Refugee Flashcards
1
Q
As discussed in Baglay and Jones, Bill C-55, passed in 1988, established which key institution for refugee status determinations in Canada?
A
The Immigration and Refugee Board
2
Q
Which of the following measures were introduced in 2002 as part of the Immigration and Refugee Protection Act?
A) The power to designate safe countries, nationals of which could not appeal to the Refugee Appeal Division.
B) Panels hearing refugee claims were reduced from two members to one.
C) The Minister of Employment and Immigration had to decide refugee protection claims based on a recommendation from the Refugee Status Advisory Committee.
D) Referrals from UNHCR or a sponsorship undertaking were made mandatory for refugee resettlement applications.
E) Refugee claimants were to be detained for 10 days and only released if they resided with a sponsor and posted a $5,000 bond.
A
B) Panels hearing refugee claims were reduced from two members to one.
D) Referrals from UNHCR or a sponsorship undertaking were made mandatory for refugee resettlement applications.
3
Q
According to Sasha Baglay and Martin Jones, what was the main avenue for refugee admissions to Canada until the 1980s?
A) Inland protection claims
B) Resettlement
C) Irregular entry
D) Expedited approval
A
B) Resettlement
4
Q
In 2004, the federal government established a new merits-based process for selecting Immigration and Refugee Board members. True or False
A
True
5
Q
Under the Supreme Court of Canada’s Singh decision, discussed by Baglay and Jones, the lack of oral hearings for refugee claimants violate which of the following Charter right(s)?
A) Section 11(c): The right to remain silent.
B) Section 7: The right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
C) Section 2(b): Freedom of thought, belief, opinion and expression.
D) Section 2(a): Freedom of conscience and religion.
A
B) Section 7: The right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
6
Q
Which of the following institutions was newly provided for in 2002’s Immigration and Refugee Protection Act?
A) A new “Refugee Appeal Division”
B) A new “Immigration and Refugee Board”
C) A new “Refugee Claims Division”
D) A new “Refugee Hearings Division”
A
A) A new “Refugee Appeal Division” However, the Refugee Appeal Division, or RAD, did not come into force until 2012.
7
Q
Under the Supreme Court of Canada’s Singh decision, discussed by Baglay and Jones, are refugee protection claimants constitutionally entitled to an oral hearing?
A
Yes: “The Supreme Court [in Singh] recognized that refugee claimants were entitled to an oral refugee determination hearing. It also found that the lack of an oral hearing violated the principles of procedural fairness under … the Canadian Charter of Rights and Freedoms.”]
8
Q
According to Valerie Knowles, the federal government introduced Bill C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act in response to which event?
A) The arrest of a vast network of human smugglers in Vancouver, which authorities said had been responsible for bringing hundreds of “bogus” refugee claimants to Canada over the years.
B) The arrival in 2010 of 492 Sri Lankan refugee protection claimants on the MV Sun Sea, a cargo ship.
C) An unprecedented surge in refugee protection claimants traversing the border with the United States in 2017.
D) The arrival in 2009 of 76 Sri Lankan refugee protection claimants on the MV Ocean Lady, a cargo ship.
A
B) The arrival in 2010 of 492 Sri Lankan refugee protection claimants on the MV Sun Sea, a cargo ship.
9
Q
True or False: The principle of non-refoulement does not protect a person with respect to whom there are reasonable grounds for regarding as a danger to the security of the country of refuge.
A
True
10
Q
Which of the following is not a “limit” on the refugee definition, according to Chetail?
A) To be a refugee, a person must face persecution, rather than being forced to move because of a natural disaster, famine, extreme poverty, or a pandemic.
B) To be a refugee, a person must face persecution based on one of only five grounds (race, religion, nationality, membership in a particular social group, and political opinion).
C) To be a refugee, a person must be outside their country of origin.
D) To be a refugee, a person must not have crossed a border without legal authorization.
A
D) To be a refugee, a person must not have crossed a border without legal authorization.
11
Q
According to Chetail, how is persecution “conventionally defined”?
A) As a serious violation of human rights.
B) As torture.
C) As discriminatory harassment.
D) As disproportionate harm.
A
A) As a serious violation of human rights.
12
Q
True or False: States have only one option to comply with their duty of non-refoulement: sending the claimant to a different country where there is no risk of persecution.
A
False: Granting temporary asylum in order to examine whether the asylum-seeker is a refugee
under the Geneva Convention, or sending him or her to a different country where there is no risk of persecution
13
Q
True or False: Chetail says that some see the 1951 Convention relating to the Status of Refugees as tracing an “assimilative path” for refugees. He says that this was indeed the design of the parties who negotiated the Convention.
A
False: Chetail says that this is a revisionist interpretation of the Convention, which does not reflect the negotiating history or the actual practice of states. He also says that it does not reflect the actual rights as they are set out in the Convention. The Convention’s content is not the result of “a deliberate nor coherent design of its drafters.”
14
Q
Chetail says that the 1951 Convention relating to the Status of Refugees may be seen as tracing an “assimilative path” for refugees. What is the beginning and what is the end of this path?
A) The beginning of the path are the core rights granted without qualification to refugees once their status is declared – the right against non-discrimination, personal status rights, the right to transfer assets, and the right against non-refoulement. The end of the path is naturalization.
B) The beginning of the path are the human rights granted in instruments like the International Covenant on Civil and Political Rights. The end of the path is permanent residence.
A
A) The beginning of the path are the core rights granted without qualification to refugees once their status is declared – the right against non-discrimination, personal status rights, the right to transfer assets, and the right against non-refoulement. The end of the path is naturalization.
15
Q
True or False: The historical reason for requiring claimants to be outside of their country of origin is that, during the drafting of the 1951 Convention, the treatment of nationals within the territory of their own country was deemed to fall under the sovereignty of each state. At the time no human rights treaty had been adopted by the UN to protect them from abuses by their own governments.
A
True
16
Q
Which of the following is not one of the four cumulative conditions required by the inclusion criteria in the Geneva Convention?
A) Fleeing one’s country of origin at the first possible opportunity.
B) Being outside one’s country of origin.
C) Being unable or unwilling to avail oneself of the protection of one’s country.
D) Having a well-founded fear of persecution.
E) Facing persecution because of one’s race, religion, nationality, membership of particular social group, or political opinion.
A
A
17
Q
True or False: The principle of non-refoulement found in the 1951 Convention relating to the Status of Refugees is an absolute duty.
A
False
18
Q
True or False: The 1951 Convention relating to the Status of Refugees is the only international law instrument that includes, either explicitly or implicitly, the principle of non-refoulement.
A
False: Other conventions, like the Convention against Torture or the International Convenant on Civil and Political Rights, prohibit refoulement to face torture or serious human rights violations).
19
Q
Which of the following accurately describe the distinction between non-refoulement and asylum?
A) Non-refoulement is a negative obligation, with “non” being French for “no” and “foulement” being French for “mob violence”; asylum is also a negative obligation, with the Latin prefix “asy” meaning “no” and the Latin root “lum” meaning “craziness”.
B) Non-refoulement is a right of states, whereas asylum is a state duty.
C) Non-refoulement is a negative notion, prohibiting states from sending any person back to a country of persecution; asylum is a positive concept, entailing the admission to a new residence and long-lasting protection against the jurisdiction of another state.
D) Non-refoulement is an obligation of states, whereas asylum is a right of states.
A
C) Non-refoulement is a negative notion, prohibiting states from sending any person back to a country of persecution; asylum is a positive concept, entailing the admission to a new residence and long-lasting protection against the jurisdiction of another state.
D) Non-refoulement is an obligation of states, whereas asylum is a right of states.
20
Q
True or False: According to the UNHCR Handbook on Procedures, a refugee claimant becomes a refugee when their refugee status is formally determined.
A
False: The UNHCR Handbook on Procedures states that a person is a refugee within the meaning of the 1951 Convention as soon as they fulfil the criteria contained in the definition.
21
Q
This instrument is the cornerstone of the international refugee protection regime. It includes the legal definition of “refugee” as someone facing a well-founded fear of persecution. It enshrines the duty of non-refoulement, although this duty is not absolute.
A
1951 Convention relating to the Status of Refugees
22
Q
Which of the following guarantee(s) do all refugees benefit from?
A) Prohibition of discrimination
B) Free access to domestic courts
C) Rationing
D) Post-secondary education
E) Medical treatment
F) Fiscal equality
A
A) Prohibition of discrimination
B) Free access to domestic courts
C) Rationing
F) Fiscal equality
23
Q
True or False: Chetail says that, as a matter of practice, there are many ways to assure compliance with the principle of non-refoulement other than granting asylum.
A
False: Only 2: granting temporary asylum in order to examine whether the asylum-seeker is a refugee
under the Geneva Convention, or sending him or her to a different country where there is
no risk of persecution
24
Q
True or False: Non-refoulement is subordinated to the five grounds of persecution: race, religion, nationality, membership in a particular social group, and political opinion.
A
Non-refoulement is not subordinated to the five grounds of persecution required by the refugee definition under the Geneva Convention.
25
True or False: Assessments of risk under either the 1951 Convention relating to the Status of Refugees or general human rights instruments are prospective (or “forward-looking”).
True
26
True or False: According to the IRPA, a Convention refugee is a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
This is false because it is incomplete. See IRPA s 96: 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, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries. Similarly, if a person is stateless, they must be outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
27
True or False: The Global Compact on Refugees aim to ease pressures on countries hosting large numbers of refugees, support refugee self-reliance, expand access to durable solutions in third countries, and support returns to countries of origin in safety and dignity.
True
28
True or False: Section 96 of the IRPA reproduces in its essentials the definition of “refugee” found in the 1951 Convention relating to the Status of Refugees.
True
29
True or False: Applications for a pre-removal risk assessment (i.e., applications for protection) are granted on the basis of one of two regulatory categories – the Convention refugees from abroad class and the Country of asylum class.
False: Applications for pre-removal risk assessments are evaluated using sections 96 to 98 of the IRPA.
30
True or False: A foreign national may receive protected person status by making an application from abroad under section 25 of the Immigration and Refugee Protection Act, or IRPA, for a humanitarian and compassionate exemption.
False: A foreign national may receive protected person status from abroad by applying for a visa under either the Convention Refugee Abroad Class, the Country of Asylum Class, or as a Protected Temporary Resident. See s 95(1)(a) of the IRPA and ss 144-151.1 of the Immigration and Refugee Protection Regulations.
31
True or False: A person may not become a protected person by applying for refugee protection from the Immigration and Refugee Board.
False: See IRPA, ss 95(1)(b) and (2).
32
True or False: To give primary consideration to the best interest of the child is an example of an obligation set out in the 1951 Refugee Convention and 1967 Protocol.
False: The obligation to give primary consideration to the best interests of the child is set out in the Convention on the Rights of the Child.
33
True or False: To be a member of the country of asylum class, a foreign national must be outside their country of nationality or habitual residence. Further, they must have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries
True: See IRPR, s 147
34
True or False: The Comprehensive Refugee Response Framework and the Global Compact on Refugees are both binding in international law.
False: While these instruments seek to improve international cooperation on matters relating to refugees, they are both non-binding.
35
True or False: According to the IRPA, a person whose removal to their country of nationality would subject them personally to a danger of torture is a person in need of protection.
True: See s 97(1)(a) of IRPA: A person in need of protection is 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 to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture. Paragraph 97(1)(b) of the IRPA provides an alternate ground for being a person in need of protection.
36
True or False: A claim for refugee protection made by a person inside Canada can be submitted by making an application for a visa as a Convention refugee.
False: See IRPA s 99(3): A claim for refugee protection made by a person inside Canada must be made to an immigration officer. The officer must then determine if the claim is eligible to be referred to the Immigration and Refugee Board.
37
True or False: One cannot be found to be a person in need of protection if the risk to your life is caused by your home country’s inability to provide adequate health or medical care.
True: See IRPA, s 97(1)(b)(iv).
38
True or False: Subsection 12(3) of the IRPA provides the statutory basis for selecting refugees as permanent residents, whereas section 95 lays out the different ways a foreign national or permanent resident may become a protected person.
True: Note that there is nothing in IRPA that prevents a permanent resident from applying to become a protected person, as unlikely as that may be.
39
True or False: A foreign national who may be inadmissible can be granted a temporary resident permit if the officer is of the opinion that it is justified in the circumstances.
True: See IRPA s 24(1)).
40
True or False: Foreign nationals applying to resettle in Canada must fulfill either the Convention refugee definition in section 96 of the IRPA and the definition of persons in need of protection in section 97.
False: Foreign nationals applying from abroad for refugee protection through resettlement must fulfill either the Convention refugee definition (IRPA, s 96) or the definition of the country of asylum class (section 147 of the Immigration and Refugee Protection Regulations (IRPR)).
41
True or False: According to the IRPR, a member of the country of asylum class requires the individual to be outside of their country of nationality and have been and continue to be seriously and personally affected by civil war, armed conflict, or massive violation of human rights in their countries.
True: See IRPR s 147: A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because: (a) they are outside all of their countries of nationality and habitual residence; and (b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries.
42
True or False: Section 115 of the IRPA fulfills Canada’s obligation for Article 3 of the Convention against Torture.
False: Section 115 allows for deportation to torture in exceptional circumstances. Article 3 contains an absolute prohibition on refoulement where there are substantial grounds for believing that he would be in danger of being subjected to torture.
43
True or False: There are three avenues for becoming a protected person in Canada, which are all addressed in sections 96 and 97 of the IRPA.
False: Not all of the three avenues involve applying sections 96 and 97 of the IRPA.
44
True or False: The Minister of Immigration, Refugees and Citizenship supervises and directs the staff at the Immigration and Refugee Board.
False: The Chairperson of the Immigration and Refugee Board supervises and directs the staff at the IRB.
45
True or False: The legal guidance published by UNHCR are binding authority on Canadian decision-makers evaluating refugee claims.
