Judicial Review -Challenging a finding that claimant is excluded from the Refugee Convention

It was a pleasure appearing before Justice Mosley of the Federal Court this last Monday. We challenged a decision of the Refugee Appeal Division that excluded our client from Refugee protection because of his permanent residence status in Italy. Like all exclusion clauses Article 1E is a complicated analysis and one that lends itself to error.

Reading Professor Hathaway it is clear that he is no fan of how the exclusion clause has been interpreted in Canada and other countries such as Australia and the United States.

On its face the exclusion clause is meant to prevent forum or asylum shopping.

The Article states that the (Refugee) Convention doesn’t apply to those recognized as having the rights and obligations which are attached to the possession of the nationality of the putative country of exclusion. It is clear that Professor Hathaway is concerned about the expansion of exclusion over time; an assessment that elevates form over substance. H

Hathaway’s take: those rights and obligations mean essentially assimilation that the individual has been integrated in the putative country –it’s for those that truly enjoy treatment genuinely equivalent to that afforded to nationals and the only ones that should be excluded are truly de facto nationals. Exclusion is not to be invoked where there is tenuous attachment or status that can be withdrawn.

Exclusion causes should have demanding criteria; they are meant to exclude those that truly do not need protection or truly do not deserve protection.

I think that countries and states that are party to the convention can’t just wash their hands and leave claimants to the vagaries of fate and that there is maybe, perhaps status or protection somewhere else.

In our case we had an individual from Africa flee persecution more than a decade ago and ended up on the shores of Italy. He has had a difficult life in that country and that reality is common to other migrants –tens of thousands of migrants from Africa –who find themselves facing racism and nativist sentiment in Italy.

Homelessness, underemployment, systemic and structural discrimination await Black African migrants in Italy. It is no wonder that our client sought reprieve and relief from status he had in Italy.

In denying his claim, no consideration was paid to the credible and meritorious risk he faces in his country of nationality. Instead, the Board and RAD simply looked to the fact that he had permanent residence status in Canada.

The JR itself raised a number of issues: that Italy was not safe for the claimant (that he endured discrimination amounting to persecution there) and thus is not a 1E country; that the RAD erred in finding that the claimant enjoyed the basic rights afforded to nationals (and that his status lapsed in any event and he did not have the right to return).