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REFUGE, ASYLUM IN KOREA
In-Canada refugee claims: Grounds for ineligibility
In-Canada refugee claims: Grounds for ineligibility
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
A claim is not eligible to be referred to the Refugee Protection Division (RPD) if the claimant is described in any of the paragraphs of the Act described in this table:
section in IRPA
A person who has already become a protected person in Canada is not eligible to make a refugee claim, as they already enjoy refugee protection in Canada. This includes a person who:
became a protected person through resettlement [A95(1)(a)],
was found to be a refugee by the Immigration and Refugee Board (IRB) [A95(1)(b)]
had a positive pre-removal risk assessment (PRRA) [A95(1)(c)].
This provision prevents a person from making multiple refugee claims, whether their previous claim was made under the Immigration and Refugee Protection Act (IRPA) or previous immigration legislation [R339]. This includes claims that were vacated or ceased by the RPD (or the Convention Refugee Determination Division under the former Act); and claims that were rejected by the Minister under the former Act.
Note: a claimant who was refused resettlement at a Canadian visa office is not ineligible under A101(1)(b), as their refugee protection concerns were not heard by the IRB.
A person with previous ineligible claims or with a claim that was determined by the RPD to have been withdrawn or abandoned is barred from a subsequent referral to the RPD, even if the circumstances with respect to their ineligibility have changed.
If the person left Canada and six months or more have passed since their departure, the person may be entitled to apply for a PRRA.
A person who has been recognized as a Convention refugee by a country other than Canada, and can be returned to that country, is not eligible for determination by the RPD.
The words "can be returned to that country" refer to whether that jurisdiction will readmit the person. If the country will not re-admit the claimant, then A101(1)(d) does not apply.
To determine if A101(1)(d) applies there is a two part test and both parts must be met:
Has the claimant been recognized as a Convention refugee by a country other than Canada?; and
Can the claimant return to that country?
The 101(1)(d) does not apply to persons who have become citizens of the country that recognized them as Convention refugees.
The officer must be satisfied that the person in question has been recognized as a refugee under the 1951 Convention or the 1967 Protocol (PDF, 30 KB). Persons may be in possession of an identity or travel document stating that they had been granted refugee protection in the issuing country. The person’s status may also be confirmed by the person’s own statements. Some countries grant protection from refoulement or deportation on grounds that are not related to the requirements of the refugee Convention. An example of this would be protection pursuant to Article 3 of the Convention against Torture, which is not the same as protection under the 1951 Convention.
If the country that granted protection has not signed either the 1951 Convention or the 1967 Protocoll (30 KB), the claim may be determined eligible for referral to the RPD.
If a person who has been recognized as a Convention refugee states that the concerned country will not re-admit them, the officer must confirm this with officials of that country.
Persons who have “Withholding of Removal” status in the United States (U.S.) are considered to have been recognized as Convention refugees for the purposes of paragraph 101(1)(d). However, not all persons with this status are readmitted to the U.S. once they have left. The officer must confirm with officials that the person will be readmitted.
A person whose claim is determined ineligible under A101(1)(d) may be entitled to a risk assessment under A115(1).
The Agreement between Canada and the United States of America for Cooperation in the Examination of Refugee Status Claims by Nationals of Third Countries is commonly known as the as the Safe Third Country Agreement (STCA) or ‘Agreement.’
The U.S. is the only country that has been designated by the regulations as a safe third country, under R159.3.
A claimant who arrives at a land border Port of Entry from the U.S. may not be eligible for referral to the IRB under A101(1)(e).
There are exemptions and exceptions to the STCA that permit some claimants to make a refugee claim in Canada even if they did come from the U.S. For more information on the STCA, refer to R159.1 to R159.7 and Procedures on the Safe Third Country Agreement.
Under the terms of the 1951 Convention, a country need not provide protection if the claimant poses a danger to security, violated human or international rights, or committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee.
While a person found inadmissible on grounds of participation in organized crime is ineligible, the provisions defining organized crime ensure that a person who has merely used the services of such organizations to come to Canada (e.g., used a people smuggler), remain eligible to have their claim referred to the RPD.
When a person appears to be inadmissible under A34, A35, A36(1)(b) or A37, the officer cannot determine eligibility until the person’s admissibility has been determined conclusively by the Immigration Division of the IRB. If this admissibility hearing will not be concluded prior to expiration of the 3-working-day timeframe, the officer must suspend consideration of eligibility [A100(2)].
A refugee claim is ineligible if:
the claimant is inadmissible on grounds of serious criminality due to a conviction in Canada which is punishable by at least 10 years (irrespective of the prison sentence they received [if any]);
the claimant is inadmissible on grounds of serious criminality due to a conviction outside Canada that would be punishable by at least 10 years if committed in Canada (there is no need to seek a danger opinion).
When a claimant appears to be inadmissible for serious criminality, prepare an A44 report, refer it to the Immigration Division, and suspend the consideration of eligibility as per A100(2). If/when the client is determined to be inadmissible, the officer determines the person’s claim ineligible.
Persons whose refugee claims are ineligible under A101(1)(f) will normally be entitled to a PRRA (Applicants described in subsection A112(3)).
See also Procedures on refugee claim suspension.
Refugee claims of persons inadmissible due to convictions in Canada are ineligible only if the offence is punishable by a maximum prison term of at least 10 years.
Refugee claims of persons inadmissible due to convictions outside Canada are ineligible only if the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum prison term of 10 years or more.