False: The legal guidance on the interpretation of the Convention refugee definition and other aspects of refugee law published by the UNHCR are influential, but not legally binding on Canadian decision-makers.
46
Which Minister is responsible for the management and direction of the Department of Immigration, Refugees, and Citizenship?
The Minister of Immigration, Refugees and Citizenship
47
Which officers handle routine applications for protection – that is, applications for pre-removal risk assessments that do not raise security or criminality issues?
A) Immigration officers employed by the Canada Border Services Agency
B) Immigration officers employed by the United Nations High Commissioner for Refugees.
C) Immigration officers employed by the Department of Immigration, Refugees, and Citizenship.
D) Immigration officers employed by the Immigration and Refugee Board.
C) Immigration officers employed by the Department of Immigration, Refugees, and Citizenship. (References to “officers” in the IRPA are to immigration officers who work for the Department of Immigration, Refugees, and Citizenship, unless the reference relates to a part of the Act having to do with matters under the responsibility of the Minister of Public Safety – that is, matters relating to enforcement and security.
For instance, IRCC immigration officers receive refugee protection claims inside Canada and determine their eligibility. Such officers also process most applications for pre-removal risk assessments.)
48
True or False: The Minister of Immigration, Refugees and Citizenship issues guidelines for the Refugee Protection Division and the Refugee Appeal Division.
False: The Chairperson of the Immigration and Refugee Board issues guidelines for the Refugee Protection Division and the Refugee Appeal Division.
49
True or False: Examine the 1951 Convention relating to the Status of Refugees. Is Canada obligated under the Convention to cooperate with the United Nations High Commissioner of Refugees?
True: Under article 35 of the 1951 Convention relating to the Status of Refugees, Canada undertakes to cooperate with the UNHCR, and in particular to facilitate its duty of supervising the application of the provisions of the Convention
50
True or False: Representatives of the United Nations High Commissioner of Refugees may attend refugee protection hearings.
True: Section 166 of the Immigration and Refugee Protection Act gives the UNHCR the right to attend refugee hearings, despite the non-public nature of those hearings. This is consistent with the UNHCR’s role monitoring role.
51
True or False: The Chairperson of the Immigration and Refugee Board is appointed by the Governor General.
False: The Chairperson of the Immigration and Refugee Board is appointed by the Governor in Council.
52
True or False: Claimants are photographed and fingerprinted as part of their application process. The purpose of collecting such biometrics is to maintain the federal government’s biometrics database on every individual who is present in Canada.
False: The purpose of taking biometrics is to verify the claimant’s identity. It is also to determine if the person is eligible to make a refugee protection claim, including whether they are ineligible because of inadmissibility on grounds of security, international criminality, organized criminality, or serious criminality.
53
Jolene’s claim has been referred to the Refugee Protection Division. Subsequently, a CBSA officer learns that Jolene was found guilty of murder in her home country 10 years ago. Which of the following best describes the officer’s possible course(s) of action?
A) The officer cannot do anything about Jolene’s claim. Once a claimant has been referred to the RPD, the eligibility determination is deemed final.
B) The officer should intervene before the RPD to ask that the RPD deem Jolene to be ineligible.
C) The officer can initiate a section 44 report regarding Jolene’s inadmissibility for serious criminality. If the report is referred to the Immigration Division, then the officer can give notice to the RPD. Such notice would suspend Jolene’s claim.
C) The officer can initiate a section 44 report regarding Jolene’s inadmissibility for serious criminality. If the report is referred to the Immigration Division, then the officer can give notice to the RPD. Such notice would suspend Jolene’s claim. See IRPA, s 103.
54
Under which of the following circumstance(s) must a claim be suspended?
A) The claimant has a matter referred to the Immigration Division for a determination that they are inadmissible on grounds of criminality.
B) An officer provides notice to the RPD that they are waiting for a court decision with respect to an offense punishable by a maximum term of imprisonment of 5 years.
C) The claimant becomes the subject of extradition proceedings.
D) The claimant has married a Canadian citizen and is eligible to be sponsored for permanent residence under the Family Class.
C, See s 105 for when claims are suspended due to extradition proceedings.
55
Parminder’s claim has been rejected by the Refugee Protection Division. He has launched an appeal of that decision to the Refugee Appeal Division. A CBSA officer subsequently learns that the referral was in error, after confirming pursuant to an information-sharing agreement that Parminder made a claim for refugee protection in Australia. What can the officer do?
A) Nothing. Once a claim has been the subject of a decision by the RPD, the officer no longer has the power to suspend or terminate the claim.
B) The officer may terminate the claim pursuant to IRPA, s 104(1)(a)
C) The officer may terminate the claim pursuant to IRPA, s 104(1)(a.1)
D) The officer may terminate the claim pursuant to IRPA, s 104(1)(b)
E) The officer may terminate the claim pursuant to IRPA, s 104(1)(c)
F) The officer may terminate the claim pursuant to IRPA, s 104(1)(d)
C, See IRPA, s 104(1)(a.1). That provision allows an officer to give notice to the IRB that a claimant has made a claim for refugee protection in another country which has been confirmed pursuant to an information-sharing agreement. The effect of such a notice is to terminate proceedings before either the RPD or the RAD, pursuant to IRPA, s 104(2)(a.1).
56
True or False: If an officer has not made a decision on eligibility, the Refugee Protection Division can determine a claimant’s eligibility on its own and proceed to hear the claim.
False: IRPA, s 100(3) states that the “Refugee Protection Division may not consider a claim until it is referred by the officer.”
57
True or False: Twenty years ago, Mikhail’s parents brought him to Canada and made a claim for refugee protection. Mikhail was only 4 at the time. The family’s claim was subsequently determined to be abandoned, and they returned to their country of origin. Mikhail is now back in Canada and has made a claim for refugee protection on his own behalf. Unfortunately, his claim is ineligible.
True: IRPA, s 101(1)(c) states that a claim is ineligible if a prior claim by the claimant was determined to be abandoned. Because Mikhail’s prior claim was determined to be abandoned, his new claim is not eligible even though he was a child and his parents were acting on his behalf 20 years ago.
58
Under which of the following circumstance(s) can a claim be suspended? Choose all that apply.
A) The claimant has a matter referred to the Immigration Division for a determination that they are inadmissible on grounds of security.
B) The officer is waiting for a court decision with respect to a punishable offense by a minimum term of imprisonment of at least 10 years.
C) The claimant has a matter referred to the Immigration Division for a determination that they are inadmissible on grounds of organized criminality.
D) The claimant has requested their claim to be examined by another officer.
A) The claimant has a matter referred to the Immigration Division for a determination that they are inadmissible on grounds of security.
C) The claimant has a matter referred to the Immigration Division for a determination that they are inadmissible on grounds of organized criminality.
See s 103(1) of the IRPA for when a claim for refugee protection may be suspended by an officer.
B --> should be a MAXIMUM term of at least 10 years
59
True or False: Five years ago, Peter was convicted of Arson by negligence (see section 436 of the Criminal Code) and sentenced to 1 year in prison. He has been determined to be inadmissible. He nonetheless wishes to make a claim for refugee protection to avoid deportation to his home country, where he says he faces persecution. Is his claim eligible?
True: The offence of Arson by negligence is punishable by up to 5 years’ imprisonment if prosecuted by way of indictment. Peter must have been prosecuted by way of indictment, since he received a 1-year term of imprisonment, and the maximum term of imprisonment for summary offences is 6 months. Peter therefore is inadmissible on grounds of criminality, not serious criminality. Therefore his claim is not ineligible under IRPA, s 101(1)(f).
60
True or False: In assessing the eligibility of a claim for refugee protection, the officer bears the burden of proof to establish ineligibility based on the evidence given.
False: According to s 100(1.1) of the IPRA, the burden of proving that a claim is eligible rests on the claimant.
61
Which of the following claimant(s) may be ineligible to be referred to the Refugee Protection Division? Choose all that apply.
A) A claimant who has abandoned a previous claim
B) A claimant who has refugee protection conferred under the IRPA
C) A claimant who has a family member with serious medical conditions
D) A claimant who has made a claim for refugee protection to another country after making a claim for refugee protection in Canada
A) A claimant who has abandoned a previous claim
B) A claimant who has refugee protection conferred under the IRPA
See s 101(1) of the IRPA for the full list of ineligible claims.
62
True or False: During the application process at a port of entry, the claimant can request their counsel to represent them at interview(s), including by questioning the claimant and objecting to lines of questions from an officer.
False: Although counsel can attend interviews, they are not allowed to interfere with the interview process.
63
Which of the following claimant(s) may be ineligible to be referred to the Refugee Protection Division? Click on all that apply.
A) A claimant who has withdrawn a previous claim
B) A claimant who is a Convention refugee in another country and can be returned to that country
C) A claimant who has a medical condition in need of urgent treatment
D) A claimant who has a rejected claim from the IRB
A, B, D: See s 101(1) of the IRPA for the full list of grounds of ineligibility.
64
Which of the following is not a method in applying for refugee protection under section 95 of the IRPA?
A)Applying for a visa from abroad
B) Making a claim for “refugee protection”
C) Making a claim for “humanitarian and compassionate grounds”
D) Making a claim for “protection”
C) Making a claim for “humanitarian and compassionate grounds” Subsection 95(1) sets out three ways a person may apply for refugee protection. They may: 1) apply for a visa from abroad to be resettled to Canada as a Convention refugee or a person in similar circumstances; 2) making a claim for “refugee protection”, which will be processed by the Refugee Protection Division, or RPD, and possibly the Refugee Appeal Division, or RAD, of the IRB; 3) make a claim for “protection” by applying for a pre-removal risk assessment.
65
Five years ago, Bob was convicted of Arson – disregard for human life (see section 433 of the Criminal Code) and sentenced to 1 year in prison. He has been determined to be inadmissible on grounds of serious criminality. He nonetheless wishes to make a claim for refugee protection to avoid deportation to his home country, where he says he faces persecution. Is his claim eligible?
No: The offence of Arson – disregard for human life is punishable by life imprisonment. IRPA, s 101(1)(f) states that a person may be ineligible if they have been determined to be inadmissible on grounds of serious criminality. IRPA, s 101(2)(a) states that in the case of inadmissibility because of conviction in Canada, the conviction must be “for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.”
66
According to the Refugee Protection Division Rules, when notifying the claimant about the hearing, which of the following must the officer include in the written notice?
A) Date, time, and location of the hearing
B) Date, time, location, and name of attending officer for the hearing
C) Date, time, location, and the right to request an interpreter for the hearing
D) Date, time, location, and the right to counsel for the hearing
A) Date, time, and location of the hearing: According to RPD rule 3(4)(a) the officer must notify the claimant in writing by way of a notice to appear: (i) of the date, time and location of the hearing of the claim.
67
True or False: Proceedings before the RPD and RAD are adversarial in nature.
False: Proceedings before the RPD and RAD are meant to be inquisitorial. The member is to play an active role in questioning witnesses and determining how evidence is to be elicited during proceedings.
68
After Aldous’s RPD hearing but before the RPD issued its decision, his family mailed him an affidavit from his former lawyer, attesting to the fact that he had been imprisoned for political reasons. The affidavit was not procured sooner because his lawyer has been in a coma after being beaten by police for helping Aldous flee his country. Because Aldous’s hearing had concluded, he did not submit the evidence to the RPD. His claim was subsequently rejected. Is the affidavit admissible on appeal to the RAD under IRPA, s 110(4)?
A) No. Aldous may not submit the evidence under s 110(4) because he could have submitted it prior to the RPD’s rejection of his claim.
B) Yes. Aldous may submit the evidence under s 110(4) because he could not have submitted it prior to his RPD hearing.
C) Yes. Aldous may submit the evidence under s 110(4) because in the circumstances he could not reasonably have been expected to present it
D) No. Aldous may not submit the evidence under s 110(4) because it is not material.
A) No. Aldous may not submit the evidence under s 110(4) because he could have submitted it prior to the RPD’s rejection of his claim.
The admissibility of evidence before the RAD under s 110(4) is determined having reference to the time of the RPD’s decision (“at the time of the rejection”), not the time of the hearing. D is not correct because, on the facts, the evidence is likely to be material.
69
Hagrid is a citizen of Country Y. He lived in the United States under a student visa for 12 months. In 2018, he came to Canada and made a refugee protection claim. Despite the Safe Third Country Agreement, he was permitted to do so because his mother lives in Canada. His claim was rejected by the RPD. The RPD stated in its decision that Hagrid was “the least credible claimant he had ever come across.” Can Hagrid appeal the decision to the RAD?
No. While the RPD on the facts did not state there was no credible basis for Hagrid’s claim or that it was manifestly unfounded, Hagrid was only eligible to make a claim for refugee protection under an exception to the Safe Third Country Agreement. Therefore his has no right of appeal to the RAD under IRPA, s 110(2)(d).
70
True or false: Subsection 162(2) confirms an intention that the IRB’s divisions proceed informally and quickly. Therefore, the IRB can sacrifice procedural fairness in favor of efficiency.
False: Although subsection 162(2) confirms an intention that the IRB’s divisions proceed informally and quickly, it also confirms that they are bound by the requirements of natural justice and fairness.
71
Under the Immigration and Refugee Protection Regulations, an appellant has:
A) 10 days to file a notice of appeal and 1 month to perfect their appeal.
B) 15 days to file a notice of appeal and 1 month to perfect their appeal.
C) 20 days to file a notice of appeal and 1 month to perfect their appeal.
D) 30 days to file a notice of appeal and 1 month to perfect their appeal.
B) 15 days to file a notice of appeal and 1 month to perfect their appeal. See IRPR, s 159.91
72
True or False: Although each division of the IRB has jurisdiction to decide all matters that come before it, this broad power does not apply to constitutional questions.
False: The RPD and RAD have broad powers to decide the factual and legal issues that come before them, including legal issues with respect to their own statutory framework as well as constitutional questions.
73
True or False: Claimants have a right to request counsel to be provided free of charge at IRB proceedings.
