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Housekeeping Nov 2

Housekeeping Nov 2. assignments received and return dates next assignment available on Friday 2 more refugee classes, then on to final section of the course. Exclusions from Ref Defn cont… Harb v Canada 2003 FCA. crimes against humanity standards of proof, Art 1F(a)

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Housekeeping Nov 2

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  1. Housekeeping Nov 2 • assignments received and return dates • next assignment available on Friday • 2 more refugee classes, then on to final section of the course

  2. Exclusions from Ref Defn cont…Harb v Canada 2003 FCA • crimes against humanity standards of proof, Art 1F(a) • two types here: membership and complicity • crimes against humanity defined with refc to international instruments…on-going updating mechanism • membership is broadly defined • complicity: direct or indirect, no need for formal membership, Minister must been a burden which is ‘less than the balance of probabities • note process of Ministerial intervention

  3. M.O.Q. 2003 RPD • main point here is ‘compelling reasons’ as set out in s.108(4): previous persecution justifies extending protection, in spite of no future risk • test has high threshold, continuing suffering • bases for claim: imputed political opinion, + PSG ‘family’ claim • designated representative procedure

  4. Protection Beyond the Refugee Definition • persons in need of s.97 protection • pre-removal risk assessment • Torture Convention and the Suresh decision

  5. Section 97 • danger of torture as defined by the CAT • risk to life or of cruel and unusual punishment IF: no local protection, whole area, not part of lawful sanctions, not related to inadequate health care • refugee-like themes • Art 1 E and F exclusions apply, as does s.100 • determined by the Refugee Protection Div

  6. Pre-removal risk assessment • Div 3 of Part 2 • can apply for this if named a removal order or security certificate (s.77) • can lead to refugee status or a stay of a removal order • cannot apply IF: extradition past a certain point, safe 3rd country, 15 day and 30 day limits

  7. must present new evidence if have already gone to RPD • hearing if the Minister (i.e. the department) thinks it necessary • for those excluded bc of serious criminality, issues are: danger to the public, danger to the security of Canada, nature and severity of the Acts committed • Minister can revisit a decision granting a stay or vacate a decision bc of misrepresentation

  8. Suresh v Canada SCC 2002 • factual threshold question: prima facie risk of torture • s.7 issue: shock the conscience of the Cdn public; torture is fundamentally unjust • high degree of deference but Ministerial discretion is constitutionally constrained • balancing act – usual outcome not to expel • danger to security of Canada and terrorism are not unconstitutionally vague

  9. ‘mere membership’ is not protected by freedom of expression • no full oral hearing requirement BUT: informed, opportunity to respond, chance to challenge, caution regarding foreign assurances • N.B. Ahani handed down on the same day

  10. Re ZJA 2002 • s. 97 claimant from Guinea • credibility analysis very plain to see here • use of secondary evidence • assessment is prospective, same standard as refugee assessment to be used: i.e. ‘substantial grounds to believe’ is treated as ‘serious possibility’ (FC is reviewing) • use of Suresh

  11. Re ZU 2002 • Costa Rican claim under s.96 and s.97 • refugee status argument rejected bc of ‘nexus’ …i.e. the fear is not ‘for reasons of’ membership in a psg • s. 97 argument rejected bc emphasis is on risk to life throughout the country (not ‘convenience’)

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