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Before you apply for refugee status in Canada, think on these things

Wednesday, January 08, 2014    

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Mr Brown:

I have heard of refugee claims being made to stay in Canada. What are the circumstances under which someone can file for asylum? How come more Jamaicans are not able to stay in Canada on that basis as there is so much going wrong in this country -- both economically and socially?

-- CSH

Dear CSH:

There have been many cases that deal with Jamaican nationals who apply for refugee protection to remain in Canada. I will begin by giving a brief overview of the concept of the refugee protection in Canada. I will then summarise how the claims for refugee protection have worked (or failed to work) for many people who have submitted claims on different grounds. Every refugee claim must be substantiated on its own merits. It must be highlighted that there is a presumption that Jamaica is able to provide protection to its citizens as it is a democratic society with the rule of law.

Convention refugee

Under Canadian Immigration law, a Convention refugee is a person who is outside of his or her country of nationality (or habitual residence) and is unable or unwilling to avail themselves of the protection of their country due to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

In other words, the person is claiming refugee protection in Canada out of fear of persecution if he or she returns to his/her country of origin. The person is unable or unwilling (based on fear) to obtain protection (from the State) in his/her country.

Social Group

Membership of a Social Group is based on the following:

* An innate or unchangeable characteristic (gender, linguistic background and sexual orientation);

* Voluntary association for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

* Groups associated by a former voluntary status, unalterable due to its historical permanence (Holocaust victims).

Based on this definition, membership in a category or group such as "poor people" does not in and of itself make one eligible for refugee protection, even though one may suffer disadvantage.

Person in need of protection

The definition of convention refugee is a very specific definition that entails persecution on specific grounds. However, should one not be able to meet the definition of convention refugee, but remains in need of protection, one may still be a person in need of protection.

A person in need of protection is a person in Canada whose removal to their country would subject them personally to torture; a risk to their life; or a risk of cruel and unusual treatment or punishment.

Additionally, the risk:

* Would be faced by the person in every part of that country.

* Is not faced generally by other individuals in or from that country.

* Is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and

* Is not caused by the inability of that country to provide adequate health or medical care.

Sexual Orientation

There was a case in 2010 in which a 45-year-old Jamaican male claimed refugee protection based on fear of persecution because of his sexual orientation. He claimed that he faced a lifetime of harassment and insults and was stoned due to his feminine mannerisms. He suffered a nervous breakdown due to the rejection from his family based on his orientation.

However, his claim failed because he was found only to have suffered from discrimination in Jamaica, and not persecution. He never sought the protection of the state while living in Jamaica. There was insufficient evidence to demonstrate that he faced additional personalised risks, subject to torture, risk to life or of cruel and unusual treatment or punishment in Jamaica.

The panel recognised that there is documentary evidence indicating that although Jamaica continues to encounter serious problems with criminal violence, drug and gang-related violence, and societal discrimination against homosexuals, Jamaica is a Commonwealth country with a constitutional parliamentary democracy and a generally independent judiciary. In this case, the applicant failed to rebut the presumption of state protection.

Political opinion

There was a case in 2009 in which a 55-year-old Jamaican male sought refugee protection from persecution based on political party affiliation and being a member of a targeted family. The claimant lived with his uncle who was a member of the Jamaica Constabulary Force and made enemies with "local gangsters and rebels." He alleged that he was beaten and incarcerated in a hole in the ground in 1977. He further alleged that he was captured by members of a political party, who kept him in a hole for weeks.

The panel did not find the claimant's testimony to be credible and rejected his claim in finding that the claimant was not at risk of his life or to a risk of cruel and unusual treatment or punishment or torture. The panel acknowledged that Jamaica has its fair share of problems, including having one of the highest murder rates in the world. However, this generalised violence does not necessarily result in a reason to grant refugee protection. The risk must be personalised, and not of a general nature.

Domestic abuse

In 2005, there was a claimant from Jamaica who sought refugee protection based on membership in a particular social group, namely, women subjected to domestic (physical and psychological) abuse by her partner, who was a local gang leader. The claim failed. It was found that there was insufficient evidence.

The panel recognised that domestic abuse against women is a serious problem in Jamaica. However, there is evidence to suggest that Jamaica is making serious efforts to address this problem. It was acknowledged that Jamaica has a stable government and is in control of its territories. It has a national as well as local police forces and an independent judiciary. There are legislative, enforcement and correctional institutions and arms of the different levels of government to protect victims of domestic abuse. It is known that such victims are entitled to state protection in Jamaica. State protection was and is available in Jamaica. Jamaica is a functioning democracy with the rule of law, and thus the presumption of state protection applies.

The claimant failed to rebut this presumption by providing "clear and convincing" evidence that the state of Jamaica is unable or unwilling to protect her. She failed to show that she has exhausted all avenues of protection. No government can guarantee the protection of all of its citizens at all times. It was held that a local refusal or lack of ability to provide protection is not a state refusal or lack of ability.

For further information visit jamaica2canada.com.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM -- a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com

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