Under our immigration laws, in particular, under the Immigration and Refugee Protection Act, a person who is determined to be a Convention Refugee or a Person in Need of Protection, can receive permanent residency in Canada or granted a protection in our country meaning that they have rights to remain in Canada under protection status and not be removed from Canada.
Who can be determined as a Convention Refugee?
The Act, in its section 96 determines that a Convention refugee “is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
- (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
- (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.”
If somebody is afraid of persecution in their country, but does not fit into the definition of a Convention Refugee they still might seek protection under another status, as a Person in Need of Protection and we have a section in the Act – s.97 (1) – defining them as “ a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
o (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
o (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
- (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
- (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
- (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
- (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.”
Why Canada must accept refugees?
Canada is subject to an international treaty, the Geneva Convention relating to the Status of Refugees or, shortly, the 1951 Refugee Convention, and its Protocol to grant protection in our country those refugees who fit under the determination of “convention refugees” or “persons in need of protection”. Many countries signed this treaty and Canada was amongst them.
What happens if a refugee came to the country by false means?
A refugee who fled their countries and came to Canada under false passport or name or crossed illegally our border, cannot be penalised by our immigration enforcement authorities, if it is found that the asylum seeker acted illegally in order to save their life from persecution. So, those who are afraid to present themselves to our inland office in Etobicoke to start a refugee procedure due to their false documents must be assured that, although questions will be asked, nobody will deport them back to their countries solely based on the factor of misrepresentation.
The principle of non-refoulement
Also, a person who advises the immigration authorities that they are afraid to return to their country, cannot be sent there before our specially appointed division, Refugee Board, determines their status. We call it “the principle of non-refoulement”. I remember one instance when my client called me from Milton jail and advised that the immigration officer arrested him because he did not have a proper work authorization (he was caught at the massage parlor salon where he worked as a driver). The parlor was itself an illegal operation in Ontario and adding the fact that my client was working in illegal entity without his personal authorization, one can imagine his fear and frustration. He was sure he would be deported. After I arrived in the Milton Correction facility to conduct his hearing, I learned from my client that he was afraid to reveal himself to the authorities because he was without a proper ID. In addition, it was learned that he was afraid of corrupted elements in his country who, in the past, were persecuting him. I immediately announced him to the examining immigration officer as a refugee protection seeker and my client was released from detention for the purpose of appearing before the Refugee Board for further determination. At his refugee hearing, my client explained all details associated with his noncompliance with the immigration laws in not seeking an authorization to work in Canada and, based on merits of his refugee case, he was granted protection. No measures by the Citizenship and Immigration Canada were taken against my client and he is now a full citizen of Canada.
Some refugee protection seekers are excluded from the Convention: criminals (serious crimes), terrorists, violators of international laws, those who are already protected by the United Nations agency other than UNHCR (sample is Palestinians).
If a person is recognized by the government of Canada (and those countries who are signatory to Convention) as a protected refugee, they must be provided with the opportunity to have a Travel Document in lieu of a passport and their family members can reunite with them in Canada with the same protected status. The government is recommended by Convention, to provide a refugee access to health care and social services.