False: Subsection 167(1) of the IRPA provides a right to be represented by counsel before the IRB. The right is only to representation at the expense of the person who is the subject of proceedings. There is no right to government-funded counsel.
74
Which of the following need not be included in a perfected appeal record on appeal to the RAD?
A) The RPD’s written reasons.
B) Any documents the RPD refused to accept as evidence, if the appellants wants to make use of them in the appeal.
C) A statement of the most up-to-date information regarding the appellant’s immigration status.
D) All or part of the transcript of the RPD hearing, if the appellant wants to make use of it in the appeal.
C) A statement of the most up-to-date information regarding the appellant’s immigration status. See rule 3 of the RAD Rules.
75
Claimants are expected to put forth their strongest case before the RPD, rather than waiting for their appeal to the RAD. Which of the following showed Parliament’s intent to narrowly define the introduction of any new evidence at RAD proceedings?
A) Leave from the RAD is required to introduce new evidence.
B) The evidentiary burden is increased to the balance of probabilities for new evidence.
C) New evidence is only allowed if it arose after the rejection of the claim, or if it was not reasonably available, or if the claimant could not reasonably have been expected in the circumstances to present the evidence at the time of the rejection.
D) The new evidence must be credible, relevant, and material to the RAD proceeding, whereas the evidence need not be material during the RPD proceeding.
C. In Canada (Citizenship and Immigration) v Singh, 2016 FCA 96, the Federal Court of Appeal found that subsection 110(4) showed Parliament’s “clear wish to narrowly define the introduction of any new evidence” at the RAD. Subsection 110(4) only allows for the submission of evidence that arose after the rejection of the claim; or that was not reasonably available; or that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
76
True or False: In Huruglica, the Federal Court of Appeal determined that the RAD must review RPD decisions on a correctness standard. It owes no deference on any issue, including credibility determinations.
False: While the Federal Court of Appeal determined that the RAD must review the RPD on a correctness basis, it “should sometimes exercise restraint” when the RPD enjoys a “meaningful advantage” in making findings of fact or mixed fact and law requiring an assessment of the credibility or weight to be assigned to oral testimony.
77
True or False: Because the RAD appeal must proceed on the basis of the RPD record, the RAD may not base its decision on its own specialized knowledge or on facts with respect to which it takes judicial notice.
False: Although RAD appeals must proceed on the basis of the RPD record, IRPA s 171(b) states that it “may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge.”
78
True or False: If a claimant has established that they are a Convention refugee, the RPD can nonetheless exercise its discretion not to grant protected person status.
False: Subsection 107(1) of the IRPA uses the mandatory “shall”, rather than the discretionary “may.” The RPD has no discretion to reject a claim if a person falls within either section 96 or 97. It also has no discretion to accept a claim if they do not or if they are excluded under section 98.
79
True or False: Any new evidence submitted by the Minister on an appeal to the RAD must comply with IRPA, s 110(4).
False: See IRPA, s 110(5).
80
True or False: The RPD rejects Polly’s claim on the basis that she has not provided sufficient evidence to establish her alleged risk. The RPD makes no credibility findings. On appeal, Polly submits new evidence to support her claim under IRPA, s 110(4). The new evidence is an Amnesty International Report documenting human rights abuses in Polly’s country of origin similar to the persecution she says she faces if returned. The RAD must hold an oral hearing on this new evidence.
False: The new evidence does not raise a serious issue regarding Polly’s credibility, therefore the requirements of IRPA, s 110(6) are not met.
81
To be appointed as a designated representative for claimants under 18 years old, which of the following must be satisfied?
A) The designated representative must be over 18 years old
B) The designated representative must be a Canadian-licensed lawyer
C) The designated representative must not have a conflict of interest
D) The designated representative must have immigration law or consultancy experience
A and C: RPD rule 20 provides that to become a designated representative, a person must be 18 years or older, understand the nature of the proceedings, be willing and able to act in the best interests of the claimant, and not have a conflict of interest
82
Which of the following defines the RPD’s inquisitorial powers?
A) The RPD is not bound by any legal or technical rules of evidence
B) The RPD can question the claimant to determine if there is a well-founded claim, but the questions are limited to circumstances surrounding the claim
C) The RPD can take notice of any facts that may be judicially noticed
D) The RPD can base its decision on credible evidence adduced in the proceedings
A, C and D: Section 170 of the IRPA further defines the RPD’s inquisitorial powers: the RPD may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; it may question the witnesses, including the claimant; it is not bound by any legal or technical rules of evidence; it may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and it may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
83
Which of the following is/are grounds for denying a right of appeal to RAD?
A) A decision concerning foreign nationals who are citizens of designated countries of origin
B) A decision by the RPD rejecting a claim that has been declared to have no credible basis or to be manifestly unfounded
C) A claim that has been determined to be withdrawn or abandoned
D) A decision of the RPD allowing an application by the Minister for a determination that refugee protection has ceased under s 108 of the IRPA
B, C and D: A is incorrect because paragraph 110(2)(d.1) was declared unconstitutionally discriminatory under section 15 of the Charter in YZ v Canada (Citizenship and Immigration), 2015 FC 892. It is therefore of no force or effect.
84
Which of the following decisions may be made by the RAD if it decides that the RPD erred in its determination of a claim? Click all that apply.
A) The RAD may refer the matter back to the RPD with directions if it cannot make a decision without hearing evidence that was presented to the RPD.
B) The RAD may substitute its own determination for that of the RPD, but only after holding a new hearing at which claimants may present all their evidence afresh.
C) The RAD may set aside only negative decisions of the RPD. Positive decisions are not subject to appeal.
D) The RAD may aside the determination and substitute a determination that, in its opinion, should have been made.
A and D: See IRPA, s 111(1) and (2), which set out the remedies available to the RAD.
85
True or False: In Thamotharem v Canada (Minister of Citizenship & Immigration), the Federal Court of Appeal considered Guideline 7’s requirement that RPD hearings begin with the questioning of a claimant by the presiding member. The Court held that this Guideline breached procedural fairness because it deprived the claimant of the opportunity to be questioned first by their own counsel.
False: The Federal Court of Appeal held this Guideline does not distort the inquisitorial process established by the IRPA. RPD members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim. Guideline 7 does not curtail counsel's participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant's testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning.
86
True or False: Ichabod comes from an Islamic country in which apostasy is illegal and punishable by death. The RPD rejects Ichabod’s claim. It finds his allegation of having renounced Islam is not credible. On appeal, Ichabod submits a letter from his brother saying Ichabod had told him that he could no longer follow the Islamic faith. The RAD admits this letter under IRPA, s 110(4). The RAD must hold an oral hearing on this new evidence.
False: Even if on the facts the new evidence raises a serious issue with respect to Ichabod’s credibility on a matter central to his claim, IRPA s 110(6) states only that the RAD “may” hold a hearing if its requirements are met. The RAD may decline to hold a hearing if it determines that fairness and natural justice do not require one.
87
True or False: In Canadian Association of Refugee Lawyers v Canada (Citizenship and Immigration), 2020 FCA 196, the Federal Court of Appeal held that the IRB Chairperson had no authority to issue jurisprudential guides on issues of fact.
False: The Federal Court of Appeal held that there is no limitation confining the scope of paragraph 159(1)(h) to issues of law or mixed fact and law. On the contrary, the authority of the Chairperson to issue JGs is conferred in the broadest terms, as long as their purposes are to assist members in carrying out their duties, and with the only requirement that their issuance be preceded by consultation with the Deputy Chairperson.
88
True or False: In Canadian Association of Refugee Lawyers v Canada (Citizenship and Immigration), 2020 FCA 196, the Federal Court of Appeal held that the statement that RPD and RAD members are “expected” to apply jurisprudential guides in similar cases or explain why not unlawfully fettered members’ discretion.
False: The Federal Court found that this statement of “expectation” fettered members’ discretion, however, the Federal Court of Appeal reversed. It was held that the facts at issue in the jurisprudential guides were general in nature and likely to apply to a range of claimants from a given country of origin. Further, the jurisprudential guides are also public and therefore “much less susceptible to give rise to an apprehension of coercion or to a perception of interference by superiors.” The decisionmakers could justify their reasons in departing from the jurisprudential guides, and in fact, did so in a significant percentage of cases.
89
Which of the following do not correspond to principles set out in Guideline 7?
A) Claimants do not set the agenda for proceedings; RPD members are the ones to determine what issues must be resolved
B) To use a document at the proceeding, the claimant/Minister must disclose the document to the other party
C) When a claimant is more than 15 minutes late for a hearing, the RPD members can decide if the claim should be declared abandoned.
D) The order of questioning will usually start with the RPD member questioning the claimant; this is also set out in rule 10 of the RPD Rules.
C: If a claimant arrives more than 15 minutes late for a hearing, RPD members may either adjourn the hearing or schedule a special hearing to decide whether a claim should be declared abandoned. The Guidelines do not state that the RPD will decide on abandonment immediately.
90
True or False: In Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FCA 198, the Federal Court of Appeal held that guidelines and policies are "soft law", which must be followed by decision-makers to produce consistent decisions.
False: Justice Evans notes that while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision makers may not apply them as if they were law.
91
True or False: In Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FCA 198, the Federal Court of Appeal held that although having the RPD member question the claimant first is unfair, it does not amount to breach procedural fairness where the claim is manifestly unfounded.
False: The Federal Court of Appeal held that while a claimant may derive tactical advantage from being taken through their claim first by their own counsel, the loss of that advantage does not necessarily lead to unfairness. Indeed, having the RPD member question a claimant first in one sense increases the level of fairness, in that it provides notice to the claimant and their counsel as to which areas of the claim most concern the member.
92
Which of the following are policy instruments that the Chairperson may issue under IRPA, s 159(1)(h)?
A) Divisional rules
B) Chairperson's Guidelines
C) Federal Court decisions
D) Ministerial Instructions
B: Note that the Chairperson is authorized to make rules for each division under IRPA, s 161.
93
Which of the following correspond to principles set out in Guideline 7?
A) The principles of natural justice and fairness require the RPD to give the claimant or their counsel discretion as to the length of their submissions.
B) If the National Documentation Package has been updated in the week before the RPD hearing, the RPD may not relied on the updated version in its decision.
C) Conferences will be held between the RPD member and the parties at the outset of every hearing to ensure the efficiency and fairness of proceedings.
D) At the beginning of the hearing, the interpreter must confirm they have used a standardized script to ensure that the interpreter and claimant understand each other.
D: See section 4.8 of Guideline 7.
94
Which of the following is/are held by the Federal Court of Appeal in Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FCA 198?
A) The degree of procedural protection at the RPD must be tailored to fit the inquisitorial and relatively informal nature of its hearings
B) The fair adjudication of individual rights is better achieved in an adversarial process
C) When the RPD member pose probing questions to the claimant, it makes the proceeding adversarial in the procedural sense
D) Guideline 7 jeopardizes the ability of the RPD to accurately determine claims for refugee protection
A: The Federal Court of Appeal held that the fair adjudication of individual rights is perfectly compatible with an inquisitorial process. In the absence in most cases of a party to oppose the claim, RPD members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim. The fact that the member may ask probing questions does not make the proceeding adversarial in the procedural sense.
95
Which of the following is/are held by the Federal Court of Appeal in Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FCA 198?
A) The fair adjudication of individual rights requires an adversarial process. Refugee claims are no different than criminal trials in that respect.
B) The seriousness of the rights involved in the determination of a refugee claim suggest a high degree of procedural protection is required.
C) Due to the difficulty of making credibility findings, RPD members may question claimants in a badgering or aggressive manner.
D) Chairperson’s Guidelines have the same binding force as the statute.
B: The seriousness of the rights involved in the determination of a refugee claim suggest a high degree of procedural protection is required. See paragraph 41 of the decision.
96
Which of the following are tools that RPD and RAD members can use to guide their decisions?
A) Jurisprudential guides
B) Persuasive decisions
C) Reasons of interest
D) Laws of the foreign national’s country of nationality
A, B and C: The tools used that specific aim at guiding decision-making with respect to certain kinds of claims are the following:
Jurisprudential guides, which the website describes as “policy instruments that support consistency in adjudicating cases which share essential similarities.”
Persuasive decisions, identified by the head of a division “as being of persuasive value in developing the jurisprudence of a particular division.”
Reasons of interest, which are decisions “that the IRB deems noteworthy” as models, among other things, of excellence in reasons writing, of a thorough assessment of a complex issue, or of how to respond to a timely or emerging issue.
97
True or False: When a counsel wishes to terminate representation of a claimant, they can do so during the RPD proceeding by asking for leave to do so.
False: According to RPD subrule 15(1), counsel must first provide to the claimant and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding. A request to be removed as counsel of record may only be made at the hearing if it is impossible to comply with subrule 15(1).
98
Which of the following is/are factors the RPD will consider in determining whether a claimant is unable to appreciate the nature of the proceedings and hence requires a designated representative?
A) The claimant’s behaviour at the proceeding
B) The evidence of an expert witness on the claimant’s intellectual capacity
C) Specialized knowledge with respect to claimants with similar circumstances
D) The claimant’s age or educational credentials
A) The claimant’s behaviour at the proceeding
B) The evidence of an expert witness on the claimant’s intellectual capacity
RPD Rule 20(5) lists the factors to consider when determining if a claimant is unable to appreciate the nature of the proceedings.
99
True or False: If the claimant wishes to use a document in a hearing, they must provide a copy of the document to the RPD. Failing to do so will result in the claimant being forbidden from using the document.
False: Under RPD Rule 34, when a party wants to use a document in a hearing, they must provide a copy to the other party and the RPD. If the party fails to do so, the RPD can decide to nevertheless allow the document to be used under Rule 36.
100
If a party wishes to provide a document as evidence after a hearing, the RPD can decide to accept it based on which of the following factor(s)?
A) Whether the party could have provided the document during the hearing with reasonable efforts
B) Whether this document brings any new evidence to the proceeding
C) Whether the document is authentic
D) Whether the document is relevant to the proceeding
A and B: Under RPD Rule 43(3), the RPD must consider: (a) the document’s relevance and probative value (which includes authenticity); (b) any new evidence the document brings to the proceedings; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 34.
