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Tag: Deportation

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RAD File No VB9-03573 

Date: 20 November 2019 

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

Citation: [2019] RADD No 2229 

Summary by: Madison Bruno 

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  

Click here to open the case in PDF format

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 Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court.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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AC (Tuvalu)

Date: 04 June 2014

Court: New Zealand: Immigration Protection Tribunal

Citation: AC (Tuvalu) [2014] NZIPT 800517-520

Short summary  

A family appealed their immigration cases to New Zealand’s Immigration and Protection Tribunal, claiming their rights to life and protection would be violated if returned to Tuvalu because of climate change impacts. The Tribunal dismissed their claims, finding that they could not meet their evidentiary burden in qualifying as protected persons, nor in demonstrating that the government of Tuvalu failed to meet its duty to address the known effects of climate change on its populace.

Summary by: Keri Pflieger 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Immigration and Protection Tribunal is an expert forum administered by the New Zealand Ministry of Justice. It primarily assesses immigration and protection claims under New Zealand’s Immigration Act 2009, which codifies the Refugee Convention (§ 129), Convention Against Torture (§ 130), and the ICCPR (§ 131). The Immigration and Protection Tribunal’s decisions hold significant weight in New Zealand. Decisions may only be appealed to the domestic High Court on issues of law. 

Key facts

The Appellants were a Tuvaluan family (husband, wife, and two children) living in New Zealand who appealed the denial of their immigration cases and sought protected person status under New Zealand’s Immigration Act 2009.

The husband and wife each noticed the effects of climate change in Tuvalu, including increased land inundation, sea level rise, difficulties growing food, coastal erosion, and droughts. Prior to their departure from Tuvalu, they lost two late-term pregnancies, one of which they attributed to the quality of medical care in Tuvalu.

The husband and wife left Tuvalu for New Zealand in 2007, after the husband’s family home was demolished and the wife’s workplace shut down from insufficient funding.

The husband expressed fear for his family’s safety if returned to Tuvalu, due to minimal employment opportunities and lack of access to clean drinking water free from contamination. In addition to sharing her husband’s concerns, the wife also feared the quality of medical care facilities and availability of medicine access for her children, sea level rise’s negative effects on vegetation growth, and not having pathways to land ownership.

Previous instances

In November 2012, Appellants applied for refugee and/or protected person status. However, their claims were dismissed on 17 March 2013 by the Refugee Status Branch. Appellants appealed this dismissal under § 194(1)(c) of the Immigration Act 2009 with the Immigration and Protection Tribunal on 03 April 2014. This case, AC (Tuvalu), is the Tribunal’s assessment of that appeal.

AC (Tuvalu) is a joint appeal issued contemporaneously with AD (Tuvalu) [2014] NZIPT 501370-371. Under that appeal, appellants challenged deportation on humanitarian grounds under § 194(5) & (6), and § 196(6) & (7) of the Immigration Act 2009 to prevent separation of the husband’s family living in New Zealand. Appellants succeeded under that appeal.

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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N v. United Kingdom, Application No. 26565/05

Date of judgement: 27 May 2008

Court: European Court of Human Rights

Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008

Short summary 

The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion. 

Key facts

The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).

The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices. 

Summary of holding

The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering. 

The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42). 

In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.

Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction. 

If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely. 

Potential takeaways for future climate migration litigation

  • Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts. 
  • This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium. 
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