Canada – Earth Refuge Legal

November 20, 2019June 9, 2022

RAD File No VB9-03573

Date: 20 November 2019

Court: Immigration and Refugee Board of Canada, Refugee Appeal Decision

Citation: [2019] RADD No 2229

Short summary

The Refugee Protection Division (RPD) rejected a claim for refugee protection because it found an Internal Flight Alternative (IFA), Port Harcourt, within Nigeria. The Appellant claimed that the RPD erred in its IFA test because the alternate location was unsafe and unreasonable. The Refugee Appeal Board dismissed the appeal but accepted evidence regarding effects of climate change in Nigeria.

Link to original judgement

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Weight of decision

The federal Immigration and Refugee Protection Act (IRPA) gives the Immigration and Refugee Board of Canada jurisdiction to hear and decide cases on immigration/refugee matters. Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court.

Key facts

Appellant alleged he was attacked by Fulani Herdsmen in 2016, following several altercations over their cattle drinking from his fishponds. He claimed that he was hospitalized for 14 months. Appellant fled Nigeria in 2018, travelled through the U.S., then arrived in Canada to seek refugee protection.

Canada’s Refugee Protection Division rejected appellant’s initial application for asylum, prompting an appeal to the Refugee Appeal Board.

Summary of holding

The Refugee Appeal Board utilized a two-part legal test for assessing whether appellant had a reasonable Internal Flight Alternative (IFA):

“First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA.” (¶ 51)

“Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.” (¶ 52)

“Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable.” (¶ 53)

The Appeal Board then gave a summary of the documentary evidence regarding Fulani Herdsmen used by the Refugee Protection Division (RPD) in its original decision:

“The NDP [National Documentation Package] states that climate change and insecurity in Nigeria’s northern region have triggered a southward migration of Fulani Herdsmen, resulting in conflict between local farmers and the Herdsmen as they search for land to graze their cattle. The conflicts occur primarily in Nigeria’s Middle Belt, including the states of Adamawa, Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, Taraba, and the Federal Capital Territory.” (¶ 55)

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October 21, 2016May 9, 2022

Beauboeuf v. Canada

Date: 21 October 2016

Court: Immigration and Refugee Board of Canada (Immigration Appeal Division)

Citation(s): 2016 CarswellNat 8691 

Short summary 

A 71-year-old Haitian applicant successfully appealed a refusal letter denying her permanent residency in Canada. While she was originally denied a visa because of the potential for her health conditions to cause excessive demand on health or social services in Canada, she demonstrated compelling humanitarian and compassionate grounds that warranted special relief. A major element of her humanitarian and compassionate claim was the devastation ensuing from the 2010 earthquake in Haiti.

Summary by: Erin Levitsky

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is not binding on Canadian courts because it comes from a tribunal. It is persuasive, however, and the fact that it is an appeal decision gives it greater weight.

Key facts

The appellant, Yamiley Beauboeuf, and her husband were both born in Haiti and are both citizens of Canada. They have two sons who are also Canadian. The family lives in Ottawa.

Following the devastating earthquake in Haiti in 2010, Beauboeuf’s mother, Rose Marie Yolaine Napoléon came to visit her family in Canada and never left. Beauboeuf and her husband co-sponsored Napoléon for permanent residence (PR) as a member of the family.

Previous instances

In October 2012, Napoléon received a procedural fairness letter containing the opinion of a medical officer who determined that her medical condition—diabetic illness complicated by chronic kidney disease—might cause excessive demand on health or social services in Canada. Napoléon provided additional submissions and documents but Citizenship and Immigration Canada (CIC) ultimately issued a refusal letter in April 13 refusing her PR citing the same concern, pursuant to § 38(1) of the Immigration and Refugee Protection Act (IRPA). Beauboeuf appealed the decision.

Summary of holding

Rather than contest the legal validity of the refusal letter, the appellant argued there were “sufficient humanitarian and compassionate considerations, taking into account the best interests of the children directly affected by the decision and the other relevant circumstances of her case” (¶ 3) to justify special relief pursuant to ¶ 67(1)(c) of the IRPA. The Minister argued the threshold for relief based on humanitarian and compassionate grounds was not met.

The Immigration Appeal Division (IAD) allowed the appeal, holding that while the refusal letter was legally valid, the humanitarian and compassionate considerations put forward were sufficient to warrant special relief.

The IAD considered several factors to determine whether humanitarian and compassionate considerations were sufficient, including:

“(i) the relationship of the sponsor to the applicant and the strength of that relationship; (ii) the reasons for the sponsorship; (iii) the overall situation of both the sponsor and the applicant; (iv) the family support in Canada; (v) the existence of dependency as between the applicant and the sponsor; (vi) the best interests of any children directly affected by the decision; and (vii) the objectives of the IRPA” (¶ 5).

The IAD considered the fact that the main reason Beauboeuf sponsored her mother was to keep her alive. It held that being deported would be akin to a death sentence, as dialysis, the medical treatment she required, was not available in Haiti.

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April 16, 1938February 14, 2022

THE TRAIL SMELTER ARBITRATION CASE (UNITED STATES VS CANADA)

Date of judgement: 16 April 1938 and 11 March 1941

Citation(s): UN REPORTS OF INTERNATIONAL ARBITRAL AWARDS, Trail Smelter case (USA v. Canada), 16. April 1938 and 11. March 1941, Volume III pp. 1905-1982

Short summary

This arbitration case between the United States (U.S.) and Canada is the foundational decision for the development of the prohibition of significant transboundary environmental damage in international environmental law.

Summary by: Robert Los

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The decision(s) of the Arbitrational Tribunal continue to bear immense weight in the realm of international law.

Key facts

A zinc and lead smelter operating since 1896 in the Canadian town of Trail in British Columbia, located 16 km from the U.S. border, became the subject of dispute in this case.

Between 1925 and 1927, two smokestacks were added to the plant. This caused an increase in pollutant emissions, specifically a doubling of sulfur dioxide. This reached U.S. soil in the form of “acid rain” and caused crop failures and damage in the Columbia River Valley (Washington State). Between 1927 and 1935, the U.S. government protested to the Canadian government regarding this damage to the Columbia River Valley.

In 1928, both governments commissioned the International Joint Commission by the United States and Canada to conduct arbitration proceedings. The Commission submitted its final report in 1931, which proposed that the Canadian government pay damages of $350,000 USD for the damage caused, and that emissions from the Trail plant be limited.

Canada paid the damages. However, no improvements were seen with regard to pollutant emissions, and the conflict began again. For this reason, in 1935 the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., was signed, and the parties agreed to have the following questions settled by arbitration:

1. Whether the Trail plant caused any damage to the State of Washington since 1932, and if so what indemnity should be paid?

2. If the answer to the first question is in the affirmative, whether said damage should be stopped in the future, and if so, to what extent?

3. If the damage should be stopped, what measures should the Trail Smelter adopt? (Possibly subject to conditions or stipulations).

4. What indemnity or compensation, if any, should Canada pay following the answers to questions 2 and 3?

Summary of holding

In its first decision in 1938 regarding the first question, the Arbitration Tribunal determined that Canada had to pay damages to the U.S. government for the years 1932 to 1937. However, this compensation payment only applied to the damage caused to the soil of the Columbia River Valley. The pollution of the air was not considered to be damage, but rather only a transport medium for the exhaust gases. The U.S. also tried to prove damage to forestry, agriculture, and livestock, but the tribunal rejected this for lack of convincing evidence.

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