stephen Harper.

The Liberal government pledged to accept twenty five thousand Syrian refugees by February 2016. All of Canada watched as our Prime Minister greeted some of them at the airport with coats.

Though a poll conducted for Global News claimed that fifty four percent of Canadians support the federal government’s plan, there have been concerns about the toll refugees will take on our country’s already overstretched health and social services and the security risk new arrivals will bring.

Canada’s refugee system is governed by the Immigration and Refugee Protection Act (IRPA), the , and the UN Convention against Torture. These rules set parameters with regards to who can claim asylum in Canada and for what reasons. According to the IRPA, if a person has a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group, they can apply for asylum in Canada.

Though neither the IRPA nor the Convention on the Status of Refugees mention gender or LGBTI status directly as a basis for an asylum claim, asylum has been granted by the Immigration and Refugee Board of Canada on such grounds as lawmakers interpret “a particular social group” as including them. The Trudeau government has even gone insofar as to specify that women and LGBTI people (which includes lesbian, gay, bisexual, transgender, and intersex people) will be considered as low security, vulnerable refugees along with complete families and will be prioritized under Canada’s plan.

The cost of an asylum application is free. Processing of claims generally takes about two months, though there are exceptions. If you come from a country Canada considers safe such as Mexico, you can get a hearing with the Immigration and Refugee Board in as little as one month.

trudeau refugees

Refugees are meticulously screened to make sure they don’t pose a security risk, and anyone found to have violated human or international rights and/or been convicted of a crime that in Canada would result in a sentence of ten years or more is considered inadmissible.

They are also required to provide proof of a medical exam. If the exam shows that their condition would put Canadians at risk and/or make them an undue burden on the health care system, they risk the denial of their application.

According to Émilie Le Huy, a Montreal based attorney who occasionally handles refugee cases, refugee claims are decided on the basis of four criteria:

  1. The personal credibility of the claimant, which will be established by an interview with immigration officials, and through the examination of all previous declarations made at the border or airport. In addition, claimants have to provide proof of identity, and failure to do so could result in their being detained until their identity can be confirmed.
  2. Whether the person has genuine fear of persecution or cruel and unusual treatment or punishment based on the aforementioned reasons.
  3. Whether or not the person asked for help from the authorities of their home country. That means that the Refugee Board will look at whether the claimant went to the police or other law enforcement for help. If going to the authorities in the claimant’s home country is impossible because, for example, the home government is the one doing the persecuting, it will be up to the claimant to prove it.
  4. Flight alternatives. This means that if there is somewhere other than Canada that a claimant could go, Canadian immigration officials will ask why the claimant didn’t go there. This is particularly common in cases where the claimant has dual citizenship. If there’s somewhere else a refugee claimant can go in order to be safe from the persecution they fear, the authorities will encourage him to go there instead.

Though these four criteria are important, it’s the question of credibility that rules the day. Asylum claims are decided by a single administrative judge who is a member of the Immigration and Refugee Board. If the judge doesn’t believe you, you won’t be granted asylum.

Opportunities for appeal are limited. A claimant can file a judicial review with the Federal Court of Canada and some can file an appeal with the Refugee Appeal Division.

The Federal Court of Canada looks at requests for review with one criterion: reasonability. If they decide the rejection of the asylum claim by the Refugee Board was a reasonable one, they’ll respect the Board’s decision and maintain the rejection.

If the Refugee Appeal Division agrees to look at your case, they can do it with or without a hearing, and can examine only evidence from the first claim. The only new evidence the Appeal Division is allowed to look at is that which was not reasonably available or obtainable when the first claim was rejected.

Whether your claim is rejected by the Appeal Division or the Federal Court, the result is the same: you have to leave Canada (if you made the request from within the country) or remain in your home country. You’re free to file a refugee claim elsewhere, but it’s going to be tough because governments tend to take into account previous refugee claims when assessing applications for asylum.

Despite the government’s pledge to help refugees, the focus seems solely on helping those fleeing Syria. Those not targeted by the government’s plan find themselves at the mercy of immigration judges who seem to go into refugee hearings prepared to disbelieve and discredit those fleeing everything from gay bashing to domestic abuse. To all those knitting tuques and offering free language tutoring to those unsafe at home and desperate, now is the time to remember that refugees don’t just come from Syria.

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