Exclusion from Refugee Protection

Exclusion from Refugee Protection

1. Section E: Those who don't Need Protection - Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country

   • to be excluded, claimant must have rights substantially similar to that of that country's nationals
     • To return & remain in the country
     • Right to work w/o restriction
     • Right to Study
     • Full access to Social Services
   • Did they have status and lost it? Access and failed to acquire it?
     • If yes, then reasons for loss, must be evaluated, (voluntary/involuntary), can they return, risk if returned, Canada's int'l obligations.

2. Section F: Undeserving of Protection

   • committed a crime as defined in the international instruments drawn up to make provision in respect of such crimes;
     • against peace
       • participating in unlawful war, not defined by IRPA,
       • key is seriousness: affecting foundation of human society, seriousness deducible from nature of act (cruel/barbarous), extent of effects (widespread) or motive of perpetrator (enslavement)
     • war crime
       • violation of law of war
       • criminal intent and criminal act are required
     • crime against humanity
       • enumerated proscribed act
       • Act part of widespread or systematic attack
       • act was directed against civilian population or any identifiable group
       • person knew of the attack and knew or took risk that his/her act comprised a part of the attack
     • 6 factors to test voluntary, significant, knowing contribution to crime: 1. size and nature of organization 2. part of the organization the claimant was most directly concerned. 3. claimants duties and activities within org. 4. claimants position and rank. 5. length of time claimant was in org, particularly after knowing groups crime or crim purpose. 6. method claimant was recruited and opportunity to leave org.
   • has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
     • crime was not committed out of genuine political motives, for the purpose of modification of the political organization or structure of the state
     • no direct, casual link between the crime and it's alleged political purpose and object
     • serious nonpolitical crime if the act is disproportionate to the objective or if it is of an atrocious or barbarous nature
     • 1.does not apply to acts in country of refuge. 2. applies to acts committed, not necessarily prosecuted, convicted or served sentence. 3. must be ordinary, common-law offence, not prosecuted in discriminatory way.
       • requires evaluation of: 1. elements of crime 2. mode of prosecution (felony/misdomener) 3. penalty prescribed 4. facts 5. underlying mitigating and aggravating circumstances
     • usually dealt with at eligibility stage, going to change with current SCC case
   • he has been guilty of acts contrary to the purposes and principles of the United Nations.
     • hasn't been used, usually covered in 1F(a)
     • not limited to persons of power
     • purpose to exclude those responsible for serious, sustained or systematic violations of fundamental human rights amounting to persecution in no-war setting
     • guiding principle - applies where there is consensus in international law that particular acts amount to persecution or are explicitly recognized as contrary to purposes/principles.
     • Widely accepted int'l aggreement or UN resolution declares commission of certain acts contrary to purposes & principles of UN
     • Acts where a court is able to characterize as serious, sustained and systematic violations of fundamental human rights constituting persecution
   • IRB will look at: Complicity & Mere membership
     • Ezokola
   • Legal Test: Serious reasons to consider (= serious possibility)
   • Defences
     • duress, superior orders, military necessity. NOT Remorse or regret