REFUGEE STATUS FOR THOSE IN PERIL IN THE MIDDLE EAST

I recently received an inquiry from a friend worried about relatives in Syria and wondering what steps could be taken to bring their relatives to the safety of Canada.  The question is complicated and requires a little background.

Most people are unaware of the fact that we have laws which create two distinct refugee systems.  One set of laws deals with refugee claimants who manage to make their way to Canada and claim refugee status in Canada either at the Port of Entry or inland.  A second set of laws applies to those who are outside Canada and wish to apply for refugee status abroad (successful claimants would then be issued permanent resident visas).

Refugee Claims in Canada

There are several significant advantages for those able to make their refugee claims within Canada.  First and foremost is the fact that such claimants are protected by the constitution.  Since a landmark Supreme Court of Canada decision in 1985 Singh [1985] 1 S.C.R. 177 case, people making claims in Canada have been entitled to an oral hearing along with important other constitutional rights like the right to counsel, interpretation and record of proceedings.  Such hearings are conducted by members of the Refugee Protection Division of the Immigration and Refugee Board (IRB). 

The disadvantage of this system is that it only applies to people who are on Canadian soil.  Thus, this system is only available to claimants who manage to make their way to Canada.  As many know citizens of countries that do not typically produce refugees such as the United States and many European countries are exempt from the normal requirement that a person arrive with a Visa.  Conversely, those countries which are most likely to produce refugees almost always have Visa requirements.  Visitor Visas or Temporary Resident Visas (TRV) are only granted to those who Immigration believes are going to remain in Canada temporarily and return to their home countries.  As a result, many who would wish to leave their countries and come to Canada to make refugee claims are unlikely to receive visitor visas.  As a consequence, it is not uncommon for refugees to arrive in Canada illegally by using the services of a smuggler.

In my friend’s case, his family members are in Syria and there are major logistical hurdles preventing them from being able to come to Canada to make their claims.  First, Syria’s civil war is now so serious that it is very dangerous for people to leave their cities and villages without endangering their lives.  Second, Canada’s embassy in Syria is closed and therefore his relatives only hope of making any kind of immigration application is by travelling to an embassy in a neighboring country such as Jordan or Turkey.

If his relatives are lucky enough to flee to a country such as Jordon or Turkey then the next question is whether they are eligible to make refugee claims from abroad.

Refugee Claims From Outside Canada

Canada refers to this as “resettlement” from outside Canada.  The system which exists for refugees who wish to apply from outside the country is very different from the program available for refugees within Canada. 

First, unlike the system described above, which provides claimants with oral hearings, refugee claimant’s abroad have no such constitutional rights.  Instead their claims are reviewed by an Immigration officer at one of Canada’s embassies.  Claimant’s do not have the benefit of an oral hearing or counsel and no formal record is kept of any interview which might take place.  In fact the system which applies to refugees abroad is very much like the one which was struck down by the Supreme Court of Canada in the Singh decision.  The obvious distinction is that such claimants are not entitled to constitutional rights because they are not on Canadian soil. 

It should be noted, that although claimants abroad are not entitled to oral hearings they are accorded the right to a fair decision and though difficult from abroad, such claimants are entitled to have their negative decisions Judicially reviewed in the same way as refugees in Canada.

Canada has created two distinct classes, the Convention Refugee Abroad Class (CRAC) and the Country of Asylum class.   Although it is beyond the scope of this response to discuss the distinction in any detail it is sufficient to indicate that the CRA class is limited to the Convention grounds of persecution based on Race, Religion, Political Opinion and Membership in a Particular Social Group.  The Country of Asylum class (much like s.97 has been designed for claims in Canada) is intended to apply to those persons who require Canada’s protection but do not strictly speaking fit within the Convention definition.  For example victims of natural disasters such as famine or flood would properly fit within this class.

Another more complicated example might be my friend’s family who are victims of civil war.  There is a complicated set of cases dealing with the question whether victims of civil war (those who are not directly targeted for Convention reasons but are nevertheless suffering as a result of the war) can be “convention” refugees.

For those making claims abroad from countries like Syria, it might make sense to apply under the Asylum class to ensure they are not determined negative on the basis that they do not fit the “convention” definition.

There are two more very significant differences between the system which applies to refugee claimants in Canada and those applying abroad.  First, is the requirement that such individuals be sponsored or referred by an officially recognized referral organization.  Second, the financial requirement that the sponsor or the claimant be able to support the claimant and their dependants for a period of time after their arrival.  There are no such financial requirements for those making refugee claims within Canada.

In my friend’s case there are very specific guidelines set up to advise who can be a sponsor.  It is not as simple and self directed as a spousal sponsorship.  The government has set up Sponsorship Agreements with specific groups which entitle them to apply to sponsor refugees abroad.  Typically these groups are religious groups or ethnic community organizations.  A second option for sponsorship is for a group of 5 or more individuals (Canadian Citizens or Permanent Residents over the age of 18) who come together to sponsor a person to come into their community.  The group must agree to support the refugee it is sponsoring emotionally and financially for the duration of the sponsorship which is usually one year.  The last category of sponsors consists of community groups.  For example an NGO or corporation, may act to sponsor a refugee.  Again the group is required to agree to support the refugee emotionally and financially, typically for a period of one year.  CIC has prepared a very detailed manual for the Private Sponsorship Program which I have included in the linked section of our website.

Conclusion

I have only scratched the surface of a very complicated question.  My main purpose was to explain the very important distinction between laws which apply to refugees who make claims in Canada versus those who make claims abroad.

In my friend’s case, the question where his relatives make their claims will very much depend on whether they can flee their country and whether or not they can manage to make their way to Canada.  If coming to Canada is not practical for his relatives, then my friend can possibly pursue a sponsorship with the assistance of his church, community groups or family and friends.

 

Posted in Immigration Refugee Law |

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