Determining eligibility: The Convention and Protocol

Yes, as long as they do so in accordance with R140.2 or R140.3. An application may not be refused simply because it was made in a signatory country.

In assessing applications from persons located in signatory countries with "fair and effective protection regimes", the officer must examine, on a case-by-case basis, whether the person has a durable solution in that country.

Even when an applicant resides in a signatory country, an officer must still determine whether or not the country has a fair and effective protection regime. When considering whether a protection regime is fair and effective, the rights granted to refugees and standards of treatment should be examined. The Convention and the Protocol establish fundamental rights for refugees that must be respected, such as non-refoulement and asylum. A "fair and effective protection regime" should be determined on the basis of conditions existing in the country in question at the time an application is assessed.

Questions an officer could consider in making this determination include:

• Is access to the protection regime granted in a non-arbitrary and procedurally fair way?
• Does the protection regime in place interpret the Convention refugee (CR) definition as broadly as Canada? More specifically, do the concepts of non-state persecution, gender guidelines, sexual orientation apply to the CR definition in the protection regime in question?
• Do additional persons in similar circumstances classes exist such as the country of asylum class?
• Is there a risk of refoulement, arrest or detention of the individual applicant while waiting for protection or even after protection has been granted? Does the country’s protection regime limit refugees from certain areas from accessing the refugee determination system?
• Does the country’s system provide the applicant with a durable solution within a reasonable period of time?

It is insufficient for the applicant to have access to a fair refugee determination process. For the regime to be considered fair and effective, the refugee must also be provided a durable solution in the country of asylum. 

If the applicant is not subject to a fair and effective protection regime, a durable solution may not exist in the country of asylum. The officer must examine the merits of the case.

If the applicant has applied for protection in the signatory country that has a fair and effective protection regime, and the application is still in process

The officer may refuse the application for resettlement in Canada on the basis of the possibility of a durable solution. The officer may want to be sure that the decision will be forthcoming in a reasonable period of time.

However, exceptions may exist. These include situations where the UNHCR has requested resettlement or the applicant’s physical security is at risk. There can also be instances where humanitarian considerations such as family reunification (especially separated spouses and dependent children) exist.

If the applicant has applied for protection in the signatory country that has a fair and effective protection regime, and the application has been withdrawn

The officer may refuse the application on the basis of the possibility of a durable solution. As in the previous paragraph, similar exceptions may exist and should be considered (i.e., the refugee’s physical security, humanitarian considerations, etc.).

If the applicant has applied for protection in the signatory country and the application has been refused, and all meaningful avenues of appeal have been exhausted

The possibility of a durable solution no longer exists.

The officer is required to assess the merits of the application for resettlement in Canada.

For such an assessment, an interview may not be required.

The officer must consider:

• Has the applicant’s protection need been denied? Some states apply a narrow interpretation of the refugee definition, excluding persons who have a well-founded fear of persecution at the hands of non-state agents. Canada’s interpretation of the Convention refugee definition includes non-state persecution, gender guidelines and persecution based on sexual orientation and these must be considered.
• Has the applicant been accorded a different status that equates to a durable solution? Some signatory countries provide various forms of protection in addition to Convention status. For example, "B" status in The Netherlands, "Exceptional Leave to Remain" in the U.K. In most instances, such cases will not need to be considered for resettlement elsewhere. However, it is important to examine the nature of the status that has been granted as well as individual circumstances.

If the applicant has applied for protection in the signatory country and the application has been accepted

In most instances, this means a durable solution is available and the application for resettlement in Canada can be refused. However, officers must still consider any particularities of the case that could indicate that a durable solution may not, in fact, exist.

For example, the officer must consider:

• Is the protection status effective? There may be cases where a state recognizes a person as a Convention refugee, but the refugee’s legal or physical protection needs cannot be guaranteed. The views of the UNHCR could be sought.
• Does the country offer the individuals granted refugee protection a durable solution?

If the applicant has not applied for protection in the signatory country and the country offers a fair and effective protection regime, including a durable solution to persons determined to be refugees

The officer may refuse the application for resettlement in Canada on the basis that there is a possible durable solution for the applicant should they apply for protection.