101
True or False: If the Minister wishes to intervene at an appeal before the RAD, the Minister must provide a written notice to the RAD only. Any evidence can be submitted at the RAD hearing.
False: Under RAD Rule 4(1), the Minister must provide, first to the appellant and then to the RAD, a written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal. The RAD rarely holds hearings and may only do so when the requirements of IRPA, s 110(6) are met.
102
True or False: In a RPD hearing of a claim for refugee protection where the Minister is not a party, the RPD member will typically question the claimant first.
True: Unless there are exceptional circumstances, the claimant will be questioned first by the RPD member, and then by the claimant’s counsel according to RPD Rule 10(1).
103
True or False: Claimants may request extensions of time to complete Basis of Claim Form; however, extensions will not be granted for medical reasons.
False: Applications for extensions of time to submit the Basis of Claim form can be made for medical reasons under Rule 8(3) of RPD.
104
True or False: Phoebe wishes argue at the RAD that the RPD’s decision to only allow her counsel to ask her questions on two issues infringed her right to a fair hearing under section 7 of the Canadian Charter of Rights and Freedoms. She must complete a notice of constitutional question in accordance with RAD Rule 25.
False: A notice of constitutional question – at either the RPD or the RAD – is required only for challenges to the “the constitutional validity, applicability or operability of a legislative provision.” Phoebe’s challenge is to a discretionary decision made by the RPD. See RPD subrule 66(1) and RAD subrule 25(1).
105
True or False: After filing the Basis of Claim Form, the applicant will not be able to make any subsequent changes.
False: Changes or additions to Basis of Claim Form can be made under RPD Rule 9.
106
True or False: A claimant can only raise a constitutional question at the RAD if they first raised the question before the RPD.
False: RAD Rule 25 sets out the requirements for raising a constitutional question at the RAD. It does not require the issue to have been raised at the RPD.
107
True or False: After an RPD hearing, the member must always provide a written decision and/or reasons to the decision to the claimant in 14 days.
False: Under RPD Rule 10(8), the RPD member must render an oral decision and reasons at the hearing unless it is not practicable to do so.
108
True or False: If a refugee claimant does not have identity documents, they only need to explain why they do not possess the documents.
False: The claimant would also need to explain what steps they took to obtain the documents. See RPD Rule 11.
109
True or False: When the claimant testifies under oath, there is a presumption that they are telling the truth.
True: From Maldonado v Canada (Minister of Employment and Immigration): when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.
110
True or False: The refugee claimant bears the onus to show that they are not excluded from refugee protection under section 98 of the IRPA.
False: The Minister or the RPD/RAD bears the onus for exclusion under section 98.
111
True or False: According to Desloges & Sawicki, refugee claimants must substantiate statements with evidence in satisfying their burden of proof. This evidence can be either oral or documentary.
True: The burden of proof lies with the refugee claimant to substantiate statements with evidence, which can be oral (in the form of testimony taken under oath) or documentary (corroborative documentation). See "Burden of Proof" on page 461.
112
True or False: In assessing a refugee protection claim, the RPD or RAD should only consider the evidence provided by the claimant.
False: Aside from claimant-specific evidence, the RPD or RAD can also consider generic documentary evidence concerning conditions in the claimant's country of origin or other countries, if relevant. They can also rely on judicial notice and specialized knowledge (see IRPA, ss 170(i) and 171(b).
113
True or False: When claiming refugee protection, the claimant must show beyond a reasonable doubt that they satisfy the criteria of either section 96 or 97 of the IRPA.
False: To succeed, the claimant must establish each required element of either section 96 or 97 on a balance of probabilities.
114
True or False: The Federal Court has said that if a claimant cannot establish their identity, their claim will necessarily fail.
True: In Senghor v Canada, Justice Roy held that "[a] claimant who cannot establish their identity will not be granted refugee protection. It has been consistently held in this Court that failure to establish identity is fatal." (para 16).
115
True or False: According to Desloges & Sawicki, when assessing whether a refugee claimant has a well-founded fear, the Refugee Protection Division will assess:
A) Whether the claimant actually experiences fear
B) Whether the fear experienced by the claimant is reasonable in the circumstances
C) Whether there is safe haven inside the country of nationality where the claimant can seek protection
D) All of the above
ALL: The assessment of well-founded fear has both an objective and subjective component. The objective component considers if the fear is reasonable in the circumstances and considers the circumstances in which the fear arises. The subjective component considers the personal perspective of the claimant. As part of the objective component, the refugee claimant may be required to show that there is no safe haven inside the country of nationality (i.e., that there is no internal flight alternative or IFA). See "Well-Founded Fear" on page 465.
116
True or False: When assessing a refugee claim, the decision-maker has to show, based on a balance of probabilities, that the claimant does not satisfy the criteria of either section 96 or 97 of the IRPA.
False: This statement is wrong in two ways. First, to succeed in a claim, the claimant must meet the requirements of only one of sections 96 or 97. If they meet the criteria of one provision but not the other, their claim will still be accepted. The second error is that the onus is on the claimant to prove their claim, not on the RPD or RAD member to refute it.
117
True or False: The refugee claimant bears the onus of proving all elements of their claim, on an evidentiary standard of "reasonable grounds to believe".
False: The person making the claim for refugee protection bears the onus of establishing all the elements of the claim; they must establish each element on a balance of probabilities.
118
A refugee claimant wants to make out a claim under section 97(1)(b) of the IRPA. Which of the following do they bear the onus of proving on a balance of probabilities?
A) If they were returned to their country of nationality, they would be personally subjected to a risk to their life or of cruel and unusual treatment or punishment; they would be unable or unwilling to avail themselves of the protection of that country; the risk is not faced generally by other people in that country; the risk is not from lawful sanctions; the risk is not caused by that country's inability to provide adequate health or medical care .
B) If they were returned to their country of nationality, they would be personally subject to a risk to their life or of cruel and unusual treatment or punishment; the risk is only faced by the claimant in that country; the risk is not from lawful sanctions; the risk is not caused by that country's inability to provide adequate protection for its citizens.
C) If they were returned to their country of nationality, they would be personally subject to a risk to their life or of cruel and unusual treatment or punishment; their country is unwilling to offer them protection; the risk is not faced generally by other people in that country; the risk is imposed by the state; the risk is not caused by that country's inability to provide adequate health or medical care.
D) If they were returned to their country of nationality, they would be personally subject to a risk to their life or of cruel and unusual treatment or punishment; they would be unable or unwilling to avail themselves of the protection of that country; this risk is not faced generally by other people in that country; the risk is not from lawful sanctions; the risk is present throughout the country's major cities.
A: See section 97(1)(b) of the IRPA.
119
True or False: According to Desloges & Sawicki, when a claimant presents no documentary or other evidence to confirm their testimony, it provides the decision-maker a rational basis to question their credibility.
False: Canadian courts have stated that unless there are valid reasons to question a claimant's credibility, it is an error to require documentary evidence corroborating the claimant's allegations. One cannot disbelieve a claimant merely because the claimant presents no documentary or other evidence to confirm her testimony.
120
True or False: In assessing a refugee protection claim, when a decision-maker is considering generic documentary evidence concerning the conditions in the claimant's country of origin, such documentary evidence must be submitted by the claimant.
False: This documentary evidence may be submitted by the claimant or may come from the National Documentation Package that is maintained by the IRB for all countries. See also Guideline 7 (which you studied in Module 2), section 3.6.
121
Which of the following can a RPD member consider when assessing the claimant's credibility?
A) Demeanour
B) Contradictions in evidence
C) Whether the testimony is under oath
D) All of the above
D: See Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at paras 41-46.
122
True or False: Based on the requirement of identity documents under s 106 of the IRPA, if a refugee claimant does not have supporting documents verifying their identity, their claim will be automatically rejected.
False: If a claimant cannot establish their identity with documentation or explain their lack of such documentation, it will count against their credibility. A claim may not be rejected solely on this factor.
123
James is a citizen of Mexico, Guatemala and a former habitual resident of Costa Rica. Which of these countries will be a country of reference for his claim:
A) Mexico or Guatemala.
B) Mexico and Guatemala.
C) Costa Rica.
D) Mexico, Guatemala, and Costa Rica.
B: If James has any country of citizenship – that is, if he is not stateless – then a claim will not be assessed against his country of former habitual residence, here Costa Rica. However, if he has more than one country of citizenship – as he does here – his claim will be assessed against both those countries.
124
Machiavelli, who is stateless, lived in Country for 4 years. After a recent trip to Canada, he sought to return to Country, but was denied entry. He then applied for refugee protection in Canada. Which of the following statements is true about Machiavelli's claim?
A) Country is not the country of reference for Machiavelli's claim because it denied him entry.
B) Country is the country of reference for Machiavelli's claim because it is his former country of habitual residence. He had a significant period of de facto residence there.
C) Country is the country of reference for Machiavelli's claim. He lived there for the minimum of 3 years necessary to establish it as his country of former habitual residence.
D) Country is not the country of reference for Machiavelli's claim. He has not lived there for the minimum of 5 years necessary to establish it as his country of former habitual residence.
B: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapters 2, section 2.2.1.
125
Aaron is a citizen of the United States because he was born there. He is also a citizen of France because his parents are French citizens. He has spent most of his life in Canada and is a permanent resident here. He files a claim for refugee protection in Canada. Which of the following statements is true?
A) Aaron's claim is ineligible because he is a permanent resident of Canada.
B) There are no facts given that indicate Aaron's claim is ineligible. It must be established against France because his parents are French citizens.
C) There are no facts given that indicate Aaron's claim is ineligible. It must be established with respect to both the United States and France because Aaron is a citizen of both those countries.
D) There are no facts given that indicate Aaron's claim is ineligible. It must be established against both his countries of citizenship (United States and France) as well as his country of habitual residence (Canada).
C: There is no specific ground of ineligibility for permanent residents of Canada under IRPA, s 101. Permanent residents may be ineligible if another ground of ineligibility applies. Aaron's claim must be established against both his countries of nationality. It need not be established against Canada because he possesses citizenship in France and the United States. Also, Canada is not his country of former habitual residence, nor is he outside it.
126
Madeleine Gascar has claimed refugee protection in Canada. Madeleine is a member of Nomadic Group, born on October 12, 1983 in Bonnaroo. At any time, a large population Nomadic Group resides in Bonnaroo. However, an even larger population of Nomadic Group resides at any one time across the border in Lollapalooza. Like many members of Nomadic Group, Madeleine has spent her whole life moving back and forth between Bonnaroo and Lollapalooza. Members of Nomadic Group face considerable discrimination in both countries, but the discrimination is often accompanied by violence in Bonnaroo.
Section 3 of the Citizenship Law of Bonnaroo provides the following: "Any person born in Bonnaroo after January 1, 1966 is a citizen." Section 11 of the Citizenship Law of Bonnaroo states, "Notwithstanding section 3, a person born in Bonnaroo is not a citizen upon determination that they do not have substantial ties Bonnaroo." Section 12 states: "Determinations under section 11 are to be made by the Minister of Citizenship and Immigration upon referral from an officer. The onus is on the officer to prove substantial ties to another country."
Which of the following statements are true?
A) There is insufficient information to answer the question.
B) The country of reference for Madeleine's refugee protection claim is Bonnaroo.
C) The country of reference for Madeleine's refugee protection claim is Lollapalooza.
D) Madeleine is a stateless person with no country of reference.
A: To answer the question, we need to know more about the citizenship laws in Lollapalooza. If Madeleine has control over access to citizenship in Lollapalooza, it would be her country of reference.
127
For a claimant to prove that they do not have control over the outcome of their attempt to acquire protection. How can they prove "control"?
A) Sufficient influence over the outcome such that if the claimant made some efforts to acquire that citizenship, their application would in fact be successful
B) Sufficient influence over the outcome such that if the claimant made best efforts to acquire that citizenship, the state would review their application
C) Sufficient influence over the outcome such that if the claimant made genuine efforts to acquire that citizenship, it is reasonably foreseeable that it would be successful
D) The claimant has some degree of influence on the outcome of their application
C: See para 36 of Tretsetsang v Canada (Citizenship and Immigration), 2016 FCA 175. While this paragraph comes from Rennie JA's dissenting opinion, it is not contradicted by the majority, which notes that they agree with "many of [Rennie J.A.'s] conclusions" (see para 59).
128
Which of the following is said to be required in Tretsetsang v Canada (Citizenship and Immigration), 2016 FCA 175 as a way proving that access to citizenship is thwarted through the administration of the law in a claimant's country of origin?
A) Proof of reasonable but unsuccessful efforts to acquire citizenship.
B) Proof that the claimant has pursued litigation to contest a negative decision on a citizenship application.
C) Proof that the only way to get a citizenship application approved is through bribery.
D) Proof that a legal discretion exists within the law.
A: See paragraph 72 of the decision. The majority stops short of saying that pursuit of litigation, as suggested in answer B, is required. Proof that bribery is required, as suggested in answer C, may also be helpful in such a case. However, that possibility is not discussed in Tretsetsang. Note that the majority emphasizes that "[w]hat will constitute reasonable efforts to overcome a significant impediment (that has been established by any particular claimant) in any particular situation can only be determined on a case-by-case basis." (See para 73.) Finally, note that D is not the right answer because the question concerns administrative, not legal, impediments.
129
True or False: If a claimant has multiple nationalities, their refugee protection claim need only be established with respect to the country to which they have established a genuine attachment.
False: If a claimant is a national of more than one country, the claimant must show that they are a Convention refugee with respect to all such countries.
130
A claimant is attempting to establish that, while citizenship is in principle available under the law in their country of origin, the administrative process is burdensome to the point that it is de facto unavailable. What evidence should the claimant bring forward to support this proposition?
A) None. If the law makes citizenship available, proof of administrative impediments cannot help the claimant's case.
B) Evidence of administrative impediments.
