Immigration and Refugee Law – Extradition –
Principle of Non-Refoulement
This appeal involved the interplay between the right of refugees
not to be returned to a country where they will face prosecution
(the principle of non-refoulement) and Canada's
obligations with respect to extradition.
The appellants, who are of Roma ethnic origin, arrived in Canada
from Hungary in 2001, and were given refugee status due to a
well-founded fear of persecution. Two years later, Hungary issued
an international arrest warrant in respect of a fraud charge
against the appellants, for an allegedly fraudulent lease for
$2,700 CAD. The Minister of Justice ordered the appellants'
extradition to Hungary.
The principle of non-refoulement prohibits the direct
or indirect removal of refugees to a territory where they run the
risk of being subjected to human rights violations. Section 115 of
the Immigration and Refugee Protection Act
("IRPA") incorporates this principle into statutory law.
However, the Court found that the term "removed" in s.
115 of the IRPA has a specialized meaning and does not include
removal by extradition. Rather, non-refoulement in the
extradition context is dealt with by s. 44 of the Extradition
Pursuant to s. 44 of the EA, the Minister must refuse to
surrender an individual for extradition if the surrender would be
unjust or oppressive having regard to all the relevant
circumstances, or if the request for extradition is made for the
purpose of prosecuting or punishing the person by reason of certain
grounds such as race and religion, or if "the person's
position may be prejudiced for any of those reasons". The
Court held that the prejudice referred to in s. 44 is not limited
to prejudice in the prosecution or punishment of the person, and
that s. 44 protects a refugee against refoulement that
risks prejudice on the listed grounds, whether or not the prejudice
is strictly linked to prosecution or punishment.
A person who has obtained refugee status meets the test for
prejudice, and the Minister must refuse to surrender that person
for extradition unless it is shown that the person has become
ineligible for refugee status. In determining this issue, the
refugee does not have the burden of showing that the circumstances
giving rise to his refugee status continue to exist. The Minister
must consult with the Minister of Citizenship and Immigration
concerning current conditions in the requesting state, and owes a
duty of fairness.
The Court held that the Minister's decision in this case was
based on incorrect legal principles and was unreasonable. Among
other things, the Minister had imposed a burden on the appellants
to show a continuing risk of persecution, and failed to respond to
the appellants' submission to him that they did not fall within
the "serious crime exception" to refugee protection. As a
result, the Court remitted the matter to the Minister for
reconsideration in accordance with its reasons.
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On Oct. 1, 2012, USCIS will begin accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as a TN nonimmigrant visa under NAFTA.