Canadian Refugee Procedure/Claimant or Protected Person in Custody

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Rule 30 - Claimant or Protected Person in Custody[edit]

The text of the relevant rule reads:

Claimant or Protected Person in Custody

Custody
30 The Division may order a person who holds a claimant or protected person in custody to bring the claimant or protected person to a proceeding at a location specified by the Division.

A large majority of refugee claimants who are detained are detained on grounds of identity or being a flight risk[edit]

One study found that the vast majority (93 percent) of refugee claimants detained in 2015 were detained on grounds of identity or of their being flight risks, without allegations that they represented a danger to the public or a security risk.[1]

Access to Justice issues for persons in custody[edit]

There are particular access to justice issues for persons in custody: claimants in detention have consistently been identified as those who have had the greatest difficulty accessing legal counsel.[2] The UN Committee Against Torture, in its General Comment on non-refoulement, has listed this as one situation in which the burden of proof should reverse, and it should fall on the state to rebut the claimant's assertions where the author of the complaint faced difficulties in obtaining evidence to substantiate their claim:[3]

[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty, the burden of proof is reversed and it is up to the State party concerned to investigate the allegations and verify the information on which the communication is based.[4]

For more details on this, see Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The claimant must ensure that certain claimants are assisted to make their cases.

References[edit]

  1. Obiora Chinedu Okafor, Refugee Law After 9/11: Sanctuary and Security in Canada and the United States, UBC Press 2020, Law and Society Series, ISBN 9780774861465, page 74.
  2. BC Public Interest Advocacy Centre, Refugee Reform Paper, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf>, page 3.
  3. Çalı, B., Costello, C., & Cunningham, S., Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies, German Law Journal, 21(3) (2020), 355-384. doi:10.1017/glj.2020.28 (Accessed April 11, 2020), page 375.
  4. CAT, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, Paragraphs 15 and 16, U.N. Doc. CAT/C/GC/4 (Sep. 4, 2018), at para. 38.