C) Evidence regarding the constitutional law in the country of origin.
D) Evidence that the state does not have a discretion to reject a valid claim for citizenship.
B: See para 32 of Tretsetsang v Canada (Citizenship and Immigration), 2016 FCA 175. While this paragraph comes from Rennie JA's dissenting opinion, it is not contradicted by the majority, which notes that they agree with "many of [Rennie J.A.'s] conclusions" (see para 59).
131
True or False: Every stateless person is a Convention refugee.
False: Stateless persons must nonetheless show that they meet the criteria under IRPA, ss 96 or 97 and are not excluded under IRPA, s 98. See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapters 2, section 2.2.4.
132
True or False: The standard of proof for a claimant to show their country of origin is exercising administrative discretion to frustrate their legal entitlement to citizenship is on a balance of probabilities.
True: See para 39 of Tretsetsang v Canada (Citizenship and Immigration), 2016 FCA 175. While this paragraph comes from Rennie JA's dissenting opinion, it is not contradicted by the majority, which notes that they agree with "many of [Rennie J.A.'s] conclusions" (see para 59).
133
True or False: If it is within the control of the applicant to acquire the citizenship of a country with respect to which he has no well-founded fear of persecution, the claim for refugee status will be denied.
True: This statement of principle was set out by Justice Rothstein in Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74, and was approved by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126.
134
True or False: If a claimant has a country of nationality and also a (different) country of former habitual residence, the claim should be assessed against both countries.
False: Careful reading of both IRPA, ss 96 and 97 shows that claims are only assessed against countries of former habitual residence if a claimant does not have a country of nationality.
135
True or False: Because a refugee must have a fear of persecution that drove them to leave their country of nationality, people such as diplomats would not be qualify as refugees because they work for the government.
False: See para 95 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection. Diplomats may become refugees sur place.
136
True or False: Habib left his home country and transited through John F Kennedy International Airport (in the United States), on a 12-hour layover, on his way to Toronto. He claimed refugee protection at the airport in Toronto, as he had intended all along. The Federal Court is likely to uphold the Refugee Appeal Division if it finds that Habib's failure to claim asylum at JFK Airport indicates a lack of subjective fear.
False: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.4.2: "The Court has frequently held that a short stay in a safe third country en route to Canada is not necessarily considered a sufficiently material sojourn to create an expectation that the claimant would claim refugee status during that stay."
137
True or False: Amir is an international student at a Canadian university. He does not want to return to Home Country, his country of origin. Although he does not believe in the cause, he joins in several protests outside the Home Country embassy calling for greater political freedom. Amir knows that embassy employees record protests and that protesters may be targeted on their return home. Because Amir took part in the protests in bad faith, he cannot be a Convention refugee.
False: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 7, section 7.3.1: There is no good faith requirement in making a sur place claim. The RPD or RAD cannot reject a sur place claim solely on the basis of a lack of credibility without examining the potential risk upon return to the country of origin.
138
True or False: If a person's voluntary actions while abroad contributed to the basis of persecution in their country of nationality, then they cannot become a refugee "sur place" as it is aimed to protect persons subject to persecution due to reasons outside of their control.
False: See para 96 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection. See also IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 7, section 7.3.1
139
True or False: If the claimant delays their refugee claim, it will be fatal to their case because there is a longstanding principle that claimants should apply as soon as possible.
False: See para 61 of Zeah v Canada (Citizenship and Immigration), 2020 FC 711. Delay in seeking refugee protection is not determinative; rather, it is a factor the decision maker may take into account in assessing the claim's credibility.
140
True or False: According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection, threats to freedom for reasons of religion can constitute persecution
True: See paragraph 51 of UNHCR Handbook. Note that here the UNHCR seems to be combining persecution and nexus.
141
True or False: If a claimant fails to claim asylum or refugee protection in a third country after leaving their country of nationality and before coming to Canada, that can be fatal to their claim?
False: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.4.2: "Failure to seek the protection of another country which is also a signatory to the Convention may be a significant factor to consider but is not in itself determinative."
142
A refugee claimant fears persecution in their country of nationality due to their sexual orientation. This claimant has been aware of their sexual orientation since they were 16. However, they have not told anyone. Recently, at the age of 24, the claimant disclosed their sexual orientation to a close friend back in their country of nationality. Without this claimant's permission, the friend told others one year after. According to Zeah v Canada, when did the claimant's fear of persecution crystallize?
A) When the claimant was 16.
B) When the claimant told the friend at the age of 24.
C) When the friend disclosed it to others.
D) When the claimant knew about the cultural intolerance of their sexual orientation.
C: The claimant's fear for persecution crystallized when their secret was no longer safe. See para 64 of Zeah v Canada (Citizenship and Immigration), 2020 FC 711.
143
According to the Supreme Court's decision in Ward, what must the claimant show to establish fear of persecution?
A) The claimant must subjectively fear persecution, and this fear must be well-founded in an objective sense.
B) The claimant must subjectively fear persecution.
C) The claimant must subjectively fear persecution, and this fear must be well-founded in a subjective sense.
D) The claimant does not need to show anything because they do not have the evidentiary burden
A: See para 47 of Ward v Canada (Minister of Employment & Immigration).
144
Clarke has claimed refugee protection, alleging a fear of being imprisoned because he is homosexual. The documentary evidence reveals that authorities in Clarke's home country only target homosexuals who are open about their sexual orientation. Can it reasonably be found that Mr. Allen faces a well-founded fear of persecution?
A) Yes. No matter how secretive he is, there is a reasonable chance that Clarke's homosexuality will be discovered by the authorities eventually.
B) No. Clarke can remain safe by refraining from having sex. Not being able to have sex is not persecution.
C) No. The drafters of the 1951 Convention relating to the Status of Refugees did not intend to extent international protection to persons able to conceal their identity.
D) Yes. Being compelled to conceal one's sexual orientation may amount to persecution.
D: See IRB, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017), section 8.5.1.
145
According to the UNHCR Handbook as referenced in Ward v Canada (Minister of Employment & Immigration), in a claim that does not involve direct state complicity in the persecution, which of the following must the claimant show for the "persecution" element under the Convention refugee definition?
A) Acts by the state and the state's unwillingness to protect the claimant.
B) Acts by private actors and state's unwillingness or inability to protect the claimant.
C) Acts by the state and other citizens' inability to protect the claimant.
D) Acts by private actors and both the state and other citizen's unwillingness to protect the claimant.
B) Acts by private actors and state's unwillingness or inability to protect the claimant.
See para 27 of Ward v Canada (Minister of Employment & Immigration) (QL). Note that while Justice LaForest refers only to the state's inability to protect, paragraph 65 of the UNHCR Handbook, which Justice LaForest relies on, refers also to cases where authorities refuse to offer effective protection. Thus in cases where the state is not directly complicit in the persecution, an unwillingness to protect also helps establish persecution.
146
True or False: When assessing the claimant's explanation of why they did not make a claim at the first opportunity, a decision-maker should consider the claimant's personal attributes, circumstances, and their understanding of the immigration and refugee process.
True: See para 61 of Zeah v Canada (Citizenship and Immigration), 2020 FC 711.
147
True or False: In most cases, a failure to establish a subjective fear of persecution flows from credibility issues.
True: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.3.1: "Judicial reviews … [f]ar more often … concern claimants who have not met their burden of establishing the subjective component of a well-founded fear because of a credibility issue."
148
True or False: According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection, the UNHCR has developed a robust list of criteria and definitions of "persecution", but it has yet to be adopted by signatory countries.
False: See para 51 of UNHCR Handbook.
149
True or False: Emelia is a young woman and a member of a minority ethnic community in her country of origin. Several years ago, when Emelia was 12, her uncle was stalked and threatened by neo-Nazi skinheads. Although Emelia's family reported the incident to police, a full investigation was never conducted. Just recently Emelia's home was vandalized by members of the majority ethnic group. Emelia herself has been unable to find employment, despite her professional training in nursing. Although she has submitted countless job applications, she has not been invited to even one interview. Emelia believes she has been denied the opportunity to work because of her last name, which clearly identifies her as a member of the minority ethic community. The discrimination faced by Emelia might reasonably be found to amount to persecution.
True
150
True or False: According to Professor Hathaway as quoted by the court in Ward v Canada (Minister of Employment & Immigration), if the government was not given an opportunity to respond to harm in circumstances where protection might reasonably have been anticipated, it cannot be said there was a failure of state protection in most cases.
True: See para 48 of Ward v Canada (Minister of Employment & Immigration) (QL).
151
When is it permissible to conclude, based on a delay in claiming, that a claimant alleging a fear of persecution based on their sexual orientation does not have a subjective fear?
A) When a claimant does not allege that they feared disclosing their sexual orientation to their spouse or other family members.
B) When a claimant does not allege a fear of reprisals against themselves or their family members.
C) When the claimant does not provide a satisfactory alternative explanation for the delay in claiming.
D) It is never reasonable to reject a claim based on sexual orientation because of a delay in claiming.
C: See Zeah v Canada (Citizenship and Immigration), 2020 FC 711 at item (f) of paragraph 61 and IRB, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017), section 8.5.11
152
True or False: Nadya is an international student at McGill University. As she completes her last year of undergraduate studies, a civil war erupts in her country of nationality. During the war, the minority population is subject to arbitrary murder and torture. Nadya, a member of the minority, fears persecution due to her racial identity if she were to return. She may qualify as a refugee "sur place".
True: See para 60 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection.
153
As a form of harm, persecution must be:
A) Appalling
B) Serious
C) Dramatic
D) Horrendous
B: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 3, section 3.1.1.1.
154
True or False: Because the Refugee Convention only protects victims of injustice, individuals who are escaping punishment due to a crime they have committed under the country's penal code will not qualify as a Convention refugee in Canada.
False: There are occasions where prosecution from the country may amount to persecution. See paras 57-58 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection.
155
True or False: Because a refugee must have a fear of persecution before leaving their country of nationality or habitual residence, people such as international students would not qualify as refugees.
False: See para 95 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection. Students – as well as diplomats, migrant workers, and others – may become a refugee "sur place" due to circumstances that arise in their country of origin during their absence.
156
To find compelling reasons for accepting a claim for refugee protection, the RPD or RAD must:
A) Decide whether the past treatment of the claimant was atrocious and appalling.
B) Examine all the circumstances of the case, including a consideration of the trauma repatriation would cause.
C) Find that there is expert psychiatric evidence that establishes the ongoing trauma of a claimant on a balance of probabilities.
D) Find that a claimant faces a well-founded fear of persecution.
A and B: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 7, section 7.2.3, 7.2.5 and 7.2.6. Both A and B are accepted by the Federal Court.
157
Which of the following would the court consider when assessing the delay in refugee claim?
A) When did the claimant's actions lead to the risk of persecution? Why did the claimant not take the first opportunity to make a claim?
B) When did the claimant's subjective fear of persecution crystallize? When did the claimant first have an opportunity to make a claim? Why, according to the claimant, did they not take that first opportunity?
C) How many opportunities has the claimant had to make a claim? Why has the claimant not taken those opportunities? Why is the claimant facing persecution?
D) When did the claimant's subjective fear of persecution crystalized? Why is the claimant facing persecution? When did the claimant leave their country of origin?
B) When did the claimant's subjective fear of persecution crystallize? When did the claimant first have an opportunity to make a claim? Why, according to the claimant, did they not take that first opportunity?
See para 62 of Zeah v Canada (Citizenship and Immigration), 2020 FC 711.
158
According to the SOGIE Guidelines, which of the following should the decision-maker consider when assessing inconsistencies or omissions in a claimant's account of their case?
A) Cultural and psychological barriers that may reasonably explain the inconsistency or the omission.
B) The accuracy of the claimant's narrative.
C) The number and extent of inconsistencies and/or omissions in the claimant's narrative.
D) All of the above.
A) Cultural and psychological barriers that may reasonably explain the inconsistency or the omission.
See para 72 of Zeah v Canada (Citizenship and Immigration), 2020 FC 711.
159
True or False: Mr. Chowdhury is a pro-democracy activist and has been distributing pamphlets on the right to vote. He was arrested for violating public order, which is an offense under the penal code of his country of nationality. This offense carries a sentence of ten years. Because he was arrested for violating the law, he cannot claim that he fears persecution.
False: This may be a case where the application of the country's penal code is not in conformity with accepted human rights standards, since Mr. Chowdhury is facing prosecution for his political opinions. See para 59 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection.
160
What meaning has been ascribed to the term "persecution" in international law?
A) The sustained or systemic violation of human rights
B) The sustained or systemic violation of human rights demonstrative of a failure of state protection.
C) The sustained or systemic violation of basic human rights demonstrative of a failure of state protection.
D) The violation of basic human rights demonstrative of a failure of state protection.
C: See paragraph 63 of Ward v Canada (Minister of Employment & Immigration) (QL). Justice LaForest stated that the Court had "endorsed" this definition in his dissenting opinion in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593 at para 63.
161
True or False: According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection, if acts of discrimination against the refugee claimant leads to prejudicial consequences affecting their right to practice their religion, it can amount to persecution.
True: See paragraph 55 of UNHCR Handbook.
162
After Haldor claims refugee protection in Canada, a peace agreement is signed in his home country bringing to an end a decades-long civil war. The agreement includes a full apology to victims of torture and other human rights abuses. It further includes a commitment to bring those who committed such abuses to justice. The documentary evidence establishes that the peace agreement seems to be lasting and that the commitments made within it are likely to be honoured. Haldor produces credible evidence of having been brutally tortured because of his ethnicity during the civil war. On these factors, which among the following issues is likely to be determinative of Haldor's claim?
A) Whether Haldor faces a well-founded fear of persecution.
B) Whether there has been a meaningful, effective and durable change to the circumstance's in Haldor's home country.
C) Whether there are compelling reasons for granting Haldor's claim notwithstanding the fact that he does not face a well-founded fear of persecution.
D) Whether Haldor continues to have a subjective fear of the military in his home country.
