The Refugee Determination Process
| Author | Donald Galloway |
| Pages | 293-310 |
CHAPTER
15
THE
REFUGEE
DETERMINATION
PROCESS
Under subsection 44(1)
of the
Immigration Act,
Any
person
who is in
Canada, other than
a
person
against
whom
a
removal
order
has
been
made
but not
executed,
unless
an
appeal
from
that
order
has
been allowed,
and who
claims
to be a
Convention refugee
may
seek
a
determination
of the
claim
by
notifying
an
immigration
officer.
The
immigration
officer
may be
notified during
an
examination
at a
point
of
entry,
or,
inland,
at a
Canada Immigration Centre
or
during
an
inquiry.1
The
claim must
be
referred immediately
to a
senior immigra-
tion
officer,
who
must determine
the
eligibility
of the
claimant
to
have
the
claim determined
by the
Convention
Refugee
Determination Divi-
sion
of the
Immigration
and
Refugee
Board.
At a
port
of
entry,
the
immi-
gration
officer
may
also forward
a
section
20
report concerning
his or
her
opinion
of the
admissibility
of the
claimant.
The Act
provides that where
it has
been alleged that
a
person
falls
within specified sections
of the Act
which deal with
inadmissibility
on
grounds
of
serious
criminality,2
the
senior immigration
officer
may not
For
information
on
claims made
at an
inquiry,
see
Immigration Manual, EC-2,
"Immigration Inquiries"
at
5.10
and 6.9
[EC].
Immigration Act, R.S.C. 1985,
c.
1-2,
ss.
19(l)(c),
(c.l),
(e),
(f),
(g), (k),
or (1)
[IA].
A.
ELIGIBILITY
293
1
2
294
IMMIGRATION
LAW
determine eligibility until
an
adjudicator
has
made
a
determination
on
these allegations.
The
criteria
by
which
the
senior immigration
officer
is to
determine eligibility
are
contained
in
section
46.01(1)
of the
Act.
A
person
claiming
to be a
Convention
refugee
will
be
found
not
eligible
to
have
the
claim determined
by the
Refugee
Division
in the
following
circumstances:
The
person
has
been recognized
as a
Convention
refugee
by a
country,
other than Canada, that
is a
country
to
which
the
person
can be
returned.3
Since last coming
into
Canada,
the
person
has
already been deter-
mined
not to be a
Convention
refugee
or to
have abandoned
the
claim,
or has
already been determined
not to be
eligible
to
make
a
claim. Persons
who
have gone
to
another country
and
returned
to
Canada
within
90
days
are not
considered
to
have come into Canada
on
their return.
The
person
has
already been determined
to be a
Convention
refugee.
The
person
has
been determined
by an
adjudicator
to
fall
under sec-
tion 19(l)(c)
or
section
19(l)(c.l)(i)
and the
minister
is of the
opin-
ion
that
the
person
is a
danger
to the
public.
The
person
has
been determined
by an
adjudicator
to
fall
under para-
graph 19(l)(e),
(f),(g)Xj),(k)
or (1) and the
minister
is of the
opinion
that
it
would
be
contrary
to the
public interest
to
have
the
claim
determined under
the
Act.
The
person
has
been determined
by an
adjudicator
to
fall
under sub-
paragraph
27(l)(a.l)(i)
and the
minister
is of the
opinion that
the
person constitutes
a
danger
to the
public.
The
person
is
determined
by an
adjudicator
to
fall
within paragraph
27(1
)(d)
and has
been convicted
of an
offence
for
which
a
term
of
imprisonment
of ten
years
may be
imposed
and the
minister
is of the
opinion that
the
person
is a
danger
to the
public.
Also,
the Act
provides
that
a
person
is
ineligible
to
make
a
claim
if he
or
she has
come
to
Canada
from
a
country that
is
prescribed
by
reg-
ulation
as a
country
which
complies
with
Article
33 of the
United
Nations
Thus far,
no
prescription
by
regulation
of the
type
referred
to in the
last paragraph exists, although
the
government
of
Canada
has
negotiated
with
the
United States
a
draft
agreement relating
to
this issue. Originally
intended
to be
implemented
by
April 1996, this controversial
draft
agreement
was
initially
put on
hold, while amendments
to
U.S.
refugee
Where
the
person
can
show
that
he or she
would
not be
given
adequate
protection
in
that other
country,
it
would, however,
be
improper
to
remove
the
person
to
that
country
(ibid.,
s.
53(1)).
See
below,
at
299.
3
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