Exclusion Clauses – Article 1(E)
Certain individuals are excluded from the grant of protection. These are the exclusion provisions; some don’t need Canada’s protection, and some don’t deserve Canada’s protection (Articles 1F..)
In the case of the former: in order to be excluded from the Convention -a claimant’s status in another country must give the claimant rights that are substantially similar to the rights possessed by nationals of that country (the right to return, to work, to study, and to have access so social services).
This usually arises when a claimant makes a claim against their country of nationality but has status in another (something akin to permanent residence).
A claimant can be denied protection if they abandon or reject status in that third country. This prevents claimants from forum shopping. Refugee protection is not for persons “who simply prefer residence in one country over another”.
Either the CBSA (which represents the Minister) or the Board raise this issue. If the Minister is involved then he sends a “Notice to Intervene” and may participate in person to question the claimant (or simply file documents to this effect).
Article IE sometimes raises credibility concerns as well. If a claimant taks actions that result in not being able to return to a (safe) country may well give rise to an inference that there is a lack of subjective fear of persecution. Simply allowing a visa to expire does not generally assist the claimant.
It is imperative when and if this issue is raised (or could be) that the claimant provide evidence that demonstrates that the claimant no longer has status, that an application for status would not be granted automatically and as of right, or that the status is not analogous to the rights of a national. Such evidence could be research/documents as to visa availability or the rights of similarly situated individuals in the third country. It could also include expert (legal or other) opinion.
Needless to say Exclusion Clauses raise complex issues of law including the assessment and application of foreign law. They have serious consequences as they can operate to deny refugee protection even if the individual has a genuine fear in the country of origin.
In my opinion, significant legal training and experience is required to deal with any Exclusion clause -I shudder to think of an ill-prepared consultant (or even lawyer) grappling with this issue.
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