C: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 7, section 7.2.1.
"claimants must show that they once qualified for refugee protection; they do not have to establish that they actually achieved it.”
163
Adeline is a member of Minority Group. The documentary evidence shows that members of Minority Group routinely face harassment and discrimination in her country of origin, Oppressive Country. Adeline herself has been denied jobs as a server in a restaurant, spat upon when trying to enter nightclubs, and in one incident was referred to as "hopeless, like all other Minority Group members" by a university professor. The RPD summarized these facts and then analyzed them with a single sentence. It wrote: "None of these incidents by themself amounts to persecution, therefore the claimant is not a Convention refugee." It then moved on to another issue.
Which of the following statements best characterizes the RPD's analysis?
A) The RPD was correct to find Adeline has not faced persecution. There is no error.
B) The RPD made a mistake by failing to consider whether each incident was a sustained or systemic violation of a basic human right demonstrative of a failure of state protection.
C) The RPD made a mistake by looking at the incidents individually and omitting to consider whether, cumulatively, they amount to persecution.
D) The RPD made a mistake by failing to consider the issue of state protection.
C: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 3, section 3.1.2: "[W]here the claimant has experienced more than one incident of mistreatment, the Refugee Protection Division may err if it only looks at each incident separately."
164
True or False: According to Ward v Canada (Minister of Employment & Immigration), the state's inability to protect the claimant is relevant to assess whether the claimant's fear is "well-founded".
True: See paragraph 52 of Ward v Canada (Minister of Employment & Immigration) (QL).
165
True or False: In Zeah v Canada (Citizenship and Immigration), the Court drew an adverse inference when the applicant's claim in Canada included an important fact that was missing in her claim in the U.S.
False: The Court held it was incumbent on the RAD to assess the claimant's actions in light of her individualized circumstances. While the claimant made refugee claims in the U.S. without disclosing her sexual orientation, she had valid concerns about such disclosure to her U.S. lawyer and her husband. The SOGIE Guideline stresses the importance of assessing the significance of any inconsistencies or material omissions in a claimant's account in light of any cultural, psychological or other barriers that may reasonably explain the inconsistency or the omission. See paras 72-73 of Zeah v Canada (Citizenship and Immigration).
166
Which of the following have been found to be cases of persecution?
A) Barring a claimant from citizenship when they enjoyed many other rights.
B) Economic penalties stopping short of preventing a claimant from earning a livelihood.
C) Forcing a woman into marriage.
D) Imposing the death penalty for murder.
C: See the list of examples in IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 3, section 3.1.3.
167
True or False: Persistence, repetition or "systemicity" is always a requirement to find persecution.
False: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 3, section 3.1.1.2: "Some forms of harm are unlikely to be inflicted repeatedly (e.g., female genital mutilation), or are simply incapable of being repeated (e.g., the killing of the claimant's family as a form of retribution against the claimant); nevertheless, they are so severe that their characterization as persecution seems beyond dispute."
168
What is the governing question when considering if a delay in claiming refugee protection or asylum undermines a claimant's allegation of having a well-founded fear of persecution?
A) Did a third party, such as a family member or friend, prevent the claimant from making their claim?
B) What is the level of the claimant's education?
C) Did the claimant act in a way that is consistent with the fear of persecution they claim to have?
D) Did the claimant feel safe in their dealings with their legal representative?
C: See Zeah v Canada (Citizenship and Immigration), 2020 FC 711 at item (d) of paragraph 61.
169
True or False: At the end of its decision, the RPD concludes by writing: "In sum, I find that the claimant would not be persecuted." This has the potential to be found to be an error.
True: See IRB, Interpretation of Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.2: "The test does not require a probability of persecution and asking claimants to establish that they 'would' be persecuted in the future, has been held to be the wrong test."
170
True or False: It is essential to describe to minor claimants in detail what might happen to them if they return to their home country. Otherwise they may be rejected for not having a subjective fear.
False: If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the parent or other person acting as the claimant’s designated representative may establish a subjective fear.Note29 However, the claim must be evaluated from the perspective of the minor.
171
True or False: If a claimant fails to claim asylum or refugee protection in a third country after leaving their country of nationality and before coming to Canada, that can be fatal to their claim?
False: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.4.2: "Failure to seek the protection of another country which is also a signatory to the Convention may be a significant factor to consider but is not in itself determinative."
172
What is/are the standard(s) for finding the objective basis of a claim for refugee protection? Click on all that apply.
A) Reasonable chance
B) Balance of probabilities
C) Serious possibility
D) Good grounds
A, C and D: Courts have accepted "reasonable chance", "serious possibility" or "good grounds" – as well as "reasonable possibility" – as the standard for the objective basis of a claim. See IRB, Interpretation of Convention Refugee Definition in the Case Law (March 31, 2019) chapter 5, section 5.2.
173
According to Ward, does persecution require state involvement under the definition of "Convention refugee"?
A) Yes, the claimant must be facing persecution from the state, but not due to lawful sanctions.
B) Yes, persecution must come from state authorities such as the police or army.
C) No, persecution does not have to emanate from the state.
D) No, but persecution must emanate from a majority group and be directed toward a minority.
C: See para 26 of Ward v Canada (Minister of Employment & Immigration) .
174
True or False: A refugee claimant is fearing prosecution for a charge of manslaughter in his country of nationality. In assessing his claim and whether that country's law is in conformity with human rights standards, decision-maker would not need to consider the claimant's crime itself.
False: It may be necessary to consider whether the crime is of a serious nature to bring the claimant within the scope of one of the exclusion clauses. See para 58 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection.
175
In Ward, the SCC held that the members of the INLA do not constitute a "particular social group" because:
A) Using violent methods to achieve independence from the UK is not essential to members' human dignity.
B) The members joined INLA voluntarily, without any coercion.
C) The INLA disbanded and therefore cannot persecute individuals.
D) The INLA did not have a legitimate lawful objective.
A: See para 79 of Ward v Canada (Minister of Employment & Immigration) (QL). There, Justice LaForest held that, although the fight for independence from the United Kingdom and unification with the Irish Republic may be very serious political ends for INLA members, requiring them to abandon violence would not amount to an abdication of their human dignity.
176
The evidence in a claim establishes the following on a balance of probabilities: Hiram belongs to a minority religion whose members face a reasonable chance of persecution. His religion does not require public worship or other public manifestations of belief (including forms of dress). Hiram could therefore continue to practice his religion without publicly revealing it. Which of the following statements best characterizes the nature of her claim? Choose one.
A) Hiram does not face a well-founded fear of persecution since he can practice his religion without revealing it.
B) Hiram faces a well-founded fear of persecution for reasons of his religion even his religion remains unknown.
C) Hiram faces a well-founded fear of persecution for reasons of his religion because there is a reasonable chance it may become known.
D) We do not have enough facts to answer this question.
D: What is needed are facts about how likely it is that Hiram's religious affiliation might become known even though he need not reveal it. Otherwise, the facts do not reveal any persecution of Hiram; in particular, because his faith requires no public worship or other manifestations, he is not being asked to conceal it.
177
True or False: In cases where a certain political opinion was wrongly imputed to a claimant, they may nonetheless succeed in their claim for refugee protection.
True: In Ward v Canada (Minister of Employment & Immigration) (QL), Justice LaForest held the political opinion ascribed to the claimant, leading to their fear of persecution, need not necessarily conform to the claimant's true beliefs. See para 83.
178
True or False: The fact that violence against women is common in Canada is relevant when considering whether a claim based on gender-based violence can succeed before the RPD or RAD.
False: See section B of the IRB, Chairperson Guidlines 4: Women Refugee Claimants Fearing Gender-Related Persecution (November 13, 1996): "The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. The real issues are whether the violence -- experienced or feared -- is a serious violation of a fundamental human right for a Convention ground."
179
The evidence in a claim establishes the following on a balance of probabilities: Gemma has been singled out for arrest after publishing a leaflet. In it, she criticized the ruling political party's arrest and torture of homosexuals. Gemma is homosexual, but the authorities do not believe she is. Assuming there are no further relevant facts, which of the following statements best characterizes the nature of her claim? Choose one.
A) Gemma can claim a well-founded fear of persecution because of her political opinion.
B) Gemma can claim a well-founded fear of persecution because of her membership in a particular social group.
C) Gemma can claim a well-founded fear of persecution because of her political opinion and her membership in a particular social group.
D) Gemma can claim a well-founded fear of persecution because of her political opinion or her membership in a particular social group, but not both.
C: A nexus is established "when one (or more) of the Convention grounds is a contributing factor for persecution." In this case, Gemma expressed political views with respect to a matter in which the machinery of state, government, and policy in her home country is engaged. Further, in Ward v Canada (Minister of Employment & Immigration) (QL) at para 70, Justice LaForest expressly mentions sexual orientation as a particular social group. It seems in this case that both her political opinion and membership in a social group are contributing factors to the potential persecution.
180
In Ward, the court was not worried that it was making refugee protection too widely available by defining political opinion to include any dissent against any organization because:
A) The claimant's political opinion must be grounded in their words and/or actions.
B) The claimant must subjectively fear persecution.
C) The claimant's dissent must be rooted in an actual or imputed political conviction.
D) The persecuting organization must correctly believe the claimant held the opposing political beliefs.
C: The claimant's dissent must be rooted in an actual or imputed political conviction. See para 86 of Ward v Canada (Minister of Employment & Immigration) (QL).
181
True or False: For a claimant to establish that their well-founded fear of persecution is due to their political opinion, they must have expressed their opinion in words.
False: In Ward, Justice LaForest explained that some claimants may not have the opportunity to articulate their beliefs, but their beliefs can be perceived from their actions. The absence of expression in words may make it more difficult for the claimant to establish the relationship between their political opinion and the feared persecution, but it does not preclude protection of the claimant. See para 82 of Ward v Canada (Minister of Employment & Immigration) (QL).
182
Whether or not a nexus has been established must be evaluated from whose perspective?
A) The RPD or RAD.
B) The refugee protection claimant.
C) The agent of persecution.
C: The agent
See Ward v Canada (Minister of Employment & Immigration) (QL) at para 83.
183
True or False: A refugee claimant has previously belonged to a terrorist group. The terrorist group no longer exists. Under the Supreme Court's decision in Ward, the claimant would not receive refugee protection under the "particular social group" definition.
False: The SCC did not adopt FCA's holding that "particular social group" should be limited in scope to exclude claimants that have embraced terrorists. Instead, the SCC held that such a restriction on the scope of "particular social group" is unnecessary and renders redundant the explicit exclusionary provisions. See para 71. Later in the decision, Justice LaForest finds that Ward did not belong to a particular social group, because membership in the INLA was not fundamental to his human dignity. However, that finding was premised on the fact that the INLA continued to exist and was also the agent of persecution. In a case where the terrorist group no longer exists and is not the agent of persecution, it appears that the "particular social group" ground is in principle available. Such persons, however, may face a strong likelihood of exclusion under article 1F(a) of the 1951 Convention relating to the Status of Refugees. We will be examining exclusion in Module 4.
184
In Tobias Gomez v Canada (Citizenship and Immigration), why did the court conclude that the claimant's actions did not fall under "political opinion"?
A) The claimant was resisting a criminal gang, not the government, and hence their actions could not be the basis of a "political opinion".
B) The claimant did not provide evidence showing their resistance to extortion was amounted to a political conviction or was viewed as such by the gang.
C) The claimant had expressed the same opinion regarding the gang as the government, and therefore, his was not a dissenting "political opinion."
D) The claimant did not advance the claim for "political opinion" before the IRB.
B) The claimant did not provide evidence showing their resistance to extortion was amounted to a political conviction or was viewed as such by the gang.
See para 25.
185
True or False: In Ward, although it was held that INLA is not a "particular social group", the court agreed that the applicant's fear was based on his membership with the INLA.
False: The Court did not accept that the applicant's fear was based on his membership. It found Ward was the target of "a highly individualized form of persecution". See para 79 of the decision.
186
True or False: Patricia comes from the country of Phionia where criminality, including rape, is widespread. The police are largely ineffective. There is no question that Patricia is at risk. However, in deciding her claim, the RPD member writes: "Both men and women from Phionia face a risk of criminality, therefore the claimant has not established a nexus to a Convention ground." This was an error.
True: While for a time the case law was inconsistent, in 2010 the Federal Court definitively stated it is an error to dismiss gender-based violence as a mere incidence of generalized criminality: Dezameau v Canada (Citizenship and Immigration), 2010 FC 559; Josile v Canada (Citizenship and Immigration), 2011 FC 39. However, a claimant must nonetheless establish that they are personally at risk.
187
For an opinion to count as a "political" opinion, it must:
A) Concern a political party – in or out of power – or any law, policy, or decision supported by that party.
B) Concern a matter in which the machinery of state, government, and policy may be engaged.
C) Concern a matter in which the machinery of state, government, and policy or any powerful non-state group in society may be engaged.
D) Concern the interests and power of the members of the political and economic elite.
B) Concern a matter in which the machinery of state, government, and policy may be engaged.
See para 81 of Ward v Canada (Minister of Employment & Immigration) (QL).
188
In Tobias Gomez v Canada (Citizenship and Immigration), why was the objective evidence showing those who resist gangs in El Salvador may be subject to retribution not sufficient to support a finding that there was a nexus to the political opinion?
A) The claimant also needed to show evidence of their own actual resistance to the criminal gangs.
B) Because the Mara-18 is a criminal gang and not the government, and therefore the claimant's resistance would not be "political opinion."
C) Documentary evidence did not suggest the Mara-18 saw resistance to them as a political stand.
D) Because the claimant did not seek state protection, which would have been an avenue for them to express their political opinion.
C) Documentary evidence did not suggest the Mara-18 saw resistance to them as a political stand.
Para 26
189
True or False: The Court in Klinko v Canada, [2000] 3 FC 327 (CA) held that a political opinion ceases to be political when the ruling government agrees with such opinion.
