Canada v Esfand: The Politics of Refugee Law
With the intensification of the Syrian crisis, refugees have been much in the news lately. Refugees also became a quasi-central issue during the earlier part of the 2015 Canadian federal election campaign. The past 9 years of Conservative government have proven transformational for Canada’s refugee and immigration system, some would argue for the worst. In Canada (Citizenship and Immigration) v Esfand, 2015 FC 1190 [Esfand], the Federal Court (“FC”) tackled the issue of cessation, which allows the government to claim that a person’s refugee status has ceased when they have “voluntarily re-availed” themselves of the protection of the country they fled.
Bill C-31, Protecting Canada’s Immigration System Act, SC 2012, c 17 [Bill C-31], was brought in by the Conservative government to protect the Canadian immigrant and refugee system from fraudulent claims. Bill C-31 had many provisions that were seriously criticized by civil liberties associations, immigration lawyers and Justice for Immigrants and Refugees Coalition composed of 60 national organizations across Canada. It made changes to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] which, among other changes, gave powers to the Minister to: designate a group of refugees and incarcerate them for 12 months without judicial review, increase the time required for refugees to be able to apply for permanent residence, designate safe countries, and increase the role of the Minister in cessation cases. The law being retroactive, the Minister could apply for cessation of a refugee’s status if the circumstances in the country of origin had changed from the time of arrival.
According to a Canadian Council for Refugees report, between 2007 to 2011 there were only 108 cessation cases in Canada, while after Bill C-31, the Canada Border Services Agency set a target of 875 cessations each year. These amendments spoke to the fundamental shift in the way the government viewed the IRPA and what it was meant to accomplish. Esfand is one of the many cases that deal with the changes to the IRPA and one that the Federal Court got absolutely right.
Bahareh Esfand arrived in Canada from Iran on June 13, 2006 and became a permanent resident upon her arrival. Ms. Esfand arrived as a dependent of her husband, who was determined to be a Convention refugee by an overseas officer. The officer concluded that Ms. Esfand’s husband had a well-founded fear of persecution based on political opinion (Esfand, para 4). Under the policy of family unity, the other family members were accepted to Canada without individual assessment.
Since her arrival in Canada, Ms. Esfand had a second baby and returned to Iran twice, in 2007 and 2011, to visit her mother. The second time she returned to Iran after renewing her Iranian passport (para 5). These trips prompted the Minister to seek the cessation of Ms. Esfand’s refugee status on the basis of paragraph 108(1)(a) of IRPA. Section 108 outlines that a claim for refugee protection can be rejected if “the person has voluntarily reavailed themself of the protection of their country of nationality.” Faced with the possibility of the loss of her permanent resident status, Ms. Esfand asserted that she did not fall under the definition of Convention refugees and persons in need of protection as outlined in the IRPA (para 5).
A Refugee Protection Division (“RPD”) panel concluded that Ms. Esfand formed part of her husband’s application not as a refugee claimant, but as a dependent of her husband (para 6). The RPD also found that the Minister’s representative was wrong in asserting that when a principal claimant is granted refugee protection, all the other claimants are granted refugee status by virtue of the finding on the principal claimant (para 7). The Minister then appealed the RPD decision to the Federal Court.
The issue before the FC was whether the RPD erred in finding that the respondent was not a Convention refugee as contemplated in section 95 of the IRPA. Section 95(1)(a) of the IRPA states that refugee protection is conferred on a person when “the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons.”
The Minister also relied on the Citizenship and Immigration Canada processing manual OP 5: Overseas Selection and Processing of Convention Refugees Abroad class and Members of the Humanitarian-protected Persons Abroad Class (“OP 5”) to make their case. Chapter 10.2 of OP 5 states that only the principal applicant must meet the eligibility requirements and that the family members “derive their refugee status” from the principal applicant. This they argued implied that Ms. Esfand was a Convention refugee. However, the FC pointed out that OP 5 does not have the force of law and that it only suggests that Ms. Esfand has refugee status (para 18). It does not say that Ms. Esfand “has been determined to be a Convention refugee” which is the language of section 95(1)(a) of the IRPA (para 18). Ms. Esfand was never assessed so she could not have been determined to be a Convention refugee.
The most interesting analysis and comment arises in paragraph 21 of Justice Locke’s judgment. Justice Locke points out that the applicant made the argument that the only reason Ms. Esfand’s risk was not assessed separately was for the sake of efficiency. By this the applicant implied that it would be unfair to deny the Minister the ability to cessate refugee status only because the Minister acted efficiently in the past (para 21). To this argument, Justice Locke pointed out that the Minister seems more concerned with removing refugee status than granting it, which is not the principal goal of the IRPA (para 21). This was a very direct reference to the aims of the Minister being opposed to the goals of IRPA, which are to protect the vulnerable.
In the end, Justice Locke concluded that it seems non-sensical to consider a change to the respondent’s status in Canada because she visited a country in which her husband was found to be in danger, but in which she never claimed to be in danger (para 25). In Justice Locke’s view that decision would come close to an absurd consequence (para 25). And with that, the FC ruled that RPD’s decision was reasonable and will be maintained.
Refugees in Canada
The case of Ms. Esfand is non-sensical indeed. The loss of permanent status for a mother of a Canadian born citizen, whose family is legitimately in the country and who has established a life for herself in Canada for almost ten years, sounds truly Kafkaesque. The change in government this past October has seen a Liberal administration that is promoting themselves as more open and accepting. It remains to be seen what directives the new Minister of Citizenship, Refugees and Immigration will choose to pursue as part of their mandate. Though it is telling that the new Ministry now includes refugees in the official title. At least in the case of Ms. Esfand, the court was able to see through the political games and facilitate the application of the true spirit of the IRPA.