Convention refugees abroad class – Conditions

(REF-OVS-4-1)

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

Sections R139, R144 and R145 lay out the eligibility criteria for the Convention refugee abroad class. To be eligible, an applicant:

  • must meet the Convention refugee definition (A96);
  • must be outside Canada; and
  • must have no reasonable prospect, within a reasonable period, of another durable solution, namely :
    • voluntary repatriation or resettlement in their country of nationality or habitual residence;
    • resettlement in their country of asylum; or
    • resettlement to a third country.

Note: Applicants under this class must either be referred by the Office of the United Nations High Commissioner for Refugees (UNHCR), by another referral organization or by a private sponsor.

How to determine eligibility for the Convention refugee abroad class

The officer should follow the steps outlined to determine if the applicant meets the eligibility criteria for this class.

Step 1

The applicant must satisfy each eligibility criteria of this class to be eligible for their application to be processed under it.

Note: Refer to the definition of “Convention refugee” and the above-mentioned eligibility requirements.

The definition of “Convention refugee” is forward-looking. It follows, therefore, that the fear of persecution is to be assessed at the time of the examination of the refugee application.

Step 2

The officer must decide if the applicant has a “well-founded fear of persecution” after assessing the reasons provided by the applicant. A decision is made on whether an applicant:

  • was persecuted; or
  • has a well-founded fear of persecution.

The applicant must establish that the fear is reasonable. In other words, they must establish that their fear of persecution has a valid basis. Refugees may have more than one ground of persecution and it is the duty of the officer, not the applicant, to identify the reasons for the persecution.

Note: Actual persecution need not have taken place. The officer must determine that there is a serious possibility or reasonable chance that the applicant has a well-founded fear of persecution.

This information of persecution may or may not be documented. The officer will need to take into account:

  • the applicant’s credibility;
  • their own knowledge of country conditions in the applicant’s country of origin and country of asylum, and available resource material;
  • a decision by the UNHCR or a signatory country with regard to the applicant’s refugee status, if applicable;

Note: Although officers are not obliged to follow the designation of an applicant as a refugee by either UNHCR or the host country, officers must give regard to this designation. If the officer, after review, still decides that the applicant is not eligible, the officer should explain in case notes why they do not concur with the decision of UNHCR or the host country.

  • the reason the applicant is outside their country of nationality or former habitual residence; and
  • whether the applicant’s departure from their home country poses a risk and if departure in and of itself may be illegal.

“Unable” or “unwilling”:

“Unable” refers to persons who cannot avail themselves to protection from their own governments. “Unwilling” refers to persons who refuse the protection of the country of their nationality. If the country of origin is unwilling or unable to provide protection from persecution (whether the inability is despite the best efforts of a weak state or on account of a total failure of the state), then the victim will fear persecution in case of return and, therefore, has good reason to be unwilling to avail themself of the protection of that country.

Step 3

Review other sources, namely:

Step 4

Assess the ability to establish.

If the principal applicant does not qualify as a member of the Convention refugee abroad class, the officer must assess the eligibility and admissibility of the spouse or common-law partner and of any family members. Where any one family member qualifies, that status applies to all other family members. If the applicant and family members are not eligible under the Convention refugee abroad class, the officer must still assess all of them under the country of asylum class. It is important to note, however, that applicants under the country of asylum class must be self-sufficient or have a private sponsor in order to be eligible for resettlement to Canada under R139(1)(f). If no one in the family qualifies for either class, the officer must refuse the application.

Convention refugee

A convention refugee is defined in IRPA in A96. A98, also based on the Refugee Convention, excludes from this definition persons who:

  • are recognized by the authorities in the country in which they have taken residence as having the same rights and obligations of persons possessing the nationality of that country;
  • have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside their country of asylum prior to their admission to that country as a refugee; and
  • have been guilty of any acts contrary to the purposes and principles of the U.N.

The following are some guidelines to help with the determination of whether an individual meets the definition of a Convention refugee.

Persecution
In assessing a refugee application, the officer should use the definition of grounds for refugee status in the 1951 Convention: persecution is a threat to life or freedom because of race, religion, nationality, political opinion or membership in a particular social group. Other serious violations of human rights on the same grounds also constitute persecution.
 
Persecution may be carried out by state or non-state actors. Actions of non-state actors may constitute persecution if the authorities are unable or unwilling to protect the person concerned.
Race
Race includes all kinds of ethnic groups referred to as races in common usage. Frequently, it will entail membership of a specific social group of common descent.
Religion
Persecution may take the form of laws against membership in a particular religion, public or private worship, or giving or receiving instruction in a religion. It may also involve persecution against adherents of a religion or atheists or agnostics.
Nationality
Nationality refers not only to citizenship but also membership of an ethnic or linguistic group and/ or race. Nationality may occasionally overlap with the term “race.”
Political opinion
Political opinion refers to alleged, imputed or known opinions contrary to, or critical of, a government or ruling party or other groups holding power. Persecution may also extend to those who hold favourable opinions of a political group that is unpopular. Although an applicant’s opinions, actions or associations will normally have come to the attention of authorities, this is not always the case. Even in the latter circumstance, persons may have a legitimate fear of persecution based on the opinions they hold if it can be reasonably assumed that, due to the strength of his/her convictions, the applicant would be persecuted by state or non-state actors.
Particular social group
Particular social groups are made up of persons of similar background, social status or practices. They can be groups defined by an unchangeable characteristic such as gender, sexual orientation, family or caste. They can also be groups whose members voluntarily associate for reasons so fundamental to their dignity that they should not be forced to forsake the association, such as human rights organizations or trade unions. Or they can be groups associated by a former voluntary status, unalterable due to the passage of time.

Examples:
The following are examples of acts that would normally be considered grounds for granting refugee status. They may be perpetrated or tolerated by state or non-state actors for grounds cited in the Convention definition:

  • slavery or servitude without compensation;
  • torture and cruel, inhuman or degrading treatment;
  • threat to life, liberty and security of the person; and
  • arbitrary arrest, detention or exile (either outside the country or to a remote region within it).

Visa officers must bear in mind that the Convention definition is forward-looking. Therefore a former threat to life would normally need to continue to be faced by an applicant in order to constitute a well-founded fear of persecution.

The difference between persecution and discrimination

Example of persecution:

  • a flagrant violation of a basic right, such as denial of a fair and impartial trial, particularly when combined with unduly severe punishment, is usually considered persecution;
  • a threat to life or freedom

Example of discrimination:

  • denial to individuals of promotion or access to post-secondary education are examples of discrimination, not persecution. The systematic denial to a group of promotion or access to post-secondary education, however, constitutes persecution;
  • acts of violence which are often accompanied by death threats; a series of hostile acts over a long period of time, often affecting physical safety (Canada v. Kadenko (1996), 143 D.L.R. (4th) 532);
  • the Federal Court of Canada has stated that ‘the cumulative effects of discrimination and harassment may fulfil the definitional requirements of persecution in some circumstances, even where each incident of discrimination or harassment taken on its own would not’. (Liang, 2008 FC 450)

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the UNHCR Resettlement Handbook provide a detailed interpretation of the Convention definition.

http://www.unhcr.org/3d58e13b4.html

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