False: Para 31
190
Assume the following facts are established on a balance of probabilities: Fantine is a member of a minority ethnic group. Most members of her ethnic group also belong to a minority religion. They also speak a minority language. Female members of the ethnic group are routinely targeted for sexual violence by members of the military. Which of the following statements best characterizes Fantine's claim?
A) We need more facts to decide whether Fantine is a Convention refugee.
B) Fantine may establish her claim under each of the Convention grounds.
C) Fantine may not establish her claim because no one Convention ground can be said to substantially contribute to her well-founded fear of persecution.
D) Fantine may establish her claim based on race, nationality, religion and membership in a particular social group, but not based on political opinion.
A: Although Fantine's claim potentially has a nexus to four different Convention grounds -- as suggested by D – we need to know more about why Fantine herself was targeted before coming to a conclusion about which Convention ground applies.
191
Which of the following groups have been recognized as particular social groups by the courts? Click on all that apply.
A) Men victimized by the former abusive partner of their spouse.
B) Abandoned children.
C) Trade unions.
D) Members of a cooperative of taxi drivers.
E) The poor.
F) Haitian citizens returning home after a stay abroad.
A, B, C, E
See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 4, section 4.5.
192
True or False: The Court in Klinko v Canada, [2000] 3 FC 327 (CA) held that to establish a nexus based on political opinion, it is sufficient that the state or machinery of state "may be engaged" in the issue that is the subject of the opinion.
True: See para 33 of the decision.
193
True or False: In Ward, although it was held that INLA is not a "particular social group", the court agreed that the applicant's fear was based on his membership with the INLA.
False: The Court did not accept that the applicant's fear was based on his membership. It found Ward was the target of "a highly individualized form of persecution". See para 79 of the decision.
194
The Convention ground of "nationality" may include which of the following? Click on all that apply.
A) Nationality in the sense of "citizenship."
B) Nationality in the sense of "ethnic group."
C) Nationality in the sense of "linguistic group."
D) Race.
ALL: See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines for Protection (Geneva: UNHCR, 2019) at para 74. Note that it is written that "[w]hen used as one of the five grounds, 'nationality' does not mean the same thing as 'citizenship'" in chapter 4 of the IRB's Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) at section 4.3. However, the point being made there is that the meaning of "nationality" is broader than simply citizenship.
195
The evidence in a claim establishes the following on a balance of probabilities: Gemma has been singled out for arrest after publishing a leaflet. In it, she criticized the ruling political party's arrest and torture of homosexuals. Gemma is not homosexual, and the authorities do not believe she is homosexual. Assuming there are no further relevant facts, can Gemma claim a well-founded fear of persecution because of her political opinion?
Yes: Gemma published political views concerning a matter in which the machinery of state, government, and policy are engaged in her home country (see Ward v Canada (Minister of Employment & Immigration) (QL) at para 81). Therefore, it appears she faces persecution because of her political opinion.
196
True or False: A refugee claimant who is successful in establishing they fall within the definition of "Convention refugee" will be granted refugee protection regardless of their past political or criminal conduct.
A claimant who has established they are included in the definition of "Convention refugee" must still show that they are not subject to inadmissibility for criminality or exclusion under article 1E or 1F of the 1951 Convention. See paras 73-75 of Ward v Canada (Minister of Employment & Immigration) (QL). Justice LaForest uses this point to reject the "very narrow" approach of the Federal Court of Appeal majority, which held that "particular social groups" exclude "groups who by acts of terrorism seek to promote their aims" (see para 54).
197
True or False: According to Tobias Gomez v Canada (Citizenship and Immigration), the claimant bears the onus to bring evidence showing their actions amounted to a political conviction, or that it can be construed as such by the persecutor.
True: Para 25
198
Which of the following is not a category under the test for "particular social group" as adopted by the court in Ward v Canada (Minister of Employment & Immigration)? Click on all that apply.
A) Groups defined by an immutable or unchangeable characteristic.
B) Groups of persons associated with one another for reasons fundamental to their human dignity.
C) Groups associated by former voluntary status.
D) Groups who have been together for a long time, like the Rolling Stones.
D: See para 70 of Ward v Canada (Minister of Employment & Immigration) (QL).
199
Assume the following facts are established on a balance of probabilities: A refugee claimant has a well-founded fear of persecution due to complaints he has made to authorities about government officials demanding bribes. The government has made formal announcements about its plans to crack down corruption. Would this claimant's claim succeed under the "political opinion" ground?
A) No. The claimant's opinion is not in opposition to the government.
B) No. Filing complaints with authorities is not vocally expressing a political opinion.
C) Yes. A political opinion does not depend on the government's agreement.
D) Maybe. If corruption is widespread enough, then denouncing the corruption can be an expression of "political opinion".
D: See Klinko v Canada, [2000] 3 FC 327 (CA) at paras 34-35: "I have no doubt that the widespread government corruption raised by the claimant's opinion is a 'matter in which the machinery of state, government, and policy may be engaged' … Where, as in this case, the corrupt elements so permeate the government as to be part of its very fabric, a denunciation of the existing corruption is an expression of 'political opinion'. "
200
True or False: In Ward, Justice LaForest held that "particular social group" is broadly defined, aiming to catch possible gaps in the other enumerated grounds for persecution in the Convention refugee definition.
False: See paragraph 59 of Ward v Canada (Minister of Employment & Immigration) (QL).
201
True or False: According to the UNHCR Handbook, as referenced in Ward, the refugee claimant must raise all potential reasons for persecution in order for the decision-maker to decide whether the "Convention refugee" definition is met.
False: The court notes that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragraph 66 states that it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met. See para 80 of Ward v Canada (Minister of Employment & Immigration) (QL).
202
True or False: The Convention ground of "race" refers only to "race" in the biological sense.
False: The Court in Klinko held that the meaning given to the word "engaged" in Femenia is inconsistent with the law as set forth in Ward. See paras 24-25 of the decision.
203
True or False: Femenia v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1455 (T.D.) (QL) clarified the meaning of "engaged" as meaning "sanctioned by, condoned by, or supported by". The Federal Court of Appeal in Klinko v Canada, [2000] 3 FC 327 (CA) stated that Femenia is consistent with the Supreme Court's decision in Ward.
False: The Court in Klinko held that the meaning given to the word "engaged" in Femenia is inconsistent with the law as set forth in Ward. See paras 24-25 of the decision.
204
True or False: Justice LaForest in Ward rejected the idea that there should be a presumption of state protection. He reasoned that such a presumption would render refugee protection a false promise.
False: See para 51 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
205
True or False: In Thirunavukkarasu v Canada (Minister of Employment and Immigration), the Federal Court of Appeal held that the burden of proof for establishing there is an "internal flight alternative" rests with the Minister, since it is up to the Minister to show the claimant is excluded from refugee protection.
False:
See paras 5-9 of the decision: Convention refugee claimants carry the onus of establishing that they satisfy all of the components of the definition of a Convention refugee.
206
When considering whether laws in a country of origin provide adequate state protection to a person whose refugee protection claim is based on their sexual orientation and their gender identity and/or expression, the RPD or RAD should take the following into account (click on all that apply):
A) The intent of legislators.
B) The durability of the legislative changes.
C) The effectiveness of the measures taken.
D) Whether the claimant campaigned for the policy changes.
B and C: See IRB, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017), section 8.6.6.
207
True or False: Where the state itself is the alleged agent of persecution, a claimant may not need to exhaust all recourses to rebut the presumption of state protection. In fact, the presumption does not apply.
False: See Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 at paragraphs 53-54.
208
Which of the following are true statements of principle concerning internal flight alternatives, as set out in Thirunavukkarasu v Canada (Minister of Employment and Immigration)? Click on all that apply.
A) The internal flight alternative is an additional requirement that has been tacked on to the Convention refugee definition.
B) If it is reasonable to do so, a refugee claimant must seek internal flight alternative.
C) The test for internal flight alternative is an objective one.
D) An internal flight alternative may be the basis for rejecting a claim so long as it is not unduly harsh to expect the claimant to relocate.
B, C and D: See paragraphs 11-14 of the decision.
209
True or False: According to Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 the ability of a state to protect its citizens factors into the claimant's subjective basis for their fear of persecution.
False:
The ability of a state to protect factors into the claimant's objective basis for their fear of persecution. See para 42 of the decision. See also IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 6, section 6.1.
210
In Ward, Justice LaForest found a claim will be defeated if the claimant fails to seek state protection so long as:
A) Protection might reasonably have been forthcoming.
B) There was a chance of receiving protection.
C) There was a good chance of receiving protection.
D) The claimant is not a member of the police or another state body.
A: See para 49 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
211
True or False: When giving notice that it will be considering an internal flight alternative, the RPD or RAD must name a specific location or region.
True:
| See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 8, section 8.2.
212
True or False: In Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the Federal Court of Appeal agreed with the Refugee Protection Division that the requirement of "clear and convincing confirmation" of a state's inability to protect a claimant imposed a higher standard of proof than the balance of probabilities.
False: See paras 20-26 of the decision.
213
True or False: In Thirunavukkarasu v Canada (Minister of Employment and Immigration), the court held that "internal flight alternative" was implemented outside the definition of "Convention refugee" in order to better assess legitimate claims.
False: See para 2: The idea of an internal flight alternative is inherent in the definition of a Convention refugee. If claimants are able to seek safe refuge within their own country, there is no basis for finding they are unable or unwilling by reason of their well-founded fear of persecution to avail themselves of the protection of that country.
214
Which of the following principles have been established with respect to possible internal flight alternatives? (Choose all that apply)
A) A region or city on the other side of a vast country (like Russia) can be presumed to be an IFA.
B) The fact that the alleged agent of persecution is a national authority does not on its own establish that there is no IFA.
C) Big cities cannot be found to be an IFA solely because of their size.
D) The evaluation of the safety of an IFA can be based on the assumption that a claimant will go by a different name.
B) The fact that the alleged agent of persecution is a national authority does not on its own establish that there is no IFA.
C) Big cities cannot be found to be an IFA solely because of their size.
See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 8. section 8.3.1.
215
True or False: In Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 the court held that because the U.S. is a democratic country with balances among its three branches of government, the claimant's evidentiary burden is high to rebut the presumption that the U.S. is capable of protecting its citizen.
True: Para 46
216
True or False: According to Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the claimant need only provide reliable evidence to rebut the presumption of state protection.
False: The evidence needs to be reliable, but also sufficiently probative to meet the standard of proof. See paragraph 30 of the decision.
217
Which of the following can be considered as part of the assessment of the reasonableness of a proposed IFA? Click on all that apply.
A) The instability of government in the proposed IFA.
B) Psychological evidence regarding the claimant.
C) The ability of a person who is homosexual to access employment, housing, or medical treatment.
D) In the case of a woman claimant, whether their gender would make it unsafe for them to travel to the IFA.
ALL: See IRB, Interpretation of the convention refugee definition in the case law (March 31, 2019) chapters 8, section 8.3.2. See also section C of the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution and section 8.7 of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017).
218
True or False: In Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 the Federal Court of Appeal stated that to rebut the presumption of state protection, a claimant needs to show they exhausted the common methods of challenging the state's decision.
False: The claimant would be required to prove that they exhausted all the domestic avenues available without success. See para 46 of the decision.
219
Which of the following is true about the principle of "internal flight alternative" as mentioned in Thirunavukkarasu v Canada (Minister of Employment and Immigration)?
A) The decision-maker should ask whether, given the persecution in the claimant's part of the country, is it subjectively reasonable to expect them to seek safety in another part of the country before pursuing a refugee claim in Canada.
B) An internal flight alternative must be realistic, not just speculative or theoretical.
C) Someone escaping persecution should not be expected to live in an isolated part of their country (such as a "cave in the mountains, or in a desert or a jungle") to seek safety.
D) A claimant may be expected to relocate to an internal flight alternative even they would encounter great physical danger in travelling or staying there.
B, C and D: Para 14
220
The RPD issues written reasons rejecting a claim for protection by Jan, a member of Oppressed Group from Country. After setting out various legislative initiatives and government announcements, the RPD concludes that the country has made "serious efforts" to provide adequate protection to members of Oppressed Group, such as Jan. It therefore concludes that Jan has not rebutted the presumption of state protection. Based on these facts, which statement below best characterizes the RPD's decision?
A) The decision is likely correct because the standard of protection is not perfection.
B) The decision is likely in error because it considered only government's efforts to provide protection without inquiring into whether its efforts had achieved operational adequacy.
C) The decision is likely in correct because to go beyond the inquiry into serious efforts would shift the burden onto the RPD to prove adequate state protection. However, the onus is always on the claimant to establish each element of their claim.
D) The decision is likely in error because the standard is not whether protection is "adequate" but whether Jan faces a reasonable chance of persecution on a Convention ground.
B: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 6, section 6.1.7.3.2.
221
True or False: In Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 the court held that when sufficient state protection is available, the claimant's fear of persecution cannot be objectively well-founded.
True: Para 42
222
True or False: The requirement to rebut the presumption of state protection is an independent criterion for establishing that a claimant is a refugee.
False: See also IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 6, section 6.1: "… the state's ability to protect the claimant is a crucial element in determining whether the fear of persecution is well founded, and as such, is not an independent element of the definition."
223
Which of the following factors are to be considered in the contextual approach to state protection? Click on all that apply.
A) The profile of the alleged agent(s) of persecution.
B) The efforts the claimant took to seek protection from community groups.
C) The available documentary evidence.
D) Whether a member of a minority has historic reasons for distrusting the authorities.
A, C: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019)chapter 6, section 6.1, citing Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234.
224
True or False: The more democratic a state's institutions, the more the claimant must have done to exhaust the course of action open to them in order to rebut the presumption of state protection.
True: See paragraph 46 of Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171.
225
True or False: Justice LaForest approves of James Hathaway's characterization of refugee protection as a form of "surrogate or substitute protection" in the sense that it is meant to be a form of "back-up" to the protection that should be on offer from the authorities in a claimant's home country.
