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mercredi 3 juin 2015

A person’s refugee protection cannot be ceased for having applied for a passport from their country of origin

By Nilufar Sadeghi
Joseph W. Allen & Associates

In Canada (Public Safety and Emergency Preparedness) v. Bashir 2015 FC 51, an application for judicial review is brought forward by the Minister of Public Safety and Emergency Preparedness on a decision by the Immigration and Refugee Board of Canada’s Refugee Protection Division, where the Board refused to cease the refugee protection of Mr. Bashir, for having applied and obtained a passport from his country of origin, Pakistan, after having been accepted in Canada as a refugee. The Minister had argued in first instance before the Immigration and Refugee Board that the fact that Mr. Bashir presented himself at the Pakistani Consulate and obtained a passport, demonstrated a lack of fear of his country of origin and that as such, his refugee protection should cease.

Pertinent Legislation
Immigration and Refugee Protection Act (S.C. 2001, c. 27)
s.108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
[…] 
1951 Convention Relating to the Status of Refugees 
Article I 
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A(I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

Context
Mr. Bashir arrived to Canada in June 2000, and claimed refugee protection. His claim was accepted in September 2001, following which he applied for permanent residency in November 2001.

In August 2013, Mr. Bashir attended an interview with an immigration officer with regards to his permanent residency application, where he informed the officer that he had regularly renewed his Pakistani passport since arriving in Canada with the hopes of someday travelling to a third country to see his family. At the request of the officer, he submitted a copy of all his expired and current Pakistani passports, explaining in the process that he was carrying a valid Pakistani passport, as it is required by Citizenship and Immigration Canada, in order to obtain permanent residence status, whenever his application would be finalized.

Upon receipt of these documents, the Minister filed an application under 108(1)(a) of the Immigration and Refugee Protection Act (herein referred to as IRPA) in order to cease Mr. Bashir’s refugee protection, stating that by applying and obtaining Pakistani passports, he had reavailed himself of the protection of Pakistan. The Immigration and Refugee Board relied on provisions in the United Nations High Commissioner for Refugee’s  (herein referred to as UNHCR) Handbook and Guidelines to conclude that Mr. Bashir’s refugee protection had not ceased, as he never intended to voluntarily reavail himself of the protection of Pakistan. The Minister filed for leave and judicial review of the Board’s decision before the Federal Court.

Federal Court’s Decision
The Federal Court deemed the Board’s interpretation of subsection 108(1)(a) of the IRPA to be reasonable, and therefore dismissed the Minister’s application for judicial review.

It also referred to the UNHCR Handbook and stated that the interpretation given to its articles should be restrictive, so that the refugee status of an individual is not constantly being reviewed.

Indeed, the Federal Court stated that:
“[44] According to the UNHCR Handbook, the cessation clauses should be interpreted restrictively given their negative formulation and exhaustive enumeration. They should also be restrictively interpreted to ensure that refugee status will not be the subject of constant review in light of merely temporary changes. It is useful to cite the following paragraphs of the UNHCR Handbook which provide guidance on the interpretation of the cessation clauses:
111. The so-called “cessation clauses” (Article 1 C (1) to (6) of the 1951 Convention) spell out the conditions under which a refugee ceases to be a refugee. They are based on the consideration that international protection should not be granted where it is no longer necessary or justified. 
112. Once a person’s status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses. This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes – not of a fundamental character – in the situation prevailing in their country of origin.
[…]
[46] Paragraph 119 of the UNHCR Handbook provides that the voluntary reavailment of the protection of one’s country of nationality implies three criteria. The refugee must: (1) act voluntarily; (2) intend by his action to reavail himself of the protection of the country of nationality; and (3) actually obtain such protection.”

The Federal Court concluded that as such, the simple fact of applying for a national passport did not automatically imply that an individual had the intention of re-availing themselves of the protection of their country of origin, and that a case by case analysis was required where all three elements of cessation found at paragraph 119 of the UNHCR Handbook must be present in order for said clause to apply.

As such, although Mr. Bashir voluntarily applied for his Pakistani passport, he never intended to re-avail himself of the protection of Pakistan either in Canada or abroad.


To read this decision in its entirety, click here


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