The grey zones in refugee determination and the problems with black and white characterizations of refugee claimants

The information discussed in this piece should not be relied upon as legal advice or information. Please refer to Citizenship and Immigration Canada, or the Immigration and Refugee Board for more information. 

Introduction

In the midst of dramatic changes in how Canada processes, judges and determines who deserves refugee protection, I cannot help but notice just how polarized the debate has become. The Conservative government will have you believe that most refugee claims are “bogus”, that claimants are liars attempting to scam the system and take advantage of Canada’s generosity. Others will have you believe that most refugee claimants fall squarely into the definition of a refugee. However, from what I have observed in my direct and indirect experiences with the refugee determination system, neither image captures the reality of the majority of refugee claimants.

I will outline here the many ways in which individuals who are definitely vulnerable and in need of protection do not fit within the definition of a refugee, illuminating a huge grey zone which I think makes up the majority of those who claim refugee status.

1. Many “failed” refugee claimants have lived horrific, traumatic experiences but do not fit into the narrow definition of a refugee

Here are some things that would disqualify someone from claiming refugee status regardless of the serious persecution faced in their home country:

– claiming refugee status in neighbouring countries regardless of the political situation in that neighbouring country

– returning to a country you fled, even for a short period of time

– failing to relocate to another part of your country that, according to the evidence available to the Immigration and Refugee Board, is safer

– taking too long to claim refugee status after arriving in a safe country

– passing through countries without claiming refugee status at the first opportunity

Many of these actions are consistent with someone who is trying their best to find safety or does not negate the real persecution they are facing in their home country. However, these examples greatly decrease the chances that a refugee claim will be accepted, even if evidence of serious risk or persecution is established in their home country.

2. Some people face serious hardship but do not fit into the definition of a refugee

Without going into too much detail, the threshold for being accepted as a refugee is extremely high. Many individuals who face serious problems and hardships do not qualify despite, in my opinion, deserving our protection.

3. Individuals who make up stories may still be deserving of our protection if they told the truth

Some refugee claimants rely on stories that were invented or modified by others who have some standing in their community. I have, for example, met with clients who tell stories that directly contradict fingerprint evidence obtained at border crossings.

It is easy to conclude that someone who lies is undeserving of our protection, but in my personal experience, this conclusion is not always that easy to make. Take for example, minors who are breaking down in your office out of stress, running out every five minutes to confirm the details of a fabricated story with a person whose identity they refuse to reveal. I may sense that these minors are not telling me the truth, but I cannot assume that the truth is rosy and comfortable if they were to tell it to me, and very often, my gut is telling me otherwise.

I’d like to think that I’d act differently in their position, but would I really trust a legal professional that I just met in a foreign country who is telling me that I must tell the truth over individuals with familial or cultural ties that go back years?

Regardless of what I would do, just because a refugee claimant is not being completely honest does not mean that the real story is any less traumatic, damaging or valid as a refugee claim.

Conclusion

Many who have their refugee claims rejected have led lives which most people would qualify as deserving of refugee protection. Many claimants fall within this grey zone. Without acknowledging the problems associated with painting black and white images of refugees and refugee claimants, it is impossible to design and maintain a system that determines refugee status that is fair and just.

For more information:

Myths of the bogus refugee claimant

Challenging The Myths: The Truth About Canadian Refugee Law

 

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