True: See para 18 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
226
True or False: According to Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, it may be difficult for some claimants to rebut the presumption of state protection compared to other claimants.
True: Para 26
227
True or False: In Thirunavukkarasu v Canada (Minister of Employment and Immigration), the Federal Court of Appeal held that an "internal flight alternative" is a legal defense that prevents a successful refugee claim.
False: See para 2 of the decision: "[T]he notion of an internal flight alternative (IFA) is not a legal defence. Neither is it a legal doctrine. It merely is a convenient, short-hand way of describing a fact situation in which a person may be in danger of persecution in one part of a country but not in another."
228
In Ward, Justice LaForest found that it should be presumed the state can protect the claimant unless (click on all that apply):
A) The claimant is not a citizen of the state.
B) State authorities have admitted they cannot protect the claimant.
C) The state has completely broken down.
D) The claimant is a member of the police or another state body.
B) State authorities have admitted they cannot protect the claimant.
C) The state has completely broken down.
See para 50 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
229
According to Ward, what is the lynch-pin of the analysis of a claim for refugee protection?
A) The state's unwillingness to protect a claimant.
B) The state's inability to protect a claimant.
C) Whether a claimant will actually be persecuted if returned to their country of origin.
D) Whether a claimant has an internal flight alternative.
B: See para 45 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
230
True or False: Whether a claimant must approach non-state authorities or a police oversight board to rebut the presumption of state protection is a determination to be made on the facts of a particular case.
True: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 6, section 6.1.8. See in particular, the reference in that section to Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178.
231
True or False: The police force is presumed to be the main institution responsible for providing state protection.
True: See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 6, section 6.1.8. See in particular the reference to Aurelien v. Canada (Citizenship and Immigration), 2013 FC 707.
232
True or False: According to Ward, a claimant must have approached the state for protection in order to show the state's inability to protect the claimant.
False: See para 49 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL): The claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
233
As mentioned in Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, what is the standard of proof assumed by the claimant to show that state protection is inadequate?
A) Reasonable grounds to believe.
B) Beyond a reasonable doubt.
C) Balance of probabilities.
D) Reasonable possibility.
C) Balance of probabilities.
Para 20
234
Which of the following accurately states the test for finding that a claimant has an internal flight alternative (IFA) and that their claim should therefore be rejected?
A) The RPD/RAD must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the IFA. (2) Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable for a person of average hardiness to seek refuge there.
B) The RPD/RAD must be satisfied on a balance of probabilities that there is an absence of adequate state protection in the IFA. (2) Conditions in the IFA must be such that it would not be unreasonable for an adult of average hardiness to seek refuge there; different standards apply with respect to minor claimants.
C) The RPD/RAD must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the IFA. (2) Conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.
D) The RPD/RAD must be satisfied beyond a serious possibility that the claimant would not be persecuted in the part of the country to which it finds an IFA exists. (2) Conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.
C) The RPD/RAD must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the IFA. (2) Conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.
See IRB, Interpretation of the Convention Refugee Definition in the Case Law (March 31, 2019) chapter 8, section 8.1.
235
True or False: In Thirunavukkarasu v Canada (Minister of Employment and Immigration), the court held that if the Minister and/or the IRB plans to raise the issue of "internal flight alternative", they must notify the claimant.
True: See para 10 of the decision: there is an onus on the Minister and the Board to warn the claimant if an IFA is going to be raised.
236
What kind of evidence must a claimant provide to rebut the presumption of state protection?
A) Documentary evidence from reputable human rights organizations.
B) The testimony of similarly situated individuals regarding their feared persecution.
C) Media reports of a complete breakdown of the state apparatus.
D) Clear and convincing confirmation.
D: See para 50 of Canada (Attorney General) v. Ward, [1993] S.C.J. No. 74 (QL).
237
According to Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 the claimant must convince the trier of fact that the evidence establishes that state protection is inadequate. What is this burden called?
A) Evidentiary burden.
B) Legal burden of persuasion.
C) Balance of probabilities.
D) Legal evidentiary burden.
B) Legal burden of persuasion. Para 19.
238
Mack the Knife claimed refugee protection because he is facing 10 years of imprisonment for a bank robbery. Pretend that article 1F does not apply to his case, might he receive protection under IRPA, s 97? Click on all that apply.
A) No, because the 10-year sentence is neither torture nor cruel and unusual treatment or punishment.
B) No, because of IRPA, s 97(1)(b)(ii).
C) No, because of IRPA, s 97(1)(b)(iii).
D) No, because of IRPA, s 97(1)(b)(iv).
A) No, because the 10-year sentence is neither torture nor cruel and unusual treatment or punishment.
C) No, because of IRPA, s 97(1)(b)(iii). (lawful sanction)
A 10-year prison sentence for a bank robbery is neither torture nor a cruel and unusual punishment. Even if that were not the case, IRPA, s 97(1)(b)(iii) provides that protection cannot be conferred when the risk to a claimant's life or of cruel and unusual treatment or punishment arises from lawful sanctions that are not in violation of international standards.
239
Which of the following contributed to the unreasonableness of the RPD decision in rejecting the claimant in Portillo v Canada (Minister of Citizenship and Immigration)?
A) The RPD conflated the risk faced by the claimant with that faced by all men of the claimant's age in his country of nationality, which led to the erroneous conclusion that the risk faced by the claimant is the same as the risk faced generally by other individuals in the country.
B) The RPD did not believe the claimant's version of events of the criminal gang, Mara Salvatrucha.
C) The RPD did not characterize whether the risk of death came from the criminal gang or the state police.
D) None of the above, the court held that the RPD decision was reasonable.
A: See paras 48-50 of Portillo v Canada (Minister of Citizenship and Immigration).
240
True or False: According to the court in Portillo v Canada (Minister of Citizenship and Immigration), after the nature of the risk faced by the claimant has been characterized, the decision-maker should then compare the risk faced by the claimant to that faced by a significant group in the country. If the two risks are not the same nature and degree, then the claimant would be entitled to protection under section 97.
True: See paras 40-41 of Portillo v Canada (Minister of Citizenship and Immigration).
241
Looking at the text of the provision, which of the following is/are not true of section 97 of the IRPA? Click on all that apply.
A) Section 97 requires nexus to a Convention ground under paragraph (1)(b).
B) Section 97 requires subjective fear under paragraph 1(a).
C) Section 97 claims cannot be based on lawful sanctions, unless they result in torture.
D) The concept of internal flight alternative applies under paragraph 1(b).
A, B and C: See IRPA, s 97. Section 97 does not require nexus or subjective fear. While torture resulting from a "lawful sanction" might lead to protection, so would other punishments that are "imposed in disregard of accepted international standards." IRPA, s 97(1)(b)(ii) incorporates the requirement that there be no internal flight alternative.
242
True or False: The legal test is for section 97 is the same as for section 96, that is, the claimant must establish they face a "serious possibility" or "reasonable chance" of either torture or of cruel and unusual treatment or punishment.
False: Aiken et al., Immigration and Refugee Law: Cases and Materials, 3d ed. (Emond Montgomery, 2020) at p 1004.
243
True or False: A negative credibility finding is sufficient to dispose a claim under both sections 96 and 97, unless there is independent and credible documentary evidence in the record capable of supporting a positive dis-position of the claim.
True: See Lopez v Canada (Citizenship and Immigration) 2014 FC 102 at para 41.
244
To prove the danger of torture, the claimant must show the following except:
A) Whether the act resulted in severe physical or psychological pain or suffering.
B) Whether the act was intentionally inflicted by a state agent or public official.
C) Whether the act was carried out on a basis of race, gender, sexual orientation, or religion.
D) Whether the act was carried out to intimidate, deter, coerce, control, revenge, punish, or gather information.
C, that's s 96
245
True or False: Complementary protection (s97) is based on general human rights standards, rather than the 1951 Convention relating to the Status of Refugees.
True: See Aiken et al., Immigration and Refugee Law: Cases and Materials, 3d ed. (Emond Montgomery, 2020) 1002 (section K).
246
According to the IRCC ENF 24 Ministerial Interventions, which of the following is not a task for the hearings officer:
A) Question the claimant about credibility.
B) Question the claimant about the grounds for exclusion.
C) Address concerns from the claimant's counsel.
D) Ensure the RPD member is informed about the contents of the documents produced by the hearing officer.
C: See s 5.16
247
True or False: When a refugee claimant receives notice that the Minister is appealing a decision of the RPD to the RAD, the claimant can apply for an extension of time to file their response in accordance with RAD Rule 37.
True: See RAD Rule 12(4).
248
True or False: If, before the hearing of a claim, the RPD is of the opinion that there is a possibility that Article 1E or 1F of the Refugee Convention applies to a claim, it may either inform the Minister or address the issue of exclusion on its own.
False: See RPD subrule 26(1).
249
Who bears the burden of establishing that article 1F applies to exclude a claimant from refugee protection? Check all that apply.
A) Minister's counsel.
B) Authorities from jurisdiction where the claimant committed their crimes.
C) Angelina Jolie.
D) Claimant's counsel.
Minister: Chapter 5, s. 4b)
250
If, after a hearing begins, the RPD believes there is a possibility that Article 1E or 1F applies to a claim, and the RPD believes that the Minister's participation will help in the full and proper hearing of the claim, the RPD must:
A) Summon the Minister to the hearing forthwith, in accordance with RPD subrule 26(1).
B) Adjourn the hearing and notify the Minister, in accordance with RPD subrule 26(2).
C) Proceed with the hearing and ask the Minister to provide written submissions after the hearing in accordance with rule 33 of the RPD Rules.
D) Adjourn the hearing for the next day so the Minister and representatives of the UNHCR can attend, in accordance with IRPA, s 166(e).
B) Adjourn the hearing and notify the Minister, in accordance with RPD subrule 26(2).
251
Which of the following is not a circumstance where the Minister should consider appealing or intervening in an appeal to the RAD?
A) Cases that will be assessed by a three-member panel of the RAD.
B) Cases that involve an oral hearing at the RAD.
C) Cases where the final outcome may establish a precedent that may impact the integrity of the program.
D) Cases where incompetence of counsel for the refugee claimant jeopardized the fairness of the RPD hearing.
D: See section 9.1 of ENF26: Appeals at the Refugee Appeal Division of the Immigration and Refugee Board of Canada.
252
Which of the following might lead to the exclusion of a refugee claimant under Article 1F?
A) Serious reasons for considering a claimant has committed a war crime.
B) Serious reasons for considering a claimant has committed a serious non-political crime outside the country of refuge.
C) Serious reasons for considering the claimant has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment.
D) Serious reasons for considering the claimant is guilty of acts contrary to the purposes and principles of the United Nations.
E) A and B
F) A, B, and C
G) A, B, C, and D
A, B and C: See IRPA, Schedule, article 1F.
253
True or False: According to David Matas, exclusion from protection under section 97 of the IRPA is a "Canadian innovation", not reflected in international law.
True: See Matas, Chapter 5, s. 4.
254
True or False: When considering whether to exclude a claimant under article 1F(b), the RPD or RAD may not consider any subsequent rehabilitation or future risk posed by a claimant.
False: See Matas, Chapter 5, s. 4b
255
Which of the following is required by the Minister in order to file and perfect an appeal?
A) The Minister must provide the person subject to the appeal and the RAD any supporting documents the Minister wants to rely on, in accordance with RAD subrule 9(1).
B) The Minister must check the notice of appeal for typos or grammar mistakes in accordance with RAD subrule 9(6).
C) The Minister must perfect the appeal in accordance with RAD subrule 3(3).
D) The Minister must provide a statement explaining how any new evidence submitted complies with IRPA, s 110(4).
A
256
Which of the following must the refugee claimant satisfy to fall under Article 1E?
A) The claimant has enjoyed residence in a country outside the country of their nationality.
B) The claimant has rights and obligations attached to the possession of nationality of that third country.
C) The claimant must not have taken up residence as a refugee in that third country.
D) A and B
E) A, B, and C
A) The claimant has enjoyed residence in a country outside the country of their nationality.
B) The claimant has rights and obligations attached to the possession of nationality of that third country.
257
If the Minister intends to intervene at a claim before the RPD, which of the following is the Minister not required to do?
A) Notify the claimant and the RPD about the Minister's intention to intervene no later than 10 days before the hearing.
B) Provide notice of the purpose of the Minister's intervention, of whether the intervention will be in writing and/or in person, and of Minister's counsel's contact information.
C) Provide an opportunity for the claimant to object to the notice of intervention.
D) If the Minister believes Article 1E or 1F might apply, set out the facts and law on which the Minister relies.
C: See RPD Rule 29(1)-(4).
258
True or False: According to the IRCC ENF 24 Ministerial Interventions, hearing officers may not directly contact the refugee claimant or their counsel.
False: 8.1
259
When responding to a Minister's appeal to the RAD, which of the following is the correct order for the respondent's record?
A) Full and detailed submissions; all or part of the transcript of the RPD hearing that the responding wishes to rely on; a written statement indicating whether the respondent is requesting a hearing; any documentary evidence the respondent wishes to rely on; all legal authority that the respondent wishes to rely on.
B) Full and detailed submissions; all or part of the transcript of the RPD hearing that the responding wishes to rely on; any documentary evidence the respondent wishes to rely on; all legal authority that the respondent wishes to rely on.
C) All or part of the transcript of the RPD hearing that the responding wishes to rely on; a written statement indicating whether the respondent is requesting an oral hearing; any documentary evidence the respondent wishes to rely on; any law, case law, and other legal authority that the respondent wishes to rely on; a memorandum setting out full and detailed submissions.
D) Documentary evidence the respondent wishes to rely on; law, case law, and other legal authority that the respondent wishes to rely on; a memorandum setting out full and detailed submissions.
C) All or part of the transcript of the RPD hearing that the responding wishes to rely on; a written statement indicating whether the respondent is requesting an oral hearing; any documentary evidence the respondent wishes to rely on; any law, case law, and other legal authority that the respondent wishes to rely on; a memorandum setting out full and detailed submissions.
See RAD Rule 10(3).
