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Protection Beyond the Refugee Definition

Protection Beyond the Refugee Definition. compelling reasons s. 108(4) persons in need of s.97 protection pre-removal risk assessment Torture Convention and the Suresh decision. M.O.Q. 2003 RPD.

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Protection Beyond the Refugee Definition

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  1. Protection Beyond the Refugee Definition • compelling reasons s. 108(4) • persons in need of s.97 protection • pre-removal risk assessment • Torture Convention and the Suresh decision

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. ‘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

  8. Y.A.T. 2004 RPD • fear of ‘attaches’ in Haiti because of wealth or presumed wealth • no ‘nexus’ for refugee protection • s. 97 grounds always available, even if not argued • ‘serious possibility’/reasonable chance as standard of proof here (same as in refugee determinations)…justified by the decision-making context. more than a ‘mere possibility

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