Convention Refugee Claim: Analysis And Advocacy

Brief Facts of The Case

The claimant was born in Hungary to a Hungarian father and a Roma mother. He suffered ridicule both as a child and as an adult due to his Roma origin. The discrimination he suffered escalated into persecution when his father died and he was being threatened to leave the house his father had left for him. When his employer was found dealing in illegal activities he was blamed and this further put him at risk.

It is important to note that one of the objectives of the IRPA with regard to refugees is to offer safe havens to persons with a well founded fear of persecution based on race, religion, nationality, political opinion or membership among others. [IRPA, s. 3(2)]  

I therefore apply for asylum for the claimant on the following grounds;

The Immigration and Refugee Protection Act (IRPA) recognizes USA as the only designated safe third country. (IPRA , 2001) It is true that the Canada-USA safe third country agreement requires that refugee claimants are required to seek for refugee protection in the first country they arrive in and as such the claimant ought to have sought refugee status in the USA. However with the revision of immigration laws and the country conditions in the USA, it would not have been possible for the claimant to gain refugee protection in the USA. The country condition in the USA is evidenced by the tale of Mamadou, an Ivory Coast citizen, facing similar condition who was nearly deported back to Ivory Coast from the USA even though his father was killed and his house burned down.( Kathleen M, 2017). Such country conditions in the USA would not have made it possible for the claimant to successfully seek asylum in the USA. This therefore prompted the claimant to seek asylum in Canada. Further, in the case of Canadian Council for Refugees v Her Majesty, 2007 F C 1262 (Federal Court), 29 October 2007.  It was evidenced that the US laws on refugees can be seen to provide a leeway for refoulment and as such, the judicial opinion resulted in striking down of Canada’s designation of US as a safe third country.

Further, state practice and statistics show that Canada would be more open to offering refugee status to the claimant as compared to the USA where the claimant risks refoulment. Canada annually takes in roughly one out of every ten refugees through its refugee program and as such it is one of the most preferred destination countries for refugees. (Refugee Law and Policy, 2016) It is further evident that the agreement between the USA and Canada can be seen as a circumventing technique by Canada for its refugee protection obligation under domestic law and international law.   

Failure to Claim in The USA

The Canadian position with regard to the issue of credibility is that the testimony of a person seeking asylum in the country is credible. This position was held by the judge in the case of Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302. In this case, the judge stated that when it comes to matters of credibility, a person seeking asylum is required to give a testimony. Their testimony will be considered as credible enough to grant them refugee status. The board can therefore not deny a person asylum on credibility issues if they relate to outlying issues of the claim. As such the board cannot deny the claimant refugee status based on the issues of credibility.

Discrimination is a common battle for minorities all over the world. When it comes to refugees, the defence of human rights and anti-discrimination form the basis for the international refugee protection initiative. Discrimination is given a definition in the case of Andrews v the Law Society of British Columbia [1989] 1 S.C.R. 143 as any distinction which relates to among others personal characteristics of the individual or group. This distinction can be intentional or not and often at times imposes burdens on the person bearing it. Persecution has not been defined by any international or national statute. This flexibility ensures that the asylum seekers can easily gain refugee status without suffering for long periods owing to the already existing predicament.   The insults the claimant suffered in his childhood as well as in high school and training institute amount to discrimination. Even at the work place, it is clear that he was discriminated against. The moment these discriminations escalated into threats of death and actual death as well as eviction notices, then the claimant qualifies to seek asylum in Canada for fear of persecution. It is therefore evident that the claimant suffered a well-founded fear for persecution which was held   in Chan v MIEA (1989) 169 CLR 378 at 396 to include both a subjective and objective element, which in this scenario was present in the claimant.

The claimant has constantly been making reports to his local police with evidence of the constant harassment but the police have been reluctant to assist him terming the threats as empty threats even though the claimant’s brother was killed. This reluctance of the police to assist the claimant shows the inability of the state to protect the claimant. The police in any given state are responsible for the daily protection of the citizens of any given country. It is therefore a premised assumption that there should be a meaningful protection relationship between a state and its citizens that reflects the normative values formalized in the legal concept of ‘nationality’ and ‘citizenship.’( Seunghwan, 2016) Failure to file a complaint against the police who did not assist them cannot therefore be construed to mean that the claimant did not exhaust all available state available mechanisms before fleeing as this would put the burden of protection on the claimant yet the state should protect its citizens.

Conclusion

I therefore appeal to the RPD to grant the claimant refugee status as they do not pose any threat to the country. Conferring them the status of convention refugee will not only settle their fears but they will also be able to live a life without having to look over their shoulders for fear of bing killed.

References

Efrat, A. Alleta, B. (2013). Bordering on failure: Canada-US border policy and politics of refugee Eexclusion Harvard immigration and Refugee Laww clinical program

Kathleen, M. (2017). Why a US-Canada agreement encourages some asylum seekers to cross illegally Extracted from www.wbur.org/news/2017/03/22/refugee-canada-border

Seunghonn, K. (2016). Lack of state protection or fear of persecution? Determining the refugee     status of North Koreans in Canada International journal of refugee Law 25, 85-108  https://academic.oup.com/ijrl/article/28/1/85/17/52808

Refugee Law and Policy: Canada Extracted from www.loc.gov